A New York Supreme Court has held that statistical evidence can be used by a plaintiff to rebut a nondiscriminatory adverse employment action. Dominguez v. Department of Education.
Victor Dominguez, a Hispanic, was the Assistant Principal at Boys and Girls High School in Brooklyn, NY. The school required teachers and principals to work five years before being considered for tenure. One month before Dominguez qualified for tenure, a new principal, Bernard Gassaway, was assigned to the school. Gassaway, an African-American, immediately implemented several personnel changes. Due to what he claimed were unsatisfactory work record and violation of the conflicts of interest policy, Gassaway changed Dominguez’s personnel rating for the prior school year from satisfactory to unsatisfactory and recommended that Dominguez be removed as assistant principal and not allowed tenure. Gassaway also replaced the four non-African American Assistant Principals with African-Americans and any departing African-American Assistant Principals with other African-Americans. This increased the number of African-American Assistant Principals to 100%.
Dominguez filed suit, claiming that Gassaway’s actions were because of Dominguez’s
age and national origin. He asserted two causes of action against the Department of Education and the City of New York, specifically that Gassaway committed age and national origin discrimination in violation of the New York City Human Rights Law (N.Y.C. Administrative Code § 8-502) and New York’s State Human Rights Law (NY Executive Law § 296).
The defendants moved for summary judgment to dismiss the complaint on the grounds that 1) the City of New York was not a proper party to the action; 2) Dominguez could not establish a prima facie case for his age and national origin discrimination claims; 3) Gassaway had legitimate, non-discriminatory reasons for recommending discontinuance of Dominguez’s employment; and 4) Dominguez could not demonstrate that Gassaway’s reasons for discontinuing his employment were a pretext for age or national origin discrimination.
The Court ruled against the defendants, holding that the statistical evidence presented by Dominguez demonstrated a prima face discrimination case. Further, the defendants did not proffer any evidence to demonstrably show that Dominguez dismissal was based on poor job performance.
The Ninth Circuit has allowed statistical evidence to prove a prima facie case of discrimination. See Doe v. Kamehameha Schools/Bernice Pauahi Bishop Estate and Dukes v. Wal-Mart, Inc.
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