OPINION OF THE COURT
Plaintiff, an African-American woman who worked as a clinical supervisor in defendant’s Langone Serology/Diagnostic Immunology Lab (the lab), claims that she was discharged from employment because of her race and in retaliation for filing an internal complaint of discrimination. Defendant argues that plaintiff was fired not on the basis of race, but because of her long-standing insubordination and disruptive behavior. We find that, in response to defendant’s evidence of a nondiscriminatory reason for firing her, plaintiff failed to adduce evidence that either created a factual dispute as to whether defendant’s decision to terminate her employment might have been based in part on race or would allow a reasonable jury to conclude that she was discharged in retaliation for engaging in protected activity, and we therefore dismiss both causes of action.
Facts and Background
Plaintiff was hired in 1992. In 2007, she began to engage in a struggle with her managers concerning her behavior and her resistance to the administrative hierarchy. Plaintiff was first admonished in or around May 2007. Five days later, she was issued a “Final Warning” regarding her “insubordination and unacceptable behavior as a member of the management team.” Around that time, plaintiff received a performance evaluation of two out of five, which she claims was retroactively downgraded from a rating of five.
Defendant’s personnel continued to complain about plaintiffs inappropriate interactions with them throughout the rest of the year. In January 2008, plaintiff received a two on her performance evaluation for May to December 2007, in which it
In February 2008, plaintiff was once again seen to be conducting herself inappropriately, and one manager said that this was evidence that a “leopard does not change its spots.” Another manager, with a less negative view of plaintiffs record from December to February, did not disagree with the first manager’s overall characterization, but said that plaintiff’s recent “attitude and demeanor” had been excellent.
At this juncture, despite the new incident and the December 2007 warning about termination, plaintiff was not terminated.
In a memo dated August 18, 2008, after several incidents in which she refused to report directly to the designated manager, plaintiff was issued a “Final Warning” for her “refusal to accept [her manager as her] superior and to communicate with him as required.” She was again warned that failure to improve would result in immediate termination. Almost immediately thereafter, plaintiff filed an internal complaint of racial discrimination.
Plaintiff received additional warnings because of what defendant described as her continuing insubordination and refusal to report to a manager. One was a “critical alert” in late 2008 and another was a third “Final Warning” in early 2009.
By May 2009, a manager who had maintained over the years that plaintiff should be given additional chances now agreed with another manager that plaintiff did indeed need to be fired. That previously supportive manager and a third manager (the person who had hired plaintiff) then completed plaintiff’s final performance evaluation, again giving her a two. A termination letter was prepared on May 11, 2009, and given to plaintiff on May 14, 2009.
Plaintiff brought the instant action in August 2009, asserting four causes of action under the New York City Human Rights Law (the City HRL) (Administrative Code of City of NY § 8-107
et seq.).
Only two of the causes of action are relevant to this appeal: disparate treatment (discriminatory discharge) and retaliation. The motion court denied defendant’s motion for summary judgment dismissing the disparate treatment claim (to the extent it was predicated on plaintiff’s termina
Discussion
1. Standard of Review
Where a defendant has “offered evidence in admissible form of one or more nondiscriminatory motivations for its actions, a court should ordinarily avoid the unnecessary and sometimes confusing effort of going back to the question of whether a prima facie case has been made out in the first place”
(Bennett v Health Mgt. Sys.,
Inc.,
If the plaintiff succeeds in this regard, “such evidence of pretext should in almost every case indicate to the court that a motion for summary judgment must be denied” (id.). This is because once a plaintiff introduces “pretext” evidence, “a host of determinations properly made only by a jury come into play, such as whether a false [,] [misleading, or incomplete] explanation constitutes evidence of consciousness of guilt, an attempt to cover up the alleged discriminatory conduct, or an improper discriminatory motive coexisting with other legitimate reasons” (id. at 43).
This formulation, founded on the uniquely broad and remedial purposes of the City HRL, provides the framework for evaluating the sufficiency of evidence, and differs significantly from federal civil rights law (by assigning, for example, more weight to the possibility that a pretextual justification reflects consciousness of guilt).
