Nothing beats direct evidence

Employment discrimination cases are a hit-or-miss affair. You can get to a jury if the employer's reason for your termination is false, but then again maybe not. In 2000, the Supreme Court held in Reeves v. Sanderson Plumbing, 530 U.S. 133, that pretext is usually enough to win. But that decision holds out the possibility that in some cases, pretext will not be enough. Post-Reeves, the Second Circuit has held in many cases that pretext was not enough, see, e.g., Schnabel v. Abramson, 232 F.3d 83 (2d Cir. 2000) and James v. New York Racing Association, 233 F.3d 149 (2d Cir. 2000). But in 2007, the Court of Appeals reversed summary judgment solely on the basis of pretext. D'Cunha v. Genovese/Eckerd, 479 F.3d 193 (2d Cir. 2007).

So you want a jury trial? Find some direct evidence. The case is Bell v. Rochester Gas & Electric, a summary order decided on May 7. The district court dismissed this discriminatory discharge case on summary judgment, concluding that the plaintiff did not produce evidence of discriminatory intent. Plaintiff Bell tried to show pretext through a discriminatory email sent by his superior, William Diamond. But that email is not admissible because Bell could not prove that it was sent and received through the corporate email system.

All is not lost for Bell. He produced an affidavit from a co-worker who quoted Diamond stating that he wanted to fire Bell because of his race. Well, this is better than proving your case through pretext, right? Except that the district court rejected this affidavit because, it concluded, Diamond played a marginal role in Bell's termination. But the Court of Appeals sees it differently. Diamond was present when Christian Modesti, Diamond’s supervisor, confronted Bell about his alleged workplace misconduct. Also, "Diamond made the formal, written recommendation to Modesti that Bell be terminated. Even if Modesti asked Diamond to write up the recommendation and Modesti made the ultimate decision to terminate Bell, we conclude that Diamond’s involvement in Bell’s discharge could not, on a motion for summary judgment, be dismissed as insignificant."

So the incriminating affidavit describing Diamond's discriminatory intent to fire Bell is relevant, as Diamond was not standing on the sidelines. As Diamond had at least something to do with Bell's termination, that affidavit is enough for Bell to win.