Tuesday, February 17, 2015

The City anti-discrimination law does what Federal law does not

If you handle employment discrimination cases in New York City, you have to navigate two separate legal models: federal and city law. While federal and city law used to be interpreted similarly, that changed in 2005, when the City Council rewrote city law to more broadly protect plaintiffs. Every now and then the Court of Appeals has to remind the district judges of this.

The case is Velazco v. Columbus Citizens Foundation, decided on February 13. This is an age discrimination case. On the federal claim, the district court ruled on summary judgment that plaintiff did not show that the "but for" cause of his termination, that is, his age, was the determining factor in his discharge. The district court dismissed the city claim, but it is not clear if the court analyzed the city law under the more lenient standard. So the case returns to the district court for that analysis.

Under federal law, it is not enough to show that age was simply a motivating factor in the plaintiff's termination. Under recent Supreme Court authority, Gross v. FBL Financial Services, plaintiffs have to prove "but for" causation. This is a higher standard of proof, making it easier for defendants to win. But the city law is more nuanced, recognizing that "it is not uncommon for covered entities to have multiple or mixed motives for their action, and the [city law] proscribes such 'partial' discrimination." For that proposition, the Second Circuit cites Bennett v. Health Mgt. Sys., Inc., 936 N.Y.S.2d 112 (1st Dept. 2011).

Bennett says more than that. It notes that, under city law, "discrimination shall play no role in decisions relating to employment, housing or public accommodations." Bennett reviews the state of Supreme Court authority in discrimination cases, noting that summary judgment may be appropriate even if the plaintiff makes out a prima facie case of discrimination and the employer offers a false reason for the plaintiff's discharge. As the Supreme Court said in Reeves v. Sanderson Plumbing, 530 U.S. 133 (2000),

Whether judgment as a matter of law is appropriate in any particular case will depend on a number of factors. Those include the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered on a motion for judgment as a matter of law."
But in Bennett, the First Department said that the city law does not allow summary judgment if the employer offers a false reason. The case must then go to trial.

Once there is some evidence that at least one of the reasons proffered by defendant is false, misleading, or incomplete, a host of determinations properly made only by a jury come into play, such as whether a false explanation constitutes evidence of consciousness of guilt, an attempt to cover up the alleged discriminatory conduct, or an improper discriminatory motive coexisting with other legitimate reasons. These will be jury questions except in the most extreme and unusual circumstances. Proceeding in this way reaffirms the principle that "trial courts must be especially chary in handing out summary judgment in discrimination cases, because in such cases the employer's intent is ordinarily at issue."
The gap between Bennett and Reeves may not seem like much, but the Second Circuit in fact routinely grants summary judgment in employment discrimination cases under federal law, and the Court of Appeals is a "pretext plus" court, requiring the plaintiff to do more than simply prove the employer has offered a false or pretextual reason. Plaintiff also needs affirmative evidence of age or racial discrimination (or other illegal motive), such as ageist comments or a mass layoff of older employees. Some plaintiffs get around this, but that's rare

District courts do not have to retain jurisdiction over city claims if they dismiss the federal claims. But if they decide to hold onto the city claims, they must decide them under a standard that differs from federal case law. That's what the Court of Appeals is telling us in Velazco.

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