In Bacchus v. New York City Dep’t of Educ., No. 12 CV 1663 PKC, 2015 WL 5774550 (E.D.N.Y. Sept. 30, 2015), the court denied defendants’ motion for summary judgment on plaintiff’s (a black woman of Guyanese national origin) claims of employment discrimination and hostile work environment. This case provides a helpful analysis of whether alleged discriminatory remarks are enough to make out a claim, or whether they are non-actionable “stray remarks”.
As to plaintiff’s discrimination claims, the court explained:
To determine whether remarks are probative of discrimination or are “stray remarks” not probative of bias, the Court considers who made the remark, when the remark was made in relation to the employment decision, the remark’s content, and the context in which the remark was made. No one factor is dispositive.
Viewing the evidence in the light most favorable to Bacchus, the Court finds a genuine issue of fact with respect to whether Thompson’s remarks were probative of discriminatory animus based on race or national origin.Thompson was the principal of PS 259, and thus an individual with substantial influence over Bacchus’s employment, thus weighing in favor of a finding that the remarks were probative of discrimination. The content of the remarks, that Bacchus should learn to speak English and that Thompson did not like West Indians, also weighs in favor of a finding of discriminatory animus. Bacchus also alleges that she overheard Thompson “frequently” make such remarks from 2009 through January 2011, a period coinciding with the period of the warnings and disciplinary proceedings against Bacchus. A reasonable juror could therefore find in Bacchus’s favor that Thompson’s remarks were more than stray remarks. …
An employee may satisfy her burden at the pretext stage by setting forth direct evidence of a discriminatory motive or an indirect showing that “the employer’s proffered explanation is unworthy of credence. …
Here, Bacchus has pointed to a number of irregularities and inconsistencies in the disciplinary record against her that call the integrity of the DOE’s disciplinary process into question. Specifically, Bacchus points to the two different versions of [student] M.P.’s statement; the possibility that the student statements were written by more than one person;16 a report made by a parent who allegedly did not speak English; inconsistent accounts of where the incident with [student] E.S. happened; the DOE’s failure to obtain statements from other adult staff members who may have been present during the alleged incidents between Bacchus and students; and witness statements regarding the incident with [student] A.A. that were never produced to Bacchus until this litigation. Bacchus also points to testimony from other school aides corroborating her account that she was the only school aide disciplined for carrying a handbag and umbrella while other aides did so, and testimony from Lopez stating that she was not disciplined as Bacchus was for a comparable incident with a student.
Thus, though the City Defendants have set forth evidence detailing long-running concerns with Bacchus’s conduct, the Court finds that Bacchus has sufficiently rebutted their evidence to create a genuine issue of material fact on the issue of pretext. She has set forth specific facts that call into question the City’s “legitimate, non-discriminatory” evidence. While “[a] jury might credit all of this proffered evidence, some of it, or none at all,” that is a question left for the jury to decide at trial.
The court also held that plaintiff (barely) presented enough evidence to survive summary judgment on her hostile work environment claim:
The totality of the circumstances thus consists of unspecific allegations regarding frequent comments about Bacchus’s national origin, specific allegations regarding frequent comments of a racially tinged nature, frequent conduct by Bacchus’s supervisor of a facially-neutral nature, and six allegedly trumped-up disciplinary charges over a 15–month period. Evaluating this evidence in the light most favorable to Bacchus, the Court finds that it meets the threshold, though barely, of creating issues of fact as to whether Bacchus suffered severe and pervasive discriminatory conduct while employed at PS 259. The Court is also persuaded that where, as here, other claims, such as Bacchus’s Title VII and NYSHRL discrimination claims, as going forward based on the same evidence as is being relied upon for the challenged claim, the better course is not to dismiss the challenged claim.
While the court dismissed plaintiff’s NYC Human Rights Law claims against the Department of Education (due to her failure to comply with the Notice of Claim requirements codified in Education Law 3813), it held that plaintiff’s claims against an assistant principal, Pepper, were viable:
Because Bacchus has proffered evidence showing that Pepper mimicked Bacchus’s accent, gave her a disproportionate workload, and disciplined her for conduct that other school aides were not disciplined for, Bacchus has established an issue of fact on whether Pepper treated her less well in part for a discriminatory reason. The Court therefore denies summary judgment to Pepper on Bacchus’s NYCHRL discrimination/hostile work environment claim.
The court, however, dismissed plaintiff’s retaliation and retaliatory hostile work environment claims.