In Karupaiyan v. CVS Health Corp. et al, 19 Civ. 8814, 2021 WL 4341132 (S.D.N.Y. Sept. 23 2021), the court, inter alia, held that plaintiff sufficiently alleged claims of race discrimination against several defendants under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 1981, and the New York State and City Human Rights Laws. (Plaintiff asserted a host of claims, some of which the court held were sufficiently alleged and some not; here I will focus on one subset of claims, namely, that plaintiff was terminated because of his race (black, Indian, and Tamil).)
This decision is instructive on the application of the so-called “stray remarks” doctrine, which is used to assess whether alleged discriminatory comments – which are typically asserted as evidence of discrimination – are probative of unlawful discrimination.
The court explained the law as follows:
Typically, “verbal comments may raise an inference of discrimination, but not where they lack a causal nexus” to an adverse employment action. Luka v. Bard Coll., 263 F. Supp. 3d 478, 487 (S.D.N.Y. 2017) (internal quotation marks omitted). The Second Circuit has established a four-factor test to determine whether purportedly offensive statements suggest discriminatory bias or are merely “stray remarks” that generally “do not constitute sufficient evidence to support 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).
Applying this rule, the court held that a remark made by a non-supervisory employee – namely, “you black guy, go back to India” – did not give rise to an inference that any adverse employment action was discriminatory. Notably, plaintiff did not suggest in his complaint that that employee “had any hand” in the termination decision or “possessed any supervisory function” relative to plaintiff.
The court reached the opposite conclusion, however, with respect to certain comments made by others:
Second, the Court assesses Kalyani’s alleged racially discriminatory conduct. Kalyani was Plaintiff’s direct supervisor, and possessed a direct role in managing Plaintiff’s team of engineers and approving his timesheets for submission to APN. (Am. Compl. ¶¶ 62-63). Kalyani also hired the individual who replaced Plaintiff at Aetna-AHM. (Id. at ¶ 100). The Complaint includes two allegedly offensive remarks, which Plaintiff says support an inference of discrimination: one calling Plaintiff a “black apple” and the other telling Denner on the day of his termination to “kick the black tamil guy out of here immediately.” The Court considers Kalyani’s “black apple” comment to be a mere stray remark lacking a nexus to any adverse employment event, as it was made in a context wholly divorced from any adverse employment action averred in the Complaint. However, the Court views Kalyani’s August 26, 2019 remark as plausibly supporting an inference that Plaintiff’s termination was related to his race, as she invoked Plaintiff’s race while informing Plaintiff of his termination.
Third, Neela’s comment calling Plaintiff a “black old Madrasi” and expressing a desire to do everything she could to remove him from the MAH project is sufficiently connected to Plaintiff’s termination and failure to receive pay to support an inference of race discrimination. Plaintiff alleges that Neela had a supervisory role over him; that she was a “primary decision maker in APN consulting”; and that she had power over hiring decisions because of her personal relationships with top CVS management. (Am. Compl. ¶¶ 39, 98). The Court expresses no view as to the accuracy of Plaintiff’s characterization of Neela’s role, but his allegations suffice to allege that Neela’s comment was more than a stray remark. Indeed, Neela allegedly made these comments in response to an inquiry from Plaintiff about his failure to receive pay, which failure the Court has already determined to constitute an adverse employment action. Neela also suggested that she would exert her influence as an APN Vice President to remove Plaintiff from the project on which he was working, which statement may be understood as connected to Plaintiff’s termination. Drawing all reasonable inferences in Plaintiff’s favor, the Court finds that Neela’s comments plausibly support an inference that racial animus at least partly contributed to Plaintiff’s adverse employment events.
Lastly, the Court finds that Vedant’s racially hostile remark threatening to beat up Plaintiff if he repeated his request for payment plausibly supports an inference that Plaintiff was refused pay, at least in part, because of discriminatory animus. Even though Vedant’s remark was made 11 days following Plaintiff’s termination, the Court cannot dismiss this comment, made by the founder and CEO of APN (Am. Compl. ¶ 14), and directly related to a complaint that Plaintiff had lodged during his employment, as a mere stray remark.
Based on this, the court held that plaintiff plausibly alleged a claim of racial discrimination.