“Better Fit” Remarks Sufficient to Defeat Summary Judgment in Race Discrimination Case, Second Circuit Holds

In Abrams v. Department of Public Safety, decided July 14, 2014, the Second Circuit vacated summary judgment in defendants’ favor on plaintiff’s race discrimination claims under Title VII and the Equal Protection Clause (pursuant to 42 U.S.C. § 1983).

Plaintiff, an African American detective, argued that he was discriminated against by, among other things, not being assigned to a specialized crime unit (referred to as the “Van”). All of the Van members were white. The court focused on statements that plaintiff “did not fit in” with the other (white) van members and another white detective would “fit in better” than plaintiff.

In vacating summary judgment for defendants, the Second Circuit adopted the reasoning of the Fifth Circuit regarding the use of “fit in” language:

In fact, the explanation given by the [employer], i.e., that [employee] was not “sufficiently suited” for the position—even including [supervisor’s] belief that she would not “fit in”—does not necessarily qualify as a “nondiscriminatory” reason. After all, a hiring official’s subjective belief that an individual would not “fit in” or was “not sufficiently suited” for a job is at least as consistent with discriminatory intent as it is with nondiscriminatory intent: The employer just might have found the candidate “not sufficiently suited” because of a protected trait such as age, race, or engaging in a protected activity. We hold as a matter of law that justifying an adverse employment decision by offering a content-less and nonspecific statement, such as that a candidate is not “sufficiently suited” for the position, is not specific enough to meet a defendant employer’s burden of production under McDonnell Douglas. It is, at bottom, a non-reason.

Applying this reasoning, the court held that “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.”

Update: Following a granted petition for rehearing, the court withdrew its July 14, 2014 opinion and issued a revised opinion dated August 26, 2014.

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