Pretext not enough to avoid summary judgment in discrimination case

Here is another case demonstrating that even if the plaintiff can show the employer lied about the reason for his termination, the court can still dismiss the case on a summary judgment motion if that lie is not enough to prove discriminatory intent.

The case is Palencar v. New York Power Authority, a summary order issued on December 8. Prior to 1997, the Second Circuit usually held that if the employee makes out a prima facie case of discrimination and can prove the employer's articulated reason for his termination (or demotion, etc.) was knowingly false, the case will go to the jury on the discrimination claim. That changed in 1997, when the Circuit issued Fisher v. Vassar College, an en banc ruling that said pretext is not always enough to prove discrimination, and that plaintiff may still have to proffer other evidence of discriminatory intent. We call that the "pretext plus" theory. Although the Supreme Court in Reeves v. Sanderson Plumbing (2000) suggested that pretext alone is usually enough and that pretext plus is the exception, the Second Circuit continued to adhere to a pretext-plus evidentiary model, though every few years it reverses the grant of summary judgment on pretext alone. That's rare, though.

The Court of Appeals in this case assumes plaintiff has made out a prima facie case. It focuses on whether plaintiff can prove he was fired for discriminatory reasons. In doing so, the Court (Sullivan, Park and Nardini) reminds us that this requires a totality-of-the-circumstances approach, drawing from cases that were decided in the last 1990s and early 2000s. 

From that angle, the Court says, plaintiff has no case because the record shows that plaintiff's subordinates "lodged repeated complaints against him over the course of several years, that he was consistently combative and defiant toward his supervisors, and that he was unwilling to incorporate constructive feedback in response to his reviews over that time." What it all means is that even if plaintiff can show "some evidence of pretext," that evidence cannot override the evidence of plaintiff's performance deficiencies. The Court finds that plaintiff cannot prevail on his sexual orientation discrimination claim.

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