Age/Race (“Reverse”) Employment Discrimination Claims Dismissed

In Baker v Revolt Media & TV, LLC, No. 152612/17, 2019 WL 4861967 (N.Y. Sup Ct, New York County Oct. 02, 2019), the court dismissed plaintiff’s race and age discrimination claims asserted under the New York State and City Human Rights Laws. Defendant asserted that plaintiff’s termination was due to the non-discriminatory reasons of “restructuring aimed at cost-cutting and eliminating unnecessary positions.”

The court explained the (at this point, fairly well-established) legal framework for evaluating such claims:

A three-pronged approach – first articulated by the United State Supreme Court in McDonnell Douglas Corp. v Green, 411 US 792, 802 (1973) and clarified by the First Department in Bennett v Health Mgt. Sys., Inc., 92 AD3d 29 (1st Dept 2011) – is to be used in cases like this. To establish a claim for discrimination under either the New York State Human Rights Law or New York City Human Rights Law, Plaintiff must make an initial prima facie showing that: (1) he is a member of a protected class; (2) qualified to hold his position; (3) terminated from his employment; and (4) the discharge occurred under circumstances which give rise to an inference of discrimination. Next, if the Plaintiff makes such a showing, the burden shifts to the Defendant to show that there was a legitimate, non-discriminatory reason for its termination decision. McDonnell Douglas, 411 US at 802-803; Bennett, 92 AD3d at 36. If the Defendant satisfies its burden the Plaintiff must “either counter the defendant’s evidence by producing pretext evidence … or show that, regardless of any legitimate motivations the defendant may have had, the defendant was motivated at least in part by discrimination.” Bennett, 92 AD3d at 39. In other words, “the court should turn to the question of whether the defendant has sufficiently met its initial burden as the moving party of showing that there is no evidentiary route that could allow a jury to believe that discrimination played a role in the challenged action.” Id. at 40.

The McDonnell Douglas framework and Bennett’s “mixed-motive” framework, as they have come to be known, are the same in terms of the first two prongs. It is only after an employer meets its burden do these tests diverge. See Hamburg v New York Univ. Sch. of Medicine, 155 AD3d 66, 73 (1st Dept 2017). Under McDonnell Douglas, the burden shifts to the plaintiff to produce evidence tending to “prove that the legitimate reasons proffered by the defendant were merely a pretext for discrimination.” Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305 (2004). By contrast, under the mixed motive analysis, the plaintiff must come forward with evidence from which it could be found that “unlawful discrimination was one of the motivating factors, even if it was not the sole motivating factor, for an adverse employment decision.” Melman v Montefiore Med. Ctr., 98 AD3d 107, 127 (1st Dept 2012). As a practical matter, the mixed-motive standard “imposes a lesser burden on a plaintiff opposing” a summary judgment motion (Hamburg, 155 AD3d a 73) because the plaintiff can defeat the motion by coming forward either with evidence that the employer’s “stated reasons were false and that discrimination was the real reason” (Forrest, 3 NY3d at 305) or that “discrimination was one of the motivating factors for the defendant’s conduct”[.]

As to the “reverse discrimination” aspect of the case, the court explained:

Defendant’s claim that Plaintiff faces a heightened standard of proof because he is Caucasian is without merit. In so-called “reverse discrimination” cases such as the one now before the court, some federal courts have required a plaintiff to show “background circumstances support the suspicion that the defendant is that unusual employer who discriminates against the majority.” Parker v Baltimore & O. R. Co., 652 F.2d 1012, 1017 (DC Cir. 1981). At the federal level, the Second Circuit has not taken a position on this issue, and New York district courts are split. See Barella v Vill. of Freeport, 16 F. Supp. 3d 144, 160 (EDNY 2014); Gorecke v UPS, 2014 U.S. Dist. LEXIS 45602 (WDNY Apr. 1, 2014). No New York state court has applied a stricter standard in reverse discrimination cases under the New York State or New York City Human Rights Law, but one of my colleagues has explicitly declined to do so. Tarascio v NBC Universal, 2016 NY Misc. LEXIS 350, *31 (Sup. Ct. NY Co. Feb. 24, 2016, Coin, J.). This court also declines to impose a higher standard.

Having found that plaintiff demonstrated a prima facie case and defendant proffered non-discriminatory reasons for its actions, the court turned to the next, and critical, step of the analysis, discussing the so-called “same-actor” inference:

The ultimate question is whether Plaintiff can show that discrimination was a motivating factor in Revolt’s decision-making process. Revolt’s primary argument against such a finding is that Mr. Perlmutter, a Caucasian man who is older than Plaintiff, both hired the Plaintiff and then fired him only ten months later. In “cases where the hirer and firer are the same individual and the termination of employment occurs within a relatively short time span following the hiring, a strong inference exists that discrimination was not a determining factor for the adverse action taken by the employer.” Dickerson v Health Mgmt. Corp. of Am., 21 AD3d 326, 329 (1st Dept 2005) (quoting Proud v Stone, 945 F2d 796, 797 [4th Cir 1991]). Revolt thus claims to be entitled to a “same actor” presumption, which “strongly suggest[s] that invidious discrimination was unlikely.”

The court concluded its discrimination analysis by observing that “[a]bsent evidence of pretext – which is not present here – it is simply not the court’s function to question Revolt’s business decision to promote Mr. Boreland and/or to hire new employees for the consolidated positions.”

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