Tuesday, November 17, 2009

2d Circuit reverses summary judgment in racial discrimination case

The Court of Appeals has reinstated a racial discrimination claim where the plaintiff alleged that he was subjected to racist ridicule and hostility in the workplace and then denied a promotion on the basis of disputed facts.

The case is Johnson v. CH Energy Group, a summary order decided on November 17. After joining the company in 2001, Johnson sought to become a "Lineman First Class" in 2006. The test for this position includes a written and practical component. Meanwhile, he endured various racial comments and acts of hostility at work. As the Court of Appeals (Katzmann, Newman and Pooler) summarize the evidence:

When he first started as a Lineman, Johnson, who is African American, claims that he found a photograph of a black Lineman from Con Edison (a competitor firm) and on another occasion, a black woman, taped to his locker. He says that one of his colleagues called him “Boy” and “Willis.” Johnson further alleged that a photograph of all of the lineman in the Kingston branch had been taped to his locker, and that his picture had been colored black.

While he was employed at the Kingston branch, Johnson argues that another employee of a similar level at CHG&E said that Johnson had “snowed” everyone at Kingston and that he could “see right through him.” On another occasion, in October 2005, Johnson gave Wayne Rice, his supervisor, a length of rope as part of a work-related task. Johnston claims Rice threw it back at him, and said “maybe [he would] make a noose.” Thomas Brocks, a Vice-President of Human Resources at CHG&E, contacted Johnson after the noose incident and encouraged Brocks to inform him if he heard any other racial comments. Johnson also alleges that Dave Warren, one of his supervisors, was dismissive of him and critical of his work in front of his coworkers.

In 2006, seeking the promotion, Johnson passed the written exam but failed the practical component. Two of the proctors said that Johnson removed his glove during the test; Johnson said this was not the case.

Johnson has a prima facie case of racial discrimination based on the noose and photograph incident. To prevail, he has to show that management's reason for the promotion denial is pretext for discrimination. The Second Circuit notes that, under Reeves v. Sanderson Plumbing, 530 U.S. 133 (2000), the jury can infer discriminatory intent on the basis of management's false reason. However, under Second Circuit precedent, the court must review the totality of the circumstances in making that determination, including the strength of the prima facie case. Under this test, summary judgment is vacated and the case is remanded for trial. The Court of Appeals reasons:

Johnson’s history of discrimination at CHG&E, including the noose incident and the harassment he experienced when his photograph was colored black and photographs of African Americans were placed on his locker, add strength to his prima facie case of race discrimination. Second, the proctors’ disagreement about whether or not Johnson had removed the glove, along with his history of disagreement with one of the proctors, Dave Warren, provides reason to question the explanation the employer has proffered for the employment decision.

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