V. "Mixed Motives"
Plaintiff argues in the alternative that he has made out a
prima facie case under the "mixed-motives" burden shifting
analysis set out in Price Waterhouse v. Hopkins, 490 U.S. 228,
109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). (Pl. Mem. Opp. Summ. J.
at 13.) To do so, he "must initially show that an impermissible
criterion was in fact a motivating or substantial factor in the
employment decision." Raskin v. Wyatt Co., 125 F.3d 55, 60 (2d
Cir. 1997) (citing De La Cruz v. New York Human Resources Admin.
Dep't of Soc. Servs., 82 F.3d 16, 23 (2d Cir. 1996).) If
plaintiff proves this, "the burden shifts to the employer to
prove by a preponderance of the evidence that it would have made
the same decision [anyway]." Price Waterhouse, 490 U.S. at 258,
109 S.Ct. 1775; see also Ostrowski v. Atlantic Mut. Ins. Cos.,
968 F.2d 171, 180 (2d Cir. 1992).
This argument for a mixed-motives approach is of no avail to
plaintiff on the instant motion for summary judgment because it
concerns only the shifting of the burden of proof to the
defendant after the plaintiff has made out a prima facie case
of discrimination. It never comes into play if the plaintiff
fails to produce evidence creating an inference of
discrimination. Thus, in the present case, plaintiff fails on the
mixed-motives analysis for the precise reason he failed on the
McDonnell Douglas analysis. Indeed, plaintiff's burden of
establishing a prima facie case is even greater under the
mixed-motives approach than under McDonnell Douglas.
Plaintiff concedes that in mixed-motives analysis, he faces a
"very heavy burden." (Pl. Mem. Opp. Summ. J. at 13.) This is so
because "plaintiff must show that the evidence is sufficient to
allow a fact finder to infer both permissible and discriminatory
motives . . . [thus] the plaintiff's initial burden in a Price
Waterhouse mixed-motive case is heavier than the de minimis
showing required to establish a prima facie McDonnell Douglas
case." Raskin, 125 F.3d at 60. The Raskin court emphasizes
plaintiff's plight: "In short, to warrant a mixed-motive burden
shift, the plaintiff must be able to produce a `smoking gun' or
at least a `thick cloud of smoke' to support his allegations of
discriminatory treatment." Id. at 60-61 (citing Fields v. New
York State Office of Mental Retardation and Devl. Disabilities,
115 F.3d 116, 124 (2d Cir. 1997)).
Plaintiff offers Taylor's account of what Skea allegedly said
at the June 1998 meeting as his "smoking gun." (Pl. Mem. Opp.
Summ. J. at 14.) But Taylor's testimony is not the "smoking gun"
plaintiff needs to make out a prima facie case. Even if her
account of Skea's statement is accurate, it represents the view
of only one Commissioner, while a number of other Commissioners
expressed strong views to the contrary. (See Colonna Dep. at
31-33; Taylor Dep. at 44-45.) It thus can not be considered a
"substantial or motivating factor" in the Commissioners' decision
to terminate plaintiff. Obviously, Skea's reported view did not
prevail because plaintiff, a white man, was hired for the
position. See Grady v. Affiliated Cent., Inc., 130 F.3d 553,
560 (2d Cir. 1997) ("when the person who made the decision to
fire was the same person who made the decision to hire, it is
difficult to impute to her an invidious motivation that would be
inconsistent with the decision to hire.").
In an alternative effort to make out his prima facie case under
a mixed-motives theory, plaintiff claims that the Commissioners
discharged him because of his Jewish religion. (Pl. Mem. Opp.
Summ. J. at 14-15). Plaintiff again offers Taylor's testimony as
proof of the Commissioners' discriminatory animus. She claims
that Skea once stated that "it would be more beneficial for an
African American to be in [the ED] position than a Jewish person
to be in this position" (Taylor Dep. at 72), but she provides no
context for the statement. (Id. at 74-75.) She also testifies
that Sherwood told ethnic Jewish jokes and made "inferences"
but she can not recall the specific jokes and plaintiff was not
specifically named. She does state that while she did not find
the jokes "offensive," she did find them "interesting,"
especially because she is part Jewish. (Id. at 90-91.) Calderin
testifies that at the June 1998 meeting, neither plaintiff's
religion nor race were discussed. (Calderin Dep. at 17-18.)
Plaintiff admits, though, that he has no proof the OCHRC
believed that a black female was more appropriate for his
position than a white Jewish male "other than [Skea's alleged]
statement and the fact that there was no justifiable reason for
me to be terminated." (Berkowitz Dep. at 74.) Plaintiff also
testifies that regarding general "anti-white animus," "I don't
know what the Commissioners believe or think but nothing was ever
directed at me." (Id. at 79.) The Court finds that the lack of
substantiation of Taylor's claims and plaintiff's own admissions
defeat his effort to create an inference that the Commissioners
terminated him based on his Jewish religion.
Finally, even assuming arguendo that Taylor's testimony was
sufficient to make out plaintiff's prima facie case, the
Commissioners have provided ample evidence that they would have
fired plaintiff without any consideration of his race, gender or
religion. The undisputed evidence clearly shows that, after
Barrett left, the Commissioners did not think another ED was
needed. (See Chichester Dep. at 10.) Indeed, the workload issue
had been a matter of ongoing concern for the Commissioners at the
hiring stage and throughout plaintiff's tenure as ED. (See Skea
Dep. at 25, 29-35; Chichester Dep. at 10-12; Colonna Dep. at 7-8;
Turi Dep. at 17.) The undisputed fact that the position was
discontinued after plaintiff's termination and has never been
reinstated in the two years and four months since, conclusively
shows that the motivating cause of his termination was the
Commission's feeling that the position was no longer a
justifiable expenditure of public funds. (See Sproule Affm.,
Ex. D; Lee Dep. at 11.) The Court therefore finds that the
Commissioners would have fired plaintiff without any influence of
his race, gender or religion. Thus, plaintiff can not succeed
under the Price Waterhouse mixed-motives analysis.
For the foregoing reasons, the OCHRC's and Commissioner
defendants' motion for summary judgment is granted, and the
action is dismissed in its entirety, with prejudice. The Clerk of
the Court shall enter judgment for OCHRC and Commissioner