Circuit reverses summary judgment in racial discrimination case

The Court of Appeals reverses summary judgment in this racial discrimination case, holding that the jury may find the employer's reasons for denying the plaintiff tenure a pretext, even though the district court did not find  independent evidence of discrimination.

The case is Sands v. Rice, a summary order decided on October 16. This case has particular interest for me, for several reasons. First, the case arose at the high school not far from where I am writing this. Also, the Court provides some guidance on when pretext alone is enough to survive summary judgment in Title VII cases.

Plaintiff was the guidance counselor at the high school. In dismissing her racial discrimination claim, the district court assumed she made out a prima facie case. But the district court granted the school's motion for summary judgment, reasoning that "although plaintiff had 'attempt[ed] to manufacture a question of fact with respect to some of the deficiencies noted in her ‘unsatisfactory’ performance evaluations, many of the deficiencies [were] unrefuted by plaintiff,' and regardless, 'any such question of fact [was] immaterial,' as plaintiff 'ha[d] critically failed to come forth with any evidence that the decision to deny her tenure was based on her race or a discriminatory animus on the part of defendants.'”

In Reeves v. Sanderson Plumbing (2000), the Supreme Court told us when summary judgment is appropriate in discrimination cases, stating:

“[A] plaintiff’s prima facie case,” ... when “combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.” Of course, “[t]his is not to say that such a showing by the plaintiff will always be adequate to sustain a jury’s finding of liability.” Indeed, “there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant’s explanation, no rational factfinder could conclude that the action was discriminatory.” But it is “err[or] [to] proceed[ ] from the premise that a plaintiff must always introduce additional, independent evidence of discrimination.”

In other words, prima facie case plus pretext may -- but does not always -- support a finding of discrimination. The problem is the Supreme Court has provided no guidance on how much pretext is enough to win the case in the absence of independent evidence of discrimination, such as a racist comment from a decisionmaker. The Second Circuit is a pretext-plus court, in my view, often requiring that the plaintiff offer more than just pretext to support a discrimination claim. As the Court tells us in this case, "Reeves prevents courts from imposing a per se rule requiring in all instances that a claimant offer more than a prima facie case and evidence of pretext" (citing Cross v. NYC Transit Auth., 417 F.3d 241 (2d Cir. 2005)). But the last time this Court in a published opinion denied summary judgment solely on the basis of pretext was in D'Cunha v. Genevese, 479 F.3d 193 (2d Cir. 2007).

In this case, the Second Circuit (Cabranes, Raggi and Pooler) reverses summary judgment, stating, "the District Court erred in holding that plaintiff’s proof that defendants’ explanation was false was 'immaterial' because she had not introduced additional, independent evidence of discrimination. The District Court also erred in failing to consider 'the probative value of [that] proof,' as well as 'the strength of ... plaintiff’s prima facie case.'” The Court of Appeals also says plaintiff has proffered enough evidence to support a finding that defendants discriminated against her because of race. But the Court does not discuss the evidence. So we don't learn much from this reasoning unless we read the district court ruling. That ruling gives us some insight, but the district court rejected plaintiff's factual arguments, and if there is additional evidence of racial animus it is not in any court ruling. This is what the district court wrote:

Sands refers to several incidents which she appears to argue would demonstrate animus towards her race on the part of defendants. By way of example, Sands claims that she "began a Step [Dance] Team," and that "[a]fter one year of providing [Sands] with a stipend for advising this club, . . . Clinton and Rice ended this stipend and proposed that [she] advise the club without charge," but she does not directly posit a reason why this occurred. Although Sands appears to imply that this was done because of her race, or because the "majority [of students] participating on [the team] were African-American," what the record indicates, however, is that Sands was not paid because she failed to submit the required claim form in order to receive payment as an advisor; Sands cites to no record evidence that would indicate that this decision was racially motivated. In fact, the year prior, when Sands did submit the claim form, she was paid a stipend for her services as advisor to the club.

Similarly, Sands argues that Clinton "initially strongly opposed [her] hiring but was convinced to hire her," and that from this, "[a] reasonable jury could easily conclude that Clinton harbored a bias against [Sands] and that this tainted the entire tenure review process." However, what Sands neglects to mention in her argument is that the only evidence of record on this issue indicates that Clinton's initial hesitancy in hiring Sands stemmed from a reference she had received from a former employer of Sands regarding a "communication issue" that Sands had with that employer, and there is nothing to indicate that this hesitancy was due to Sands' race. The only allusion to potential race discrimination in Sands' own affidavit, points to the statement of Edgar Rodriguez, a member of the board of education who, at the time of Sands' tenure decision, "strongly favored grant[ing] tenure and believed that nefarious motivations alone could explain a contrary decision." However, Rodriguez himself stated that he could "only speculate nefarious reasons, including racism, for denying . . . Sands tenure." It is well settled that "'conclusory allegations or unsubstantiated speculation' [are in]sufficient to raise a triable issue of fact as to whether . . . discriminatory animus" played a role in an adverse employment action.

Further damaging to Sands' argument is her admission that during her years of employment at New Paltz High School, she was never called any racial names or racial epithets by Rice or Clinton.