Plaintiff can win her racial demotion claim under Title VII but not Section 1983

The plaintiff in this case was demoted and she claims it happened because of her race. As I write in this blog post, the district court granted summary judgment on this claim but the Court of Appeals reinstated it, finding that, despite the supervisor's concerns about plaintiff's job performance, the fact that the supervisor told plaintiff she had to "deal with" a coworker's racial comments allows the jury to find that racial discrimination motivated the demotion. But that was on the Title VII claim. Plaintiff also asserted a Section 1983 claim. While this evidence is enough to win under Title VII, the Court says, it is not enough to win under Section 1983, which also prohibits racial discrimination in employment.

The case is Milord-Francois v. New York State Office of the Medicaid Inspector General, a summary order issued on February 17. How can the case survive summary judgment under Title VII but not Section 1983? Because under Title VII, the plaintiff only has to show that race was a motivating factor in the adverse decision. That allows plaintiffs to win even if race was not the determining factor; race only needed to play a role in the decision. But while Title VII codifies the "motivating factor" test, Section 1983 does not. Under that statute, which allows you to sue government officials for constitutional violations, the plaintiff has to show that racial (or gender, etc.) discrimination was the "but-for" or determinative reason. 

It's a fine line separating "motivating factor" and "but-for" causation, and the Court of Appeals did say a few years ago that summary judgment is not really the place to distinguish these two causation standards and that we should leave that task to the jury. In Kwan v. Andalex, the Circuit said the but-for analysis is similar to the pretext analysis in motivating-factor cases: "A plaintiff may prove that retaliation was a but-for cause of an adverse employment action by demonstrating weaknesses, implausibilities, inconsistencies, or contradictions in the employer's proffered legitimate, nonretaliatory reasons for its action. From such discrepancies, a reasonable juror could conclude that the explanations were a pretext for a prohibited reason." 737 F3d 834, 846 (2d Cir. 2013). 

The Kwan language is good for plaintiffs, but the Court of Appeals does not refer to it here. It finds instead that while plaintiff has evidence to show that racial stereotyping was a motivating factor, it was not a determining factor. The reasoning:

Milord-Francois has failed to show that racial stereotyping “played a decisive role” in her demotion, such that she can establish “but-for” causation, as required for a § 1983 claim. Indeed, she failed to show that Daniels-Rivera’s proffered reason for her demotion—poor performance—was false and inadequate, especially given that Defendants put forward significant evidence that Daniels-Rivera’s decision to demote Milord- Francois was based on perceived deficiencies in Milord-Francois’s work rather than any racial considerations. Daniels-Rivera started providing negative feedback before Milord-Francois told her in May 2016 about the interactions between Milord-Francois and Henzel. Moreover, Daniels- Rivera’s criticisms were frequent, documented, thorough, and unrelated to Milord-Francois’s race.