Fifth Circuit Clears up “Mess” Regarding Stray Remarks

Originally published by Thomas J. Crane.

There are some theories of law that some courts and most defense lawyers rely on to undermine otherwise good discrimination cases. One of those theories is the “stray remarks” doctrine. In general, the stray remarks doctrine holds that some remarks by management are so remote from the adverse personnel action that they are not relevant. Such remarks are said to be “stray.” I find some of these cases to be result oriented. They are produced by judges who seem to be looking for ways to dismiss a discrimination case. After all, if a remark is truly “stray,” does not that pertain more to the weight of the evidence than to its admissibility? If Jim Bob made a racial remark 20 years ago, does not that still have some relevance, however small?

The decision in Goudeau v. National Oilwell Varco, LP, No. 14-20241 (5th Cir. 7/16/2015) helps clear up some of the confusion regarding the stray remarks doctrine. As recently as 2000, the Fifth Circuit warned that the stray remarks doctrine must be viewed “cautiously.” Russell v. McKinney Hospital Venture, 235 F.3d 219, 229 (5th Cir. 2000). In 2012, the Fifth Circuit acknowledged that the circuit’s application of the doctrine has been “somewhat messy.” Reed v. Neopost USA, Inc., 701 F.3d 434, 441, n.5 (5th Cir. 2012). Goudeau attempts to clear up some of that mess. It finds that there are two different situations in which the doctrine would apply. First, the doctrine would apply to a case in which the plaintiff alleges pure direct evidence and in which the McDonnell-Douglas burden shifting paradigm does not apply. In such situations, said the Goudeau court, the stray remarks doctrine would apply. The remark must connect closely to the termination itself in time and to the person who effected the termination.

Second, the doctrine would also apply to cases in which the evidence is circumstantial. Most discrimination cases are based on circumstantial evidence, noted the court. In this second situation, the courts will look at alleged remarks under a “more flexible” standard. To be relevant as part of a circumstantial evidence case, the comments must show: 1) discriminatory animus, 2) on the part of the person that is either primarily responsible for the challenged employment action or by a person with influence or leverage over the relevant decision maker. Goodeau, p. 7 (slip opinion). So, as in this case, the supervisor made comments about the “old farts” working there and asked about the age of two older employees. The supervisor later fired two of the three “old farts.” These comments, said the panel, serve as part of circumstantial evidence case. Such remarks are relevant at the prima facie stage. These remarks along with the doubts about the written warnings serve as evidence of pretext. The higher court reversed the district court’s summary judgment regarding the claim of age based discrimination.

Too, one has to wonder how a district court could grant summary judgment when there are comments like “old farts” made by supervisory officials.

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