Court Affirms Dismissal of Age Discrimination and Retaliation Claims Against Deutsche Bank

In Graves v. Deutsche Bank Securities, the Second Circuit (by Summary Order dated December 4, 2013) affirmed the dismissal of plaintiff’s claims against Deutsche Bank for age discrimination and retaliation under the federal Age Discrimination in Employment Act (ADEA) and the New York City Human Rights Law.

Age Discrimination

As to plaintiff’s age discrimination claim, the court summarized the burden-shifting framework applicable to those claims:

[T]o establish a prima facie case of age discrimination, [Graves] must show (1) that [he] was within the protected age group, (2) that [he] was qualified for the position, (3) that [he] experienced adverse employment action, and (4) that such action occurred under circumstances giving rise to an inference of discrimination. The burden then shifts to [Deutsche Bank] to articulate some legitimate, nondiscriminatory reason for its action. Such a proffer shifts the burden back to the plaintiff to demonstrate pretext.

Defendant Bank gave legitimate, nondiscriminatory reasons for firing Mr. Graves, including “a downward revenue trend and top-heaviness in Graves’s group”, and “Graves’s low actual and projected revenue as compared to that of other managing directors.”

Plaintiff responded by pointing to an allegedly ageist comment by his superior about transferring clients to younger bankers.  However, he “was required to do more than demonstrate that an arguably discriminatory comment was made.”  Rather, the court noted – citing to St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993) – that “[h]e was required to demonstrate that the nondiscriminatory reasons for his termination were false, and that discrimination was the real reason.”

This, he could not do:

There is no evidence that Deutsche Bank’s proffered justifications are false. To the contrary, the record shows that: (1) the superior (who had hired Graves just a few years prior) was himself almost a decade older than Graves; (2) the so-called “younger” bankers were barely younger than Graves; and (3) Deutsche Bank chose to retain a managing director from the same group who was four years older than Graves.

The court cited cases for the proposition that discrimination is less likely to be found where “the person who made the decision to fire was the same person who made the decision to hire” and “retained employees were older than plaintiff.”


The court also affirmed the dismissal of plaintiff’s retaliation claims, finding no evidence of a causal connection between the alleged protected activity and the adverse employment action, particularly given that “his termination preceded his complaints of discrimination.”

It also rejected plaintiff’s reliance on alleged post-termination adverse employment actions, noting:

[Plaintiff] provides no evidence plausibly supporting any customary or actual entitlement to a “soft landing” (e.g., a six-month period of time in which to find another position), transfer to another group, larger severance payment, or bonus. Nor does the evidence suggest that any of these “perks” was denied to Graves because of a discriminatory or retaliatory intent on Deutsche Bank’s part.

The court also declined to revive his previously-dismissed Fair Labor Standards Act (FLSA) retaliation claim, which “relies on the same facts and allegations as the other retaliation claims and fails for substantially the same reasons.”

The court had “no occasion to reach the question” of the applicability, if any, of the Supreme Court’s decision in Kasten v. Saint-Gobain to the facts of this case. In Kasten, the Supreme Court held that the FLSA’s retaliation provision reaches oral, as well as written, complaints, but “state[d] no view on” whether (contrary to Second Circuit precedent) the FLSA’s “retaliation provision covers complaints to private employers.”

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