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Home / Expert Opinion / Workplace Issues: Direct evidence can be elusive, but you know it when you see it

Workplace Issues: Direct evidence can be elusive, but you know it when you see it

Lindy Korn

The Second Circuit in a summary order decided May 14. decided that the plaintiff’s attempt to turn a denial into an admission does not equate to direct evidence, Fischer v. City of New York, et al., 12- 3570- cv.

Plaintiff Lillian Fischer, who is white and Jewish, worked as a probationary secretary at the Frederick Douglass Academy VI High School in Far Rockaway, Queens, until she was fired in June of 2007.

She claims that 1) she was subjected to a hostile work environment and fired on account of her race and religion; 2) she suffered discrimination on the basis of her race and religion when her supervisor called while she was “sitting shiva” for her recently deceased mother, 3) her desk was illegally searched for a missing file, 4) she was libeled in her performance reviews; and 5) she was denied various protections required under state law and the Constitution during her post-termination process.

Fischer’s argument on appeal as it relates to direct evidence is that the District Court should not have applied the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to her discrimination claims because she provided direct evidence of discrimination.

The court stated that plaintiff’s first claim that she has identified direct evidence of invidious discrimination finds no support in the record. For example, plaintiff refers to the deposition of principal Linda Alfred who stated that race ” had nothing to do with” her decisions to reprimand employees and that, by way of example, she has “reprimanded Caucasian teachers and Asian teachers. It doesn’t have anything to do with it.”

As the Court of Appeals puts it, “Fischer attempts to twist this denial that race enters into Alfred’s decision-making into an admission that Alfred only disciplines white and Asian teachers. We are not convinced. Neither the statement, nor any other we have found in the record, plausibly provides direct evidence” in support of plaintiff’s claim.

The Court of Appeals has delineated what may constitute direct evidence in Henry v. Wyeth Pharms., 616 F.3d 134, 149-150 (2d Cir. 2010):

“The more remote and oblique the remarks are in relation to the employer’s adverse action, the less they prove that the action was motivated by discrimination … The more a remark evinces a discriminatory state of mind, and the closer the remark’s relation to the allegedly discriminatory behavior, the more probative that remark will be.

The district courts in this circuit have developed a standardized approach for applying these concepts to individual cases. In determining if a remark is probative, they have considered four factors: 1) who made the remark (i.e., a decision-maker, a supervisor or a low-level-co-worker); 2) when the remark was made in relation to the employment decision at issue; 3) the content of the remark (i.e., whether a reasonable juror could view the remark as discriminatory); and 4) the context in which the remark was made (whether it was related to the decision-making process).

While we caution that none of these factors should be regarded as dispositive, we think this framework will often provide a useful approach to the admission or exclusion of remarks not directly related to the adverse action against the plaintiff, and employ it here.”

Direct evidence allows the court to dispense with the McDonnell-Douglas burden-shifting model that helps the court decide if circumstantial evidence is enough to prove your case. Direct evidence affords the plaintiff an opportunity to survive summary judgment and have a jury decide whether the remark evinces bias.

Lindy Korn practices at The Law Office of Lindy Korn and can be reached at or (716) 856-KORN (5676).

One comment

  1. For anyone reading this article, please be advised that as counsel for the plaintiff-appellant in this matter, I am much more familiar with the facts of the this case.

    With all due respect to Miss Korn, she has written this analysis and commentary without having read the pleadings or reviewing the evidence submitted to the court. Miss Korn’s article is based solely upon the erroneous decision of the Second Circuit. Miss Korn does not make mention of evidence which was ignored by the court, including further defense deposition testimony admissions of actions having been taken against my client because of her race and religion. Prior to making an analysis, Miss Korn should have examined the pleadings and not just a decision of the Court. As everyone knows, Courts do not always make the correct decision which is why we have several levels of appellate review.

    More importantly, this article puts words in my client’s mouth. Miss Korn takes the Second Circuit’s words in explaining their misguided decision and attributes those words to my client. Miss Korn was very careless in publishing this claim of attributing that statement to my client as the statement is against my client’s interest and makes no logical or legal sense from my client’s position in this matter.