In Bonilla v. City of New York et al, 18-cv-12142, 2019 WL 6050757 (S.D.N.Y. Nov. 15, 2019), the court, inter alia, held that plaintiff sufficiently alleged race discrimination. Central to plaintiff’s claim was his being called “bobo” – which means “fool” in Spanish – several times. In reaching its conclusion, the court cited and applied the so-called “stray remarks” doctrine.
The court summarized the law as follows (citations omitted; paragraphing altered):
Allegations of discriminatory comments directed at a plaintiff’s racial group are a recognized method of establishing discriminatory intent. See Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 91 (2d Cir. 1996) (noting that “circumstances that give rise to an inference of discriminatory motive include actions or remarks made by decisionmakers that could be viewed as reflecting a discriminatory animus”). In Henry v. Wyeth Pharmaceuticals, Inc., 616 F.3d 134, 150-51 (2d Cir. 2010), the Second Circuit established a four-factor test to determine whether alleged offensive remarks suggest discriminatory bias or are merely “stray remarks,” which generally “do not constitute sufficient evidence to make out a case of employment discrimination.” Danzer v. Norden Sys., Inc., 151 F.3d 50, 56 (2d Cir. 1998).
The test considers:
[i] who made the remark (i.e., a decision-maker, a supervisor, or a low-level co-worker);
[ii] when the remark was made in relation to the employment decision at issue;
[iii] the content of the remark (i.e., whether a reasonable juror could view the remark as discriminatory); and
[iv] the context in which the remark was made (i.e., whether it was related to the decision-making process).
Wyeth Pharmaceuticals, 616 F.3d at 149-50; accord Fried v. LVI Servs., Inc., 500 F. App’x 39, 41 (2d Cir. 2012) (summary order).
Further, a plaintiff may support an inference of race discrimination by demonstrating that similarly situated employees of a different race were treated more favorably. See Shumway v. United Parcel Service, Inc., 118 F.3d 60, 63 (2d Cir. 1997) (holding that plaintiff could raise an inference of sex discrimination by showing that a similarly situated man was treated differently). In order to make such a showing, the plaintiff must compare himself to employees who are similarly situated in all material respects. Id. at 64. “Similarly situated in all material respects” does not mean all respects generally, but rather sufficiently similar to support at least a minimal inference that the difference of treatment may be attributable to discrimination. McGuinness v. Lincoln Hall, 263 F.3d 49, 53-54 (2d Cir. 2001).
Applying the law to the facts, the court concluded:
Considering the factors set out in Wyeth Pharmaceuticals, Sergeant Debenedetto’s repeated references to Bonilla as “Willy Bobo” give rise to a plausible inference of race discrimination. It is not lost on the Court that “Willy Bobo” appears to be a nickname based on Bonilla’s own name: Wilfrido Bonilla. However, Bonilla’s contention that “Willy Bobo” is a racial slur used for Latin Americans (since the word “bobo” means “fool” in Spanish) is plausible. The “Willy Bobo” comments were made by one of Bonilla’s direct supervisors in the 44th Precinct. (See Compl. ¶ 11). And Bonilla alleges that Sergeant Debenedetto made these comments to Bonilla on a repeated basis — over 40 times, despite repeated pleas that he stop — throughout Bonilla’s tenure at the 44th Precinct. (See id. at ¶ 12). Bonilla also alleges that Sergeant Debenedetto was involved in the decisions regarding Bonilla’s assignments; was one of the persons who took Bonilla’s gun and badge; and falsely told the EMTs that Bonilla was suicidal. If Bonilla’s allegation that “Willy Bobo” is a racial slur proves true, a jury could reasonably infer that Sergeant Debenedetto subjected Bonilla to adverse employment action on the basis of his race.