Plaintiff Gets to Jury on Discrimination and Defamation Claims, Notwithstanding Theft Allegation

Plaintiff Ese O’Diah, a black man from Nigeria, sued his former employer Roastown Coffee and its owner Doug Shin for employment discrimination (alleging that he was fired because of his race, color, and national origin) and defamation. Defendants claimed that plaintiff was fired for stealing money from the store cash register.

The Southern District of New York recently held, in O’Diah v. Yogo Oasis (decided July 22, 2013), that there was sufficient evidence to present a jury question as to both claims.


Plaintiff alleged that, throughout his employment, Shin subjected him to racially derogatory remarks, such as “you black guy, tell those black guys to go away” (regarding black men at Roastown’s storefront), “black guys are bad for business”, “damn black guys no good”, “fucking Nigerian no good”, and “Nigerians can’t be trusted”.

The court easily found that plaintiff presented a prima facie case of discrimination:

As a black Nigerian, he is a member of two protected classes. The evidence further demonstrates that O’Diah was qualified for his job as a barista. Indeed, Roastown concedes that Shin regarded O’Diah as a valuable worker and promoted him. O’Diah’s termination qualifies as an adverse employment action. Finally, the allegations of Shin’s discriminatory remarks, which were made both throughout O’Diah’s employment and at the time of his termination, are sufficient to demonstrate that O’Diah’s termination arose out of circumstances giving rise to an inference of unlawful discrimination.

The court rejected defendants’ claim that plaintiff’s alleged theft made him unqualified for the position:

Although an acknowledged theft undoubtably would establish unsatisfactory job performance, O’Diah denies having stolen any money. Similarly, although Roastown’s videotapes may be supportive of Shin’s claim that he believed O’Diah had been stealing money, that evidence does not prove conclusively that he did. Rather, Roastown’s allegations of theft merely confirm the existence of a factual dispute that cannot be resolved on summary judgment.

The issue of whether plaintiff was fired (and hence suffered an “adverse employment action”) or quit was a credibility-dependent factual issue that could not be resolved on summary judgment.

The court also held that plaintiff’s evidence was sufficient to support an inference of discrimination.  Defendants’ argument to the contrary was undermined by evidence of Shin’s “numerous discriminatory remarks concerning O’Diah’s race and national origin throughout his employment.”  Such comments “clearly support the inference that Shin’s decision to terminate O’Diah was motivated by discriminatory animus.”

Next, the court found that defendants’ argument that plaintiff stole money was a legitimate, nondiscriminatory reason for firing plaintiff. The burden therefore shifted back to plaintiff to demonstrate that this reason was not the real reason, but was rather a mere “pretext”, for firing plaintiff.

Plaintiff can establish pretext either by “persuading the Court that a discriminatory reason more likely motivated the employer, or by showing the defendant’s explanation is not credible.”  In doing so plaintiff can “rely on the evidence supporting his prima facie case or any additional evidence of discrimination.”

Here, plaintiff presented enough evidence to support a finding of pretext. Specifically, the court pointed to evidence that cast doubt on defendants’ contention that plaintiff was stealing:

Although there is videotape footage showing O’Diah removing money from the cash drawer and placing it in either the tip jar or his pocket, O’Diah explained that the registers ran low on change, requiring him to avail himself of the money in the tip jar or to take larger bills from the register to the bank to obtain additional change. Roastown contends that this explanation is undermined by store policies, which apparently prohibited anyone other than Shin from removing money from the cash registers when not making a sale. There is no evidence of any written policy to that effect. In any event, even if there were, the existence of such a written rule would not undermine O’Diah’s explanation, since he did not claim that his actions were authorized, but, rather, that he did what he believed was reasonably necessary to keep the store from having to close as a result of running out of change.

Roastown’s daily sales records also cast considerable doubt on the claim that O’Diah committed theft. Although the records indicate no reported cash shortages for fourteen of the days O’Diah was absent in July, Roastown offers no explanation for why it failed to provide records for the remaining eleven days of his vacation. The absence of records for nearly half of O’Diah’s vacation is significant, since Roastown claims that the lack of cash shortages during this period is circumstantial evidence of his theft. At any rate, Roastown’s theory is belied by the fact that there were several other lengthy periods of time while O’Diah was working at the café, during which there were no reported cash shortages. Indeed, Roastown has claimed no shortages for the entire period between May 13 and June 20, all of which were days that O’Diah worked. Thus, Roastown’s sales records fail to establish a link between O’Diah and the store’s alleged cash shortages.

