2nd Circuit, Citing Negative Performance Reviews, Affirms Dismissal of White Plaintiff’s Title VII Discrimination and Retaliation Claims

In Borzon v. Green, et al., 18-2211 (2d Cir. July 2, 2019) (Summary Order), the Second Circuit affirmed the dismissal of plaintiff’s race discrimination and retaliation claims under Title VII of the 1964 Civil Rights ACt of 1964.

Plaintiff, who is white, alleged that shortly after his hiring, defendant was hired to serve as plaintiff’s supervisor, and that “upon her arrival, [defendant] embarked on a sustained campaign to remove him from his position on account of his race.”

As to plaintiff’s discrimination claim, the court explained:

Borzon’s discrimination claim is properly assessed under the burden-shifting analysis set
forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Garcia, 706 F.3d at 127.
Pursuant to this framework, “the plaintiff bears the initial burden of establishing a prima facie case of discrimination.” Holcomb v. Iona Coll., 521 F.3d 130, 138 (2d Cir. 2008) (emphasis added). To
establish a prima facie case of discriminatory discharge, the “plaintiff must show that (1) he is a
member of a protected class; (2) he was qualified for the position he held; (3) he suffered an
adverse employment action; and (4) the adverse action took place under circumstances giving rise
to the inference of discrimination.” Ruiz v. Cnty. of Rockland, 609 F.3d 486, 491–92 (2d Cir. 2010).
If the plaintiff meets this initial burden, the employer must then articulate a legitimate, nondiscriminatory reason for the adverse action—here the decision to terminate Borzon. Id. at 492.
The burden then shifts back to the plaintiff to demonstrate that the defendant’s proffered reasons are, in fact, pretextual and that the “real reason for plaintiff’s termination was his race.” Id. “The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S 248, 253 (1981).

Applying the law, the court explained:

While Borzon has established a prima facie case of discrimination, Defendants have, in turn, advanced legitimate, nondiscriminatory reasons for his termination. In particular, Defendants point to Borzon’s multiple negative performance evaluations, as well as their assessment of difficulties Borzon experienced in collecting revenue, effecting Medicaid enrollment, and interacting with some of his colleagues. Borzon, while offering some evidence that Defendants may have assessed him unfairly, has failed to come forward with sufficient admissible evidence that his termination was due to discriminatory animus as opposed to Defendants’ asserted reasons. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993) (“[A] reason cannot be proved to be ‘a pretext for discrimination’ unless it is shown both that the reason was false, and that discrimination was the real reason.”).

To support a finding of discriminatory animus on the part of Defendants, Borzon highlights the alleged mishandling of an Equal Employment Opportunity (“EEO”) complaint he lodged, as well as two comments allegedly made by third parties regarding Green’s antipathy toward him. First, while Defendants admit that the EEO investigation deviated from standard practice in some ways, they offered admissible evidence explaining that deviation: the investigator began transitioning out of her role (and Borzon had left the MHC) and she therefore did not have time to formally complete the inquiry, although following a brief investigation she had concluded that his complaint was without merit. Second, only one of the third-party comments that Borzon alleges to have been made about his employment status—his superior David Guzman’s statement that Green was “out to get him”—is even arguably admissible, and this comment is devoid of references to Borzon’s race. See Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 924 (2d Cir. 1985) (noting that a party cannot rely on inadmissible hearsay in opposing a motion for summary judgment absent a showing that admissible evidence will be available at trial).

Finally, Borzon points to his years of experience in hospital administrative positions, and argues that the MHC improved financially on a variety of metrics during his tenure, while any revenue collection issues were not attributable to him. Ultimately, we “do not sit as a super-personnel department that reexamines an entity’s business decisions.” Delaney v. Bank of Am. Corp., 766 F.3d 163, 169 (2d Cir. 2014) (internal quotation marks omitted). Borzon has offered some evidence countering Defendants’ evaluation of his effectiveness as a hospital administrator, but at this stage he has produced insufficient evidence to support a finding of discriminatory animus on their parts. We therefore affirm the district court’s grant of summary judgment to Defendants on Borzon’s discrimination claims.

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