In Luo v. AIK Renovation Inc. et al, 2023-cv-5878 (LJL), 24 WL 4444283 (S.D.N.Y. Oct. 8, 2024), the court, inter alia, denied defendant’s motion for summary judgment on plaintiff’s discriminatory termination claims asserted under Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law, and the New York City Human Rights Law.
From the decision:
As discussed supra, Plaintiff’s evidence that Nejasmic’s stated reasons for Plaintiff’s termination were not his real reasons is strong. A jury could find that Nejasmic lied when he told Plaintiff he was being terminated for performance reasons and it could also find that the reasons offered after Defendants were sued were contradicted by Defendants’ contemporaneous actions.
Plaintiff’s prima facie evidence of discrimination, by contrast, is not particularly strong. Plaintiff was an Asian and Chinese employee who was fired and replaced by a white employee Dkt. No. 33 ¶ 5; Dkt. No. 37-5 ¶ 9. Nejasmic had purportedly worked with the replacement employee on a previous project. Rec. 43:00–45:00. However, when Plaintiff confronted Nejasmic on the recording with the fact that the replacement had no experience with electricity and ductwork, areas in which Plaintiff had supposedly been deficient, Nejasmic did not refute Plaintiff’s claim but merely stated that, if so, the replacement also would be fired. 44:30–45:00. This suggests, at the least, that Nejasmic did not verify that Plaintiff’s replacement would have the skills that Plaintiff supposedly lacked. Moreover, there is evidence that Plaintiff was the only Asian American ever employed by AIK in any role. Dkt. No. 37-3 ¶ 2. Plaintiff attempted to introduce a Chinese employee to the company, but that employee was not hired. Dkt. No. 37-3 ¶ 11, Dkt. No. 34-4 at 10–11. AIK’s project managers were almost all white employees who, like Nejasmic, had an Eastern European ethnic background. Dkt. No. 37-12. AIK had one Black project manager between 2017 and 2023, but that person was employed for only three days in 2023 after Plaintiff’s employment was terminated. Id. Such evidence is properly considered “as one component of [the Court’s] cumulative inquiry.” Walsh v. N.Y.C.H.A., 828 F.3d 70, 77 (2d Cir. 2016); see Gordon v. City of New York, 2018 WL 4681615, at *12 (S.D.N.Y. Sept. 28, 2018) (while “statistics alone are insufficient to support a disparate treatment claim,” they may be used as another ‘individual evidentiary brick[ ]’ supporting an inference of discriminatory animus” (quoting Walsh, 828 F.3d at 76)).
On the other hand, Nejasmic, who fired Plaintiff, had hired him only months before while aware of his ethnic background. “When the same actor hires a person already within the protected class, and then later fires that same person, ‘it is difficult to impute to her an invidious motivation that would be inconsistent with the decision to hire.’ ” Carlton v. Mystic Transp., Inc., 202 F.3d 129, 137–38 (2d Cir. 2000) (quoting Grady v. Affiliated Cent., Inc., 130 F.3d 553, 560 (2d Cir.1997)); see Schnabel, 232 F.3d at 91. This is particularly true “where the termination occurs within a relatively short time after the hiring.” Carlton, 202 F.3d at 137.
There is also little or no relevant evidence of any discriminatory remarks. Plaintiff mentions two derogatory remarks about Asian or Chinese employees. One is Renosis’s comment with respect to the potential employee Plaintiff introduced to AIK, and the other is the comment attributed to the field operation manager Wojciech by another employee named Juan. Dkt. No. 37 at 13–14. However, there is no genuine dispute that only Nejasmic, not Renosis or Wojciech, made the decision to fire Plaintiff. Dkt. No. 34-4 at 8–9; Dkt. No. 34-5 at 4–5; Dkt. No. 37-8 at 34.13 “[R]emarks made by someone other than the person who made the decision adversely affecting the plaintiff may have little tendency to show that the decision-maker was motivated by the discriminatory sentiment expressed in the remark.” Tomassi v. Insignia Fin. Grp., Inc., 478 F.3d 111, 115 (2d Cir. 2007); see Brown v. Cnty. of Erie, 2013 WL 885993, at *7 (W.D.N.Y. Mar. 8, 2013) (“Courts have routinely held that stray remarks by non-decision makers are insufficient, without other evidence, to raise an inference of discrimination.”). Tellingly, Plaintiff identifies no discriminatory comments by Nejasmic. Dkt. No. 37-10 at 34–35. Plaintiff also has identified no evidence that would suggest that Resnosis had any influence on Nejasmic’s decision to terminate Plaintiff’s employment. Cf. Naumovski v. Norris, 934 F.3d 200, 220 (2d Cir. 2019) (noting that under the cat’s paw theory of liability, when an employee “manipulates an employer into acting as a mere conduit … the employees intent can be imputed to the employer.” (quoting Vasquez v. Empress Ambulance Serv., Inc., 835 F.3d 267, 272, 274–75 (2d Cir. 2016)).14 As to Plaintiff’s testimony about what Juan told him that Wojciech had stated to Juan, that evidence is not supported by any evidence from Juan or Wojciech themselves and thus is inadmissible hearsay for the proposition that Wojciech actually made that statement. See Fed. R. Civ. P. 801(c); United States v. Dupree, 706 F.3d 131, 136 (2d Cir. 2013). Accordingly, it is not properly considered on this motion for summary judgment. See Gerzhgorin v. Selfhelp Cmty. Servs., Inc., 2023 WL 2469824, at *2 (2d Cir. Mar. 13, 2023).
