2d Circuit Affirms Dismissal of Plaintiff’s Discrimination Claims Against the NYC Transit Authority; Rejects “Coded Language” Theory

In Montgomery v. New York City Transit Authority, 2020 WL 1313184 (2d Cir. March 18, 2020) (Summary Order), the U.S. Court of Appeals for the Second Circuit affirmed the dismissal of plaintiff’s employment discrimination claims under Title VII of the Civil Rights Act of 1964 and the New York State and City Human Rights Laws.

As to plaintiff’s federal and state law claims, the court explained:

Montgomery failed to present any concrete evidence that she was discriminated against because of her gender or race. To prove both her gender and race discrimination claims, she relied entirely on Moakler’s comments about her being “loud,” claiming these were coded language for both gender and racial stereotypes. The record, however, belies this point. Most notably, Moakler’s 2014 comment — that she was “enthusiastic — very loud/thunderous,” J. App’x at 115 — is listed as one of Montgomery’s strengths. And to the extent Moakler’s 2012 comments — which he explained in his deposition were objective statements about Montgomery’s volume during the interview — are relevant, they are not enough for a reasonable jury to conclude that discrimination played a role in NYCTA’s decision to hire Gorvetzian instead of Montgomery. Given the absence of evidence of discrimination and the extensive evidence that Gorvetzian was the better-qualified applicant, no reasonable jury could find pretext or a discriminatory motive. Accordingly, the district court did not err in granting NYCTA’s motion for summary judgment on Montgomery’s federal and state claims.

Turning to plaintiff’s city law claim – which is to be construed more broadly – the court reached the same conclusion, concluding that “no reasonable juror could find that Montgomery was treated ‘less well’ because she belongs to a protected class or that discrimination played any role in the application process.”