Age Discrimination Plaintiff Was Unable to Show Pretext, and General Complaints Did Not Support Retaliation Claim

In Benyard v. White Plains Hosp. Medical Center, the Southern District of New York granted summary judgment to defendants on plaintiff’s age discrimination claims.

This case illustrates (among other things) that it is not enough for an age discrimination plaintiff to point to her years of service and replacement by a younger worker. This is particularly true under the federal Age Discrimination in Employment Act (ADEA), which does not recognize “mixed-motive” claims.

Age Discrimination – Disparate Treatment

Plaintiff established a prima facie case of age-based disparate treatment:

[T]here is no doubt the Hospital knew that Plaintiff was in fact replaced by a worker eleven years her junior and not belonging to the age-protected group. Additionally, there is evidence to suggest the Hospital knew even before announcing the open position that Plaintiff’s replacement would be younger than Plaintiff. Defendants assert and Plaintiff testified at her deposition that older nurses who gain seniority in a hospital tend not to leave, such that a pool of applicants for an open position tends to consist of younger nurses. This purported fact, if true, supports an inference that the Hospital knew Plaintiff’s replacement would be younger and undercuts Defendants’ assertion that this supposedly unusual circumstance in the nurse hiring market should not be deemed sufficient to give rise to an inference of age discrimination.

Defendants offered a legitimate, non-discriminatory reason for terminating plaintiff, namely, that plaintiff “repeatedly comported herself in a disrespectful and confrontational manner toward peers and that she was repeatedly tardy, in violation of the Hospital’s policies.”

However, plaintiff failed to establish, as she was required to do, that defendants’ reason for termination was a “pretext” for age discrimination:

Plaintiff admits she has no direct evidence of Defendants’ discriminatory animus toward her, but rather relies upon circumstantial evidence. Plaintiff testified that Defendants discriminated against her based on her age because she was longtenured and had a high salary and older employees tend to have worked longer and have higher salaries. However, “age and years of service are analytically distinct” such that an employer can consider one and not the other. Thus, [w]hen the employer’s decision is wholly motivated by factors other than age, the problem of inaccurate and stigmatizing stereotypes disappears. This is true even if the motivating factor is correlated with age, as is typical with long tenure and higher salaries. At her deposition, Plaintiff was unable to explain why she believed she was being discriminated against because of her age, other than to continually refer to her years of service and salary. As mixed-motive discrimination claims are not actionable under the ADEA, any alleged consideration of Plaintiff’s tenure or salary is insufficient to raise a triable issue of fact concerning whether Defendants’ asserted reasons for Plaintiff’s termination were a pretext for age discrimination.

The court rejected plaintiff’s statement in her affidavit that she heard “rumors that the Hospital was trying to force out older nurses with longer tenure and six-figure salaries”, as such rumors were hearsay.  It also rejected plaintiff’s reliance on other nurses’ affidavits, since they were conclusory and did not provide enough supporting information.

Age Discrimination – Disparate Impact

The court also rejected plaintiff’s “disparate impact” claim under the ADEA. To succeed on this claim plaintiff was required to “(1) show a statistical disparity between age-protected individuals and younger individuals in employment opportunities or in their status as employees and (2) identify a specific neutral employment practice which, as applied, causes the disparity.”

The court held:

Here, there is potentially a genuine dispute of material fact concerning the existence of a statistical disparity in terminations of older versus younger nurses, but there is no admissible evidence identifying any Hospital policy or practice causing the disparity. Almost two thirds of the nurses–14 of 22–terminated for cause from 2010 through 2012 were at least 40 years old. Eleven of those fourteen were replaced, seven by someone younger but only four by someone under 40 years old. Based on these figures, it appears Plaintiff can demonstrate the existence of a statistical disparity. However, the list of nurses employed in Plaintiff’s Unit as of her termination date shows that 29 of the 34 nurses listed were in the age-protected group and 23 were older than Plaintiff, but she was the only one terminated. These statistics tend to show the absence of a statistical disparity.

There was no evidence of any Hospital-wide policy of terminating highly paid nurses, and “[t]he best evidence Plaintiff has, that the Hospital did not replace all the nurses who quit or were terminated, is insufficient for a trier of fact to reasonably conclude that this failure to replace was due to a policy designed to shed nurse salary.”


Finally, the court granted summary judgment on plaintiff’s retaliation claim, since she failed to demonstrate that she engaged in “protected activity,” and hence failed to establish a prima facie case.

In particular,

Defendants assert that Plaintiff did not participate in any protected activity because Plaintiff’s statement to co-workers that she would take legal action does not constitute opposition to any purported age discrimination. Defendants reference Plaintiff’s deposition, in which she testified that she did not tell her co-workers what sort of legal action she had in mind, that she in fact had no particular type of legal action in mind, that she had not contemplated filing a federal or state discrimination complaint, that she had not expressed to management that she had some legal claim against the hospital, and that at most she thought she probably would have an attorney write a letter to Human Resources addressing her allegedly fabricated violations of Hospital policy.

“The law protects employees in the filing of formal charges of discrimination as well as in the making of informal protests of discrimination, including making complaints to management.”

However, in this case,

nothing in the record suggests Plaintiff complained about age discrimination to her co-workers or to management, either explicitly or implicitly. The evidence at most shows Plaintiff complained of general unfair treatment by allegedly being bullied, which is insufficient to demonstrate a protected activity. (Emphasis in original.)

This case underscores the principle that someone who believes they have been the victim of discrimination must “clarify to the employer that he is complaining of unfair treatment due to his membership in a protected class and that he is not complaining merely of unfair treatment generally,” and that “an undisclosed belief of such treatment will not convert an ordinary employment complaint into a protected activity.”

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