Other evidence also suggests that O’Diah was not the source of Roastown’s cash shortages. For example, O’Diah’s coworker explained that the reported shortages may have been the result of accidental “over ring[ing],” rather than theft. It also is odd that Shin waited six months to confront O’Diah about the missing amounts when the records clearly indicate that significant and frequent cash shortages had been reported as far back as March. Moreover, when the police were summoned to Shin’s office during O’Diah’s termination, Shin was unable to provide the officers with any evidence of theft, and the police concluded that there was no indication that anything improper had occurred. Finally, Shin’s two-month delay in filing his criminal complaint with the New York City Police Department is inconsistent with the notion that theft was the real motivation for his decision to terminate O’Diah.

There was also evidence that would permit a rational jury to conclude that plaintiff was fired for discriminatory reasons:

Indeed, a number of the remarks Shin is alleged to have made throughout O’Diah’s employment can fairly be construed as evidence of discriminatory motive. Comments such as “black guys [are] bad for business,” “damn black guys no good,” and “fucking Nigerian no good need new manager” all clearly are suggestive of Shin’s discriminatory animus against O’Diah. Shin’s statement to O’Diah that “You Nigerians can’t be trusted” is particularly troubling because it was alleged to have been made during the meeting at which O’Diah was terminated. Context matters a great deal in employment discrimination cases, and the temporal relationship between the discriminatory remark and the adverse employment action often is highly probative of discriminatory intent. Drawing all reasonable inferences and resolving all ambiguities in O’Diah’s favor, this evidence clearly supports a finding that O’Diah’s termination was the product of unlawful discrimination.

Finally, the court rejected defendants’ reliance on the so-called “same actor inference”, namely, “that Shin would not have discriminated against O’Diah because he hired O’Diah in the first place.”  The court noted that “[a]lthough a nondiscriminatory inference may be drawn when an employee is hired and fired by the same decisionmaker … the same-actor inference is permissive, not mandatory” and that the Second Circuit has “warned that its use is not to become a substitute for a fact-intensive inquiry into the particular circumstances of the case at hand.”  

Here, “[i]n light of Shin’s numerous alleged discriminatory comments, Roastown’s reliance on the same-actor doctrine seems particularly inappropriate in this case” and even if it gave rise to an inference it would be insufficient to justify summary judgment in defendants’ favor in light of the issues of fact otherwise raised by plaintiff.


The gist of plaintiff’s defamation claim is that Shin “falsely accused him of theft” in front of several local Korean business owners – who were allegedly prospective clients for plaintiff’s website business – “in an effort to tarnish O’Diah’s name and business”. The court found that issues of fact precluded summary judgment on this claim as well.

The court recited the legal standard for defamation:

Defamation is injury to a person’s reputation, either by written expression (libel) or oral expression (slander).  Under New York law, slander is defined as (1) a defamatory statement of fact, (2) that is false, (3) published to a third party, (4) of and concerning the plaintiff, (5) made with the applicable level of fault on the part of the speaker, (6) either causing special harm or constituting slander per se, and (7) not protected by privilege. Ordinarily, to recover on a defamation claim, a plaintiff must allege special damages, which is a term equated with the loss of something having economic or pecuniary value. Special damages need not be shown, however, where evidence supports a claim for slander per se.  The four categories of defamatory statements that constitute slander per se are those that (1) charge the plaintiff with a serious crime; (2) tend to injure the plaintiff in his or her trade, business or profession; (3) imply that the plaintiff has a loathsome disease; or (4) impute unchastity to a woman. An accusation of theft constitutes an allegation of a serious crime.

The court held that plaintiff’s allegations set forth a case for slander per se, and rejected Roastown’s sole argument to the contrary, namely, that plaintiff could not prove that the alleged defamatory statement (that he stole money from his employer) is false.  This argument “misses the point” because plaintiff’s “evidence establishes that there is a genuine factual issue as to whether Roastown’s allegations of theft were true” which was all that was required at the summary judgment stage.

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