Friday, October 24, 2014

Another look at when discriminatory comments are enough to win the case

Many discrimination cases are won on the basis of circumstantial evidence. Some cases involve direct evidence, which certainly makes life easier for everyone in determining whether the plaintiff should win the case. The question then becomes when these comments will allow you to take the case to a jury.

The case is Wesley-Dickson v. Warwick Valley Central School District, a summary order decided on October 6. Plaintiff was a teacher who was denied tenure. She claimed that the district had engaged in racial discrimination, and in support of that argument, she cited the following evidence:

in September 2007, while she was undergoing chemotherapy and wearing a headscarf, defendant Reinhard told her that when she spoke in a southern accent she sounded “like Aunt Jemima” and as if she were “down on the plantation.” Plaintiff also attributes to defendant Fox a September 2007 remark dismissing a school district diversity conference to be led by African-Americans as “a waste of her time.” Finally, plaintiff asserts that, in May 2006, Superintendent Greenhall recounted that he had been severely assaulted by “six black boys,” but had “showed them.” She further alleges that in response to concerns expressed no later than March 2008 by union representative Mary Jane Hamburger about plaintiff’s negative performance evaluations, Greenhall stated that he was “not afraid to fire black people.” 
The issue of when discriminatory comments are enough to help the plaintiff at trial received extended treatment from the Second Circuit a few years ago, in Henry v. Wyeth Pharmaceuticals, which states:

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).

Are the statements in this case enough to show intentional discrimination? The Court of Appeals (Winter, Raggi and Hall) says no. Reinhard made what looks like a racist statement, but she did not review plaintiff's work, write her performance reviews or influence the decisionmakers who got rid of plaintiff. While Fox was one of plaintiff's reviewing supervisors and her reviews influenced plaintiff's termination, "both the Fox's isolated comment (about a district conference) and its timing (6 months before plaintiff's probationary term was extended and 18 months before she was denied tenure) are too remote and oblique to raise a triable issue of pretext." As for Greenhall's May 2006 comment of a past assault by "black boys," it was too remote in time and oblique in context to support an inference of pretext.. Hamburger's statement, meanwhile, is hearsay, as she was recounting Greenhall's statement and did so in her capacity as plaintiff's union representative and not as an agent of the school district.

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