Racial and disability discrimination case fails

This was not an easy case to win. The Court of Appeals affirms the grant of summary judgment in a race and disability discrimination claim. In many ways, the reasoning in this case resembles that of many discrimination cases that are dismissed on summary judgment.

The case is Johnson v. L'Oreal USA, a summary order issued on March 27. Plaintiff was an assistant vice president who suffers from depression and anxiety. She is also Black. In 2018, a few years after plaintiff was hired, staffers began to raise questions about plaintiff's performance and unannounced absences, as well as plaintiff's inflammatory text messages. Two supervisors met with plaintiff and said they wanted to help to improve her performance and asked if she needed time off. The Court says, however, that plaintiff did not seek any accommodation or take management up on its offer to help her. When plaintiff in May 2018 went to an annual company conference, she sent a few unprofessional texts that joked about drinking wine before getting down to business with the company. Of course, these texts got back to management, which caused them to worry about her emotional state. In the end, plaintiff was fired; management said they let her go because of her "inappropriate communications, tension within the team, and absences."

The racial discrimination claim is dismissed because the Court of Appeals (Lee, Nathan and Rakoff (D.J.]) finds "ample support" that plaintiff was fired for legitimate reasons. While plaintiff claimed to have direct evidence of discrimination, in particular remarks from 2017 regarding her hair and one from 2019, made after termination, regarding "dark" customers, the court finds that while a juror may regard these as racist comments, they do not show that the decision to fire plaintiff was discriminatory, "as they were neither made by a decision-maker, or connected with or temporally close to the June 2018 decision to fire her." In other words, these are considered "stray remarks." 

Nor can plaintiff show that she was treated worse than White coworkers, as they are not similarly-situated, or comparable, to her. One comparator was her boss, and the other as a peer. But, the Court says, 

There is no evidence, for example, that these individuals sent or posted anything approximating the text and social media messages that Johnson did.  And while there is evidence that Bethelmy-Rada, at least, missed meetings on several occasions, this conduct is still too dissimilar from Johnson’s serial absences over a period of months to support an inference of pretext.  While Johnson does also argue that Bethelmy-Rada engaged in more serious misconduct, the district court correctly declined to consider these allegations as part of the comparator analysis either because they were supported solely by inadmissible hearsay evidence, or because the conduct was never reported to L’Oréal,

While plaintiff argued that the reasons for her termination were not credible because management knew about the text messages months prior to her termination, the record shows that management was in fact aware of them early on and discussed the text among themselves.

What about the disability discrimination claim? In 2012, the Court of Appeals said in McElwee v. County of Orange, 700 F.3d 635 (2d Cir. 2012), that you can fire an employee over misconduct even if the plaintiff says his misconduct was related to a disability. I argued McElwee and the Court used that case to clearly make that point for the first time. McElwee results in the dismissal of Johnson's case. Nor has plaintiff shown that any reasonable accommodation would have allowed her to perform the essential duties of her employment. And while defendants engaged in an interactive process with plaintiff to work out a possible accommodation, the Court says that plaintiff did not accept those offers nor request other kinds of assistance.