Stray Remarks, Quirky Question # 108

Quirky Question # 108:

We are a communications company in Colorado.  We recently terminated a sales employee for poor performance and he has since filed a charge against our company claiming his termination was the result of age discrimination.  In support of his charge, the former employee alleges that over a year ago he overheard the president of the Company say “I’ll be happy when they get rid of some of these old geezers – the younger ones make less mistakes.”  The former employee asserts that this statement is indicative of discrimination at our company and will likely want to introduce it as evidence if the case goes to trial.  The president in our Company does not make any direct hiring or termination decisions, nor is his approval required for hiring or termination of employees – these decisions are made solely by the direct managers of each department in which the respective employee works.  In this case, the president did not oversee the former employee, did not review the employee and, most importantly, did not participate in any way in the decision to terminate employee.  In fact, he did not even find out about the termination until the day after the employee was informed of the termination.  Further, the president completely denies making the statement.

Will the former employee be able to introduce evidence of the statement at trial to prove discrimination?

Dorsey’s Analysis:

Your question raises the interesting issue as to whether “remarks” made by a non-decision- maker – such as the president of the Company in this situation – are admissible to prove evidence of discrimination in an employment discrimination claim.  Practically speaking, courts have discretionary authority to admit such statements as evidence.  From purely legal perspective, however, a stray remark should not be admitted as evidence of discrimination.  The Tenth Circuit and other jurisdictions are generally in accordance with this approach, often holding stray remarks inadmissible as evidence to prove discrimination.

As you may know, in an employment discrimination action, the plaintiff is required to establish a prima facie case of discrimination by a preponderance of the evidence.Accordingly, plaintiff bears the burden of establishing intent to discriminate by direct or circumstantial evidence.  Generally, this burden requires the plaintiff to “produce sufficient evidence of actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were based on an illegal discriminatory criterion.”  Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978).

In considering whether evidence presented by a plaintiff alleging discrimination is sufficient, numerous courts in the Tenth Circuit have found that “isolated” or “stray” comments do not themselves establish discriminatory conduct.  See, e.g., Klen v. Colorado State Board of Agriculture, 2007 WL 2022061, *18 (D. Colo 2007); Cone v. Longmont United Hospital Ass’n, 14 F.3d 526, 531 (“[i]solated comments, unrelated to the challenged action, are insufficient to show discriminatory animus in termination decisions.”).  Further, if relying on such comments, the plaintiff must establish that “a nexus exists between the allegedly discriminatory statements” and the termination.  Cone, 14 F.3d at 531.  For example, the plaintiff in Cone claimed certain “ageist comments” made by the management of the hospital were evidence of discrimination.  The comments made by managerial employees of the hospital included references to the need for some “new young blood”, and statements that “long-term employees have diminishing return.”  Id. at 531.  The court held that the statements constituted stray remarks, and that such stray remarks were “insufficient to create a jury issue in an ADEA case.”  Id.  (Emphasis added.)  The court also found that while “[a]ge-related comments referring directly to the worker may support an inference of age discrimination…isolated [or] ambiguous comments are too abstract to support a finding of age discrimination.”  Id. (quoting Phelps v. Yale Sec., Inc., 986 F.2d 1020, 1025 (6th Cir 1993)).

In order to use such statements to infer discriminatory intent, a plaintiff-employee is required to show that the statement was “made by a decision maker and that there was a nexus between the discriminatory statement and the decision to terminate.”  McKnight v. Kimberly Clark Corp., 143 F.3d 1125 (10th Cir. 1998).  Generally, courts find no nexus exists in situations where the person making the statement had no role in overseeing the employee.  In Vanovur v. Department of Energy, the court held that a statement regarding the manager’s intention “to weed out older employees through the reorganization” was a stray remark because the manager did not “participate in the process of selecting the maintenance managers other than approving the final list of candidates.”  153 F.3d 730 (10th Cir. 1998).

Based on the facts you presented, the statement by the president does not appear to be linked to the personnel decision to terminate the former employee or to the individuals who made the decision, particularly considering the time lag (about 1 year) between when the statement was allegedly made and the employment decision.  Additionally, it is possible a court would consider the purported statement too ambiguous and abstract to establish discriminatory intent.  Without the former employee establishing a nexus between the supervisor’s statement and his subsequent termination, it seems likely a Tenth Circuit court would find the statement inadmissible as a stray remark.

