In Bentley v. AutoZoners, LLC et al, No. 18-2441-cv, 2019 WL 3884248 (2d Cir. (Conn.) Aug. 19, 2019), the Second Circuit, inter alia, affirmed the dismissal of plaintiff’s gender discrimination claim.
Initially, the court held that plaintiff was properly precluded from relying on her deposition testimony to raise a genuine issue of fact about giving defendant notice of sexist comments, on the ground that her “testimony is inescapably and unequivocally contradicted by her own sworn and written statements, and [plaintiff] offers no plausible explanation for the multitude of contradictions.”
The court then turned to assess plaintiff’s claims under the McDonnell Douglas burden-shifting framework applicable to employment discrimination claims.
The court initially considered defendant’s argument (as to the prima facie case) that the fact that plaintiff, a woman, was replaced by a woman undermines any “inference of discrimination.” The court declined to address this argument, in light of its finding that, even assuming plaintiff made out a prima facie case, her claim would nevertheless fail:[1]The court does, however, cite cases for the proposition that, in general, replacement by a person in the same protected class may, under certain circumstances, be some evidence of discrimination.
AutoZone carried its second-step burden by pointing to a nondiscriminatory reason for Bentley’s discharge: her admitted use of especially crude language toward a co-worker. In urging pretext, Bentley submits that terminating an employee for such a one-time occurrence “does not pass the straight-face test.” Appellant Br. at 16. In support, she cites Stalter v. Wal-Mart, 195 F.3d 285 (7th Cir. 1999), in which the Seventh Circuit characterized terminating an employee for “gross misconduct” based on eating another employee’s potato chips as akin to “swatting a fly with a sledge hammer,” id. at 290–91.
The circumstances are hardly comparable. The remark Bentley directed at Valentin was extremely crude and would not be tolerated in any workplace outside, perhaps, of a locker room. Further distinguishing this case from Stalter, Bentley has adduced no evidence suggesting that she thought it permissible to make such a remark. Cf. id. (noting record evidence that plaintiff might have thought bag of chips had been abandoned). To the contrary, she has acknowledged that the remark was both inappropriate and expressly prohibited by company policy. Thus, she cannot urge pretext simply by questioning whether her misconduct was sufficiently severe to warrant termination.
The court further rejected plaintiff’s attempt to identify and rely on the disparate treatment of a comparator (who, claimed plaintiff, was permitted to remain on the job despite repeated complaints about his sexist comments over a period of months), noting that even if this person was an appropriate comparator, he was fired at the same time as plaintiff.
| ↩1 | The court does, however, cite cases for the proposition that, in general, replacement by a person in the same protected class may, under certain circumstances, be some evidence of discrimination. |
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