2
As a practical matter, therefore, the
Bennett
formulation helps embody the
substantive
law appli
How the City HRL’s distinctive substantive definitions, standards, and frameworks interact with existing standards for summary judgment has been the subject of some confusion (see
e.g. Mihalik v Credit Agricole Cheuvreux N. Am., Inc.,
Thus, the only substantive requirement in a City HRL case where the plaintiff goes the “pretext” route is for the plaintiff to produce some evidence to suggest that at least one reason is “false, misleading, or incomplete.” A plaintiff who satisfies this requirement may well have produced less evidence than would be required under the state and federal laws. But he or she will have produced enough evidence to preclude the defendant from proving that no reasonable jury could conclude that any of the defendant’s reasons was pretextual. In other words, the general evidentiary standard comfortably co-exists with the distinctive substantive framework that must be applied to City HRL claims. 3
Plaintiff suffered an adverse action when defendant terminated her employment;
4
the question is whether that action was motivated, in whole or in part, by racial discrimination. Because defendant
offered in
support of its summary judgment motion admissible evidence of one or more nondiscriminatory motivations for its actions, we will move directly to the question of whether defendant carried its burden of showing that plaintiff did not raise an issue of fact as to whether defendant’s reasons were pretextual or whether race otherwise played a part in its decision to fire her
(see Bennett,
Defendant submitted evidence — essentially undisputed by plaintiff — of a legitimate, nondiscriminatory reason for firing plaintiff. As the motion court explained, defendant had been warning plaintiff for years that her conduct was unacceptable. This conduct included “insubordination, disrespect of her supervisors, and failure to communicate.” The record contains written documentation of multiple warnings to plaintiff about
Plaintiff had the opportunity to submit evidence to suggest that defendant’s reason for terminating her was false, misleading, or incomplete. She argues that (1) an affidavit by her former coworker and (2) the use of what plaintiff characterizes as racially “coded language” by her supervisors sufficiently call into question defendant’s reason for firing her. However, as discussed below, the affidavit is not probative of pretext, and plaintiff failed to offer any evidence from which a reasonable jury could conclude that the language used by her supervisors was coded language.
In denying the part of defendant’s motion seeking summary judgment dismissing the cause of action for discriminatory discharge, the motion court relied principally on an affidavit submitted on plaintiffs behalf by a supervisor who also worked for defendant (in a different department) during part of the period in question. Portions of that affidavit relate to evaluation procedures, which are not a material issue in the case. Nothing about the evaluation procedures is even vaguely suggestive of discrimination. The procedures did not and could not change the underlying and uncontested reality: Defendant consistently found (and told plaintiff) that her performance was deficient, principally because of her repeated disrupting of the workplace by being insubordinate and otherwise. Plaintiff herself confirms that she was repeatedly warned.
The affiant praised the quality of plaintiff’s work, yet this does not avail plaintiff. If defendant had grounded its action (in whole or in part) on deficiencies in plaintiff’s technical performance, then the averments of a person with knowledge of and respect for plaintiffs technical skill would have constituted pretext evidence. However, defendant was very clearly not complaining about plaintiff’s technical performance. Defendant’s problem was with plaintiff’s insubordination and disruptive behavior.
Plaintiff also failed to raise an issue of fact as to whether her supervisors’ use of the phrase a “leopard does not change its spots” or the term “tirade” amounted to racially coded language. It is true that discrimination seldom announces itself openly
(see Vega v Hempstead Union Free Sch. Dist.,
The most significant language in question is the colloquial expression, “A leopard does not change its spots.” The record contains two emails in which plaintiff’s supervisors used some variation of this expression. Plaintiff points out that, at the turn of the twentieth century, the phrase was used in a racist fashion in a novel by Thomas Dixon, Jr. (The Leopard’s Spots [1902]) and in a Joseph Rudyard Kipling tale (Just So Stories, How the Leopard Got his Spots [1901]). However, plaintiff offered no evidence from which to infer that the expression is imbued with racial meaning in contemporary parlance. In fact, today it is commonly understood to mean that a person’s pattern of behavior tends not to change (see Random House Dictionary of America’s Popular Proverbs & Sayings 201 [2d ed 2006] [“Human nature is as fixed and unchanging as the spots on a leopard’s skin”]; The American Heritage Dictionary of Idioms 265 [2d ed 2013]). The racially derogatory meaning the expression “a leopard does not change its spots” may have had more than 100 years ago is too attenuated, without more, to permit a discriminatory meaning to be imputed to a speaker whenever the expression is uttered today.
