Plaintiff cannot win discriminatory demotion claim

A white New York City employee who claims she was demoted because of her race cannot prevail at trial on her discrimination claim, the Court of Appeals holds.

The case is Chislett v. New York City Department of Education, issued on September 26. You can read about plaintiff's meritorious racial harassment claim at this link. While that claim will proceed to trial, plaintiff's demotion claim will not. The Department said plaintiff was stripped of her supervisory responsibilities because her team did not think she was an effective leader and she had created chaos and a negative work environment. In light of this defense, to win the case, plaintiff has to show either that the articulated justification for her demotion was knowingly false or issued in bad faith or that some other evidence supports a finding of discriminatory intent. 

Although the workplace was permeated with anti-white bias, that does not support her disparate treatment claim. I am sure her argument was that the jury may view the evidence holistically and find that the hostile work environment spilled over into the decision to demote the plaintiff. But the Court (Leval, Nardini and Bianco) examines the demotion claim separately from the harassment claim, holding that since plaintiff was unable to refute her supervisor's testimony that she had received numerous negative evaluations about her supervisory practices. Bad evaluations can be the death knell of a discrimination claim. Unless the plaintiff can show the supervisor was motivated by racial discrimination in drafting them, or that the supervisor himself made racist comments that rendered the negative evaluations unreliable, the courts will defer to management's view on how the plaintiff performed her duties. 

Interesting footnote on the disparate treatment claim. In summarizing the plaintiff's prima facie burden under McDonnell Douglas, the Court notes the plaintiff has to present "some minimal evidence suggesting an inference that the employer acted with discriminatory motivation." That language has been kicking around for years, and the Court pulls it from Littlejohn v. City of New York, 795 F.3d 297 (2d Cir. 2015). (If the plaintiff makes out a prima facie case, the employer has to advance a natural reason for the adverse personnel action and, to win, the plaintiff must show the real reason was discrimination). But the Court also says that "in McDonnell Douglas itself, which was a case involving allegations of racially discriminatory denial of employment, for the fourth factor, the Supreme Court specified that 'the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.'” 

However, the Second Circuit goes on to say that "the Supreme Court more recently ceased to rely on this requirement in Title VII cases, apparently recognizing that it had no application to cases involving other adverse employment actions and furthermore that this factor was not useful." For this proposition, the Circuit cites Ames v. Ohio Dep’t Youth Servs., 605 U.S. 303 (2025) (explaining that a plaintiff may establish a prima facie case “simply by presenting evidence ‘that she applied for an available position for which she was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination’”). Does this mean that it no longer matters if the employer kept the position open and looked for other candidates? Or is that evidence still enough to prove a prima facie case but that plaintiffs have other ways to prove it, too? Can the latter formulation be the case if the Second Circuit has long said the prima facie case may be proven through other evidence of discriminatory motivation? My guess is that the "position remained open" option remains viable under the prima facie framework, as the footnote further notes that "the fourth element set forth in McDonnell Douglas is a flexible one that can be satisfied differently in differing factual scenarios."