Court Dismisses Age Discrimination Claims, Notwithstanding Age-Related Comments

In Blundell v. Nihon Kohden Am., 15-cv-1503, 2017 WL 318842 (N.D.N.Y. Jan. 23, 2017), the court dismissed plaintiff’s age discrimination claims.[1]The court also denied defendant’s motion to dismiss plaintiff’s retaliation claim and his failure-to-accommodate-disability claim in part.

This decision is instructive on the use, in litigation, of age-related comments as proof of age discrimination to prove discriminatory discharge (a/k/a wrongful termination).

Plaintiff conceded that the alleged comments upon which he relied were said by co-workers and “were not made by decision-makers in close proximity to [his] termination.”  However, he asserted that “Defendant’s lack of action with respect to the comments by co-workers establishes a virtual opposite to the Faragher/Ellerth defense.”

The court disagreed, finding that this was “a misplaced attempt to repackage the inverse of an employer’s affirmative defense to hostile-work-environment claims into factual allegations sufficient to state a discriminatory discharge claim.” In sum, it declined to apply the defense here, where plaintiff acknowledged that he was not asserting a hostile work environment claim.

“Rather, the appropriate rubric by which to analyze the sufficiency Plaintiff’s age discrimination claim is to examine the alleged remarks upon which this claim is largely predicated.”

The court summarized the law:

Remarks may raise an inference of discrimination if there is a nexus between the remarks and an adverse employment decision. In determining whether a remark is probative of discriminatory animus, courts in the Second Circuit 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).

Applying the law, the court explained:

For the reasons set forth in Defendant’s memoranda of law, the Court concludes that, even accepting Plaintiff’s allegations as true, the remarks that he complains of do not give rise to a reasonable inference that NKA subjected him to age discrimination in relation to his suspension or termination. As Plaintiff acknowledges, the alleged comments were not made by decision-makers and were not made in close proximity to his termination. For example, Wolk (Plaintiff’s coworker) allegedly stated that Plaintiff’s age and disability made him unable to perform his job in October 2013, approximately 16 months before Plaintiff was suspended in March 2015. Moreover, Plaintiff’s Amended Complaint does not reasonably support the inference that Wolk’s comments were in any way related to Plaintiff’s much-later suspension and/or termination. Similarly, other employees made comments and/or jokes that Plaintiff was “old” in 2014; but Plaintiff does not allege that these remote comments or jokes were made by supervisors or decision-makers. Moreover, Plaintiff’s allegation that unnamed fellow employee[s] at a meeting in October 2014 verbally indicated displeasure regarding the age of another employee does not plausibly suggest that Plaintiff was – months later – suspended and terminated due to his age.

The court thus concluded “that Plaintiff has not alleged facts plausibly suggesting that his age was the but-for cause of his suspension or termination.”

1 The court also denied defendant’s motion to dismiss plaintiff’s retaliation claim and his failure-to-accommodate-disability claim in part.
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