Title VII Race Discrimination Dismissal Affirmed; Comparators Were Not “Similarly Situated;” Racial Slur Introduced Too Late

In Johnson v. Schmid et al, 17-3196 (2d Cir. Sept. 7, 2018) (Summary Order), an employment (race) discrimination case asserted under Title VII of the Civil Rights Act of 1964, the Second Circuit affirmed the district court’s award of summary judgment to defendants.

Plaintiff, a black social worker trainee, proffered three grounds for why his termination was racially discriminatory: (1) three white female instructors engaged in similar conduct to him but were not disciplined; (2) he was evaluated by different performance criteria than other social worker trainees; and (3) one employee used a derogatory racial slur – “boy” – after Johnson intimated that he might file a lawsuit.

The court found that plaintiff met his minimal burden of establishing a prima facie case under the burden-shifting framework applicable to discrimination claims, and that defendant articulated “a legitimate, non-discriminatory reason” for firing plaintiff – namely, poor performance. It thus ” proceed[ed] to the ultimate question of whether Johnson has adduced sufficient evidence from which a reasonable factfinder could conclude he was discriminated against because of his race.”

As to his first point, the court explained:

[A] plaintiff may establish an inference of discrimination by establishing that a similarly situated employee not in the relevant protected group received better treatment, but those employees must have a situation sufficiently similar to plaintiff’s to support at least a minimal inference that the difference of treatment may be attributable to discrimination. [Internal quotation marks omitted.]

Applying the law, the court held that plaintiff’s comparators were instructors and plaintiff was their student, such that they were ” no reasonable jury could conclude that Johnson was sufficiently similar to the purported comparators,” reasoning that the latter were instructors and plaintiff was their student and, therefore there were not “similarly situated” as a matter of law.

As to his second point, plaintiff did not present evidence that he was subjected to different performance criteria. While he asserted that he was required to perform tasks that his coworkers were not required to collect, there was “no evidence to support the inference that any different requirements resulted from impermissible race-based discrimination” as opposed to task-based differences.

As to plaintiff’s third point relating to an allegedly derogatory racial slur – namely, the remark “are you threatening me boy?” [emphasis supplied by court] in response to plaintiff’s suggestion that he might file a lawsuit – the court noted that plaintiff asserted this slur for the first time in opposing summary judgment.

“A party may not defeat summary judgment by submitting an affidavit in
opposition to a summary judgment motion that, by omission or addition, contradicts the affiant’s previous deposition testimony …, particularly where the contradiction is left unexplained – indeed, is inexplicable[.]” [Citations and internal quotation marks omitted.]

That principle applied here: Specifically, plaintiff’s previous characterization of the statement, made in response to interrogatories, omitted the word “boy.” Plaintiff, noted the court, “has not even attempted to explain his initial omission of the racial epithet that he now relies on as key proof of race discrimination.”  In light of the additional facts that plaintiff has not pointed to any other allegedly racist remarks, plaintiff’s “new allegation regarding [the] use of a purported racial epithet does not raise a genuine issue for trial.”


Thoughts/commentary: One take-away from this (albeit non-precedential Summary Order) is that the omission of evidence until the last-minute may fatally compromise one’s case. At the procedural juncture of summary judgment, it is likely that discovery has closed, and the question becomes (in sum) whether there is a “genuine dispute as to any material fact” that will entitle the non-movant to present their case to a jury. See Fed. R. Civ. P. 56(a).  While it is unclear what the outcome would have been if the “boy” comment were properly and timely disclosed, the fact that it surfaced for the first time during summary judgment briefing certainly did not help the plaintiff here.

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