Plaintiff Survives Summary Judgment on Race Discrimination, Hostile Work Environment, and Retaliation Claims

In McCall v. Genpak, LLC, No. 13-CV-1947 KMK, 2015 WL 5730352 (S.D.N.Y. Sept. 30, 2015), the court denied defendants’ summary judgment motion on plaintiff’s race discrimination and hostile work environment claims.

Race Discrimination Based on “Adverse Action”

Plaintiff alleged that he was subjected to two adverse employment actions – demotion and termination – because of his race. Plaintiff presented sufficient evidence as to both.

The court analyzed plaintiff’s discrimination (and retaliation) claims under Title VII, the New York State Human Rights Law, and 42 USC 1981 in accordance with the three-part burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

After determining that plaintiff demonstrated a prima facie case of discrimination (step 1) and defendants proffered a legitimate, nondiscriminatory reason for the alleged discrimination (step 2), the court proceeded to determine whether plaintiff presented sufficient evidence of pretext (step 3).

At this stage, “the presumption of discrimination drops out and Plaintiff then has the burden of showing that more likely than not[,] [discrimination] was the real reason for the decision to terminate Plaintiff.”

The court then explained why, in its view, plaintiff satisfied this burden as to his termination:

According to Plaintiff, Schou told Plaintiff to arrive at work late, and then marked him as late, resulting in his termination. (See Pl.’s 56.1 ¶ 126 (not denying that Carpanini had determined that Plaintiff accumulated twenty-four points but instead denying that Defendant had made such a determination in “good faith”); Pl.’s Counter 56.1 ¶¶ 56–57 (citing McCall Decl. ¶ 19); Carpanini Decl. Ex. 10 (indicating that McCall’s supervisors, including Schou and Garrett, produced and signed Plaintiff’s absence reports); Carpanini Reply Decl. Ex. E (same).) This evidence is sufficient to show that the reason for the termination was pretextual, and when combined with Plaintiff’s evidence that Schou referred to Plaintiff as a “nigger” on multiple occasions, (Pl.’s Counter 56.1 ¶ 11 (citing Crum Decl. ¶ 4)), is sufficient evidence from which a jury could reasonably conclude that the proffered reason for Plaintiff’s termination was pretextual and that racial discrimination was the real reason for the termination.

Hostile Work Environment

The court also denied defendants’ motion for summary judgment as to plaintiff’s hostile work environment claim.

The court explained:

Plaintiff has provided sufficient evidence that he was subjected to severe racially discriminatory language with frequency. For example, the use of the word “boy,” even by itself, can be evidence of “racial animus,” depending on “various factors including context, inflection, tone of voice, local custom, and historical usage.” Ash v. Tyson Foods, Inc., 546 U.S. 454, 456 (2006) (rejecting the argument that the word “boy” is only “evidence of discriminatory intent” “when modified by a racial classification like ‘black’ or ‘white’ “ (some internal quotation marks omitted)). Furthermore, the repeated use of the word “nigger” by Decker, as well as by managers, could result in a reasonable jury finding that there was a hostile work environment. Indeed, the Second Circuit has “emphasiz[ed] that perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as ‘nigger’ by a supervisor in the presence of his subordinates.”


The court also held that there was a triable issue of fact on plaintiff’s retaliation claim, noting among other things the “relatively short gap between protected activity and demotion and termination” and “other evidence of discriminatory animus.”

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