Citing Inconsistencies in Defendant’s Actions, Court Finds Issues of Fact as to Pretext Warranting Denial of Summary Judgment Motion on Title VII Race/National Origin Discrimination Claims

In Arkorful v. New York City Department of Education, 18-cv-3455 (NG) (ST), 2024 WL 298999 (E.D.N.Y. Jan. 24, 2024), the court, inter alia, denied defendant’s motion for summary judgment on plaintiff’s claim of discrimination (based on race and national origin) under Title VII of the Civil Rights Act of 1964.

Initially, the court determined that plaintiff presented a prima facie case of discrimination. Specifically, plaintiff presented adverse actions in the form of being stripped of a title and being denied resources. It also found that plaintiff presented sufficient evidence to support an inference of discrimination. Specifically, plaintiff cited the fact that he was replaced by a white male, and that he was told, in response to his question of why he was passed over for a promotion, that “if you don’t like it you can go to wherever you came from.”

And after finding that defendant articulated a legitimate, non-discriminatory reason for its decision, it turned to the issue of pretext.

As to that point, the court explained:

The remaining issue is whether Mr. Arkorful has proffered sufficient evidence to show that DOE’s stated reason is a pretext for discrimination. Here, inconsistencies in connection with the process for reassigning Mr. Berger to the QA Team Lead role present evidence of pretext. See Graziadio v. Culinary Inst. of Am., 817 F.3d 415, 430 (2d Cir. 2016) (plaintiff can meet his burden “by demonstrating weaknesses, implausibilities, inconsistencies, or contradictions in the employer’s proffered legitimate” reasons for its action). Mr. Arkorful has amassed numerous inconsistencies in DOE’s actions. As an initial matter, individuals who made up the management team involved in the reorganization distanced themselves from the decision-making process when asked about it during depositions. Contradictions also exist with respect to when Mr. Berger was told of his reassignment. Mr. Diomede said he had no interaction with Mr. Berger prior to the reorganization, but the record contains an email from Mr. Arkorful that Mr. Diomede forwarded to Mr. Berger on January 20, 2016, discussing the ticketing backlog being down to 37 tickets. The email reads: “Eric, Just an FYI. Looks like we are starting to get a handle on QA. Not there yet!” Such a message demonstrates Mr. Berger was being included on QA-related activities as early as January 2016.

More importantly, it is implausible that Mr. Berger was a better fit for the role than Mr. Arkorful given that, by his own admission, Mr. Berger had no experience with QA work until he took on the position, and then he needed to be trained by Mr. Arkorful. Mr. Arkorful, on the other hand, has adduced a significant number of positive performance reviews by supervisors, including those involved in the decision to assign the Team Lead role to Mr. Berger. Mr. Arkorful not only had superior QA skills but also had experience managing team members based on his time supervising Mr. McComb and Mr. Lombardo beginning at the end of 2014, and doing project management. His former supervisor, Mr. Davis, called his work “exemplary,” and even Mr. Iacoviello affirmed in a letter of recommendation that Mr. Arkorful had “successfully completed … challenging projects by leading and coordinating the efforts of his team.” “[A]n employer’s disregard or misjudgment of a plaintiff’s job qualifications may undermine the credibility of an employer’s stated justification for an employment decision, suggesting pretext.” Zakre v. Norddeutsche Landesbank Girozentrale, 396 F. Supp. 2d 483, 509 (S.D.N.Y. 2005) (internal citations omitted). In sum, Mr. Arkorful has raised a triable issue of fact as to his and Mr. Berger’s qualifications sufficient to show a reasonable jury that DOE’s decision to place Mr. Berger in the position Mr. Arkorful had previously held was a pretext for discrimination against Mr. Arkorful.

Moreover, after Mr. Arkorful raised concerns with the assignment of Mr. Berger and complained about discrimination, Mr. Berger’s Team Lead assignment was rescinded. Ms. Anaya said that, in wanting to give Mr. Berger the responsibility for leading the group, she “failed to realize that it stopped an opportunity for someone.” Anaya Dep. at 190:18–191:2. Management agreed to post a job description for the role so that Mr. Arkorful could apply for it, but decided not to post it when he was out on leave for an extended period of time. A jury could look at the decision to backtrack on the Team Lead assignment once discrimination was alleged as underscoring the possibility of pretext in the initial move.

Finally, a comment that attributes a plaintiff’s professional setback to prejudice against a protected category can warrant a finding that legitimate actions were pretext for discrimination. In Carter, the plaintiff, a teacher, had complained to senior school officials about colleagues mistreating her. In response, her principal agreed that her colleagues were intimidated by her because she was a Black woman and stated that he was also intimidated by her. See Carter, 850 F. App’x at 27. In this case, Mr. Diomede’s statement in response to Mr. Arkorful’s concern about his treatment, that Mr. Arkorful could go back to wherever he came from, lends support to a finding of pretext for DOE’s actions.

The court concluded that “[b]ecause a reasonable jury could find not only that the grounds proffered were pretextual, but also that DOE discriminated against Plaintiff when it removed him from a leadership role in a team he built and replaced him with a less qualified individual of a different race,” warranting denial of defendant’s motion as to plaintiff’s race and national origin discrimination claims.

Share This: