Judge Posner on "Stray Remarks"
Mattenson v. Baxter Healthcare, No. 04-4270 (7th Cir. Feb. 21, 2006) - In reversing a jury verdict in favor of an ADEA plaintiff on multiple grounds, Judge Posner takes a moment to thoughtfully address the often-misutilized "stray remarks" theory, addressing a common mistake made by attorneys and the courts of appeals of several circuits:
Language in some judicial opinions suggests that prejudi-cial remarks are always to be excluded unless they are madeby someone who had input into the decision to terminate (ortake other challenged adverse employment action against)the plaintiff. E.g., Steger v. General Electric Co., 318 F.3d 1066,1079 (11th Cir. 2003); Wyvill v. United Companies Life Ins. Co.,212 F.3d 296, 304 (5th Cir. 2000). This language should notbe taken literally, however. Hunter v. Allis-Chalmers Corp.,797 F.2d 1417, 1423 (7th Cir. 1986); Brewer v. Quaker State OilRefining Corp., supra, 72 F.3d at 333-34. The admissibility of"stray remarks," as the cases call them, is governed by Rule403 of the evidence rules, which establishes a standardrather than a rule--and a standard that tilts in favor ofadmissibility; the probative value of the evidence must notmerely be outweighed, it must be substantially outweighed,by its negative consequences, to be excludable. And thatwill depend on context--the circumstances in which theremarks were made, such as the number of similar remarks,when they were made, and by whom and to whom theywere made. Cummings v. Standard Register Co., supra, 265F.3d at 63; Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d344, 356-57 (6th Cir. 1998).
And here is the oral argument in the case.
