Title VII demotion claim is reinstated after supervisor tells Black plaintiff to "deal with" co-worker's racial comments

The Court of Appeals in this case reinstates a racial discrimination claim, one of the few cases of late where the Second Circuit finds that the employer's reason for the plaintiff's adverse action is a pretext for discrimination.

The case is Milord-Francois v. New York State Office of the Medicaid Inspector General, a summary order issued in February 17. Plaintiff is a Black lawyer who worked for a state agency. She was a senior attorney who was eventually promoted to Associate Attorney. A White colleague, Henzel, made racial comments, summarized by the Court of Appeals (Nardini, Perez and Park) as follows:

While Milord-Francois was a Senior Attorney, Henzel once loudly asked Milord-Francois if she was “getting drugs in there?” when Milord-Francois entered a colleague’s office for an aspirin. Henzel then told everyone at the office “that she was concerned about [Milord-Francois] taking drugs.” Another time, during a ticker tape parade in front of the OMIG building, Henzel approached Milord-Francois “out of the blue” and said, “oh my God, your black face, your black face scares me.” Lastly, Milord-Francois stated that she overheard Henzel telling other workers that she had to go to a funeral in Harlem and, if she did not return, then “they” killed her, which Milord-Francois understood to refer to black residents in Harlem.

Plaintiff reported these comments to General Counsel Daniels-Rivera, who is also Black. After plaintiff told Daniels-Rivera that Henzel "uses racial slurs towards me," Daniels-Rivera replied, "as a manager, you have to accept it -- as a manager, I have dealt with it. . . . [Y]ou have to deal with it." Later that year, Daniels-Rivera demoted plaintiff back to Senior Attorney, citing what Daniels-Rivera claimed were plaintiff's performance deficiencies. When plaintiff told Daniels-Rivera that she had not told her there was anything wrong with her work, Daniels-Rivera said there was "nothing wrong with your work, but she "wasn't implementing my vision."

On the Title VII demotion claim, the Second Circuit deems it a close case but finds plaintiff has made out a prima facie case because of Daniels-Rivera's statements to "accept" and "deal with" the racial comments. The Court reasons:

Although those statements may very well have been intended to convey to Milord-Francois nothing more than a view that she had a responsibility as a manager to address racially charged comments by a subordinate, there is just enough ambiguity in those statements—given the particular facts of this case, and viewed in the light most favorable to the non-moving party—to create a genuine issue of material fact as to whether Daniels-Rivera was instead perpetuating a racial stereotype by suggesting that Milord-Francois, as a black woman, should ignore racism.

The key to this reasoning is the ambiguity. Maybe Milord-Francois was perpetuating a racial stereotype, but maybe she was not. The Court cannot tell on a cold record. So the jury will make that decision. Plaintiffs' lawyers often try to avoid summary judgment by claiming the evidence was sufficiently ambiguous to send the case to the jury, but I do not see the Second Circuit accepting that argument very often. It does so here.

That brings us to pretext. If the plaintiff makes out a prima facie case of discrimination and the employer says the plaintiff was demoted (or fired) for a neutral reason, the plaintiff can win by showing that reason is a pretext for discrimination. I do not see too many Second Circuit cases these days holding the plaintiff has satisfied her burden on pretext, but the Court says plaintiff can do so at trial. It's the "deal with it" and "accept" the racial statements comment that does it. The Court reasons:

Milord-Francois raises several arguments as to why a jury could conclude, by a preponderance of the evidence, that this reason was pretextual. We are unpersuaded by most of Milord-Francois’s arguments, but viewing the evidence in the light most favorable to the non- moving party, we conclude that there is a genuine issue of material fact as to what Daniels-Rivera meant when she told Milord-Francois to “accept” and “deal with it.” Milord-Francois has “raised sufficient evidence upon which a reasonable jury could conclude by a preponderance of the evidence” that Daniels-Rivera’s reason for demoting her is pretextual, and that this decision “was based, at least in part,” on her race.