The case is Lam v. Sephora USA Inc., a summary order decided on July 18. Plaintiff was a loss prevention agent at a Sephora retail store. He was fired after violating defendant's policies and disobeying the direct orders of two supervisors. He was repeatedly reprimanded in a series of performance reviews over the course of five years for not complying with defendant's procedures, and he got two serious warnings within a few months of his termination, including one for making a customer feel uncomfortable. He also disobeyed an order to stop apprehending customers (a strange order for a loss prevention agent). This transgression involved falsely accusing a customer of shoplifting, prompting the customer to threaten a discrimination lawsuit. There's other misconduct, but you get the picture.
So how does plaintiff claim discrimination? He said in deposition that a store manager, Seda, told him that she was from Puerto Rico and was therefore a U.S. citizen. During that conversation, plaintiff said he was from Senegal. But in his summary judgment affidavit, plaintiff recalled the conversation differently. He attested that Seda told him that "This country is not Africa, it is the United States, and it belongs to Americans and Puerto Ricans." The Court of Appeals (Kearse, Carney and Wallace [Visiting C.J.]) says this contradiction cannot create a triable issue of fact because it differs from plaintiff's deposition testimony. Moreover, Seda's alleged statement does not show bias against people from Senegal or that plaintiff's national origin played a role in his termination.
More interestingly, plaintiff also testified in deposition that, after Seda saw him change into African clothing to attend his mosque, Seda said, "This place is not the mosque, when I come back from vacation, I kick him out." This statement may show religious bias on Seda's part, but it does not get plaintiff a trial. The "I kick him out" part of the alleged admission was not emphasized in the district court at all. The Court of Appeals tells us how this potentially damaging evidence was de-emphasized throughout the case:
Such a statement might ordinarily suggest that religion could have played a role in the decision to terminate Lam, at least insofar as Seda’s involvement in that decision is concerned. We note that Lam did not refer to Seda’s alleged pledge to “kick him out” at all in his complaint, his affidavit, his memorandum of law in opposition to summary judgment in the district court, his response to defendants’ Rule 56.1 statement, or when discussing the relevant evidence of religious discrimination during oral argument before the district court. Lam’s omission of the “I kick him out” statement from each of these submissions—in which he stated only that Seda said, “[T]his is a workplace, not a mosque”—was particularly striking in his attorney’s oral argument against summary judgment in the district court. When the court observed that there was a “disconnect” between the allegedly overheard statement and Lam’s termination, his attorney made no effort to argue to the court that a connection between Seda’s religious animus and Lam’s termination was inherent in Seda’s own juxtaposition of her negative reference to the “mosque” and her alleged announcement, “I kick him out.” ... Lam ... relies exclusively on his own testimony as to Seda’s mosque and kick-him-out statement, despite the fact that his deposition testimony was that Seda made that statement to three other Sephora employees who were known to him. The record contains no indication that Lam made any effort to take the depositions of any of those employees or that he asked the district court for more time in order to do so.Summary judgment is therefore affirmed. What does this case tell us? A few things. First, bad job performance is difficult to overcome in employment discrimination cases. The Court of Appeals is unlikely to get past the kind of performance deficiencies that plaintiff exhibited here. Second, we have an advocacy problem. Plaintiff testified at deposition that his supervisor made a biased comment about his religion. But that comment was not emphasized in this litigation until the case reached the Court of Appeals. I have not seen the Second Circuit issue a ruling quite like this, where the plaintiff offers potentially useful information at deposition but fails to highlight it when it really counted, in opposition to summary judgment. True, this is sworn testimony that the plaintiff preserved at deposition. But while depositions are the place to lay out this evidence, you have to push this kind of evidence in the district court. The Second Circuit probably sees this testimony as an afterthought. Holding back on using this evidence won't cut it.