In Walsh v. New York City Housing Authority, 14-181-cv, 2016 WL 3632245 (2d Cir. July 7, 2016), a Title VII gender discrimination failure-to-hire case, the U.S. Court of Appeals for the Second Circuit vacated the lower court’s order granting summary judgment to defendant. It is worth a read, for at least the reason that it cites the seminal case of People v. Gambini.
In sum, plaintiff, a woman, alleged that the defendant did not hire her as a bricklayer because she was a woman. Among other things, she claims that a defendant HR representative took her aside after the interview and told her that the interviewers wanted someone “stronger”. (I discussed her complaint here and the court’s summary judgment ruling here.)
This case is instructive as to how courts are to evaluate discrimination claims under Title VII of the Civil Rights Act of 1964 in the procedural context of summary judgment.
The Second Circuit summarized the governing legal framework:
Title VII makes it unlawful for an employer to discriminate against any individual based on that person’s sex. Claims of sex-based discrimination under Title VII and the NYHRL are analyzed using the familiar burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). … First, plaintiff must establish a prima facie case of sex discrimination by demonstrating that (1) she was within the protected class; (2) she was qualified for the position; (3) she was subject to an adverse employment action; and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination. The burden of establishing a prima facie case is not onerous, and has been frequently described as minimal. If the plaintiff successfully establishes a prima facie case, the burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the adverse employment action. If the employer carries that burden, the plaintiff’s admissible evidence must show circumstances that would be sufficient to permit a rational finder of fact to infer that the defendant’s employment decision was more likely than not based in whole or in part on discrimination.
It also underscored that when performing this analysis, courts must analyze/view the evidence as a whole, rather than in bits and pieces:
A plaintiff’s evidence at the third step of the McDonnell Douglas analysis must be viewed as a whole rather than in a piecemeal fashion. … No one piece of evidence need be sufficient, standing alone, to permit a rational finder of fact to infer that defendant’s employment decision was more likely than not motivated in part by discrimination. To use the apt metaphor coined by Vincent Gambini (one that seems only fitting given the facts of this particular case), a plaintiff may satisfy her burden by building a wall out of individual evidentiary bricks. (Emphasis added.)
Here, the lower court “erred when it failed to view Walsh’s evidence as a whole and instead set aside each piece of evidence after deeming it insufficient to create a triable issue of fact that NYCHA’s refusal to hire Walsh was based in part on the fact that she is female.”
The “evidence as a whole” in this case included:
- no history of female bricklayers at NYCHA;
- the fact that one of the male candidates that was hired over plaintiff had less experience that plaintiff with tile work;
- the fact that plaintiff was asked only one technical question and was not asked any technical questions related to the “area in which her inexperience purportedly prevented her from being hired”; and
- the HR representative’s “stronger” statement, which was (1) not inadmissible hearsay under the party-opponent exemption, Federal Rule of Evidence 801(d)(2)(D), since it was made within the scope of his relationship with NYCHA, (2) not undermined merely because it was “self-serving”, and (3) “relevant to the issue of discriminatory motive” since “[i]t can hardly be contested that males are widely considered to be stronger than females.
The court concluded that plaintiff “proffered evidence that—when viewed as a whole—is sufficient to permit a rational finder of fact to infer that NYCHA’s decision not to hire her was more likely than not motivated in part by sex-based discrimination.”
The panel included Judges Hall, Calabresi, and Livingston; Judge Hall wrote for the majority while Judge Livingston dissented.