Back to the basics on discrimination/retaliation claims

This case is an employment discrimination case that was dismissed on summary judgment and affirmed on appeal. The Second Circuit runs through some basic concepts governing these cases, refreshing us all in this new year as to how these cases work and why they get dismissed.

The case is Carvalho v. Associated Brands, Inc., a summary order issued on December 28. Plaintiff sues under the Americans with Disabilities Act and the Family and Medical Leave Act for discrimination and retaliation. On the promotion denial claim, he says defendant (which makes custom-branded food products) did not choose him to fill a position to which he had applied, a "bouillon machine operator." Plaintiff says he was denied the promotion because of his anxiety disorder.

The Court of Appeals (Parker, Lynch and Droney) assumes plaintiff makes out a prima facie case. Courts will do that from time to time since the prima facie case is easy to make out under the de minimus standard. The Court goes straight to the pretext analysis. Under the framework, if the plaintiff makes out a prima facie case, there is an initial presumption of employment discrimination. Once the employer articulates a legitimate reason for the promotion denial (and it always does), the plaintiff can win the case by showing that reason is a pretext for discrimination. Proving pretext is not easy, and the Second Circuit does not easily find the employer has articulated a false or bad faith reason for an adverse action. This case is no different. Management says it simply did not fill the open position after accepting application for it. The Second Circuit finds no reason to second-guess that business judgment. This case reminds us that courts do not like to second-guess personnel choices.

There is also a retaliation claim. The same analysis governs retaliation claims: plaintiff must proffer some evidence to suggest there was retaliation in the form of a prima facie case. If he does, management articulates a reason which the plaintiff will attack like a pinata. No dice here. Plaintiff does not make out an adverse action. He claims the adverse action took the form of management's treating his FMLA leave as unexcused form FMLA purposes, before later correcting the absence as excused. Management reversed course on this "as a sign of good faith and giving Carvalho the benefit of the doubt" after he complained about it. "This temporary mistaken designation of Carvalho's leave as unexcused is not a 'materially adverse change in the terms, privileges, duration,or conditions of his employment."