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African American “not fitting in” and Caucasian employee “fitting in better” considered pretext and


The Second Circuit assumed that denial to the van was an adverse employment action and evaluated two statements of which the District Court excluded: (1) Department of Public Safety employees sharing comments that Plaintiff “did not fit in” with the other Van Members; and (2) Statements from Department of Public Safety supervisors that, Payette, a white male, would “fit in better” than Plaintiff, an African American. The District Court found that “there is insufficient evidence to permit a finding that ‘fitting in’ referred to plaintiff’s race” to which the Second Circuit disagreed.

The District Court granted Defendants’ motions for summary judgment as to Plaintiff’s Title VII discrimination claim, the 42 U.S.C. § 1983 claims and Plaintiff’s Title VII retaliation claim regarding his assignment to the Casino Unit. The only issue tried was Plaintiff’s Title VII retaliation claim against Department of Public Safety for denial of assignment to the Van after Plaintiff’s complaints. After trial, the jury found for the Defendants – the verdict was upheld. The Second Circuit vacated the District Court’s grant of summary judgment of the Title VII race discrimination claim and the corresponding race discrimination claim brought under the Equal Protection Clause pursuant to 42 U.S.C. § 1983.

Title VII Discrimination: “A plaintiff presents a prima facie case when he establishes: (1) that he belonged to a protected class; (2) that he was qualified for the position he sought; (3) that he suffered an adverse employment action; and (4) that the adverse employment action occurred under circumstances giving rise to an inference of discrimination intent.” Citing Holcomb v. Iona Coll., 521 F.3d 130, 138 (2d Cir. 2008).

Citing the Fifth Circuit, the Second Circuit evaluated whether the “fit in” phrasing offered by an employer was pretext: “the underlying reasoning holds: the phrasing ‘better fit’ or fitting in’ just might have been about race; and when construing the facts in a light most favorable to the non-moving party, those phrases, even when isolated, could be enough to create a reasonable question of fact for a jury. It is enough of an ambiguity to create a reasonable question of fact.” (emphasis in original). Indeed, the Second Circuit found that “The Fit In Statements raise a genuine dispute as to whether the proffered reasons for Abrams’s non-assignment to the Van were pretextual.” Accordingly, the Second Circuit vacate the judgment of the District Court on Abrams’s Title VII discrimination claim against Department of Public Safety and Plaintiff’s 42 U.S.C. § 1983 Equal Protection Clause claim against the individual Defendants.

As to Plaintiff’s retaliation claim, the issue for the Second Circuit was temporal proximity: within five months of Plaintiff’s a complaint, he was reassignment about five months later. As a result of the transfer, Plaintiff suffered no pecuniary loss but was no longer able to do major crime investigations, his travel-time doubled and he was no longer able to obtain overtime pay. Although five months may satisfy the element of temporal proximity, the Second Circuit held that the Plaintiff did not come forward with sufficient evidence of pretext in order to raise a triable issue of fact. The judgment here was affirmed.

The case is v. Dept. of Public Safety, 13-111-cv (2d Cir. Aug. 26, 2014)

#civilrightsattorney #civilrights #titlevii #fittingin #notagoodfitisdiscrimination #notagoodfitdiscrimination #longislandlawyer #racediscrimination #retaliation #secondcircuit

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