Tuesday, April 17, 2012

Stray remarks that stereotype Asians not enough to save discrimination claim

How relevant are biased comments in assessing an employment discrimination claim? Very relevant if a decisionmaker made them, or if someone with influence over the decision made them. If someone else made the comments, not so much.

The case is Chao v. Mount Sinai Hospital, a summary order decided on April 17. The Court of Appeals sets the tone for the decision as follows: "This action arises from a lengthy internal investigation conducted by Mount Sinai School of Medicine resulting in a finding that Chao, formerly an Assistant Professor of Medicine at Mount Sinai, had committed research misconduct." Dr. Chao argued that his termination was based on his race and national origin.

In these cases, the plaintiff has to show, at a minimum, that management's reason for the adverse decision was a pretext, or lie. The Court of Appeals (Jacobs, Katzmann and Keenan [D.J.]), says, "Chao did not meet his burden of proffering sufficient evidence to support a rational inference that Mount Sinai’s legitimate, nondiscriminatory reason for Chao’s termination -- the 'rigorously-investigated charge and finding that Chao committed research misconduct and violated professional or ethical standards.'"

Plaintiff tried to get around this by highlighting stereotypical comments made by someone at Mount Sinai. According to the district court,

Dr. George Atweh, a non-party who was formerly the chief of Chao's division at MSSM, made several questionable remarks in an interview on March 13, 2009 during the investigation process. He attributed Chao's alleged authoritarianism to his national origin. ("I think that in part it's cultural, in China you never question authority . . ."); ("I counseled him on that, that that's no approach to run a laboratory, certainly not in this country, maybe in China, but not here . . ."); ("there are clearly issues with his ability to run a laboratory. Conflicts with people; authoritarian issues, like we mentioned . . . [A]s I said, I think some of these are cultural . . .").

The district court did not like these statements, but they are not relevant to Chao's claim. "While these remarks demonstrate a speculative and na├»ve acceptance of stereotypes based on national origin, they do not suggest that discriminatory animus occasioned Chao's termination because Atweh was not even on the Investigation Committee, let alone involved in the decision to terminate Chao; in fact,  the statements were made after Atweh was no longer employed by MSSM. Moreover, Chao has characterized Atweh as a friendly witness and the Investigation Committee agreed to interview Atweh at Chao's behest." The trial court further stated, "taken as a whole, these comments fail to show that Chao's termination occurred as a result of a racial or national origin bias. Rather, Chao's behavior was independently objectionable, and no facts suggest that the unprofessional and unfortunate remarks by Chao's colleagues during the investigation had an effect on Dean Charney's termination decision. The comments do not evidence the kind of animosity that has in other cases overcome summary judgment motions."

The Court of Appeals agrees. "The allegedly discriminatory comments made by certain defendants regarding Chao’s Chinese culture and background were 'stray remarks buried within . . . thousands of pages of testimony and reports,' and were made by persons with a 'significant distance . . . in terms of both time and institutional hierarchy' from the ultimate decision-makers."

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