Citing Employee’s “Serial Killer” Comment, Court Dismisses Race Discrimination (Disparate Treatment) Claim Against Rochester Psychiatric Center

In Freeman v. Rochester Psychiatric Center, 12-cv-06045 (WDNY Sept. 20, 2017), the court granted defendant’s motion for summary judgment on plaintiff’s disparate treatment race discrimination claim under Title VII of the Civil Rights Act of 1964.

It was undisputed that plaintiff was a member of a protected class and that he was qualified for his position, and there were factual issues as to whether plaintiff suffered an “adverse employment action.”

Specifically, the court held that plaintiff’s loss of pay resulting from a transfer (amounting to about 1% of plaintiff’s annual salary), his being required to attend sexual harassment prevention training, and his being placed on administrative leave with pay were not adverse employment actions. However, there were sufficient facts to create an issue as to whether plaintiff’s loss of seniority resulting from his transfer, as well as a suspension without pay, were adverse employment actions sufficient to overcome summary judgment.

This did not end the matter, however. Plaintiff’s case faltered – as many employment discrimination cases do – at the last element of the prima facie case, namely, that “the adverse employment action occurred under circumstances giving rise to an inference of discrimination.”

As to that element, the court explained:

The fourth and final element of a prima facie discrimination case is the existence of circumstances giving rise to an inference of discrimination. Circumstances contributing to a permissible inference of discriminatory intent may include…the employer’s criticism of the plaintiff’s performance in ethnically degrading terms…or its invidious comments about others in the employee’s protected group…or the more favorable treatment of employees not in the protected group…or the sequence of events leading to the [adverse employment action]…or the timing of the [adverse employment action]. … Since the court, in deciding a motion for summary judgment, is not to resolve issues of fact, its determination of whether the circumstances giv[e] rise to an inference of discrimination must be a determination of whether the proffered admissible evidence shows circumstances that would be sufficient to permit a rational finder of fact to infer a discriminatory motive.

Applying the law, the court held:

Here, defendant argues, and the Court agrees, that plaintiff has failed to produce any evidence from which a rational fact-finder could conclude that RPC acted with a discriminatory motive. Significantly, plaintiff himself testified at deposition that he did not know why defendant had taken adverse action against him, stating, “I believe that there was an unequal working condition where the defendants took my complaint and turned it around on me. Why? Male, black, just don’t like me, I don’t know.” … Further, when asked if he believed that either Ms. Hancoski or Ms. Uerkvitz had a racial or gender bias against him, plaintiff stated that he “[could not] answer that.”

Conclusory allegations of bias, without more, are insufficient to oppose summary judgment. Here, there is no evidence of direct racial or gender discrimination against plaintiff, such as the making of inappropriate comments or the use of epithets or slurs. There is also no competent evidence that other, similarly-situated employees were treated more favorably than him. Although the Second Circuit…has stated that the burden that must be met by an employment discrimination plaintiff to survive a summary judgment motion at the prima facie stage is de minimis, it has also noted that [a] jury cannot infer discrimination from thin air. In this case, there is simply nothing from which a jury could conclude that RPC was motivated by a discriminatory intent. Accordingly, defendant’s motion for summary judgment must be granted as to plaintiff’s disparate treatment claim.

The court proceeded to explain that, even assuming that plaintiff established a prima facie case of discrimination, defendant “articulated legitimate, non-discriminatory reasons for reassigning plaintiff to the day shift, and there is no competent evidence that these reasons were pretextual.” Specifically, the court noted that plaintiff “admits to having told a co-worker that he admired a fictional serial killer and wished he could be like him,” a statement which, held the court, “is clearly inappropriate in the workplace, and RPC was entitled to take appropriate disciplinary action.”

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