A recent Southern District decision, Villar v. City of New York, No. 09-CV-7400 DAB, 2015 WL 5707125 (S.D.N.Y. Sept. 29, 2015), illustrates how a plaintiff can overcome summary judgment on a gender discrimination claim by demonstrating that a defendant’s proffered legitimate, nondiscriminatory reason for the discriminatory act is a “pretext” for discrimination.
Plaitniff, a Hispanic female, alleged that defendants “discriminated against her on the basis of her race and sex by subjecting her to improper discipline, terminating her, failing to promote her, denying her overtime, and subjecting her to a hostile work environment, and retaliated against her for her complaints of discrimination” in violation of various statutes, including Title VII of the Civil Rights Act of 1964 and the New York City Human Rights Law. The court granted in part and denied defendants’ motion for summary judgment.
Here I’ll address the court’s decision to deny defendants’ motion for summary judgment on plaintiff’s claim that she was (a) terminated (b) because of her gender.
The court held that plaintiff sufficiently presented two categories of evidence of pretext, namely: (1) “[d]epartures from procedural regularity”; and (2) a “showing that similarly situated employees belonging to a different [protected class] received more favorable treatment.”
As to the first rationale, the court explained:
Here, Plaintiff has marshaled evidence that Defendants’ process for terminating her departed from procedural regularity. The record indicates that the normal procedure for determining the penalty for an NYPD member found guilty at trial required the Assistant Deputy Commissioner who adjudicated the trial to review the member’s disciplinary record, and to provide the member with “the right to review these same records before” the Assistant Deputy Commissioner reviewed them. (Avallone Decl. Ex. K (emphasis added).) However, although Plaintiff exercised her right to review her disciplinary record (Avallone Decl. Ex. I, at 1), a reasonable juror could find that she received a different version of her CPI than the CPI reviewed by Commissioner Weisel. …
As to the second category, the court explained:
Here, the stark contrast between the penalties administered to Plaintiff and the similarly situated male lieutenant for comparable conduct is strong evidence that Defendants’ stated rationale is pretextual. The male lieutenant was found guilty of four separate specifications, including one specification comparable to Plaintiff’s conduct. (Schowengerdt Reply Decl. Ex. A, at COM0059–60 .) Commissioner Grappone found that the male lieutenant engaged in a “very serious act of misconduct” and that the “consequences of this act could lead to [the subject of an investigation] fleeing and possibly never be [sic] caught to face his crime.” (Id.) The appropriate penalty for this “very serious act of misconduct” was, according to Commissioner Grappone, a forfeiture of twenty-five vacation days; to Commissioner Kelly, the appropriate penalty was a forfeiture of thirty-five vacation days. (Id. at COM0060, COM0136.) Although a reasonable jury could find that Plaintiff’s conduct was comparably serious or less serious than the male lieutenant’s, Plaintiff was terminated. The evidence that Plaintiff was administered a significantly harsher penalty than a similarly situated male comparator, in combination with evidence of procedural irregularities in the determination of her penalty, is sufficient for a reasonable jury to find that Defendants’ stated rationale is pretextual.
“[E]vidence satisfying the minimal McDonnell Douglas prima facie case, coupled with evidence of falsity of the employer’s explanation, may or may not be sufficient to sustain a finding of discrimination.” Applying this principle, the court concluded:
The evidence that a similarly situated male lieutenant who engaged in comparable or worse conduct than Plaintiff received a much lighter penalty, in combination with the evidence that Defendants departed from procedural regularity by providing Commissioner Weisel with an inaccurate and version of Plaintiff’s disciplinary record than they provided to Plaintiff, is legally sufficient for a reasonable jury to find that Defendants terminated Plaintiff in part on the basis of her sex.