When the “remarks” are alleged to have been made by the decision-maker or one in a position to actually influence the employment decision, the courts react differently.  For example, the Supreme Court has found that remarks by the decision-maker regarding protected class members may be an indicator of discriminatory bias.  In Ash v. Tyson Foods, Inc., 546 U.S. 454 (2006), plaintiffs brought a claim of race discrimination against their employer.  The Court held that, contrary to the district court’s finding that the plant manager’s repeated use of the word “boy” to refer to the plaintiffs was not alone evidence of discrimination, the remarks were potentially probative of discriminatory animus.  Whether the remarks indicate bias depends on the decisionmaker’s meaning which “may depend on various factors including context, inflection, tone of voice, local custom and historical usage.”  Id. at 456.  Further, when the individual making the statement has influence over the employment action, courts have held certain remarks to be direct evidence of discrimination.  See Burns v. Gadsen State Community College, 908 F.2d 1512, 1515 (11th Cir. 1990).  In Burns, the court held that the College President’s statement that “no woman would be appointed” as Director of Economic Development constituted direct evidence of gender discrimination when the plaintiff, a woman, had applied for that position.

However, even if the remarks were allegedly made by a decision-maker, the plaintiff still should be required to offer some evidence that the remark was actually related to the employment decision.  Cone, 14 F.3d at 531.  Absent a connection to the employment decision, stray remarks likely do not suffice as evidence, as noted by Justice O’Connor in her concurring opinion in Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989), where she stated affirmatively that “. . . statements by decisionmakers unrelated to the decisional process itself, [cannot] suffice to satisfy the plaintiff’s burden . . ..”

In the event a court admits a “stray remark,” careful consideration should be given to the potential prejudicial effect of the evidence.  Counsel should request a limiting jury instruction when the court permits a plaintiff to present evidence of such remarks.  Although this also remains in the court’s discretion, courts admitting stray remarks into evidence generally include a limiting instruction.  For example, in DeSanto v. Rowan University, the court admitted stray remarks by the Dean of the College of Education and certain upper administration personnel because the possible influence the individuals had over the employment action.  224 F.Supp.2d 819 (D.N.J. 2002).  However, the court also charged the plaintiff with establishing a nexus between the statements and the lack of promotion, stating that “if DeSanto fails to connect the ‘stray remarks’ to person who could have influenced the University’s promotional decisions, then the stray remarks will have no legal significance and the jury will be so instructed.”  Id. at 830.  Further, in McMillan v. Massachusetts Society for the Prevention of Cruelty to Animals, the First Circuit  upheld the district judge’s instructions regarding stray remarks in a gender discrimination case.  140 F.3d 288 (1st Cir. 1998).  The judge had instructed the jury to disregard the remark at issue in reaching a verdict if the jury found the remark was “random and completely out of character” and had no “value as evidence” of the employer’s motivations.  Id. at 302, n.8.

In sum, a decision-maker’s biased remarks generally do not constitute direct evidence of discrimination unless the remark (1) was related to the protected class of persons of which the plaintiff is a member; (2) was made proximate in time to the complained-of adverse employment decision; (3) was made by an individual with authority over the employment decision at issue; and (4) was related to the employment decision at issue.  Rubenstein v. Administrators of Tulane Educational Fund, 218 F.3d 392, 400 (5th Cir. 2000).  Although the admissibility of stray remarks remains in the court’s discretion, and each judge may rule differently, case law in many jurisdictions supports the argument that such remarks are generally inadmissible as evidence to prove discrimination.

Finally, the statement made by your president likely will not be admissible as evidence against your company in a discrimination claim by your former employee.  I suspect the key battleground will be the extent to which your President’s attitudes were known to the actual decision-makers and/or whether the President influenced the decision-makers in any way.

As described above, the court has wide discretion to treat this issue as it sees fit.  Thus, it is prudent for your company (and every employer) to ensure that all employees, but particularly those holding managerial or supervisory positions, refrain from making statements that can be misconstrued or which are arguably discriminatory against a member of a protected class.  Consistent and thorough training should be provided to all employees in management or supervisory roles to ensure they are aware of the laws regarding discrimination and harassment.

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