Racial discrimination claim is revived on appeal

The Court of Appeals has reinstated a racial discrimination claim, finding the complaint asserts a plausible claim that the Girl Scouts of Suffolk County terminated a Black man because of his race. This ruling provides useful guidance on interpreting the New York State Human Rights Law, amended in 2019 to lower the plaintiff's burden of proof.

The case is Flanagan v. Girl Scouts of Suffolk County, a summary order issued on May 27. I briefed and argued the appeal. Plaintiff Grant was the organization's Director of Technology. When the new President and CEO, Mastrota, came aboard in April 2020, before she had time to evaluate his performance, she said Grant "would be one of the first people fired," as he was "unqualified, overpaid and only obtained his position because his mother [] was the previous CEO." Mastrota also reduced staff salaries, though Grant's was reduced by 20%, claiming, without much basis, that he was making "crazy money" for his "level of activity." A white staffer's salary was only reduced by 10%. When two colleagues objected to Grant's salary reduction, these colleagues' salaries were reduced even further. In addition, Mastrota demoted Grant, reasoning that he was no longer managing staff (as Mastrota had taken away his subordinates) but a white colleague who also had no staff maintained her title and pay.

The district court dismissed the racial discrimination claim, but the Court of Appeals (Walker, Bianco and Wesley) says these allegations are enough to survive the motion to dismiss under Rule 12. Under Second Circuit standards, the discrimination plaintiff need only offer "minimal support for the proposition that the employer was motivated by discriminatory intent." The plaintiff does not have plead a prima facie case.

The case is reinstated because Mastrota announced Grant's termination without knowing enough about his performance, claiming he was not busy enough. The Court of Appeals cites Stratton v. N.Y.C. Dept. of the Aging, 132 F.3d 869 (2d Cir. 1997), for the proposition that "actions taken by an employer that disadvantage and employee for no logical reason constitute strong evidence of an intent to discriminate." I have used that language in other cases, but it lay dormant in the Second Circuit for many years. The Court revives that language in this case. The Court also finds the complaint asserts disparate treatment, as Grant was treated worse that comparable white employees, particularly regarding the reduction in pay and title. 

Grant also argued his termination was motivated by race because, in terminating him, Mastrota told staff to "be careful" with Grant because he "could get angry and destroy [Girl Scouts] property." Plaintiff argued these were racial code words reflecting stereotypes about the "angry black man" who "slacks on the job." In a footnote, the Court of Appeals does not resolve whether these are code words sufficient to support a discrimination claim. One of these days, the Court will address this issue, as this is not the first case I've seen in the Second Circuit where the plaintiff cites similar code words in support of his claim.

While defendants argued that various nondiscriminatory reasons justified the adverse treatment, the Court of Appeals holds that "even under the more stringent 'but-for' standard, a defendant cannot avoid liability just by citing some other factor that contributed to the challenged employment decision. So long as the plaintiff's race was one but-for cause of that decision, that is enough to trigger the law." The case for that proposition is Radwan v. Manuel, 55 F.4th 101 (2d Cir. 2022). In addition, at the motion to dismiss stage, the Court of Appeals does not focus on whether the employer has articulated a neutral reason for termination. The case for that principle is Buon v. Spindler, 65 F.4th 64 (2d Cir. 2023).

The other plaintiffs also asserted retaliation claims, either because they objected to Grant's treatment or they blew the whistle on unsavory practices at the Girl Scouts, triggering their state law whistleblower claims. Those claims do not survive the motion to dismiss, the Court of Appeals holds, because in response to the plaintiffs' whistleblower letter, the Girl Scouts conducted an investigation that led to Mastrota's departure, and the organization told plaintiffs they would not face retaliation. While plaintiffs were ultimately terminated, that was too long after they sent the letter, not "close in time" as required under Second Circuit standards. While plaintiffs were fired after settlement negotiations failed (they were looking for a severance), the Court says the complaint admits they were let go "because they decided not to discuss settlement."

Some interesting insights into the amended New York Human Rights Law, amended a few years ago liberalize the statute. The Court of Appeals says the state law now aligns with the New York City Human Rights Law, amended 20 years ago for the same purpose. The revised state law was not clear about this statutory interpretation, but recent cases now hold there is no daylight between the two laws. Key precedents on this point are Qorrolli v. Metro. Dental Assocs., 124 F.4th 115 (2d Cir. 2024), and Syeed v. Bloomberg L.P., 41 N.Y.3d 446 (2024).