Pretext and sexist comment entitles City law plaintiff to a trial

Federal court is not the only option for filing civil rights cases. Nor must plaintiffs file their claims under federal law. The New York City Human Rights Law also provides remedies for civil rights remedies, and the City law is not toothless. It directs courts to analyze City law claims separately from federal claims. The City law also directs courts to liberally apply the City law, which means plaintiffs sometimes win under the City law but lose under federal law.

The case is Barone v. Emmis Communications Corp., an Appellate Division First Department case decided on June 13. This City law claim alleges that plaintiff was fired because of her gender. The decision is brief and does not tell us much, but here is what we know:

While defendant said it fired plaintiff over her management deficiencies and insubordination, plaintiff put forward evidence of pretext in the form of evidence that her termination "represented a drastic shift from the favorable performance review which she received only three weeks earlier." What is more, she was on vacation for nearly a week of that three-week time period. So how badly could her performance have been right before her termination? The First Department states, "Nothing in the record explains why any defects in plaintiff's management style, identified in her otherwise favorable performance review, suddenly warranted her termination."

Although the appellate ruling does not mention this, the lower court decision found that plaintiff cannot win because a female supervisor was angry over plaintiff's romantic choices. The lower court also applied the same-actor inference in finding it is less likely that the person who hired a woman would fire that employee because of her gender. 

I don't how a claim like this would fare under federal law before a federal judge. Some judges will not assume that an unfair termination represents evidence of discriminatory intent. Particularly in federal courts, the plaintiffs cannot win without "pretext plus" evidence, which means a false reason and some other evidence suggesting the termination was racially motivated or caused by the plaintiff's gender.

The evidence of pretext may have been enough for plaintiff to repel the summary judgment motion under the City law. But the decision closes out with a paragraph suggesting that a female supervisor made a sexist comment that sheds light on defendant's motives in firing plaintiff. The supervisor told plaintiff that she lacked "emotional intelligence and empathy toward others." This purportedly highlighted shortcomings in plaintiff's ability to manage her subordinates. A comment like this may or may not entitle the plaintiff to a trial under federal law. While the lower court said these were merely stray remarks that shed no light on anything, that's now how the First Department sees it, and the case is remanded.