Race/Gender Discrimination Claims Dismissed; “Sloppy” Remark Was Not Race-Based

In Phillips v. Central New York Psychiatric Center, No. 16-cv-0219, 2017 WL 2869938 (N.D.N.Y. July 5, 2017), the court articulated and applied the legal framework for evaluating comments as evidence of unlawful discrimination.

The court explained:

Verbal comments provide evidence of discriminatory intent when the plaintiff shows that a nexus exists between the allegedly discriminatory statements and a defendant’s decision to take action against the plaintiff. [] To determine whether such a nexus exists, courts often weigh the following factors: [1] who made the remark, (i.e., whether it was a ‘decision-maker, a supervisor,’ or a low-level colleague); [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 [] the context in which the remark was made (i.e., whether it was related to the decision-making process).

Applying these factors – referred to by the court as the “Henry factors”, as they are culled from a Second Circuit decision captioned Henry v. Wyeth Pharms. Inc., 616 F.3d 134 (2d Cir. 2010) – the court held that plaintiff failed to state a discrimination claim and dismissed her complaint.

For example:

With respect to the third and most important Henry factor, a reasonable jury could not view the alleged remarks as discriminatory. The majority of Phillips’s letter to the EEOC outlines incidents in which supervisors or coworkers yelled at or reprimanded her, but none of them involve any language regarding her race or gender at all. EEOC Letter. Most of the exchanges, while undoubtedly unpleasant for Phillips, concern job performance. Id. She asserts that the Nurse’s report described her as “loud, obnoxious, careless, crazy, defiant, sloppy, and with dry smacking lips.” Id. at 3. While this description does not explicitly reference her race or gender, Phillips claims that she was described as sloppy due to her race. She stresses that African-American hair often “puffs up” uncontrollably, especially when the weather is humid or damp. Id. While a comment about the so-called “frizzy” hair of an African-American employee could reflect racial animus, Phillips does not allege that anyone made such a comment at all. EEOC Letter; Am. Compl. And it is not enough that Phillips believes she was called “sloppy” because of the allegedly African-American characteristics of her hair. See Brodt v. City of New York, 4 F. Supp. 3d 562, 568 (S.D.N.Y. 2014) (“[A] plaintiff’s ‘feelings and perceptions of being discriminated against are not evidence of discrimination.’ ” (quoting Bickerstaff v. Vassar Coll., 196 F.3d 435, 456 (2d Cir. 1999))). Phillips also asserts that in the report and throughout her time at CNYPC, she was portrayed as being “disgusting, sweaty, confused, slow, with vacuous eyes, easily distracted, in a fugue state, with poor memory, who eats hot dogs in front of patients, and drank a patient’s drink.” EEOC Letter at 3. There is no indication that these comments, however insulting, had anything to do with race or gender.

In dismissing plaintiff’s hostile work environment claim, the court held that it “need not decide whether the conduct Phillips experienced at CNYPC was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment[], because she fails to allege facts suggesting her race or gender had any connection to the conduct described.”

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