Getting the Employment Case to a Jury: Stray Remarks as Circumstantial Evidence

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“Employment discrimination claims are tough to prove,” is a popular refrain. An old New York Times article entitled, Workers Find It Tough Going Filing Lawsuits Over Job Bias, once detailed the plight of wrongfully terminated workers to retain an employment lawyer. And the Seventh Circuit in Lever v. Northwestern University remarked, perhaps sarcastically, that “[n]o rule of law says that employees win all close cases.”

Close cases, however, are sometimes a product of the legal framework through which they are viewed. To be clear, this has nothing to do with the fact that employment discrimination claims often hinge on circumstantial evidence. Indeed, as the Supreme Court in Desert Palace v. Costa opined: “Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.”

Rather, in defending employment discrimination claims, employers often create a legal framework intended to discount or neutralize probative evidence. The push to characterize biased comments in the workplace as stray, inadmissible remarks is one such example – which, in order to survive summary judgment, must be challenged. Indeed, in Riordan v. Kempiners, the Seventh Circuit made clear that a “plaintiff’s ability to prove discrimination indirectly, circumstantially, must not be crippled by evidentiary rulings that keep out probative evidence because of crabbed notions of relevance or excessive mistrust of juries.” The following six principles can be helpful in demonstrating the probative value of biased comments and ultimately getting employment discrimination claims to a jury:

  1. Embrace Ambiguity: Employers often attempt to argue that a judge should disregard discriminatory remarks and dismiss the case at summary judgment because the comments in question are ambiguous. Such a concession, however, actually supports the denial of summary judgment. In Diaz v. Jiten Hotel Management, Judge Gertner denied summary judgment in an age discrimination case and observed that “[w]hether a given remark is ‘ambiguous’ – whether it connotes discriminatory animus or it does not – is precisely what a jury should resolve, considering all of the facts in context. What may be ambiguous to me, the judge, may not be to the plaintiff or to her peers.” Likewise, in Shager v. Upjohn, the Seventh Circuit reversed summary judgment and noted that “the task of disambiguating ambiguous utterances is for trial, not for summary judgment” and that “[o]n a motion for summary judgment the ambiguities in a witness’s testimony must be resolved against the moving party.” More information on this principle can be found in our White Paper entitled, Age Discrimination Claims & Code Words.

  2. De-Compartmentalize the Decisionmaker: Another strategy involves artificially compartmentalizing discriminatory comments as separate and distinct from the decisionmaker. As the Fifth Circuit in Russell v. McKinney Hospital Venture acknowledged, however, remarks by non-decisionmakers can certainly influence personnel decisions: “Age-related remarks are appropriately taken into account when analyzing the evidence supporting the jury’s verdict (even if not in the direct context of the decision and even if uttered by one other than the formal decisionmaker, provided that the individual is in a position to influence the decision).” To that end, in Ezold v. Wolf, Block, Schorr and Solis-Cohen, the Third Circuit recognized that influence on a decisionmaker can be inferred simply based on the person’s position in the corporate hierarchy: “When a major company executive speaks, ‘everybody listens’ in the corporate hierarchy.” At the same time, in Griffin v. Washington Convention Center, the Court of Appeals for the District Court of Columbia made clear that even “evidence of a subordinate’s bias is relevant where the ultimate decision maker is not insulated from the subordinate’s influence.” The Third Circuit in Lockhart v. Westinghouse Credit, may have put it best: “[W]hen an executive’s comments prove to be disadvantageous to a company’s subsequent litigation posture, it can not compartmentalize this executive as if he had nothing more to do with company policy than the janitor or watchman.”

