The case is Aulicino v. New York City Department of Homeless Services, decided on September 8. First, the promotion claim. The Court of Appeals (Sack, Straub and Wesley) holds that the jury may find that Aulicino was qualified for the Motor Vehicle Supervisor position because the department did not always strictly apply the job requirements, as a black employee (Johnson) who was hired for that position did not have the "necessary" dispatching experience, either, and contrary to the job posting, Johnson also lacked a Class B CDL license.
What about intent to deny the promotion because of Aulicino's race? To make out a failure to promote case under Title VII, the plaintiff has to show that he was qualified for the position and that the employer intended to discriminate. The Court of Appeals says that Mr. John's racially-discriminatory comments to Aulicino in the workplace constitute direct evidence of discriminatory intent: "John's comment to Aulicino that Aulicino 'deserved' to be called 'a white mother fuck' by a DHS client, and his comment to Aulicino that 'white people are lazy.' We think a reasonable jury could infer from these comments ... that John's hostility toward Aulicino was race-based, and that that hostility played a role in the denial of the promotion." (Mr. John did tell someone else that "he wouldn't hire that white fuck," but the court finds this might be inadmissible hearsay).
The Court of Appeals is not quite sending the racial harassment case to the jury, however. Under this ruling, the district court has to reconsider its dismissal of the racial harassment claim. Most racial harassment cases involve racist whites harassing blacks. This case is the opposite, but the legal standard is the same. Summarizing the standard, the Second Circuit notes that case law considers misconduct that is "both frequent and severe, for example, when a supervisor utters 'blatant racial epithets on a regular if not constant basis' and behaves in physically threatening manner." But, the Court of Appeals, says, the work environment may be illegal "if the conduct there is either so severe or so pervasive as to alter the working conditions of a reasonable employee."
The fact that Mr. John made his racial comments from December 2001 through September 2002 and another supervisor, Mr. Johnson, made anti-white comments from January through July 2005 is enough to show a severe or pervasive hostile work environment. The district court dismissed the case without viewing the evidence in a light most favorable to Aulicino. Not only did the district court outright overlook one of Mr. John's racist statements, but the court reviewed all the racial comments over a five year period (which dilutes the case) rather than set aside the two year period when no racial comments were made by any supervisors. As the Court of Appeals frames it:
The calculation ... of the relevant time period in which the alleged derogatory comments were made appears to have been analyzed in the light least, rather than most, favorable to the plaintiff. The magistrate judge viewed the comments as having been made "over a five-year time period," even though the first comment it mentions dates from December 16, 2001 and the last was in July 2005, less than four years later. In addition, the "cumulative" assessment contained in the [district court opinion] includes a 26-month period between the last comment by John and the first comment by Singleton. We think that, in order to take the facts of this case in the light most favorable to Aulicino, the court should have discounted from its analysis, if not altogether disregarded, the intervening period between comments by one supervisor and comments by another. In our view, a "realistic" picture of the hostile workplace alleged by Aulicino is not obtained by focusing on a two-year stretch of time in which he fails to allege acts of hostility, and using that time to dilute the strength of his claims based on two discrete periods of more intense harassment.
Got that? In assessing the frequency of the racial comments, courts normally calculate the number of comments in light of the relevant time period. Here, Aulicino has a five-year period in which he endured racial comments. That's a long time, for which many racial comments are necessary in order to make out a hostile work environment claim. If you take out the 26 months without racial comments and bear in mind that Aulicino had two managers making anti-white comments during discrete time periods, then the jury can find in Aulicono's favor. There is no mathematically precise test in deciding these cases, the Court of Appeals reminds us. The district court has to reconsider the motion for summary judgment in light of the Second Circuit's analysis.