The opinion of the court was delivered by: JAMES ROBERTSON, District Judge
Mahendra Bhatia, a 56-year old male of Indian descent, was terminated
by AT&T as part of a downsizing plan implemented in September 2001.
Plaintiff brought this suit against AT&T, alleging various forms of
discrimination and retaliation. AT&T moved for summary judgment.
After oral argument on October 21, 2003, I granted summary judgment for
defendant on four of the five counts then remaining, but reserved
decision on the final count (disparate treatment in termination). The
parties then filed supplemental memoranda dealing with AT&T's
alternative legitimate nondiscriminatory reason: poor performance.
After carefully reviewing the parties' briefs and supplemental
materials, I have concluded that the motion for summary judgment on the
remaining count must be denied. Plaintiff has made out a prima facie case
of disparate treatment discrimination, albeit a thin one, and, in
response to defendant's proffer of poor performance as justification for
dismissal, plaintiff has pointed to evidence from which a
reasonable juror might infer pretext.
Defendant continues to assert that plaintiff has failed to make out a
prima facie case under the familiar McDonnell Douglass burden
shifting framework. See McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). This Circuit has yet to tailor the McDonnell
Douglass test to fit reduction in force (RIF) cases, but a generic
prima facie case of disparate treatment discrimination may be established
if the plaintiff (1) is a member of a protected class and (2) suffered an
adverse employment action, and if (3) the unfavorable action gives rise
to an inference of discrimination. Brown v. Brody,
199 F.3d 446, 452 (D.C. Cir. 1999).*fn1
The first two elements are not contested in this case. Plaintiff could
satisfy the third element with evidence that a similarly situated,
non-protected individual was treated differently under AT&T's RIF,
see Coburn v. Pan American World Airways, Inc., 711 F.2d 339,
343 (D.C. Cir. 1983), but he has presented no such evidence. Plaintiff
relies instead on the fact that he was the only person in his "group" of
between twenty and thirty people affected by the September 4, 2001 FMP.
AT&T argues that this is not enough to show that AT&T terminated
plaintiff "because of his membership in a protected class," citing
Freedman v. MCI Telecommunications Corp., 255 F.3d 840, 843
(D.C. Cir. 2001),*fn2 placing great weight on the "because of" language
used in that case. The requisite prima facie proof will vary from case to
case, however, and the standard is meant to be flexible. McDonnell
Douglas, 411 U.S. at 802 n.13. Plaintiff may pass the prima facie
threshold by showing some kind of direct or circumstantial evidence of
discrimination. See Montana v. First Fed. Sav. and Loan Ass'n of
Rochester, 869 F.2d 100, 104 (2nd Cir. 1989) (acknowledging the
flexible nature of the prima facie analysis and applying a test similar
to that used in Brody, 199
F.3d at 452, requiring dismissal to occur in circumstances giving
rise to an inference of discrimination); see also Elliott v.
British Tourist Auth., 172 F. Supp.2d 395, 401 (S.D.N.Y
2001)(plaintiff stated a prima facie case by alleging that he was the
only member of a protected class and was the sole employee terminated in
1996 due to budget cuts). Here, plaintiff's proof that he was a member of
a protected class and that he was the only employee supervised by Mike
Ryan to have been discharged under the September 4, 2001 makes out a case
of disparate treatment discrimination. It is a very thin case, but "the
burden of establishing a prima facie case of disparate treatment is not
onerous," Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981), and plaintiff has presented additional evidence of
comments by his supervisors that supports his circumstantial case.
Plaintiff swears that his supervisor Sonja Wilder told him that he
should consider returning to India to look for work, where he might be
better off with his family. Bhatia Depo., 162-63. After plaintiff
explained that he has lived in the United States for 30 to 40 years and
does not want to return to India, id. at 165, Wilder persisted,
repeating her remarks several times, id. at 163. Mike Ryan, who was
Wilder's supervisor, made similar comments to Bhatia around the time he
and Bhatia met to discuss Bhatia's performance. Id. at 202.
According to Sally Tovrea, an executive in AT&T's human resources
department, it was
Wilder and Ryan who recommended plaintiff's termination, Tovrea
Depo., at 144.
These appear (at this stage of the record's development) to have been
stray remarks, insufficient to serve as direct evidence of
discrimination, and not even as evidence of discriminatory animus without
more. See Price Waterhouse v. Hopkins, 490 U.S. 228, 277
(1989)(O'Conner, J.). Because of the nexus between the remarks and the
adverse employment decision, however, the remarks could be taken as
evidence of discriminatory intent. Kalekiristos v. CTF Hotel
Management Corp., 958 F. Supp. 641, 665 (D.D.C. 1997). AT&T's
witnesses deny ever having made these statements, but that denial only
raises a genuine issue of material fact.
Defendant has offered two legitimate non-discriminatory reasons for
Bhatia's termination: (1) a company-wide RIF, and (2) poor performance.
AT&T does not argue that Bhatia actually was terminated for poor
performance. Rather, the company maintains that he could have been, but
that AT&T decided to let him go as part of the RIF, which provided a
relatively generous severance package. After hearing argument on
defendant's summary judgment motion, I found that "AT&T's proffer of
the forced management plan [the RIF] as a legitimate nondiscriminatory
reason [was] insufficiently detailed to shift the burden to Mr. Bhatia
under the McDonnell Douglas test." After considering
the matter further, however, I believe that AT&T has actually
proffered two legitimate nondiscriminatory reasons for plaintiff's
dismissal, and both may be offered in evidence at trial.
Plaintiff argues, however successfully, for purposes of this
motion that AT&T's waffling between the two reasons is
evidence of pretext. See Ferguson v. Small, 225 F. Supp.2d 31,
40 (D.D.C. 2002) (conflicting explanations given for termination are
sufficient to "raise a reasonable inference that defendant's proffered
reasons for the termination are pretextual"); see also Abramson v.
William Paterson Coll. of N.J., 260 F.3d 265, 285 (3d Cir.
2001)(where plaintiff "demonstrates that the reasons given for her
termination did not remain consistent . . . throughout the proceedings,
this may be viewed as evidence tending to show pretext . . .[when]
considered in light of the entire record"); Duchon v. Cajon
Co., 791 F.2d 43, 46 (6th Cir. 1986) (summary judgment is
precluded where there are contradictions between the employer's stated
reason that discharge was for poor performance, and plaintiff's affidavit
swearing that she received regular raises, was never warned about
performance, and collected unemployment benefits because her employer
made representations to government officials that she had been terminated
for "lack of work"). In his supplemental memorandum, plaintiff argues
that AT&T cannot seem to determine, even for itself, why Mr. Bhatia
was terminated." AT&T's own EEO investigator testified that
plaintiff was fired "because his work functions were consolidated" and
that he "was not let go because of performance."
AT&T's response is that Bhatia was repeatedly warned about his
performance problems and that termination for poor performance was
warranted, but that AT&T gave defendant a break by terminating him
under the RIF. That is an internally consistent response that may well be
persuasive to a jury, but it will be for the jury to decide.
It is accordingly ORDERED that defendant's motion for summary
judgment  is denied ...