Citing “Stray Remarks” Doctrine, Court Dismisses National Origin Discrimination Case Based on “Haitian Voodoo” Comment

In Picault v. World Business Lenders, 16-cv-3682, 2018 WL 748975 (S.D.N.Y. Feb. 7, 2018) (J. Oetken), the Southern District of New York dismissed plaintiff’s (a Haitian-American man) national origin discrimination lawsuit.

The court explained that a discrimination plaintiff “must satisfy his initial burden by showing (1) that he belonged to a protected class; (2) that his job performance was satisfactory; (3) that he was subject to an adverse employment action; and (4) that the circumstances surrounding the adverse action give rise to an inference of discrimination.”

Here, defendant did not contest elements 1 and 3. However, the court found that plaintiff failed to demonstrate that his performance was satisfactory, and “more importantly … has not adduced any evidence showing that the circumstances surrounding his firing give rise to an inference of discrimination.”

Such an inference “can arise from circumstances including, but not limited to, ‘the employer’s criticism of the plaintiff’s performance in ethnically degrading terms, the employer’s invidious comments about others in the employee’s protected group, the more favorable treatment of employees not in the protected group, or the sequence of events leading to the plaintiff’s discharge.”

The only evidence that plaintiff put forth involving his national origin was that after a deal fell through, one of his managers (Miller) said to him, “What is it, you using Haitian voodoo on these people?”

The court explained the “stray remarks” doctrine:

The Second Circuit has held that “stray remarks, even if made by a decision-maker, do not constitute sufficient evidence to make out a case of employment discrimination” unless there are “other indicia of discrimination” such that a jury could conclude “that they bear a more ominous significance.” Danzer v. Norden Sys., Inc., 151 F.3d 50, 56 (2d Cir. 1998). In evaluating stray remarks, courts generally look to (1) who made the remark (i.e., a decision-maker, a supervisor, or a low-level co-worker); (2) when the remark was made in relation to the employment decision at issue; (3) the content of the remark (i.e., whether a reasonable juror could view the remark as discriminatory); and (4) the context in which the remark was made (i.e., whether it was related to the decision-making process). (Paragraphing modified.)

Applying the law, the court held:

Here, although Miller was Picault’s supervisor at the time, Picault fails to allege any connection between this incident and his firing, and does not allege that Miller was involved in his firing. Nor has Picault adduced any evidence that the comment was intended to be hostile or hurtful[], or that Miller otherwise acted in a discriminatory way. And Picault points to no other indicia of national-origin discrimination besides Miller’s stray remark. Nor has Picault shown that similarly situated non-Haitian-American employees were treated differently. While the Complaint asserts that Picault was treated differently than others, he has not adduced evidence showing, for example, that non-Haitian-American employees with similar sales numbers kept their jobs.

In fact, Picault himself testified several times that WBL’s adverse actions against him were motivated by factors other than his national origin. Specifically, Picault believes that WBL fired him so it could take away a potential client.

In sum, it was “not enough for plaintiff to show that defendant may have treated him unfairly” – rather, plaintiff was required to “provide evidence supporting a reasonable inference that the unfair treatment was linked to his national origin.”

This, plaintiff could not do, resulting in the dismissal of his case.