Comments demonstrating bias are frequently cited in employment discrimination and retaliation cases. A recent Second Circuit decision, In Kazolias v. IBEWLU 363, 806 F.3d 45 (2d Cir. 2015), holds that a comment can demonstrate evidence of retaliation existing prior to the statement.
There, plaintiffs, three journeymen wiremen, asserted (among other claims) that they were subjected to age discrimination and retaliation in violation of the Age Discrimination in Employment Act (ADEA). The district court dismissed their case, and the Second Circuit vacated that dismissal.
From the decision:
Plaintiffs contend that the district court erred in dismissing claims based on alleged retaliatory animus accruing prior to Maraia’s overtly retaliatory remarks at a February 2009 union meeting. We agree.
Plaintiffs allege that after they filed their ADEA-based age-discrimination complaints with the EEOC, Defendants took various retaliatory actions, including denying them job referrals. The magistrate judge acknowledged that [union business manager John] Maraia’s comments supported an inference that the union harbored retaliatory animus against Plaintiffs for their EEOC age discrimination complaints after Maraia made his comments on February 24, 2009, but concluded that Maraia’s remarks “provide insufficient evidence of the union’s intent” prior to the time Maraia made the remarks. The district court adopted this reasoning.
This was error. Maraia’s remarks constituted evidence that, at the time he spoke, he (and consequently the union) harbored retaliatory animus against Plaintiffs for their complaints. A jury could reasonably infer that Maraia’s resentment against Kazolias and Roxby was not born at the instant he expressed it, but had been brewing ever since they brought their age discrimination charges in September 2008.