Court Allows Race Discrimination Claim, Based on Single Racist Remark, to Proceed to Jury Trial

Crump v. NBTY, Inc. et al., 10-cv-632 (WFK) (ETB) (EDNY March 1, 2012) illustrates that even a single, facially neutral (but arguably racist) remark by a supervisor may be enough to proceed to a jury trial on a Title VII discrimination claim.

Defendant contended that it fired plaintiff for theft and for improperly using a particular entrance.  Plaintiff alleged that, during his termination meeting, the VP of human resources told plaintiff that his ‘kind” was not allowed to use the entrance.  Defendant denied that the statement was made.

The court found that plaintiff presented a prima facie case of race discrimination (based on the “kind” remark, which the court construed as referring to plaintiff’s race) and that defendant met its burden to establish a legitimate, non-discriminatory rationale for the termination (an eyewitness report of plaintiff’s alleged theft). Thus, the burden shifted “back to Plaintiff to provide evidence sufficient for a reasonable jury to conclude Defendant’s purported rationale was merely a pretext for racial discrimination.”

The court found that plaintiff met his burden:

Plaintiff … alleges a single, arguably racially-based remark during his termination meeting, but he explicitly states that at no other time during his entire tenure working for Defendant did he feel or encounter racial discrimination. Therefore, the dispositive issue is whether a rational fact finder could construe this one remark as proving intentional discrimination. …

Although Defendant denies Mazzeo made the alleged remark at issue – something with which a jury may one day agree – the Court must assume he did for the purposes of a motion for summary judgment. Mazzeo was the Vice President of Human Resources for Defendant, and he testified he was the ultimate authority within his department involved in making the decision to fire Plaintiff. Plaintiff alleges Mazzeo made the remark during his termination meeting, so the remark, if made, was made contemporaneously with the adverse employment action. Again, though the remark is race-neutral on its face, the Court must assume “your kind” is a racially-charged remark for the purposes of this motion. Finally, as for context, the remark was made following an investigation, during the actual termination meeting, and allegedly as part of the reason Plaintiff was given for his termination.

Defendant argues a single, race-neutral remark is insufficient to raise an inference of discrimination. This argument ignores the fact that disallowing Plaintiff’s “kind” from using a specific door reasonably could be interpreted by a jury as discriminatory, and the Court must draw this inference in favor of the non-moving party. Further, while Defendant is correct that even a decision-maker uttering stray discriminatory remarks may be insufficient to raise an inference of discrimination, a racially-based remark made during a termination meeting by a decision-maker cannot be construed as stray[.] …

Thus, since “a rational fact finder could conclude that the termination of Plaintiff by Defendant arose from intentional discrimination” and “[d]rawing all inferences in favor of the non-moving party, Plaintiff both has met the minimal burden of establishing a prima facie case and has produced evidence sufficient for a rational finder of fact to conclude that he was fired because of racial discrimination”, the court denied defendant’s motion.

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