Courts have permitted cases to survive summary judgment and to go forward where, as here, the evidence of discriminatory intent is not particularly strong, but the evidence of pretext is strong. In Zimmermann, for example, the Second Circuit held that a plaintiff’s “slight” numerical evidence of discrimination, combined with “extremely substantial” evidence that the employer’s explanation of poor performance was a pretext, was sufficient to allow a jury to draw an inference of sex discrimination. 251 F.3d at 382–83. Similarly in Zann Kwan, a retaliation case, the court held that mere temporal proximity between the complaint and the adverse action, combined with the employers “inconsistent” and at some points “directly contradict[ory]” explanations for her termination, were sufficient for a jury to infer retaliation. 737 F.3d at 846–47.
Although the question is close, the absence of discriminatory comments by Nejasmic and the same-actor inference are not sufficient as a matter of law to deny Plaintiff a jury. The Second Circuit has repeatedly emphasized that “[w]here an employer acted with discriminatory intent, ‘direct evidence of that intent will only rarely be available.’ ” Gorzynski, 596 F.3d at 101 (quoting Holcomb, 521 F.3d at 137). The discriminator does not always announce his discriminatory intent. The Court must carefully scrutinize the record for circumstantial evidence. Id. Thus, even though Plaintiff has not adduced evidence of discriminatory comments by Nejasmic, his failure to provide a consistent answer for Plaintiff’s firing can in these circumstances serve “as ‘affirmative evidence of guilt,’ ” an inference which the Supreme Court has stated can be “quite persuasive.” Reeves, 505 U.S. at 147–148 (quoting Wright, 505 U.S. at 296). Moreover, “the same-actor inference is permissive, not mandatory,” Ehrbar v. Forest Hills Hosp., 131 F. Supp. 3d 5, 24 (E.D.N.Y. 2015), and should not “become a substitute for a fact-intensive inquiry into the particular circumstances of the case at hand,” Copeland v. Rosen, 38 F. Supp. 2d 298, 305 (S.D.N.Y. 1999). This is especially true given the Court’s responsibility on a motion for summary judgment to “view the evidence and draw all reasonable inferences in favor of the nonmoving party.” Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 573 (6th Cir. 2003). There is evidence that Nejasmic had little previous experience with Chinese employees, Dkt. No. 37-4; Dkt. No. 37-8 at 16, and that Plaintiff’s race and nationality may have caused friction with another managerial employee, Renosis, Dkt. No. 37-3 ¶ 11. A jury reasonably could find that while Nejasmic might have been initially enamored of the concept of diversifying his workforce, he had second thoughts once confronted with the reality of it. See Copeland, 38 F. Supp. at 305 (“[I]t is plausible that a supervisor who has not previously worked with members of a certain protected class would come to realize his or her animus toward individuals in that group only upon actually hiring and working with such persons.”); Douglas v. M. Swift & Sons, Inc., 371 F. Supp. 2d 137, 144–45 (D. Conn. 2005) (noting that when another employee refused to work with the plaintiff due to his race, this may have provided a motivation for the employer to fire the plaintiff for racial reasons, which would defeat the same-actor inference). “Evaluation of the merits of defendant’s same actor argument … raises issues of fact and credibility that are the exclusive province of the jury.” Sklaver, 2004 WL 1381264, at *10.
In short, this is not a case in which “the record conclusively reveal[s] some other, non-discriminatory reason for the employer’s decision” or where the plaintiff has created “only a weak issue of fact as to whether the employer’s reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred.” Reeves, 530 U.S. at 148; see Chen, 2022 WL 289317, *2; Schnabel, 232 F.3d at 88; Grady, 130 F.3d at 561. Rather, the decision-maker himself has provided conflicting explanations for Plaintiff’s termination. Compare Rec. 2:15–2:35 with Dkt. No. 37-8 at 33–34, 53. There is no documentary evidence establishing the reasons for Plaintiff’s firing or showing that he was informed of any of the problems mentioned by Nejasmic. Defendants’ side of the story rests entirely on Nejasmic’s statements, and those statements conflict. Because “it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer’s explanation,” Reeves, 530 U.S. at 147, and Plaintiff also produces some circumstantial evidence that could support such an inference, the Court cannot say as a matter of law that Plaintiff’s race or national origin was not “some part of the employer’s motivation.” Bart, 2024 WL 1281069, at *4 (quoting Fields, 115 F.3d at 120); see Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978) (“[W]hen all legitimate reasons for rejecting an applicant have been eliminated as possible reasons for the employer’s actions, it is more likely than not the employer, who we generally assume acts with some reason, based his decision on an impermissible consideration”).
Accordingly, the court denied defendants’ motion for summary judgment as to plaintiff’s claims of adverse employment discrimination under Title VII and the NYSHRL and, since the NYCHRL is “more lenient toward plaintiffs than its federal and state equivalents,” defendant’s motion is also denied as to the same claims under the NYCHRL.