Scintilla of evidence not enough to save discrimination case

What does it take to win an employment discrimination claim? Is it enough for a supervisor to admit that you were the victim of discrimination? Your instincts may tell you "Yes," but the Court of Appeals says "No," at least in this case, which actually defines the phrase that we see in summary judgment decisions all the time: "scintilla of evidence."

The case Fincher v. Depository Trust, decided on May 14. Fincher believed her employer was discriminating against her because of her race. A supervisor, Hudson, told Fincher that she was in fact the victim of discrimination. The district court chose not to credit Fincher's testimony because Hudson denied saying it and Fincher had no other evidence to support that admission. This was wrong, the Second Circuit (Sack, Livingston and Lynch) holds, because "as a general rule, a district court may not discredit a witness's deposition testimony on a motion for summary judgment, because the assessment of a witness's credibility is a function reserved for the jury." This ruling is not enough for Fincher to win the appeal, but it does provide an interesting diversion.

Judge Sack then provides a useful summary of why the district court should have credited Fincher's testimony about Hudson's admission. Discrimination cases often rely on "he-said she-said" evidence, and on a summary judgment motion, we have to take the plaintiff at her word. If she said that Hudson told her she was the victim of discrimination, at this stage of the case, since plaintiff's testimony about this conversation is not facially implausible, we presume that Hudson made that admission even if he swears otherwise on a stack of bibles.

Fincher's discrimination case is dismissed even though the Court of Appeals credits her testimony that Hudson admitted there was discrimination. That is because she has no other evidence of discrimination. By itself, an off-hand and conclusory managerial admission that the plaintiff was discriminated against is not enough to win the case. "Summary judgment cannot be defeated by the presentation by the plaintiff of but a 'scintilla of evidence' supporting her claim. Moreover, even as a purported concession the disputed remarks were indirect, with Hudson referring vaguely to the discriminatory motives of others at the company, not his own, as compelling his actions toward Fincher."

Importantly, Hudson's comment was not itself discriminatory in that, for example, he did not make a racist comment to her in the context of her ill-treatment at work. The Court of Appeals reasons, "the disputed remarks were, moreover, a purported concession that Fincher was discriminated against; they were not themselves discriminatory. Summary judgment might not have been justified were Hudson's alleged remarks themselves imbued with discriminatory animus, rather than a report of purportedly discriminatory action."