Legal Trickery – Eric A. Parzianello

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Manager Calling Angel A “Bitch” Did Not Constitute Gender Discrimination

Posted by Eric Parzianello on January 29, 2010

The Michigan Court of Appeals ruled that a general manager’s derogatory comments to his female employee, such as “that was something stupid only a woman would say”; “Here we go, Angel, thinking that because I’m a woman I can sell this and . . . it ain’t going to sell”; and that was “too much money for a woman to make,” as well as him calling the employee a “bitch” did not constitute direct evidence of gender discrimination. The case, Wolfgang v. Dixie Cut Stone & Marble, Inc., was decided on January 21, 2010.

Angel Wolfgang asserted gender discrimination, retaliation and other claims against her employer. She argued that the general manager’s comments were direct evidence of gender discrimination. In a typical gender discrimination case, a plaintiff must either show direct evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer’s actions or present circumstantial evidence. The circumstantial evidence required Angel to show that (1) she belongs to a protected class, (2) she suffered an adverse employment action, (3) she was qualified for the position, and (4) she suffered the adverse employment action under circumstances inferring discrimination.

A stray remark that is outside the context of the termination decision does not necessarily prove discriminatory intent. Instead, a court must determine (1) whether the remark was made by a person involved in the termination decision, (2) whether the remark was made during the decision making process, (3) whether the remark was vague, ambiguous, or isolated, and (4) whether the remark was proximate in time to the termination. In this case, the Court of Appeals held that Angel did not present “direct” evidence or sufficient “circumstantial” evidence of gender discrimination since none of the manager’s remarks were made in connection with Angel’s termination, they were isolated comments, and they were made at least two months before her termination. The Court agreed with the employer that Angel’s repeated violations of policies after her return from leave under the Family Medical Leave Act was a legitimate, non-discriminatory reason for the decision to terminate Angel.

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