Citing “Stray Remarks” Doctrine, Second Circuit Affirms Dismissal of Discrimination Claim

In Davis v. Power Authority, 2023 WL 3064705 (2d Cir. April 25, 2023), the court, inter alia, affirmed the lower court’s order awarding summary judgment to defendant on plaintiff’s discrimination claims.

From the decision:

Here, even assuming a prima facie case of discrimination, Defendants provided legitimate, non-discriminatory reasons for Davis’s termination, and Davis fails to show that these reasons are pretextual. To show pretext, Davis must “put forth adequate evidence to support a rational finding that the legitimate non-discriminatory reasons proffered by the employer were false, and that more likely than not the employee’s [disability] was the real reason for the discharge.” See Holt v. KMI-Cont’l, Inc., 95 F.3d 123, 129 (2d Cir. 1996) (explaining the standard in the context of “sex or race” discrimination).

Defendants argue that Davis was fired for a pattern of poor performance, failure to communicate his absences, and misuse of his company credit card. They point to record evidence of years of increasingly negative performance reviews, a warning letter about Davis’s client communications, warning letters about Davis’s lack of communication with his supervisors, and confirmation that Davis was warned about not using his company credit card for personal use. Defendants also showed that other employees who similarly misused their company credit cards were terminated. Davis, on the other hand, relies on his own characterizations of his work performance and his communication style, as well as his own understanding of how the credit card policy was meant to operate. He also claims that his supervisor complained about his FMLA leave.

In the face of the evidence provided by Defendants, Davis’s explanations are insufficient to create a genuine issue of material fact on the core question of pretext. “While we must ensure that employers do not act in a discriminatory fashion, we do not sit as a super-personnel department that reexamines an entity’s business decisions.” Delaney v. Bank of Am. Corp., 766 F.3d 163, 169 (2d Cir. 2014) (internal quotation marks omitted). The remarks allegedly expressed by his supervisor about his disability and absences, which Davis could not recall with any specificity, were at most the kind of “stray remarks” that cannot alone, on this record, carry Davis’s burden at summary judgment. See Danzer v. Norden Sys., Inc., 151 F.3d 50, 56 (2d Cir. 1998). In any case, the record reflects that the Power Authority continuously approved Davis’s FMLA leave and that Davis was given several warnings and performance reviews by his supervisors indicating how he needed to improve.

Thus, Davis has not put forth adequate evidence to support a rational finding that Defendants’ justifications for his firing were pretextual, and the district court properly granted summary judgment dismissing his discrimination claims.

[Cleaned up.]

The court further held that the district court likewise dismissed plaintiff’s retaliation claims, based on its finding that the legitimate, non-retaliatory justifications for his termination were pretextual.

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