The Second Circuit reaffirms the general understanding in Title VII law that an employer that tells a minority employee seeking a transfer that he won't "fit in" to a mostly non-minority workplace raises an inference of discrimination.
Abrams v. Dept. of Pub. Safety, No. 13-111 (2d Cir. July 14, 2014): Abrams, an African-American detective who had worked with the Department since 1986, sought a transfer to the prestigious Major Crimes Van (the "Van") for the Eastern District Major Crimes Unit ("EDMCU"). The Van consists of "five to six EDMCU detectives who investigate serious crimes, suspicious deaths, and homicides," and are considered the "best of the best of troopers."
Abrams tried unsuccessfully (since 1998) to join the Van, yet non-minority candidates always bypassed him in the process. Abrams had training, experience and superior write-ups from Sergeant Thomas Wakely. Nonetheless, he did not move particularly far in the process:
"During his tenure at EDMCU, Abrams was one of no more than three black detectives and was the only one to ever express interest in joining the Van. From 2004 through 2009, the time period relevant to Abrams's claims, all eight detectives selected for and assigned to the Van were white. Although some of these detectives had a college degree, which Abrams lacked, Abrams had more training and seniority than each of the detectives selected above him."
Despite all of Abrams' credentials, a commanding officer named O'Hara made a remark possibly suggestive of race discrimination. One successful candidate in 2007 named Detective Payette "had strong technical investigatory and electronic equipment skills, and a college degree. When Wakely spoke to O'Harabout Payette's selection over Abrams, whom Wakely had recommended, O'Hara noted that Payette would 'fit in better' and noted his college degree." (There was at least one prior occasion several years earlier when another officer likewise remarked that Abrams "did not fit in.")
In the wake of filing several complaints of discrimination, Abrams was unwillingly transferred (from May to December of 2010) to the far-less prestigious Casino Unit, where he was assigned to perform mostly background checks. Eventually he was reinstated to felony duty.
Abrams filed a lawsuit under Title VII against the Department (and 42 U.S.C. § 1983 against the Department's officers) for race discrimination and retaliation. The district court dismissed the race discrimination claims and one retaliation claim on summary judgment, and jury found no liability on the remaining retaliation claim.
On appeal, the Second Circuit holds that Abrams should have been allowed to have a trial on the race discrimination claim. The panel first determines that the district court erred in excluding the fit-in statements as hearsay (Fed. R. Evid. 801). It then holds that the statements could be interpreted as racial:
"Abrams's non‐assignment to the Van as well as the Fit In Statements make this a case about more than mere 'discrepancy in qualifications' .... The Fit In Statements raise a genuine dispute as to whether the proffered reasons for Abrams's non‐assignment to the Van were pretextual .... Balancing all of these factors, we see this as a very close case, and one, when considered in the light most favorable for the non‐moving party-as it must be-that is simply too close to call and should be a question for a jury."
Additionally, the panel holds that the district court should conduct a qualified immunity analysis as to each individual defendant on remand.
Finally, the panel upholds the district court grant of summary judgment and jury verdict on the retaliation claims. It finds that a five-month gap between the complaints of racial discrimination and the forceable transfer failed to support an inference of causation. On the There claim (that went to a jury trial), that Abrams was denied transfers to the Van because of retaliation, the panel holds that the district court did not err in procedural rulings concerning denial of a continuance and handling of the evidence of racial discrimination.