2d Circuit Overturns Summary Judgment as to One Transit Authority Employee’s Age Discrimination Case; “Retire” Comment Was Not a “Stray Remark”

In Martinez v. N.Y. City Transit Auth., No. 15-3159-CV(L), 2016 WL 7036823 (2d Cir. Dec. 2, 2016) (Summary Order), the Second Circuit affirmed in part and reversed in part a district court’s summary judgment dismissal of plaintiff’s age discrimination claims under the Age Discrimination in Employment Act (ADEA).

This decision is instructive on the quantity/quality of evidence that courts deem sufficient to overcome the summary judgment hurdle in an age discrimination case.

The court explained the well-established framework for evaluating such claims:

We analyze employment-discrimination claims under … the ADEA using the now-familiar burden-shifting framework established by the Supreme Court in [the case of] McDonnell Douglas [Corp. v. Green, 411 U.S. 792 (1973)]. … Under that framework, a plaintiff must first establish a prima facie case of discrimination, which causes the burden of production to shift to the defendant to offer a legitimate, nondiscriminatory rationale for its actions. If the defendant satisfies its burden of production, then the presumption raised by the prima facie case is rebutted and drops from the case, such that at the final stage, the plaintiff then has the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision.

The court held that the defendant advanced a legitimate, nondiscriminatory reason for terminating the plaintiffs, namely, a reduction in force (RIF) “necessitated by a budget shortfall of several hundred million dollars.”

In response to the plaintiffs argument “that the RIF evaluation was generally defective, and that it should have used additional categories, grouped employees differently, or relied on past performance evaluations”, the court explained that it does “not sit as a super-personnel department that reexamines an entity’s business decisions” and that the plaintiffs’ “general objections to the RIF evaluation process, without more, do not establish discriminatory intent.”

The burden then shifted back to the plaintiffs. The court held that five plaintiffs failed to meet their burden:

The RIF’s lack of disparate impact on older employees strongly suggests that age was not a factor in Plaintiffs’ termination. … Kirkland and Gutierrez worked in the same unit. Of the 12 employees terminated in that unit, seven were younger than Gutierrez and five were younger than Kirkland. Of the ten employees who remained, six were older than Kirkland and four were older than Gutierrez. Martinez and Thigpen worked together in a separate unit. There, 11 of the 36 individuals who kept their jobs were older than Martinez and five were Thigpen’s age or older. Thigpen received the 5th lowest ranking in his group, and all the individuals who received lower scores were younger than he was. Martinez received the 9th lowest score, and (except for Thigpen) all the employees who received lower scores were younger than him. While Salmassi was the oldest employee in her group, seven of the 16 employees who kept their jobs in her group were over the age of 50.

Plaintiffs argue that there must have been age discrimination because they had been successful employees at the Transit Authorities. But even successful employees may be terminated in an RIF. Plaintiffs also argue for an inference of discrimination because they were “replaced” by younger employees after their termination. However, no one was hired to replace the Plaintiffs; their work was redistributed among existing employees. …

These plaintiffs’ remaining evidence is simply a collection of stray remarks, none of them made by the supervisors who evaluated plaintiffs for the RIF.

The court reached the opposite conclusion, however, with respect to one employee (English). She, “unlike the other employees, has produced sufficient evidence at this stage to create a triable issue as to whether age was a ‘but-for’ cause of her termination.”

Specifically, Ms. English presented evidence that her supervisor’s supervisor summoned her to his office for a meeting where he asked her “Can you retire?” and followed up by stating “People who are eligible to retire should retire and make room for the younger generation.”

The court then explained the “stray remarks” doctrine and applied it to the facts:

Although stray remarks, without more, cannot defeat summary judgment, Danzer, 151 F.3d at 56, Mallick’s alleged statement is less a “stray” remark than an open declaration of bias. It not only reflected a highly discriminatory attitude, but also came at the time of the RIF and referred directly to the particular employee’s tenure with the Transit Authorities in negative terms. Compared to statements considered “stray remarks” in our past cases, these remarks are very strong indicators of discrimination. See Henry v. Wyeth Pharm., Inc., 616 F.3d 134, 149 (2d Cir. 2010) (suggesting that, when considering whether remarks are probative of discrimination, courts consider “(1) who made the remark (i.e., a decision-maker, a supervisor, or a low-level co-worker); (2) when the remark was made in relation to the employment decision at issue; (3) the content of the remark (i.e., whether a reasonable juror could view the remark as discriminatory); and (4) the context in which the remark was made (i.e., whether it was related to the decision-making process).”) (citations omitted).

Because Mallick, rather than English’s regular supervisor, served as her primary reviewer for the RIF, a jury could infer that Mallick gave her a low rating for discriminatory reasons. Particularly in light of Mallick’s statement, a reasonable jury might also be influenced by other indicia of discrimination in this case, such as an RIF format in English’s department that assigned very low weight to categories related to experience or length of service with the company, and low weight to objective categories such as absenteeism, but extremely high ratings to intangible, subjective categories such as “Initiative” and “Communication Skills.” App’x at 505, 495. See Sweeney v. Research Found. of State Univ. of N.Y., 711 F.2d 1179, 1185 (2d Cir. 1983) (noting that “[s]ubjective evaluations … may mask prohibited prejudice”). Moreover, a jury could infer that Mallick intended to harm English based on evidence in the record that he reduced her job duties, and assigned her work unsuited to her skills, over a period of time before the RIF.

In light of Mallick’s remarks, as well as other evidence suggestive of discrimination, the district court’s grant of summary judgment to defendants must be reversed with respect to English’s claims.

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