Plaintiff may win retaliation claim against New York City Housing Authority

This plaintiff was fired from the New York City Housing Authority after she complained about sex and race discrimination. The case was dismissed on summary judgment. The Court of Appeals reverses and this case will go to trial along with the sexual and racial harassment claims that the Court of Appeals also revived, as discussed here.

The case is Zeng v. New York City Housing Authority, a summary order issued on July 17. I do not see too many Second Circuit rulings that find the plaintiff may prevail on her claim that the employer's articulated reason for her termination was a pretext for discrimination. Here, while NYCHA says plaintiff was fired for poor performance, the record shows that (1) plaintiff was threatened with termination after she misplaced her keys, but other employees who did the same were not similarly threatened, (2) supervisor Ramos and other employees made racist and sexist comments toward plaintiff when she requested not to work overtime on Christmas to facilitate a child custody visit, but another supervisor did nothing about this when she complained, (3) a few days later she got negative memoranda  about her work from these two hostile supervisors, (4) after plaintiff was transferred to the Smith Houses following her discrimination complaint, plaintiff overheard her prior supervisor make "racist and sexist" comments about plaintiff in speaking with her new supervisor, Medina, (5) when plaintiff asked to miss work because of menstrual pains, Medina disparaged her, (6) three supervisors had given her false disciplinary memoranda; (7) shortly thereafter, another supervisor, Bellini, recommended plaintiff's termination in part due to the negative memos in her file, and (8) plaintiff was quickly placed on unpaid leave and then fired.

While the Housing Authority argued that plaintiff cannot rely on any discrimination that took place at the housing projects (where she had been transferred) in order to show her termination was unlawful, the Court of Appeals (Sack, Bianco and Lee) notes that one reason for her termination was the prior negative memos that were drafted by a supervisor who had used racist and sexist epithets against her. So we have a "cat's paw" theory of liability: we can impute a discriminatory motive to a decisionmaker when such animus is proximately caused by the animus of another supervisor or subordinate. While the decisionmaker who made the termination request may not have had any discriminatory animus, the jury could find in plaintiff's favor on the basis that the recommendation to terminate was tainted by racist and sexist bias from plaintiff's other supervisors. 

The district court also said plaintiff cannot prove a causal connection between her protected activity and termination, since she first complained about discrimination in December 2016 or January 2017 and the formal date of her termination was May 12, 2017, at least five months later. But there is no "bright-line" rule to prove causation, and cases hold that four months is not too remote. What is more, that five-month gap is too long under the analysis because plaintiff's termination was recommended in February 2017, only weeks after she had complained. Looking at things from that angle, the timeline is shorter. The fact that plaintiff's formal termination did not take place for a few months does not undermine her retaliation claim as a matter of law. Plus, plaintiff's prior discriminatory supervisors expressly tried to get her fired, urging supervisor Medina to "give her a Memo" and "kick her out."