Race Discrimination Complaint Survives Dismissal; Allegations Included “Coded Racial Comments”

In Colbert v. FSA Store, Inc., Health E-Commerce, and Jeremy Miller, 2020 WL 1989404 (SDNY April 27, 2020), the court, inter alia, held that plaintiff sufficiently alleged race discrimination under Title VII of the Civil Rights Act of 1964, SEction 1981 of the Civil Rights Act of 1866, and the New York State and City Human Rights Laws.

It was undisputed that plaintiff alleged that he was a member of a protected class, qualified for the position, and that he suffered an adverse employment action.

The court held that plaintiff also alleged facts showing that he was terminated “because of” his membership in a protected class. From the decision:

Plaintiff pleads both “direct evidence of intent to discriminate” and “circumstances giving rise to an inference of discrimination.” Vega, 801 F.3d at 87. The Complaint alleges that regularly in the course of his employment, his direct supervisor Miller made a number of comments harping on Colbert’s race, including that he should not be “too black,” that he is “culturally different” and that he should “adapt” to the Company’s “dominant culture.” A jury could readily reach the plausible inference from that evidence that Colbert’s termination by Miller only months after Miller made those comments—and indeed one week after Miller reiterated a concern over Colbert’s “cultural” differences—was because of Colbert’s race. See Collazo v. County of Suffolk, 163 F. Supp. 3d 27, 47 (“The temporal proximity of [the] incidents [at issue] to the adverse employment actions raises an inference of discrimination.”); Schreiber v. Worldco, LLC, 324 F.Supp.2d 512, 518 (S.D.N.Y.2004) (“Verbal comments constitute evidence of discriminatory motivation when a plaintiff demonstrates that a nexus exists between the allegedly discriminatory comments and a defendant’s decision to discharge the plaintiff.”) (citation omitted); Howe v. Town of Hampstead, 2006 WL 3095819, at *7 (E.D.N.Y. Oct. 30, 2006) (a sufficient nexus exists if the comments were made by the decision-maker); Levy v. Legal Aid Soc., 408 F. Supp. 3d 209 (E.D.N.Y. 2019) (“Direct evidence of discrimination may exist … in the form of disparaging comments regarding a plaintiff’s protected class.”).

*4 The Complaint also asserts that Miller, the ultimate decisionmaker on Colbert’s employment, made a number of comments that can be plausibly be construed to reflect racial stereotyping or constitute coded racial comments such as about Colbert’s presumed “athletic skills” or “athletic prowess” and whether Colbert had been admitted co college on an athletic scholarship. Id. ¶ 52-55; See Windsor v. Rockefeller Ctr/Tishman Speyer, 2002 WL 1467834 (S.D.N.Y. 2002) (finding an inference of discrimination at the summary judgment stage on the basis that an employer hired “few African-Americans” and issued “possibly stereotypical comments,” such as that the employee, who was African-American, should not “wear [his] pants hanging down below [his waist]”).

Finally, a plausible inference of discrimination arises from the fact that Colbert—alone among FSA Store employees—was subject to employment requirements and burdens to which other persons who were not African-American were not subject, such as being singled out among his colleagues to provide written justification for his annual bonus. Id. ¶ 57-63. See, e.g., Belabbas v. Inova Software, Inc., 2017 WL 3669512, at *1-2 (S.D.N.Y. Aug. 24, 2017) (sustaining a claim under Section 1981 where a female plaintiff alleged she was given different assignments from her male colleagues and was subject to “misogynistic and discriminatory comments” in the office).

The court rejected defendant’s invocation of the so-called “same actor inference” – i.e., its argument that since it knew of plaintiff’s race when it hired him it could not have discriminated against him on the basis of race when it fired him approximately six months later – on two grounds.

First, it was not clear from the complaint that it was the same person who hired and fired plaintiff. Second, the “same actor inference”, according to the court, is typically applied at the summary judgment, and not the pleading, stage.

In any event, even though it was “possible that Miller acted for reasons other than race, it is equally or more plausible that Plaintiff’s termination was on account of race either because Miller was not the person who made the hiring decision, or because having made the hiring decision he developed regrets about the employment of a person who was ‘too black’ and ‘culturally different,’ or for any number of other reasons.”

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