Lack of evidence sinks discrimination complaint

• Date: 01 January 2020
• DOI: http://doi.org/10.1002/nba.30711
• Published date: 01 January 2020

JANUARY 2020 NONPROFIT BUSINESS ADVISOR

11

© 2020 Wiley Periodicals, Inc., A Wiley Company • All rights reserved

DOI: 10.1002/nba

The plaintiff was red a few days later without an

explanation.

She led a suit claiming her termination amounted

to impermissible First Amendment retaliation.

The city led a motion to dismiss.

The district court judge said the plaintiff was re-

quired to allege: (1) she engaged in First Amendment

activity, (2) she suffered an adverse employment ac-

tion, and (3) there was a causal connection between

the two events.

He also explained that the First Amendment only

protected a public employee’s speech when it was

made in her capacity as a private citizen regarding a

matter of public concern. The judge said the factors

he was required to consider were: (1) the speech’s

content, form and context and (2) whether it had

a broader public purpose than simply a complaint

about personal grievances.

EMPLOYEE WINS ➔ The city rst contended

that the plaintiff’s report wasn’t protected by the

First Amendment.

But the judge said workplace discrimination was

a matter of public concern, and she had acted as a

private citizen because: (1) the report wasn’t made as a

part of her ofcial duties and (2) she hadn’t reported

anything that had specically affected her.

The city next argued that the allegations were too

vague because the plaintiff hadn’t identied the re-

jected applicants, their prospective positions or their

alienage status.

But the judge ruled that the allegations couldn’t be

more explicit because they depicted the plaintiff as

specically referring to her concern that the chief had

rejected candidates solely because of their alienage

or citizenship status.

The city next argued there was no causal link be-

tween her report and her termination.

The judge said a plaintiff could establish causation

either indirectly by means of circumstantial evidence

or directly by evidence of retaliatory animus.

He ruled that the plaintiff had sufciently pled a

causal connection because there was only a two-week

interval between her speech and her termination.

The judge refused to dismiss the claim, stating that

discovery would shed light on whether the chief was

aware of the report at the time of her termination,

and whether it had inuenced his decision.

[Osuan v. The City of New York, et al., U.S. District

Court for the Southern District of New York, No.

18cv151, 06/20/2019].

Racial discrimination

Lack of evidence sinks discrimination

complaint

The plaintiff was a black woman.

In 2011, she started working part time at the

downtown Houston YMCA as “Healthy Living

Director.”

In February 2013, the plaintiff was promoted to

the full-time position of “Senior Healthy Living Di-

rector” and received a pay increase to $57,000.

In April, she reported to the human resources

department that the executive director had raised his

voice in a telephone conversation with her.

A month later, the executive director issued the

plaintiff a “Counseling Report” that accused her of:

(1) improperly lling out her timecards, (2) threaten-

ing her staff, (3) failing to timely complete the March

staff schedule, (4) spreading rumors and (5) not

promptly returning calls.

Pursuant to a January 2014 reorganization, the

plaintiff’s title changed from “Senior Healthy Liv-

ing Director” to “Senior Program Director,” and

the number of employees under her direct supervi-

sion increased. However, her salary remained the

same.

At about that same time, the plaintiff was cited for

the following alleged infractions: (1) disclosing con-

dential information, (2) failing to timely complete a

report and (3) failing for the third time to coordinate

schedules with a member.

The YMCA red the plaintiff in March for the

stated reason that she hadn’t met the standards of a

senior management position.

The plaintiff led a suit claiming racial discrimina-

tion in violation of Title VII.

The defendant led a motion for summary judg-

ment, arguing that the plaintiff’s poor performance

was a legitimate and nondiscriminatory reason for

ring her. In support of its position, it cited both the

2013 counseling report and the 2014 write-up.

The plaintiff responded that the defendant’s

stated reason for termination was a pretext for race

discrimination because the cited examples of poor

performance were either unworthy of credence or

didn’t warrant discipline. She also argued that the

timing was suspicious because the 2013 employee

counseling report was issued by the executive direc-

tor immediately after she had reported him to human

resources.