Stray Remarks Not Enough to Shift Burden Fifth Circuit Says
February 12, 2020 lonestarbusinesslaw

Stray Remarks Not Enough to Shift Burden Fifth Circuit Says

Posted in Employment, Fifth Circuit

Stray remarks, while “offensive,” did not show that Texas Children’s Hospital fired an employee based on race, the 5th U.S. Circuit Court of Appeals has ruled (Eaglin v. Texas Children’s Hospital, No. 19-20222 (5th Cir. Feb. 4, 2020)).

Plaintiffs Annette Williams and Victoria Eaglin—who are both black—worked for Texas Children’s Hospital (“TCH”) as Patient Access Representatives at the cardiology reception desk. Eaglin was fired after the hospital investigated an incident and concluded that she had clocked in for a co-worker who was not at work at the time. Eaglin filed a complaint with the EEOC and received a right to sue letter, which she did, where she alleged that her termination was based on race; in support of her claim, she alleged that, from time to time, her supervisors made offensive comments. One supervisor “flipped” her hair and asked how much she paid for it, she said. That same supervisor also allegedly asked Eaglin if she ate watermelon and fried chicken on holidays. Another supervisor referred to Eaglin and a co-worker as the “black girls” and questioned whether it was professional to wear braids in the medical field, Eaglin said. A supervisor also occasionally made comments indicating that someone in the hospital’s administration wanted to replace Eaglin with a Hispanic employee.

Similar incidents with non-supervisors also occurred. Maria Berrera, another TCH employee, once said to Williams and Eaglin that the hospital wanted someone Hispanic working at the reception desk.  But not everyone at TCH made offensive remarks. Eaglin testified in her deposition that her second-level supervisor never did anything that she felt was discriminatory.

In the suit, the district court assumed without deciding that Eaglin had established a prima facie case of discrimination under Title VII. The district court determined that the hospital had offered a legitimate, non-discriminatory reason for terminating her employment and granted it summary judgment.  As you may know, Title VII prohibits employers from discharging or otherwise discriminating against any individual because of race.

A plaintiff may support a claim of discrimination in violation of Title VII with either direct or circumstantial evidence.  Direct evidence is evidence which, if believed, proves the fact without inference or presumption. On appeal, the Fifth Circuit noted that Eaglin’s proffered direct evidence merely constitute “stray remarks,” noting that “the statements — even if offensive — were either not made by someone with authority to terminate Eaglin’s employment, were not proximate in time to her firing, or were not related to the termination decision.”

Said another way, “None of the statements, even ‘if believed, proves the fact [of intentional discrimination] without inference or presumption.’”

Accordingly, without direct evidence, Eaglin’s claim had to be analyzed under the McDonnell Douglas framework. Under the framework, first, a plaintiff must establish a prima facie case of race-based discrimination. The burden then shifts to the employer to articulate a “legitimate, nondiscriminatory reason for the employee’s rejection”—a reason that “must be legally sufficient to justify a judgment for the defendant.” If an employer is able to carry this burden, the burden then shifts to the employee, who then has the burden of showing that the proffered reason was a pretext for discrimination or that the plaintiff’s protected characteristic was “a motivating factor for the employment decision.”

TCH asserted that it fired Eaglin because its investigation concluded that she violated TCH policy by falsifying timekeeping records. Upon review, the 5th Circuit noted that is a legitimate, nondiscriminatory reason. Once TCH offered a nondiscriminatory reason, the burden shifted to Eaglin to show that the proffered reason was pretextual. However, the court found that Eaglin’s proffered evidence failed to raise a fact issue regarding whether anyone at TCH acted with a discriminatory motive. For those reasons, the court held that Eaglin failed to show that TCH’s proffered justification for firing her was pretextual. She therefore failed to support her claim on appeal.

Although this is another win for employers, companies should still be careful and closely monitor stray, inappropriate and/or discriminatory, remarks around the workplace.