"It must have been his race" is not enough to avoid summary judgment in discrimination case

A white tennis instructor sued the City of New York for racial discrimination after it terminated his permit to teach tennis at East River Park. The Court of Appeals rejects the case.

The case is Howard v. City of New York, a summary order decided on March 4. Plaintiff's evidence of discriminatory intent was "a single racially motivated comment uttered by a non-decisionmaker and the fact that the decisionmaker is black and he is white." In particular, the non-decisionmaker told plaintiff, "we don't want your white ass here" when he was retrieving his ball basket from a park building. A prior permit holder was treated more favorably than plaintiff.

This does not cut it, the Court of Appeals (Raggi, Wesley and Lynch) says. The racial comment does not get us anywhere because the guy who said it was not a decisionmaker. The statement was also made more than 10 months before plaintiff's permit was terminated. The comparator evidence is also not enough to infer racial discrimination. In the end, the Second Circuit says, "Howard has done little more than cite to his alleged mistreatment and ask the court to conclude that it must have been related to his race. This is insufficient."

Plaintiff also sues under the First Amendment because he was denied the permit after he complained about racial discrimination. The claim fails because the complaints started in October 2008 and he continued complaining until his permit was terminated in August 2009. "Howard cannot raise a triable [issue] of causation given that his protected activity occurred for so long without any adverse action. ... Indeed, rather than take adverse actions against Howard for his race discrimination complaints, the Park initially took his allegations seriously and conducted an investigation, which found Howard's allegations baseless."