FDNY EEO Head’s Race Discrimination Claim Survives Summary Judgment, Notwithstanding Comparator Dissimilarities

In Phillips v. City of New York, 2017 WL 6619152 (E.D.N.Y. Dec. 27, 2017), the court held (inter alia) that the plaintiff – an African American woman who formerly held the position of head of the NYC Fire Department’s Equal Employment Opportunity Office – supplied enough information to the court to survive summary judgment on her race discrimination claim under 42 U.S.C. § 1981.

Notably, the court was initially inclined to rule in defendants’ favor (“on the papers”, so to speak), but was convinced to rule in plaintiff’s favor after having the opportunity to question the plaintiff in open court.

Judge Weinstein began his opinion by noting:

Discrimination in the work place is often covert, and can only be revealed through a full examination of the facts. Juries are unusually well suited to making this determination after weighing the evidence and credibility of the parties. In this case, under the court’s examination, plaintiff’s presentation of herself at the hearing on defendant’s motion for summary judgement indicates that a jury could find that she did not fail in administering her duties, and that racial discrimination was the reason for her termination.

Interestingly, plaintiff prevailed despite what the court observed were dissimilarities between plaintiff and so-called non-black “comparators” whom, she claimed, were treated differently than her. This, explained the court, was due to plaintiff’s unique position:

Plaintiff devotes a significant portion of her written submissions to an attempt to establish an inference of discrimination by pointing to comparable employees of a different race who were treated differently. See Pl. Opp’n at 9-14. The court was prepared to rule—based on the parties’ briefs—that plaintiff had failed to establish an inference of discrimination.

There are factual dissimilarities between plaintiff and the comparators to which she points—different job titles, different direct supervisors, and a general lack of evidence that plaintiff’s own performance evaluation and discipline standards were substantially similar to those of her comparators. For a person in a senior management position proving discrimination by using comparators is difficult. Managers often do not receive formal evaluations and are the only person with their precise job title.

Judge Weinstein then proceeded to explain the additional factors that, in his view, entitled plaintiff to a trial on the merits:

The December 18, 2017 hearing changed the court’s view of the case. Plaintiff was subject to thorough examination by the court. It was clear that a jury could find her a credible witness with a legitimate claim of discrimination. She cogently and persuasively stated several reasons—in addition to the differing treatment of comparators—why a jury could find that there was race based discrimination. She was a thoughtful person, who appears to have taken her job at the FDNY EEO office seriously. It would be hard for a jury to believe that this intelligent, well informed person managed her important office in a lackadaisical manor.

The timing of plaintiff’s termination from the FDNY on March 26, 2012—three days after she met with consultant Professor Rossein to discuss race discrimination at the FDNY—is, a jury could find, not mere coincidence. See December 18, 2017 Hearing Transcript (“Hr’g Tr.”) 13:17-22. After plaintiff disclosed to Professor Rossein that race discrimination in the FDNY was broader than revealed in the Vulcans litigation, she was terminated. Hr’g Tr. 13:23-25.

There was, as noted in the Vulcans findings of fact, an atmosphere of racial tension and animus within the FDNY. Plaintiff’s status as a black female Assistant Commissioner at the FDNY, and the particular scrutiny with which the FDNY approached plaintiff’s alleged mismanagement, raises a genuine issue of triable fact as to whether the defendants terminated plaintiff because of her race.

The court concluded that “[a] jury could conclude that the plaintiff’s claim of discrimination is credible, and that the defendants reason for her termination was pretextual.”

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