Court rejects attempt to "twist" the facts into direct evidence

The Court of Appeals hears a lot of employment discrimination appeals. Direct evidence can get you a trial. This one reminds us that  direct evidence is often elusive and not yours for the asking.

The case is Fischer v. City of New York, a summary order decided on May 17. Fischer was a probationary secretary for a high school in Queens. She was fired in June 2007. She says she was fired because she was white and Jewish, and that she has direct evidence to prove it. If you have direct evidence, the court can dispense with the well-known McDonnell-Douglas burden-shifting model that helps the court decide if circumstantial evidence is enough to prove your case. But to win the case on direct evidence, you need ... direct evidence.

Plaintiff says she has direct evidence because the school principal, Alfred, testified that race "had nothing to do with" her decisions to reprimand or not reprimand employees and that, by way of example, she has "reprimanded Caucasion teachers and Asian teachers. It doesn't have anything to do with it."As the Court of Appeals (Cabranes, Parker and Lohier) puts it. "Fischer attempts to twist this denial that race enters into Alfred's decision-making into an admission that Alfred only disciplines white and Asian teachers. We are not convinced. Neither this statement, nor any other we have found in the record, plausibly provides direct evidence" in support of plaintiff's claim.

When it comes to direct evidence, you know it when you see it. It can take the form of a manager saying outright that he does not promote women. But the Court of Appeals has said that even without a "smoking gun," the plaintiff can get the judge to charge the jury on the more lenient direct evidence model if the plaintiff has "a thick cloud of smoke, which is certainly enough to require [defendant] to 'convince the factfinder that, despite the smoke, there is no fire.'" Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1187 (2d Cir. 1992).

A good summary of where we stand on this issue is found in a recent Court of Appeals ruling, Henry v. Wyeth Pharms., Inc., 616 F.3d 134, 149-150 (2d Cir. 2010):

[T]he more remote and oblique the remarks are in relation to the employer's adverse action, the less they prove that the action was motivated by discrimination. . . . The more a remark evinces a discriminatory state of mind, and the closer the remark's relation to the allegedly discriminatory behavior, the more probative that remark will be.

The district courts in this circuit have developed a standardized approach for applying these concepts to individual cases. In determining whether a remark is probative, they have considered four factors: (1) who made the remark (i.e., a decision-maker, a supervisor, or a low-level co-worker); (2) when the remark was made in relation to the employment decision at issue; (3) the content of the remark (i.e., whether a reasonable juror could view the remark as discriminatory); and (4) the context in which the remark was made (i.e., whether it was related to the decision-making process). While we caution that none of these factors should be regarded as dispositive, we think this framework will often provide a useful approach to the admission or exclusion of remarks not directly related to the adverse action against the plaintiff, and employ it here.