Newly-alleged racial slur is not enough to defeat summary judgment in discrimination case

This case brings us back to the basics on employment discrimination. The plaintiff in this case claims he suffered racial discrimination on the job. The Second Circuit does not see it that way, reviewing some of the ways that plaintiffs can prove their case, including the principle that a plaintiff cannot defeat summary judgment with a sworn statement that contradicts his prior sworn statement.

The case is Johnson v. Schmid, a summary order issued on September 7. Plaintiff was a social worker trainee working from the Connecticut Department of Children and Families, a position he obtained as a result of a prior settlement with the Department. Plaintiff was responsible for classroom instruction. He was fired, purportedly for poor job performance. Johnson's case alleges that other employees engaged in similar misconduct, he was held to different performance standards and a supervisor made a derogatory racial slur.

You can pursue a discrimination case on the basis that you were singled out for the misconduct that everyone else was also engaging in. But that path to victory is difficult to satisfy. You have to show that you and the co-workers hold comparable positions. Plaintiff cannot prove that, because his fellow errant co-workers were instructors and plaintiff was a social worker trainee, which means they were supervisors and plaintiff was their student. There is no comparison argument to be made.

The racial slur evidence is more interesting. Johnson told his supervisor he might file a lawsuit over his mistreatment. He claims the supervisor responded, "Are you threatening me, boy?" That evidence might help plaintiff, but the "boy" allegation did not surface until plaintiff's summary judgment opposition; he did not include "boy" in his interrogatory answers, "and he has not even attempted to explain his initial omission of the racial epithet that he now relies on as key proof of race discrimination." You cannot sandbag your opponent with evidence like this. If you have the evidence, use it at the outside of the lawsuit. Waiting until summary judgment is prohibited when this new evidence contradicts a prior show statement. While plaintiff's "boy" allegation does not exactly contradict his prior statement, is represents a significant change from the prior allegation.

The retaliation case also fails. The Court of Appeals (Sack, Raggi and Chin) highlight the "extensive and largely undisputed evidence detailing concerns with Johnson's performance in reports, evaluations, and memoranda," and plaintiff "has not produced any evidence to allow a reasonable jury to conclude that the Department's concerns about his poor performance were fabricated."