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 prejudicial remarks are always to be excluded unless they are made by someone who had input into the decision to terminate (or take 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 not be taken literally, however. Hunter v. Allis-Chalmers Corp.,797 F.2d 1417, 1423 (7th Cir. 1986); Brewer v. Quaker State Oil Refining Corp., supra, 72 F.3d at 333-34. The admissibility of "stray remarks," as the cases call them, is governed by Rule 403 of the evidence rules, which establishes a standard rather than a rule--and a standard that tilts in favor of admissibility; the probative value of the evidence must not merely be outweighed, it must be substantially outweighed, by its negative consequences, to be excludable. And that will depend on context--the circumstances in which the remarks were made, such as the number of similar remarks, when they were made, and by whom and to whom they were 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).