  3. Focus on the Forest, Not Just the Trees: Massachusetts law makes clear that evidence of a general atmosphere of discrimination constitutes circumstantial proof in employment discrimination cases. Recognizing this principle, in Santiago-Ramos v. Centennial PR Wireless, the First Circuit overturned the lower court’s grant of summary judgment in the employer’s favor in a sex discrimination claim under Title VII. There, the court observed that comments by co-workers concerning the company’s attitude toward women with children – even though they did not influence the decisionmaker – “add color to the decision-making process” such that a “jury could reasonably rely upon these comments, together with other evidence such as comments by the decisionmakers,” in finding pretext for unlawful discrimination. In doing so, the First Circuit specifically noted that such evidence is admissible as proof of a company’s general atmosphere of discrimination.

  4. Attack the Direct Nexus Fallacy: In Ercegovich v. Goodyear, the Sixth Circuit held that “the absence of a direct nexus does not necessarily render a discriminatory remark irrelevant.” As such, discriminatory comments need not be said to or specifically about the plaintiff in order to be admissible. In LaPointe v. United Autoworkers Local 600, for example, the Sixth Circuit reversed summary judgment in which the lower court held that ageist comments regarding “oldtimers” were inadmissible because they were not directed at the plaintiff.

  5. Keep a Lookout for Post-Termination Remarks: Even discriminatory statements made after an employee’s termination, by someone other than the decisionmaker, can be admissible where they are reflective of a corporate culture and represent managerial attitudes. In Ryder v. Westinghouse Electric, the Third Circuit upheld a jury’s finding of age discrimination and ruled the trial court properly admitted comments by the company’s Chief Executive Officer, which included remarks that an “eager highenergy person will get more done in one month than someone who has retired in place will do in one year.” Notably, this evidence was admissible even though the CEO joined the company approximately two months after the plaintiff’s termination and made these comments one year following his discharge. The Third Circuit in Lockhart v. Westinghouse Credit ruled in a similar fashion and stated that the lower court properly admitted comments by a vice president made nine months after the plaintiff’s termination that the company is “seniority driven” with “old management,” which he intended to change.

  6. Emphasize the Totality of the Evidence: Discrimination is a complex phenomenon and, as the Massachusetts Appeals Court in Johansen v. NCR Comten recognized, proving unlawful motive is often “stitched together” through various forms of evidence. The Third Circuit in Vance v. Southern Bell expressed a similar sentiment: “A play cannot be understood on the basis of some of its scenes but only on its entire performance, and similarly, a discrimination analysis must concentrate not on individual incidents, but on the overall scenario.” Notably, in Reid v. Google, the Supreme Court of California denied summary judgment in an age discrimination case and noted that discriminatory remarks “may corroborate direct evidence of discrimination or gain significance in conjunction with other circumstantial evidence.” The court went on to conclude that whether an employment case survives summary judgment and proceeds to a jury trial must be based on “the totality of the evidence in record, including any relevant discriminatory remarks.” Likewise, in DiIorio v. Willowbend Country Club, the Massachusetts Commission Against Discrimination affirmed an age discrimination award totaling close to $450,000 in economic damages plus $200,000 in emotional distress as well as more than $300,000 in attorneys’ fees. Among the pieces of evidence in that case was a newspaper advertisement to garner applications that announced: “Our New Era Begins Now.” This particular advertisement gained context through other evidence, including statements by management to recruit “younger blood” and statistical evidence revealing that the employees who remained were, on average, younger than prior to the layoffs.

  7. Plaintiffs must resist an employer’s attempt to challenge evidence, including discriminatory comments, in isolation. In reality, such comments do not occur in a vacuum and are often rich with relevant context, which can become an important piece of the mosaic of circumstantial evidence through which employment discrimination claims are typically proven. In Fontaine v. Ebtec, the Massachusetts Supreme Judicial Court observed that it is a jury function “to decide whether the remarks were made, whether they indicated a discriminatory intent, and how much weight should be given them.” An opaque lens, however, will cloud even the best of cases with the most probative pieces of evidence. Challenging the employer’s paradigm for analyzing biased, discriminatory comments in the workplace is essential to surviving summary judgment and moving an employment discrimination case away from being a close call and into the jury’s province.

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