Quinn Emanuel Urquhart & Sullivan's offices in Washington, D.C., on Sept. 14, 2016. Photo by Diego M. Radzinschi/ALM

Refusing to dismiss a former secretary's discrimination complaint against Quinn Emanuel Urquhart & Sullivan, a Manhattan federal judge said the plaintiff had alleged a “continuous course” of discriminatory conduct and also criticized Quinn's characterization of a racial slur in the complaint.

U.S. District Judge Valerie Caproni of the Southern District of New York said she was “surprised” that Quinn “attempted to cast the use of the N-word as a poor attempt at humor or a bad pun. Remarks such as those are unacceptable in a civilized conversation.” She added that when they happen in a workplace, particularly when they come from a supervisor, “not only are they unacceptable, they can be a basis for civil liability.”

However, Caproni, who denied Quinn's motion to dismiss the suit, said she was skeptical about the claims surviving the summary judgment stage.

Spencer Marin, a former floating secretary who left Quinn in 2015, sued the litigation firm last August, alleging race discrimination and a hostile workplace as well as retaliation. Marin claimed that he was subjected to racial slurs by a trial logistics director during the high-profile 2014 Apple v. Samsung patent trial.

Marin asserted that the firm's director of trial logistics, Yllen Cruz, called a black staff member “a re-nigger” after the staff member said she had second thoughts about a previous offer to share her food during the 2014 trial in San Jose, California. Marin, who is black, claims he met with Cruz afterward to complain about the remark and was sent back to New York as a result.

Marin's complaint also points to other remarks by Cruz, including allegedly telling the plaintiff he was “not black enough” and asking the plaintiff whether he had ever been arrested.

Quinn moved to dismiss the lawsuit in September. The firm argued that “while Mr. Marin's revised allegations allege a single incident where Mr. Marin heard another secretary jokingly use a racial slur with another employee, the amended complaint is otherwise devoid of allegations which demonstrate hostility or discrimination of any kind, much less conduct that is pervasive or severe.”

At oral argument on March 9, Caproni told Quinn partner Marc Greenwald that in reading the firm's papers, “I was baffled by the description of this as a joke. I just don't understand the humor. I don't understand how someone thought it was humorous. I don't understand why Quinn Emanuel is taking the position that it was a joke.”

Greenwald told the judge the firm doesn't “find it humorous and we don't think it's a good joke.” He said it was the plaintiff's complaint that cited Marin's own email referring to an “'N-word' joke.”

“That's his words. I'm not characterizing it. We don't like it and we wish it had never been said. But even he perceived it at the time as a joke and it's accurately reflected in the complaint,” Greenwald said. “Even if he proved that the unappreciated N-word joke was said at a dinner, that simply is not severe enough to change the plaintiff's conditions of employment.”

Greenwald argued it does not meet the hostile work environment standard, and it's not retaliation to take an employee out of a position where he felt uncomfortable.

Caproni shot back at Greenwald's arguments that the complaint doesn't sufficiently allege retaliation. “It's just happenstance that he got sent back right after he complained?” Caproni said. “It's humiliating. No?”

Arguing for the plaintiff, plaintiff's attorney Lucas Buzzard, an associate at Joseph & Kirschenbaum, said the N-word was “uttered by a supervisor in his presence and in the presence of all her other employees.” He added, “That word is so loaded that it simply cannot be said that it's a tasteless pun or harmless comment.”

At the March 9 oral argument, Caproni ruled from the bench, saying it was a close case but that she was denying Quinn's dismissal motion. “Far from being a single isolated instance, as defendant claims, the use of the N-word was the end of a continuous course of conduct. Importantly, the stream of offensive comments allegedly came from plaintiff's supervisor,” Caproni said.

Caproni added that the U.S. Court of Appeals for the Second Circuit has held that no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of a racial epithet by a supervisor in the presence of subordinates.

However, Caproni said the complaint does not allege offensive racial conduct outside of the three-week trial period. “I'm somewhat skeptical that the plaintiff will be able to prove that the complained-of conduct was sufficiently pervasive to survive a summary judgment motion,” Caproni said. “The amended complaint states a claim for hostile work environment, but just barely.”

Turning to Marin's retaliation claim, Caproni said Marin's allegation that he was kicked off the San Jose trial team and sent back to New York shortly after complaining about Cruz's racial remarks “alone is sufficient to state a claim for retaliation.” That said, if Quinn Emanuel is right and this is just separating two employees, it may well not survive summary judgment, the judge said.

“Time will tell whether plaintiff's claims can withstand summary judgment,” she added, ordering the parties to complete discovery by early June.

In an interview, Buzzard, the plaintiff's attorney, said, “we're on the road” where a single use of the N-word by a supervisor is enough to state a claim for a hostile work environment. Maimon Kirschenbaum, a partner in his firm, said “it's shocking” Quinn “would mount the defense” that the use of the N-word was “some kind of small joke.”

But in a brief interview, Greenwald, the Quinn partner, again referred to his explanation in court, where he told the judge that the plaintiff's complaint itself referred to an “'N-word' joke.”

“We were gratified by the judge's recognition that these claims are unlikely to survive summary judgment and look forward to being vindicated at summary judgment,” Greenwald said.