Age Discrimination Claim Dismissed; “Dinosaur” and Other Comments Lacked Sufficient Nexus to Termination

In Nixon v. TWC Administration LLC, 16-cv-6456, 2019 WL 1428348 (SDNY March 29, 2019), the court, inter alia, dismissed plaintiff’s age discrimination (wrongful termination) claim under the Age Discrimination in Employment Act of 1967 (ADEA).

Plaintiff conceded that she violated several of defendant’s policies, but claimed that her termination based on such violations was a mere” pretext” for age discrimination. Specifically:

Nixon points to evidence that supervisors, including her own, made discriminatory comments regarding her age. See Nixon Dep. at 235:23–236:19; 237:11–238:10; 239:6–241:9. In particular, Nixon testified that the individual who served as her supervisor in months leading up to her termination harassed her; called her a dinosaur; asked her why she did not retire or leave; and told her that she was not wanted, did not understand technology, and would “never get it.” Id. at 171:11–24, 235:23–236:12; 175:2–20. She also testified that other supervisors called older employees dinosaurs and told older employees that they “should not be a part of this going forward with the changing of the company, building and restructuring” as well as that “if you can’t pick this up, then you are all dinosaurs.” Id. at 235:23–236:19; 237:11–23; 239:7–11; 240:6–241:9. Nixon could not recall the precise dates or circumstances of these comments, although her deposition testimony suggests that most dated to the summer or fall preceding her termination.

The court summarized the state of 2nd Circuit law on the subject:

[R]emarks suggesting age-based animus may support an inference of discrimination at the prima facie stage depending upon the context in which they are uttered: “the more remote and oblique the remarks are in relation to the employer’s adverse action, the less they prove that the action was motivated by discrimination.” Tomassi v. Insignia Fin. Grp., Inc., 478 F.3d 111, 115 (2d Cir. 2007), abrogated on other grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009). For example, as this Court has previously remarked, “statements of a few individuals—none of them decision-makers, none involved in [the plaintiff’s] discrimination, and some of them not even identified—suggesting that [the plaintiff] consider retiring” have low probative value in evaluating a claim of discrimination.

Applying the law, the court concluded that the discriminatory comments alleged did not support plaintiff’s pretext argument:

Remarks by another supervisor who Nixon admits played no role in her termination could—at most—support an inference that individuals in leadership positions at the College Point call center harbored age-based animus and believed that older employees should retire. But Nixon has identified no facts suggesting a nexus between these beliefs and either her disciplinary violations or her ultimate termination. The evidence that Nixon’s supervisor made such remarks is more probative of discrimination, but insufficient to create a genuine dispute of material fact as to the cause of her termination, as Nixon fails to explain how her supervisor’s discriminatory motives or actions could be imputed to the makers of that decision.