A recent decision from the Eastern District of New York, Henek v. CSC Holdings, LLC, 2020 WL 1516460 (E.D.N.Y. March 30, 2020) (J. Cogan), is instructive as to what a plaintiff must show – specifically, what will (in the court’s words) “not cut it” – when opposing a summary judgment in an employment discrimination case.
Judge Cogan wrote:
All that plaintiff offers is his own belief that he didn’t deserve the discipline leading up to his termination nor the termination itself, and therefore avers that both the discipline and his termination were a pretext to obscure someone’s illegal motivation. For example, he thinks that his sending of a text to a customer that sought to invoke the customer’s sympathy for him, although admitting that the text was a violation of defendant’s express policy, was a legitimate sales tactic. He thinks text messaging ought to be allowed because “it’s the 21st Century and text messaging should be a legitimate means of communicating with customers.”
It’s fine that he had a disagreement with his employer – who doesn’t – but the disagreement is no evidence at all of religious or national origin discrimination. The closest plaintiff gets to a proscribed motivation by his employer is to express his conclusory belief that “he was not the only employee to send text messages.” But he has directed me to no admissible evidence of that beyond his belief.5
This example underscores a fundamental misunderstanding that plaintiff (or his attorney) has of how to oppose summary judgment in an employment discrimination case. I have not counted the number of times plaintiff’s responses to defendant’s Rule 56.1 statement or sentences in his brief begin with “plaintiff contends” or “plaintiff believes,” but those references are extensive. However, beliefs and opinions do not cut it. Federal Rule of Civil Procedure 56(e) requires that the opposing party marshal admissible evidence to rebut that of its opponent; inadmissible hearsay or conclusory assertions are insufficient.
The court cited this case as an example of the following “false syllogism” recognized by various courts, including the Second Circuit: “I am (fill in the protected class of which the plaintiff is a member); something bad happened to me at work; therefore the bad thing happened because I am (fill in the protected class).”