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Evidence of racial discrimination in Cablevision case overlooked: Appeals court


A federal court overlooked evidence when it dismissed the racial discrimination and retaliation claims of a fired African-American area operations manager at Cablevision Systems Corp., a U.S. appeals court ruled Friday in reinstating the charges.

Garry Kirkland, who had gone to work for Bethpage, New York-based Cablevision in 1999, rose to the position of area operations manager in November 2005 and was terminated in December 2008, according to court papers. He was Cablevision's only African-American area operations manager at the time.

Mr. Kirkland filed suit in U.S. District Court in New York, charging the company with racial discrimination and retaliation under Title VII of the Civil Rights Act of 1964. The District Court dismissed both charges in separate rulings in September 2012 and August 2013, according to the ruling by the 2nd U.S. Circuit Court of Appeals in New York in Garry Kirkland v. Cablevision Systems.

The lower court had held that Mr. Kirkland did not have sufficient evidence of pretext to rebut Cablevision's “seemingly legitimate, nondiscriminatory reasons for firing him — primarily poor performance reviews and affidavits from three regional mangers whom Kirkland supervised,” it said. Mr. Kirkland appealed the dismissal.

“The District Court overlooked evidence raising a genuine factual dispute as to whether Cablevision's justifications for firing Kirkland were a pretext for race discrimination and retaliation,” said the unanimous three-judge panel of the 2nd Circuit in reinstating the charges.

“A rational jury, viewing the disputed evidence in Kirkland's favor, could find that Cablevision discriminated against Kirkland and fired him in violation of Title VII,” said the ruling.

Among the overlooked evidence is that Kathryn Nivins, an Asian-American female whom managing director Robert Cockerill hired to replace Mr. Kirkland, testified that he had explained Mr. Kirkland's termination by criticizing Mr. Kirkland's failure to discipline one of his regional managers, all of whom were African-Americans, according to the ruling. Ms. Nevins testified that Mr. Cockerill told her that he had “come to learn that they don't know how to police each other.”

The appellate ruling also cites nine other cases of proffered evidence that it said could support a finding of pretext for Mr. Kirkland's firing. These include Ms. Nivins' testimony that she believed she had been hired because she had a black fiancé and could fire black people in Mr. Kirkland's former region.

“A jury might credit all of this proffered evidence, some of it, or none at all,” but if it believed at least some of it, “that jury could also conclude that, despite Kirkland's negative performance reviews,” his firing was “more likely than not based in whole or in part on discrimination,” and that the unlawful retaliation would not have occurred but for the alleged wrongful actions, said the 2nd Circuit in remanding the case for further proceedings.