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Workplace Issues: Discrimination reasons not properly decided

Plaintiff Michael Green appealed from a judgment of the District Court dismissing his amended complaint for failure to state a claim of race or ancestry discrimination pursuant to “Section 1981” and declining to exercise supplemental jurisdiction over Green’s pendent state law claims (Green v. District Council 1707, 14-3149-cv, decided by Summary Order on 4/17/2015).

Lindy Korn

Lindy Korn

DC 1707 is a labor union for the state, county, and municipal employees in New York. Green, a Caucasian man of Jewish ancestry, began working for DC 1707 in September of 1991. During Green’s employment at DC 1707, George, an African-American man, served as the union’s executive director, its highest rank of employee, and was Green’s supervisor. In September 2008, George promoted Green to organizing director, an assistant director-level job. Green held that position through his termination from DC 1701 on May 17, 2013.

While under George’s supervision, Green did not receive any formal performance evaluations, nor any warnings that his work performance was unsatisfactory or deficient. By all accounts, Green was qualified for and successful in his role as organizing director. In that position, he brought in approximately 250 new members to the union per year.

On May 17, 2013, Green stopped by George’s office, whereupon George accused Green of not doing his job. George countered that he was doing a lot of work; George replied that he was “not seeing it.” After Green responded that he was working on a specific project and George again expressed disbelief, Green told George “that if he left his office, he would be aware of the work that Green had been doing.”

George became incensed by this suggestion and began screaming at Green. In response, Green raised his voice and insisted that he was in fact doing his job. George ended the exchange by telling Green to “take a hike.” Shortly after he left George’s office, Green received a memorandum from George, stating that he was being terminated “effective today” for being “extremely insubordinate” to George.

In the memo, George ordered Green to prepare the report he had been working on by May 28, 2013, and stated that George would then reconsider Green’s position. Over the following weekend, Green spoke with the associate executive director of DC 1707, who confirmed that Green was terminated and should not return to work.

After that conversation, Green ceased working on, and never completed, the report he had been preparing. Later, Green received a letter from George, dated May 31, 2013, confirming that he had been terminated for insubordination on May 17, 2013, and noted he had not submitted the report per George’s request.

In the federal amended complaint, Green alleges that throughout his employment at DC 1707, he was treated less well than similarly situated employees who were not Caucasian or Jewish. To illustrate the alleged discrimination, the amended complaint describes (though not by name) three ostensible employee “comparators” accused of misconduct whom, it alleges, were treated more favorably than Green: a Latina woman, an African-American man and an African-American woman.

Green also contends that his termination was unjustified, that George’s allegations of insubordination were a pretext for discrimination, and that George deliberately fired Green to prevent him from resigning and collecting severance benefits.

The District Court dismissed his amended complaint for failure to state a claim of race or ancestry discrimination pursuant to Section 1981 and declining to exercise supplemental jurisdiction over Green’s pendent state law claims.

The Second Circuit reversed, with respect to Green’s claims based on termination and the denial of severance. The court found that Green has stated a claim of race discrimination under Section 1981 because he plausibly alleged, among other things, that his supervisor consistently treated African-American and Latino employees better than similarly situated Caucasian employees and that he was replaced by an African-American.

In the alternative, the defendants argue that the District Court was right to dismiss the amended complaint because it pointed to legitimate, non-discriminatory reasons for Green’s termination. The Second Circuit stated:

“Whether there existed non-pretextual, nondiscriminatory explanations for the defendant’s employment decisions … is not properly decided on a motion to dismiss for failure to state a claim,” Brown v. Daikin Am. Inc., 756 F.3d 219,230-31(2d Cir.2014).

The burden of disproving a legitimate non-discriminatory reason for termination is what discovery affords!

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