Discrimination case knocked out by stray remarks doctrine

Sometimes, offensive comments in the workplace are not enough to support a discrimination lawsuit. In this case, the plaintiff tries to connect her termination with stupid comments that were made prior to that event, but the Court of Appeals says the comments were too far removed from her termination to allow the case to proceed to trial. This case acquaints us with a few judge-made rules governing employment discrimination cases.

The case is Bentley-Ammonds v. Northwell Health, Inc., a summary order issued on March 28. Plaintiff was a Senior Director for Northwell Health Home. She says the Medical Director of Home Health at Northwell, Wolff, made two comments in particular. The first comment took place in April 2017, when Wolff said, “it would be helpful if you had a bong at your desk and took a couple of hits off of that bong, that would help with your knee pain.” Plaintiff says this comment was racially-motivated "because Wolff knew that she was African-American, that her father was from the Caribbean, and there are stereotypes about people from the Caribbean smoking marijuana." The second comment was made in June 2016, when Wolff said she had hired a “Caucasian nurse, not a black nurse like Erika, and she doesn’t have a black name. I think her name is . . . Valerie.” More than three months later, plaintiff was fired.

Even if these were racist comments, the Second Circuit says these comments cannot give rise to an inference of discriminatory intent because they were too remote from plaintiff's termination, and they do not relate to plaintiff's job performance, retention, or eventual termination. In other words, these are what we call "stray remarks." Plaintiffs' lawyers hate the "stray remarks" doctrine, and I am sure that some jurors would hold comments like this against the employer, but the courts long ago decided to draw the line on comments like this to prevent a finding of liability for comments that are too remote in time and do not relate directly to the plaintiff's termination.

Even if plaintiff survived the stray remarks hurdle, the Court says, she cannot win the case because she is unable to show the employer's reason for her termination was false or discriminatory. Management said it fired plaintiff because she shared details about the impending discipline of one of her subordinates with other employees. Plaintiff says that justification is false because a nurse, Alfaro, had already revealed that information to the entire department, but the nurse suffered no consequences for this.

At first glance, this is a great argument. But that overlooks another principle guiding these cases: similarly-situated comparators. The courts want your comparator to be similar to the plaintiff in job title and workplace standards. The Court (Cabranes, Raggi and Carney) says, "Bentley-Ammonds and Alfaro were obviously differently situated, because Bentley-Ammonds was a supervisor—Alfaro’s supervisor, in fact—and because Alfaro immediately attempted to remediate the effects of her inadvertent disclosure, whereas Bentley-Ammonds did not."

Defendant also says plaintiff was fired because she took "time back," that is clocking in for work when she was not actually there. That will get you fired, but not if others are also doing it without consequence. That defense works in this case because plaintiff's evidence on other time abusers is either hearsay or conclusory. Nor does plaintiff assert that the other time abusers were outside her protected class.