In any event, on the evidence in the record, defendant’s use of the language in reference to plaintiff is only consistent with the view, frequently expressed by defendant’s employees and having no apparent reference to race whatsoever, that plaintiff
The other term on which plaintiff relies, “tirade,” is even less probative of pretext, since unlike the “leopard’s spots” expression it has no historically racial meaning and is entirely race-neutral (see Merriam-Webster Online Dictionary, tirade [http:// www.merriam-webster.com/dictionary/tirade] [defined as “a protracted speech usually marked by intemperate, vituperative, or harshly censorious language”]). Plaintiffs supervisors used the term in several emails and in a memorandum to her employee file; they also used the terms “outbursts” and “hostile and insubordinate behavior,” with which plaintiff does not take issue. There is nothing to suggest that “tirade” was used in reference to her race.
Since plaintiff failed to carry her burden of creating a factual issue as to whether defendant’s nondiscriminatory reason for its decision to terminate her was pretextual or whether its decision was based, at least in part, on race, we reverse the order of the motion court insofar as it denied defendant summary judgment dismissing the discriminatory discharge claim.
3. Retaliation
To make out a prima facie case of retaliation under the City HRL, plaintiff was required to show that “(1) [she] participated in a protected activity known to defendant! ]; (2) defendant! ] took an action that disadvantaged [her]; and (3) a causal connection exists between the protected activity and the adverse action”
(Fletcher v Dakota, Inc.,
Plaintiff was fired in May 2009. Her claim is that she was fired in retaliation for having filed an internal complaint of racial discrimination in August 2008. But she offered no evidence of a causal connection. In fact, whether one considers the matter from defendant’s point of view (plaintiffs improper conduct) or from plaintiffs point of view (improper supervision by various of defendant’s personnel), all the discord — in scope, kind, and frequency — preexisted her internal complaint. The discharge that was effected in 2009 was the culmination of
It is certainly true that a complaint of discrimination could be the “extra factor” that pushes an employer from a posture of dissatisfaction with an employee to a determination to discharge the employee, and so an employer cannot avoid scrutiny of its post-complaint conduct by virtue of having begun to discipline an employee pre-complaint. But the evidence is abundant and uncontroverted that, before plaintiff made her internal complaint, she was hanging on by a thread, and that she was still employed only because defendant, far from conspiring to get rid of her, continued to try to see if she could be made to understand what was required of her. After plaintiff made the complaint, the same type of conduct that had previously produced final warnings and poor evaluations continued. A reasonable jury could not conclude that any causal connection existed between plaintiff’s internal complaint and her discharge.
Conclusion
Accordingly, the order of the Supreme Court, New York County (Jeffrey K. Oing, J.), entered October 9, 2014, which, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the cause of action for discriminatory discharge, and granted the motion as to the cause of action for retaliation, should be modified, on the law, to grant the motion as to the cause of action for discriminatory discharge, and otherwise affirmed, without costs. The Clerk is directed to enter judgment dismissing the complaint.
Tom, J.P., Andrias and Moskowitz, JJ., concur.
Order, Supreme Court, New York County, entered October 9, 2014, modified, on the law, to grant motion as to the cause of action for discriminatory discharge, and otherwise affirmed, without costs. The Clerk is directed to enter judgment dismissing the complaint.
Notes
. Among these evidentiary routes is the “mixed motive” standard, which permits a plaintiff to defeat summary judgment if he or she can show that the defendant was motivated at least in part by the plaintiff’s protected status (see
Bennett,
.
See Bennett,
.
Littlejohn v City of New York
(
. There is no question that termination is an “adverse action,” so we recognize that the discussion in the motion court’s decision about what constitutes an adverse action is dicta. We note, however, that, of the two cases cited by the motion court, one
(Messinger v Girl Scouts of U.S.A.,
. It is often said that discriminatory “animus” must be shown, but it is only intent to discriminate — to act “because” of race or other protected factor — that is required (see
Goodman v Lukens Steel Co.,
. Even if such a comment is a “stray” remark, it can provide a window into what is motivating the speaker and thus create an issue of fact for a jury
(cf. Melman,
. This is not the circumstance, therefore, where a court is obliged to refrain from deciding between two competing narratives, each of which a reasonable jury could credit, even if one is stronger than the other.