Tuesday, July 29, 2014

Subtle racial comments support Title VII discrimination case

The Court of Appeals infrequently reverses summary judgment in racial discrimination cases. Purely circumstantial evidence does not seem to cut it these days. In this case, the case is remanded for trial because of not-so-subtle racial comments by a decisionmaker about why plaintiff was fired. Also, some pretext.

The case is Kirkland v. Cablevision Systems, decided on July 25. The Court of Appeals (Calabresi, Lohier and Lynch) summarizes the evidentiary model governing Title VII cases: the plaintiff has to make out a prima facie case of discrimination and, if the employer articulates a neutral reason for the plaintiff's termination, he has to show that reason is a pretext for discrimination. That all sounds complex, but in this case the Court of Appeals does not further delve into that complexity. While the employer said plaintiff was fired because of poor performance reviews and affidavits from regional managers whom plaintiff supervised, the Second Circuit gets right to the good stuff: an admission from the decisionmaker:

Kathryn Nivins, an Asian‐American female whom Robert Cockerill hired to replace Kirkland, testified that Cockerill explained Kirkland’s termination by criticizing Kirkland’s failure to discipline one of his regional managers (all of whom were African‐American). Nivins testified that Cockerill told her that Cockerill “ha[d] come to learn that they don’t know how to police each other.” Nivins also testified that, during her interview, Cockerill gave her an “overview” of these managers’ strengths and  weaknesses, explaining that “his opinion was that [the regional office] could lighten up a bit.”
The manager did not come out and say that plaintiff was fired because he was black, but it comes close. While the Court of Appeals does not provide a tutorial on when subtle code-words support an inference of discrimination, the inference is clear: saying out loud that "they don't know how to police each other" and that the regional officer "could lighten up a bit" speaks for itself.

The record contains more of this kind of subtle racism. When plaintiff gave a presentation at work, Cockerill cut it short and said the presentation "used a colored background and that there is no room for color in a business presentation" and "white was better than color." I suppose Cockerill can argue that these references to color speak to something else, but a jury can infer that "color" means black.

We also have some traditional pretext, the kind that plaintiffs usually have to rely upon in avoiding summary judgment in the absence of racial code-words. Plaintiff claims that management back-dated his performance evaluations to support their decision to fire him. Nivins testified that Cockerall asked her for negative information on plaintiff right after plaintiff brought the lawsuit. Cockeril "turned against her" when she "didn't have that information for him." In addition, management ignored plaintiff's internal discrimination complaints, and Nivins testified that she believed Cockerill hired her as cover because she had a black fiance and could fire black employees in Kirkland's former region. Nivins also testified that she thought Cockerill was a racist and that another Cablevision manager said Cockerill "is known as the KKK without the hood."

Some of this evidence is unusual since it stems from witness impressions about management's state of mind. But the Court of Appeals says all of this is for the jury, which "might credit all of this proffered evidence, some of it, or none at all. But that is 'left for the jury to decide at trial.' And if at least some of this evidence is believed by a jury, that jury could also conclude that, despite Kirkland's negative performance reviews, his firing was 'more likely than not based in whole or in part on discrimination."

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