When does the word "bitch" not support a sex discrimination case?

Plaintiff was fired from her job and claims it was sex discrimination. Her best evidence is that the person who fired her spelled out the word "bitch" in conversation with her. This case thus raises the issue of when that word cannot support such a claim. As it does not support a sex discrimination claim in this case, plaintiff's discharge claim will never reach a jury.

The case is Braunstein v. Sahara Plaza, LLC, a summary order issued on December 7. Defendant said plaintiff was fired because she was too difficult to work with. She responds by noting that her supervisor, Mariano, spelled out "b-i-t-c-h" in speaking with her in January 2015. It is not clear when plaintiff was fired but perhaps she argued that her termination was close in time to this conversation. If so, that is not enough to win the case

Years ago, I argued Pucino v. Verizon Communications, 618 F.3d 112 (2d Cir. 2010), which reversed summary judgment in a sex discrimination case where plaintiff's supervisors used the word "bitch" in a derogatory way that permitted the inference that she was treated badly because of her gender. But the court in that case said that "bitch" does not always permit such an inference. We have to consider the context of how the word was used. The Braunstein case is among the few cases that performs that contextual examination. The Court writes:

Here, the word was used as part of a larger conversation, held at Braunstein’s request, about the importance of teamwork, Braunstein’s communications issues with staff members, and methods to ameliorate ill feelings that had developed. It is clear on this evidence that Mariano was not expressing disdain or animus against women. He was merely telling one woman how aspects of her behavior affected her job performance. In this context, the word did not give rise to an inference of gender hostility.

The district court ruling in the case gives a better context to this evidence:

On January 9, 2015, Plaintiff received her 60-day performance evaluation, which was poor. She e-mailed Mariano, Widnesseron, and a Human Resources staff member, stating her disagreement with the evaluation. She subsequently met with Mariano on January 15, 2015, at his suggestion, to discuss her review. At that meeting, which Plaintiff recorded, the parties agree that Mariano made the following statement:

We're a team, we need to work together.... Maybe we need to have a department meeting where we workshop with each other and really get to know each other. There's going to be days where you're going to be a B-I-T-C-H and there's going to be days where [the female servers] [are] going to be anxious and flip out and you need to be able to calm them down and get them what they need and not taking things personally so that they don't reflect of an image of you that may not be fully accurate.

Plaintiff replied, “Yeah and my only thing is, and this may sound a little obnoxious, but I'm just going to own it, this image has worked my whole career for 20 years.” Plaintiff also admitted during her deposition that she told Mariano during one of their conversations that she was “someone with an edge,” and that she was referring to her “personality.” 

It looks like the supervisor did not call plaintiff a "bitch" to her face, but he said that supervisors sometimes have to be a "bitch" to keep the other workers in line. Maybe the Court of Appeals (Raggi, Leval and Perez) thought this was a close case, but careful review of the evidence supports summary judgment for the employer.