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Second Circuit greenlights hospital employee’s national origin discrimination claim

Kate Halloran May 9, 2019

The Second Circuit has reversed summary judgment against a plaintiff who alleges that his supervisor discriminated against him based on his national origin and religion. The court determined that the plaintiff had raised a material dispute in his complaint as to whether the defendants’ justification for firing him was simply a pretext for an underlying discriminatory reason. (Moza v. N.Y.C. Health & Hosps. Corp., 2019 WL 1594782 (2d Cir. Apr. 15, 2019).)

Nashaat Moza worked as an assistant director of risk management for Kings County Hospital Center. He was born in Egypt and is a Coptic Christian. After being hired in 2008, he received performance ratings of “fully competent” or better on four evaluations. When a new supervisor, Natalie Woll, was hired in 2013, Moza claimed that she started treating him differently at work by asking him to sit in the back of the room at meetings,  undermining him with colleagues, and singling him out for his national origin and religion. Moza alleged that he overheard Woll say that she knew “how to terminate this stupid Egyptian guy.” He also claimed that she demanded more information from him when he asked to leave work early for a religious holiday than she did of other employees and made other comments about his culture and religious background. Moza was placed on a performance improvement plan and was terminated in the fall of 2013.

The plaintiff alleged violations of 42 U.S.C. §§1981 and 1983, as well as violations of the New York City Human Rights Law. The district court granted the defendants’ motions for summary judgment and dismissal of Moza’s claims.

In an employment discrimination case, under the three-part burden-shifting test in McDonnell Douglas Corp. v. Green (411 U.S. 792 (1973), the plaintiff must present a prima facie case that discrimination occurred. The burden then shifts to the employer to offer a valid, nondiscriminatory reason for why it took an adverse employment action against the plaintiff. Once that is established, the burden shifts back to the plaintiff to prove that the employer’s nondiscriminatory reason is merely pretext. The district court determined that the plaintiff had established a prima facie case of discrimination: that he is a member of a protected class, that he is qualified for his employment, that he suffered an adverse employment action, and that circumstantial evidence indicates discrimination. The court also accepted that the defendants had presented poor performance as a nondiscriminatory reason for terminating the plaintiff, leaving the question of whether that reason was pretext as necessary for Moza’s case to proceed.

The district court relied on three later evaluations documenting the plaintiff’s need for improvement and testimony from his supervisor and other management-level employees concerning feedback they provided about his performance. The court concluded that “the uniformity in feedback and consistency in action” by the defendants indicated that the reason for firing Moza was not pretextual. It rejected the plaintiff’s argument that there were inconsistencies in the evaluations, such as being asked to sign a blank one and not being allowed to see the content of his first negative review. The district court also disagreed that Woll’s alleged statements and divergent treatment of the plaintiff rose to an inference of discrimination.

The Eighth Circuit reviewed Moza’s claims under the burden-shifting test and reversed the lower court’s ruling. It found that the plaintiff had provided evidence in the complaint that indicated a triable issue of fact existed on the pretext issue, namely that he heard his supervisor refer to him as a “stupid Egyptian guy” on the phone and that she knew how to get rid of him, in addition to other derogatory comments about his national origin and religion. The court explained that this is an issue of credibility for a jury to decide.

“The defendants are attempting to minimize the most powerful evidence in this case: the plaintiff’s sworn recollection that he overheard Woll say, ‘I know how to terminate this stupid Egyptian guy.’ This evidence is probative on the issue of Woll’s motivation for terminating his employment, and the plaintiff offered this sworn account in support of his administrative complaints to the state and city human rights offices,” said New York City attorney Stephen Bergstein, who represents the plaintiff. “His internal grievances also stated that Woll treated him differently from other employees and that she lied in telling him that his coworkers had complained about him. As Woll drafted the negative performance reviews that purportedly led to his termination, the jury may deem the reviews tainted by Woll’s discriminatory animus and further conclude that Moza was fired unlawfully.”