Pompey v. County of Westchester

Background

Chevor Pompey alleged that the County of Westchester, John Nonna, and Bertina Capuano discriminated and retaliated against him under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, and the New York State Human Rights Law. Pompey alleged, among other things, that he was denied promotions and a transfer, that promotion practices favored other racial groups, and that defendants retaliated after he raised discrimination concerns.

Pompey worked as an assistant county attorney in the Westchester County Law Department from 2004 until his resignation in February 2023. He applied for promotions and a transfer, sent a December 21, 2022 email alleging a pattern of discrimination in promotions, and had a planned meeting about a promotion roadmap canceled the next day. He later applied for another senior position before leaving the department.

Threshold Issues

The court considered and rejected defendants’ argument that Pompey’s declaration was a sham affidavit that contradicted his earlier testimony. The court found that the declaration could be viewed as clarifying and expanding on his more recent testimony rather than contradicting it.

The court also addressed Title VII’s requirement that an employee first file a charge with the Equal Employment Opportunity Commission. Pompey filed an EEOC charge on November 6, 2023. The court treated January 10, 2023, as the 300-day cutoff and concluded that Pompey had conceded or abandoned Title VII claims based on events before that date. The court assumed, because the parties appeared to agree, that the EEOC charge covered the causes of action and factual allegations in the amended complaint.

Discrimination Claims

Defendants offered performance evaluations, administrative-performance concerns, and the view that promoted attorneys contributed beyond basic job requirements as legitimate, nondiscriminatory reasons for not promoting Pompey. The court held that Pompey nevertheless presented enough evidence for a reasonable jury to find those reasons were pretextual, including evidence that supervisor Elizabeth Barbanes allegedly made racially derogatory remarks and influenced Capuano’s promotion recommendations.

The court accepted the theory that a biased intermediate supervisor may influence a final decisionmaker under a “cat’s paw” theory, meaning that a decisionmaker may be influenced by a subordinate’s discriminatory bias. The court held that factual disputes prevented judgment for defendants on Pompey’s Section 1981 and New York Human Rights Law failure-to-promote claims. It granted defendants’ motion on the discrimination claims to the extent they were brought under Title VII.

The court granted summary judgment on the failure-to-transfer discrimination claim. The proposed transfer to the Contracts and Real Estate Bureau would have kept Pompey at the same rank and salary, and Pompey did not present evidence of an objective, significant disadvantage from the denial of that transfer.

Retaliation Claims

The court held that the December 22, 2022 meeting cancellation could qualify as a materially adverse action for the Section 1981 and New York Human Rights Law retaliation claims because the meeting was intended to establish a plan that could lead to promotion. The one-day timing between Pompey’s discrimination complaint and the cancellation supported an inference of causation. Because defendants did not offer a legitimate, nondiscriminatory reason for the cancellation in their motion papers, the court denied summary judgment on those retaliation claims.

The court granted summary judgment on the retaliation claims based on Pompey’s February 17, 2023 application for a senior position. Defendants offered the explanation that there were only seven days between the application and Pompey’s resignation and that Capuano did not review the application because Pompey had already resigned. The court found that Pompey’s speculation did not show that this explanation was a pretext for retaliation.

The court also granted summary judgment on the retaliation claims concerning the Litigation Bureau position. Defendants explained that the bureau’s head was on medical leave and learned of Pompey’s departure before discussing the position with him. The court found that Pompey did not show this explanation was a pretext. Because the December 22 meeting claim was not timely exhausted under Title VII, the court granted summary judgment on Pompey’s Title VII retaliation claim as well.

Constructive Discharge

The court granted summary judgment on the constructive-discharge claim. Constructive discharge requires working conditions so intolerable that a reasonable person would feel compelled to resign, along with an actual resignation. The court found that Pompey’s desire to remain at the Law Department, including his application for another position there shortly before leaving, undermined his claim that resignation was compelled. The court also found that the alleged conditions were, at most, difficult or unpleasant rather than intolerable.

New York Aiding-and-Abetting Claim

The court denied summary judgment on Pompey’s New York Human Rights Law aiding-and-abetting claim against Nonna and Capuano. Such a claim requires an underlying violation of the state human-rights law. Because the court found that discrimination and retaliation claims remained viable and Pompey alleged that Nonna and Capuano participated in the challenged conduct, the aiding-and-abetting claim could proceed.

Disposition

The court stated that defendants’ motion for summary judgment was granted in part and denied in part. The court granted the motion on the Title VII claims, the failure-to-transfer discrimination claim, the retaliation claims concerning the February 2023 application and Litigation Bureau position, and the constructive-discharge claim. It denied the motion on the Section 1981 and New York Human Rights Law failure-to-promote discrimination claims, the Section 1981 and New York Human Rights Law retaliation claims based on the canceled December 22 meeting, and the New York Human Rights Law aiding-and-abetting claim.