By: BridgeTower Media Newswires//May 21, 2019//
By: BridgeTower Media Newswires//May 21, 2019//
The Second Circuit Court of Appeals has reinstated an employment discrimination case, concluding that the jury may find the plaintiff was terminated from his position because of his national origin, which is Egyptian. The key evidence in this case is that the plaintiff claimed to overhear the decision maker tell someone that she “knew how to terminate this stupid Egyptian guy.” Plaintiff was the only Egyptian in the department.
The case is Moza v. Health and Hospital Corp., a summary order was issued on April 15, 2019, (17-1051-cv). Plaintiff was a doctor who worked in the risk management department for a city hospital. He received mostly positive performance reviews for quite some time until a new supervisor came aboard. It was the supervisor who uttered the “stupid Egyptian” comment in April 2013.
In September, the supervisor recommended plaintiff’s termination. Plaintiff also alleges that the supervisor said other discriminatory comments to him, including a statement to a co-worker that plaintiff has a “different culture from us” and that while discussing plaintiff’s religious practices (plaintiff is a Coptic Christian), the supervisor said, “This is stupid” and walked away.
Since what we have in this case are issues of credibility, who do you believe, the supervisor or the plaintiff? The Second Circuit notes, “It is for the Jury to determine whether to credit Moza’s account.” The court cites Owen v. New York City Housing Authority, 934 F.2nd 405, 410 (2nd Cir. 1991). If the supervisor said these things, then it taints the negative performance evaluations that she prepared against plaintiff, and the jury can rule in the plaintiff’s favor.
While the plaintiff alleged in his summary judgment opposition brief that the supervisor made the “stupid Egyptian” comment, his attorney did not cite to plaintiff’s sworn statement to that effect. The district court noted that omission and said that plaintiff did not testify to this at deposition, and that the allegation was therefore meritless.
But while the statement is not in plaintiff’s deposition, contrary to the district court’s analysis, that was not the end of the story. The sworn statement was in the record through plaintiff’s verified complaint filed with the State Division of Human Rights. As a sworn statement, the SDHR charge has the same effect as an affidavit. This can be used in opposing a summary judgment motion. Since the SDHR charge was in the summary judgment record, the Court of Appeals was able to reverse the grant of summary judgment and remand the case for trial.
Take-home lesson: Look for sworn statements that were filed with an administrative agency to press those factual disputes.
Lindy Korn practices at The Law Office of Lindy Korn in Buffalo, New York, and can be reached at [email protected].