Many plaintiffs complain they are treated differently than other co-workers in some way. It might be about pay, promotion opportunities, etc. In one case, two plaintiffs said they were treated differently than other peers and that they were subjected to derogatory comments about Italians. In Cicalese v. University of Texas Medical Branch, No. 17-CV-0067, 2018 US Dist. LEXIS 46796 (S.D. Tex. 3/22/2018), the employer filed a Rule 12(b)(6) motion to dismiss. Rule 12(b)(6) addresses the failure to state a claim. Dr. Cicalese was born in Italy. He and his wife both worked for UTMB. His wife, Dr. Rastellini, was also born in Italy and was also a medical doctor. Things went well for the couple the first five years at UTMB. But, when a new dean started working there, things went downhill. The doctors say the new dean targeted them based on their heritage as Italians. The dean, said the plaintiffs, when he first met them, told them they should go back to Italy. He made additional negative comments about Italians.
The dean removed some positions from the two doctors. But, it appears the adverse personnel action which forms the basis of their suit is denial of tenure.
The Plaintiffs’ allegations were not specific. Dr. Rastellini alleged other, unnamed comparators were granted tenure with lesser credentials. But, she did not name them. She did not describe what those lesser credentials looked like. She did name others, but not in the context of comparative employees. The court resurrected the so-called four-part test found in Brown v. CSC Logic, Inc., 82 F.3d 651 (5th Cir. 1996), regarding so-called stray remarks. I previously discussed the stray remarks doctrine here regarding a 2015 Fifth Circuit decision. In that decision in Goudeau v. National Oilwell Varco, LP,793 F.3d 470 (5th Cir. 2-15), the court tried to clear up the confusion surrounding the stray remarks doctrine. The point of the 2015 decision was that a remark which shows discriminatory bias on its face has some value, even if they may be old. Even older remarks can serve as evidence of pretext, said the court in 2015.
But in Cicalese, the court relied on Brown to find the remarks too remote in time. But, as the Goudeau court explained, even remarks that might be old in time, provide some relevance to the circumstantial evidence case. They might well be relevant to help show pretext. “In a circumstantial case like this one, in which the discriminatory remarks are just one ingredient in the overall evidentiary mix, we consider the remarks under a “more flexible” standard.” Goodeau, at p. 475.
But, the Southern District (Hanks) made no reference to Goudeau. It did not discuss a more flexible standard. Instead, it relied on the old strict formula that makes little sense. The complaint apparently did not mention the time period in which the three purported remarks were made. But, if a decision-maker makes a remark which shows bias on its face, such a remark would hold some relevance for a very long time period. This decision does appear to be oriented toward reaching a particular result. See the Cicalese decision here.