Phillips v. City of New York, 2017 WL 6619152 (E.D.N.Y. Dec. 27, 2017) addressed a claim of employment discrimination brought by Lyndelle T. Phillips, a former Assistant Commissioner for Equal Employment Opportunity (EEO) at the Fire Department of New York (FDNY). The plaintiff alleged she was demoted and then fired on account of her race and her decision to speak with an independent EEO consultant retained by the City about the FDNY’s racially hostile atmosphere.

The City of New York filed motions for summary judgment against both Ms. Phillips’ 42 U.S.C. § 1983 and § 1981 claims. The court granted the motion for summary judgment on statute of limitations grounds with respect to the § 1983 claim, but allowed the § 1981 claim to proceed on the basis that it fell within the federal four-year statute of limitations.

In evaluating plaintiff’s § 1981 claim, the court focused on whether Phillips had shown circumstances that gave rise to an inference of discrimination. To support her claims, Ms. Phillips pointed to differential treatment of comparable employees of a different race. The court noted that the comparators to which plaintiff pointed were factually dissimilar, but district court Judge Jack B. Weinstein relied on Suzanne B. Goldberg’s article Discrimination by Comparison, 120 Yale L.J. 728 (2011), to emphasize that it is often difficult for a person in a senior management position to prove discrimination by using comparators. Goldberg’s article, in fact, discusses the problems the comparator approach presents to successful discrimination claims, and in particular, the difficulties the requirement imposes on “uniquely situated employees.” She argues for changes in discrimination law that acknowledge the complexity of the modern workplace and evolving theories of intersectionality and structural discrimination. 

In keeping with Goldberg’s analysis, the court noted that managers often do not receive formal evaluations and are often the only person within an organization to hold their exact job title. In deciding that a jury could find the plaintiff a credible witness with a legitimate claim of discrimination, Judge Weinstein highlighted that Phillips was dismissed only three days after she revealed to a City consultant that race discrimination in the FDNY was broader than revealed in previous litigation. This fact, coupled with previous findings that the FDNY had an atmosphere of racial tension and animus, raised a genuine issue of triable fact as to whether defendants discriminated against plaintiff on account of her race, even if plaintiff was unable to demonstrate differential treatment of comparable employees of a different race.