Anti-Affirmative Action comments may prove discrimination

A Hispanic female who was denied entrance to the State Farm Insurance agent trainee program was allowed to go forward with her discrimination suit by the Ninth Circuit Court of Appeals.

The woman was one of four finalists considered for selection. Agency Manager John Raker ("Raker") was responsible for selecting the trainee agent. After accepting numerous applications, he narrowed the field to four individuals -- Brian LaBuff, a Native American male; Terry Carmona, a white female; Art Davis, an Asian male, and Cordova [the plaintiff]. That the final four candidates were minorities or women was "by design," because State Farm required Raker to recruit "either a protected class, meaning females, or a minority."

Raker first offered the job to LaBuff, who had a B.A. in Economics from Stanford and a record of success in real estate sales. He turned it down. He then offered it to Carmona, a single mother who had put herself through school, who impressed Raker with her determination, intelligence and commitment. She accepted the job.

Unlike Cordova, neither of the successful candidates had worked for State Farm or had any specific experience in insurance. There were no written criteria for choosing candidates, and the manager admitted he used different criteria for picking the successful applicants.

Raker also admitted telling Cordova that she was the number two candidate in the selection pool, but claims he only said it to make her feel better, having previously decided that she was the third most qualified candidate.

Cordova claimed that during her first interview, Raker complained, "We can't even look at a white male." A white employee also testified that she heard Raker refer to another Hispanic agent as a "dumb Mexican," and complained that he had been forced to hire that agent because he was a member of a minority class.

Based on these facts, the Court allowed Cordova to go ahead with her trial.

The employer unsuccessfully argued that the comments of the manager should be considered "stray remarks," and therefore inadmissible as evidence of discriminatory intent.

Nor do Raker's alleged comments fall within the ambit of stray remarks that have been held insufficient to establish discrimination. Cf. Nesbit v. Pepsico, Inc., 994 F.2d 703, 705 (9th Cir. 1993) (supervisor's comment that "[w]e don't necessarily like grey hair" was weak circumstantial evidence of discriminatory animus on the basis of age, was uttered in ambivalent manner, and was not tied directly to employee's termination); Merrick v. Farmers Ins. Group, 892 F.2d 1434, 1438 (9th Cir. 1990) (hiring executive's comment that he chose "a bright, intelligent, knowledgeable young man" over appellant was merely stray remark and insufficient by itself to establish age discrimination). Calling someone a "dumb Mexican" is an egregious and bigoted insult, one that constitutes strong evidence of discriminatory animus on the basis of national origin. Moreover, there is nothing ambivalent about Raker's alleged remarks here and they are not the only evidence Cordova offers to establish a prima facie case.

CORDOVA v. STATE FARM INSURANCE COMPANIES,
___F3d___, 97 CDOS 7195 (9th Cir., September 8, 1997)

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