Religious Discrimination Claim Dismissed; Remarks Held Not Probative

In Shaw v. McDonald, 17-1122, 2018 WL 1357382 (2d Cir. March 16, 2018) (Summary Order), the Second Circuit, inter alia, affirmed the dismissal of the plaintiff’s religious discrimination (disparate treatment) claim.

The court gives us a refresher on the legal standard for pleading a discrimination under Title VII of the Civil Rights Act of 1964, including how remarks offered in support of such claims:

For a Title VII disparate treatment claim to survive a motion to dismiss, “a plaintiff must plausibly allege that (1) the employer took adverse action against him, and (2) his race, color, religion, sex, or national origin was a motivating factor in the employment decision.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 87 (2d Cir. 2015). Our Court generally looks to four factors to determine whether a remark made in the workplace is probative of discriminatory motive: “(1) who made the remark (i.e., a decision-maker, a supervisor, or a low-level co-worker); (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 (4) the context in which the remark was made (i.e., whether it was related to the decision-making process).

Applying the law, the court explained:

The district court properly determined that Shaw’s disparate treatment claim failed because Shaw did not plausibly allege that his religion was a motivating factor for his termination. Although Shaw alleges that co-workers made statements that a reasonable fact-finder could view as discriminatory, he has failed to allege that these co-workers played any role in the VA’s decision to fire him or that their remarks were made near the time that he was fired. Moreover, Shaw has failed to provide any information about whether an employee whom Shaw alleged was not fired for using abusive language was similarly situated to him. See Graham v. Long Island R.R., 230 F.3d 34, 40 (2d Cir. 2000) (finding that a “similarly situated” comparator requires a reasonably close resemblance of the facts and circumstances of plaintiff’s and comparator’s cases, including acts of comparable seriousness).

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