Court tells us how to make out a prima facie case of racial discrimination in employment

The Second Circuit does not reverse summary judgment in racial discrimination cases too often. It does so in this case, finding that plaintiff makes out a prima facie case of discrimination.

The case is Tolbert v. Smith, decided on June 24. Tolbert was a culinary arts teacher who was up for tenure and received classroom evaluations from his superiors. Along the way, Principal Smith made racist remarks. When plaintiff offered to cook the homecoming breakfast, Smith said, "Do you only know how to cook black, or can you cook American too?" Smith also asked one of plaintiff's students if she was learning anything from plaintiff, asking "how she expected to learn if all she was learning to cook was black food." Another student said Smith said "black kids can't learn in a cooking class because all they want to do is eat." When plaintiff told Smith that janitorial staff were not cleaning parts of his classroom, possibly referencing the demographics of the student body, Smith replied, "the kids we get to this school are not from much better than this." Also referencing the student body, Smith also told a school counselor, "my friends, they are not like us."

As Tolbert was denied tenure after the school altered the procedures leading up to that adverse action, these statements support plaintiff's prima facie case of racial discrimination. Here are the issues resolved by the Court of Appeals (Lynch, Carney and Koeltl [D.J.]):

1. Although the denial of tenure is an adverse action under Title VII (one of the elements of a prima facie case), defendants argue that plaintiff suffered none here because they offered (and plaintiff denied) a fourth year of probationary employment (tenure usually follows after three years), which means plaintiff's "employment situation would have been no worse had he accepted the offer." Nice try, the Court of Appeals says. In rejecting defendants' argument, the Court fleshes out what it means to have an adverse employment action:
 

The defendants ignore the fact that the offer of a fourth year of probation was intertwined with the denial of tenure. Had the plaintiff received tenure, he could have been terminated only for cause. But had he remained a probationary teacher, he could have been terminated for any lawful reason. The denial of tenure therefore was the denial of a material improvement in the conditions of the plaintiff’s employment.

Not only did the school deny plaintiff tenure (and all the job security that comes with it), it also declined to award him a contract, allegedly because of his race. "Refusing to award a contract or a material employment benefit for a discriminatory reason violates" the civil rights laws.

Were we to accept the defendants’ interpretation, then failure to promote claims—or any claims alleging the denial of an employment benefit—would be non-actionable. And that cannot be the case. “A benefit that is part and parcel of the employment relationship may not be doled out in a discriminatory fashion, even if the employer would be free under the employment contract simply not to provide the benefit at all.” Hishon v. King & Spalding, 467 U.S. 69, 75 (1984). Extending an employment relationship by one year by itself may not qualify as an adverse employment action. But when coupled with the denial of tenure, it is assuredly an adverse employment action. During the fourth year of probationary employment, a teacher can be fired at any time for any lawful reason. But if granted tenure, the teacher may be fired only for cause. The denial of tenure after three years, when a teacher was otherwise eligible for tenure, does not become any less an adverse action because the teacher is provided with another year of probationary employment.

2. The Second Circuit also finds the jury could find plaintiff was denied tenure under circumstances creating an inference of discrimination, also an element of the prima facie case. The principal's comments about the student body sound sufficiently racial to suggest that race played a role in plaintiff's tenure denial. These comments were not stray remarks or too remote from the adverse decision; they were uttered by a de facto decisionmaker close in time to the tenure denial. "And Principal Smith’s comment to a student that 'black kids can’t learn in a cooking class because all they want to do is eat,' could be viewed as evidence of a discriminatory intent on Principal Smith’s part in dismantling John Marshall’s culinary arts program. The fate of that program, for which Mr. Tolbert was the only teacher at John Marshall, was directly relevant to the decision whether to grant him tenure."

3. You can also make out of a prima facie case if the adverse action resulted from management's failure to follow the usual procedures in making that decision. Plaintiff's year-end evaluation which led to his tenure denial was conducted by a surprise evaluator without plaintiff's advance knowledge. The principal also relied on a negative evaluation in isolation. "These irregularities, when combined with Principal Smith's alleged remarks, are sufficient to establish a prima facie case of discrimination."

Tolbert does not win it all on this appeal. The Court of Appeals rejects his hostile work environment claim. While the principal made offensive comments, only two were made in plaintiff's presence. One comment was ambiguous. There was not enough racial comments thrown in plaintiff's direction to create a hostile environment.