Court Applies “Stray Remark” Doctrine to Dismiss Race Discrimination Lawsuit Against Shop Rite

In McCaskill v. Shoprite Supermarket (NDNY 1/30/15), the Northern District of New York granted defendant’s motion for summary judgmetn dismissing plaintiff’s race discrimination claim.

Stray Remarks

As part of his opposition to defendant’s motion, plaintiff contended “that his termination was motivated by racial discrimination because, inter alia, he overheard a derogatory racist remark directed towards him by SRS employees.”

While “the circumstances which may give rise to an inference of discrimination include remarks made by decisionmakers that could be viewed as reflecting a discriminatory animus”, that principle did not operate in plaintiff’s favor here.

To begin, the court found that plaintiff’s submission in opposition to summary judgment was directly contradicted by his prior deposition testimony. Specifically, while plaintiff “testified at his deposition that no one used racist or derogatory terms toward him during his employment with SRS,” he later asserted that he “overheard two employees talking” and that one of them called him “a stupid ass nigger.” Plaintiff attempted to explain this contradiction by asserting that he “was not thinking clearly” at the time of his deposition.

In any event, the court held that even if plaintiff’s opposition affidavit was not contradictory, “the alleged comment is the type of ‘stray remark’ which fails to support an interference of discrimination because it has no connection with plaintiff’s termination.”

The court explained:

Plaintiff has failed to adduce any evidence from which a fact-finder could infer a connection between the alleged discriminatory remark and the decision to terminate his employment. First, plaintiff has not identified who made the remark or exactly when it was made. Even assuming that it was made by an SRS employee, there is no indication that the employee had anything to do with the decision to terminate plaintiff’s employment. Plaintiff alleges that he overheard the comment while he was “in the cooler”; there is no evidence that the remark was made in an official setting such as a performance review. There is also no evidence connecting the remark to Mr. Ausanio, the Albany Store Director who informed plaintiff of the termination decision. There is no evidence that SRS management and decision-makers made any derogatory comments towards plaintiff. In addition, plaintiff alleges that this comment was made at the Hudson store, whereas he was working at the Albany store at the time of his termination. Thus, the remark was also physically and temporally distanced from the decision to terminate plaintiff’s employment. Accordingly, no reasonable fact-finder could conclude that the alleged discriminatory comment made against plaintiff supports an inference of discrimination.

Disparate Treatment

The court also dismissed plaintiff’s disparate treatment claim, finding no evidence that defendant “treated Caucasian employees with poor job performance and complaints of sexual harassment any more favorably than plaintiff.” Specifically, plaintiff and the Caucasian employee allegedly given better treatment were not “similarly situated”, as they held different positions and were engaged in different types of wrongdoing.

Therefore, plaintiff failed to establish that his termination occurred under circumstances giving rise to an inference of discrimination, having “demonstrated nothing more than his own subjective belief and feeling that he was discriminated against, which is not enough to make out a prima facie discrimination case under Title VII.”


Finally, the court determined that, even assuming plaintiff could present a prima facie case, his claims still failed. Specifically, defendant proffered non-discriminatory reasons for terminating plaintiff – e.g., poor performance and sexual harassment allegations against him by a female co-worker – which plaintiff failed to demonstrate were mere pretext.

At the “pretext” stage of the analysis, plaintiff was required to “produce sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons presented by the defendant were false, and that more likely than not discrimination was the real reason for the employment action.”

The court explained:

Plaintiff argues that defendant’s reason for terminating his employment was not related to job performance because he was a good employee, did nothing wrong, and never directly received any negative feedback. However, he has cited no evidence to demonstrate that SRS’s legitimate, non-discriminatory reason was pretextual. Plaintiff simply disagrees with SRS’s evaluations of his performance. However, a plaintiff’s subjective belief that he was a better performer than his supervisor believed him to be is insufficient to prove pretext. …

Nor can plaintiff show that the alleged misconduct cited by SRS was a mere pretext. Even if plaintiff had presented admissible evidence that the allegations of sexual harassment against him were false, there is no evidence from which a fact-finder could infer that the real reason for his termination was discrimination. Ultimately, it does not matter if the complaint by [plaintiff’s sexual harassment accuser] was true or false, because defendant’s decision to terminate plaintiff need not be correct or even fair—it simply cannot be discriminatory.

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