Tuesday, February 23, 2021

Year-old racial comment about getting rid of the "Black guy" not enough to win racial discrimination

There's the cocktail party version of a case, and then there's the courtroom version of the case. The cocktail party version makes the case out to be a slam dunk. The courtroom version sees the case dismissed on summary judgment. 

So in this case, imagine that someone tells you he was denied a promotion and that one of the decisionmakers once said that he wanted to get rid of the "Black guy" in the division "because he was making too much money." The "Black guy" the supervisor was referring to was plaintiff. At the cocktail party, the reaction would be one of outrage. But the case did not survive summary judgment, even under the New York City Human Rights Law, which favors plaintiffs.

The case is Pierre v. City of New York, a summary order issued on February 10. Plaintiff applied for two promotions. He was denied those positions; he claims the adverse decisions were motivated by racial and age discrimination. One decisionmaker made the comment about getting rid of  the "Black guy" because he was making  too much money. Even though Pierre was the "Black guy," that comment loses its evidentiary value because the decisionmaker said it one year earlier. That makes it a "stray remark" under employment discrimination jurisprudence. 

The judges at oral argument in this case focused on the "too much money" angle. It's not discriminatory to  fire someone for that reason. Plaintiff's counsel focused on the "Black guy" angle, and his client's extensive experience for the positions. But that comment took place a year earlier, and courts do not like  to second-guess discretionary managerial decisions about whom to promote when all the candidates are qualified for the position. What also hurts plaintiff's case is that management proved the successful candidates had much more experience than plaintiff, and that they were more enthusiastic about the positions than plaintiff was. And, the Court of Appeals (Chin, Calabresi and Raggi) says, plaintiff admitted during his job interview that "he did not view the position of division chief as the 'passion of his life,' instead viewing it as a launching pad for further promotion. This analysis takes care of plaintiff's federal claims.

While the Court of Appeals notes that the City Human Rights Law carries a more favorable burden of proof for plaintiffs, this case fails under the City law as well, and the Court notes that even claims under the City law may be dismissed on summary judgment. Even under the liberal standards guiding the City law, the Court says his claim under that statute fails also.

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