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'Stray' remarks in age discrimination case clarified


NEW YORK--In overturning an age discrimination ruling for an employer, a federal appellate court has partially blamed its own rulings for "confusing" trial courts on when employer comments constitute "stray" remarks that do not prove a termination was motivated by discrimination.

In Patricia McCarthy Tomassi vs. Insignia Financial Group Inc., a three-judge panel of the 2nd U.S. Circuit Court of Appeals on Friday unanimously vacated the lower court's decision for Insignia. The defendant terminated Ms. McCarthy in 2003, when she was 63, and replaced her with a 25-year-old woman.

Ms. McCarthy had been Insignia's liaison since 2000 with the tenants of the 11,000 apartments that the company managed in Manhattan. She routinely received good job performance reviews and raises over that time, but she contends that her supervisor occasionally but routinely commented to her or asked about her thoughts on retiring or working somewhere less demanding.

When she was terminated in 2003, Ms. McCarthy was informed that she was being replaced only because of her lack of Web site experience. But in court, her supervisor testified he replaced Ms. McCarthy because she was not addressing tenants' concerns with sufficient promptness and effectiveness.

A lower court ruled that the supervisor's comments and questions to Ms. McCarthy regarding retirement were "stray" remarks that did not show the employer discriminated against her by terminating her.

In its decision, the 2nd Circuit panel ruled: "We recognize that our precedents may have been somewhat confusing. In some instances we have found the evidence legally insufficient notwithstanding the incidence of discriminatory remarks. To explain why the evidence was nonetheless insufficient, we noted that the remarks were 'stray.' That locution represented an attempt--perhaps by oversimplified generalization--to explain that the more remote and oblique the remarks are in relation to the employer's adverse action, the less they prove that the action was motivated by discrimination. For example, remarks made by someone other than the person who made the decision adversely affecting the plaintiff may have little tendency to show that the decisionmaker was motivated by the discriminatory sentiment expressed in the remark."

The court then clarified how courts should examine employers' alleged discriminatory remarks.

It explained that courts should recognize "that all comments pertaining to a protected class are not equally probative of discrimination." It said it developed the "stray" remark classification remark to explain "in generalized terms" why evidence against a defendant in a particular case was insufficient.

"We did not mean to suggest that remarks should first be categorized either as stray or not stray and then disregarded if they fall into the stray category," the 2nd Circuit panel explained.

The appellate panel said the lower court also erred by ruling that "the probative value" of the supervisor's remarks depended on how offensive they were.

"The relevance of discrimination-related remarks does not depend on their offensiveness, but rather on their tendency to show that the decisionmaker was motivated by assumptions or attitudes relating to the protected class. Inoffensive remarks may strongly suggest that discrimination motivated a particular employment action," such as when Ms. McCarthy's supervisor said she was "well-suited to work with seniors," the court ruled. While inoffensive, the remark "had a strong tendency" to show her supervisor believed that Ms. McCarthy's age did not make her "well-suited" to interact with the company's younger tenants.