It is an unfortunate reality that many employment discrimination cases are dismissed. These cases are often difficult to prove, and success requires navigating a path riddled with hurdles, ranging from statutes of limitation, to proper pleading, to dismissal on summary judgment following the completion of discovery.
A recent example is Edwards v. N.Y. State Office of Mental Health, No. 16 CIV. 1397 (BMC), 2017 WL 666227 (E.D.N.Y. Feb. 20, 2017) (J. Cogan), in which plaintiff alleged, under Title VII of the Civil Rights Act of 1964, “discrimination, a hostile work environment, and retaliation based on his religion as a Born Again Christian, and for filing a complaint with the Equal Employment Opportunity Commission.”
The court granted defendants’ motion for summary judgment on all claims. Here I’ll discuss its evaluation of plaintiff’s discriminatory-termination claim.
In evaluating this claim, the court applied the three-step burden-shifting test set forth by Supreme Court’s decision in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
As to the first element (prima facie case), Judge Cogan explained:
Regarding the comments about which plaintiff complains, “stray remarks, even if made by a decision maker, do not constitute sufficient evidence to make out a case of employment discrimination.” Danzer v. Norden Sys., 151 F.3d 50, 56 (2d Cir. 1998). Ward’s infrequent references to plaintiff as “Rev,” short for Reverend, is not an invidious comment, particularly when considering that plaintiff believed himself to be a minister, that he told his colleagues of his faith, and particularly considering that plaintiff did not know how Ward intended the comment. It is illogical to admit not understanding how a comment is intended and then to argue that it is invidious. Related to this point is plaintiff’s meritless argument regarding Hall’s response when plaintiff stated that he works to please God: Hall stating that he did not want to discuss God or religion is insufficient to find an invidious comment.
Next, there can be no inference of discrimination based on a single facial expression during one conversation. In the first instance, it is a facial expression and not an invidious comment. The Court refuses to make the leap from a disagreeable facial expression to one that evinces discrimination against Born Again Christians. Even if the Court were to accept plaintiff’s characterization of Jackson’s expression as “nasty,” that is insufficient: An “angry facial expression[ ]” will not permit a finding of discrimination because although this “behavior may be rude and unprofessional, it merely indicate[d] personal enmity [or here, disagreement] rather than discrimination.”
The court did, however, find that plaintiff “barely” made out a prima facie case of discrimination by pointing to another employee who was not a Born Again Christian, but who (unlike plaintiff) was not fired, notwithstanding that he “came to work late and drunk.”
Plaintiff’s case faltered at the third stage of the analysis, since he “failed to rebut defendants’ legitimate, nondiscriminatory reasons for his termination as pretext.”
From the decision:
As to the third step of McDonnel Douglas, plaintiff has failed to rebut the legitimate, nondiscriminatory reasons for his termination. As stated above, the evidence that should be considered at step three includes “the strength of the plaintiff’s prima facie case” as well as “the probative value of the proof that the employer’s explanation is false, and any other evidence that supports [or undermines] the employer’s case.” James, 233 F.3d at 156 (internal quotation marks omitted). Plaintiff’s memorandum in opposition to defendants’ motion for summary judgment spends one paragraph arguing pretext; specifically, he argues pretext because his “May 2015 termination occurred less than four months after he received a satisfactory probation report;” that “[f]ollowing the March 2015 conversations regarding religion, [he] failed to receive any supervisory and employee assistance for his job duties;” he “was blamed for deficiencies which occurred on his days off and heavily scrutinized by Jackson with regular visits to his [w]ard when same was never done prior.” In essence, plaintiff relies on the same arguments he advanced for his prima facie showing, and he does not offer any arguments targeted to the performance reviews as pretext. That is permissible, and may create an issue of fact when the prima facie case is strong. Here, however, plaintiff’s prima facie case is truly de minimis, and no reasonable jury could find that his religion was a substantial factor in the decision to terminate him.