First Department rejects pretext-plus in City HRL discrimination claims

Lawyers who litigate under the New York City Human Rights Law know that this statute provides broader protection for plaintiffs than its federal counterparts, Title VII and the Age Discrimination in Employment Act. A recent decision by the Appellate Division, First Department drives that point home in squarely rejecting the pretext-plus model adopted by some federal courts, including the Second Circuit.

The case is Bennett v. Health Management Systems, decided on December 20. The facts in this case do not look good for Bennett. Management claimed it fired him for losing focus and drinking on the job. Bennett says he was fired because of his race (white) and age. The First Department uses this routine case as a vehicle to outline the burdens of proof in disparate treatment cases under the City Human Rights Law, ruling as follows:

1. The Court reiterates the oft-stated mandate "to ensure the liberal construction of the City HRL by requiring that all provisions of the City HRL be construed 'broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible.'" Under that test, while the First Department approves of the Supreme Court's McDonnell-Douglas burden-shifting procedure, it emphasizes that the fourth prong of the prima facie inquiry -- whether the plaintiff was terminated under circumstances creating an inference of discrimination -- not require the plaintiff to prove his entire case. The First Department's approach invokes the Supreme Court's observation that the prima facie inquiry is not supposed to be onerous. Moreover, and more important, the Appellate Division says that if the employer comes forward with a neutral reason for terminating the plaintiff's employment, the prima facie inquiry is not necessary:

a court should ordinarily avoid the unnecessary and sometimes confusing effort of going back to the question of whether a prima facie case has been made out in the first place. Instead, the court should turn to the question of whether the defendant has sufficiently met its initial burden as the moving party of showing that there is no evidentiary route that could allow a jury to believe that discrimination played a role in the challenged action. We stop short of holding that there is never a circumstance under the City HRL where such an inquiry would be proper, but do conclude that such circumstances will be rare and unusual.

2. The Court rejects the pretext-plus model of proving discrimination. The Supreme Court says that if the employer comes forward with a false or pretextual reason why it fired the plaintiff, that does not compel the jury to find in the plaintiff's favor. The Supreme Court also said that the defendant can still get summary judgment in discrimination cases if the employer comes forward with a pretextual reason. (The First Department does not say this, but the Second Circuit usually looks for more than mere pretext for the plaintiff to win the case, usually evidence of disparate treatment or discriminatory remarks). But those Supreme Court cases interpreted Title VII, not the City HRL. The First Department says that under the City HRL,

Once there is some evidence that at least one of the reasons proffered by defendant is false, misleading, or incomplete, a host of determinations properly made only by a jury come into play, such as whether a false explanation constitutes evidence of consciousness of guilt, an attempt to coverup the alleged discriminatory conduct, or an improper discriminatory motive co-existing with other legitimate reasons. These will be jury questions except in the most extreme and unusual circumstances.

. . .

We recognize that there has been a growing emphasis on using summary judgment in discrimination cases to promote "judicial efficiency." But at least in the context of the City HRL, the Restoration Act provides a clear and unambiguous answer: a central purpose of the legislation was to resist efforts to ratchet down or devalue the means by which those intended to be protected by the City HRL could be most strongly protected. These concerns warrant the strongest possible safeguards against depriving an alleged victim of discrimination of a full and fair hearing before a jury of her peers by means of summary judgment. In short, evidence of pretext should in almost every case indicate to the court that a motion for summary judgment must be denied.

 Ironically, after outlining a pro-plaintiff approach to reviewing summary judgment motions in discrimination claims brought under the City HRL, the First Department finds that Bennett cannot win before a jury. There was undisputed evidence that he slept and drank alcohol on the job and his work performance left something to be desired.