Tuesday, April 16, 2019

"Stupid Egyptian" comment gives discrimination plaintiff a jury trial

The Court of Appeals has reinstated an employment discrimination case, concluding the jury may find the plaintiff was terminated from his position because of his national origin, Egyptian. The key evidence in the case is that plaintiff claimed to overhear the decisionmaker tell someone that she "kn[e]w how to terminate this stupid Egyptian guy." Plaintiff was the only Egyptian in the department.

The case is Moza v. Health and Hospitals Corp., a summary order issued on April 15. I represented plaintiff on appeal. Plaintiff was a doctor who worked in the Risk Management Department for a City hospital. The summary order does not set this out, but he mostly received positive performance reviews for quite some time until a new supervisor, Woll, came aboard. It was Woll who uttered the "stupid Egyptian" comment in April 2013. In September, Woll recommended plaintiff's termination. While the Second Circuit (Pooler, Chin and Vitaliano [D.J.]) emphasizes the "stupid Egyptian"comment, it notes in passing that plaintiff claims that Woll said other discriminatory comments to him, including a statement to a coworker that plaintiff has a "different culture from us." Also, while discussing plaintiff's religious practices (plaintiff is a Coptic Christian), Woll said, "This is stupid" and walked away.

What we have in this case, then is a swearing match, where plaintiff testifies that Woll made these discriminatory comments, and Woll denies it. As the Second Circuit notes, "It is for the jury to determine whether to credit Moza's account." The Court cites Owen v. New York City Housing Authority, 934 F.2d 405, 410 (2d Cir. 1991). If Woll said these things, then it taints the negative performance evaluations that she prepared against plaintiff, and the jury can rule in plaintiff's favor. While many discrimination cases involve circumstantial evidence, requiring the plaintiff to argue that the employer's lies about job performance and discipline are false, direct evidence cases like this are quite different. You don't see racial comments like this every day, which is why the courts have devised a formula for sorting through circumstantial evidence. It is much easier for the plaintiff to win through direct evidence.

A side note to this appeal deals with summary judgment in employment cases. The Second Circuit's pro bono panel assigned me this case. While the plaintiff alleged in his summary judgment opposition brief that Woll made the "stupid Egyptian"comment, his attorney did not cite to plaintiff's sworn statement to that effect. The district court noted that omission and said plaintiff did not testify to this at deposition and the allegation was therefore meritless. But while the statement is not in plaintiff's deposition, contrary to the district court's analysis, that was not the end of the story. True, the first place we look for "smoking gun" evidence is the plaintiff's deposition, where it is sure to come out in response to questions by the defendant's lawyer. But for some reason, this issue did not come up at deposition. But the sworn statement was in the record through plaintiff's verified complaint filed with the State Division of Human Rights. As a sworn statement, the SDHR charge has the same effect as an affidavit. You can use it in opposing a summary judgment motion. Since the SDHR charge was in the summary judgment record, the Court of Appeals was able to reverse the grant of summary judgment and remand this case for trial. If you are a plaintiff's lawyer trying to fend off a summary judgment motion, look for these sworn statements filed with the administrative agencies to press those factual disputes.

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