Age discrimination claims revived by Circuit

It took the Court of Appeals 17 months to issue this opinion, but the Circuit (Kearse, Sack and Stanceu) reinstated a dual-plaintiff age discrimination claim that included allegations of a hostile work environment. The Court on July 24 also clarified when plaintiffs may amend the Complaint in violation of the trial court's scheduling order.

Kassner v. 2d Avenue Delicatessen Inc. reminds us that time-barred allegations will go nowhere and that the statute of limitations for federal age discrimination claims is 300 days. State age discrimination claims carry a three-year statute of limitations. After reinstating a few claims on the basis that the plaintiffs timely filed the complaint, the Court of Appeals applied the lenient pleading standards under Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) in finding that job assignments to less desirable and profitable work stations and work shifts may be sufficiently adverse to withstand a motion to dismiss. Noting that speculative claims cannot save the Complaint (applying a recent Supreme Court decision, Bell Atlantic v. Twombly, 127 S.Ct. 1955 (2007)), the Court of Appeals read the Complaint as a whole in assuming that some new job assignments were less lucrative and thus sufficiently adverse to make the lawsuit worthwhile.

It's not everyday that the Court of Appeals resolves a hostile work environment case based on age. But the many claims here raised a harassment claim as well, and the Court of Appeals reinstated them for the first plaintiff, finding that repeatedly making degrading comments about age, "including, but not limited to, 'drop dead,' 'retire early,' 'take off all of that make-up' and "take off your wig'" are enough to prevail on an age harassment claim. Assuming the district court allows her to amend the Complaint (see below), the other plaintiff may also have an age harassment claim in light of allegations that a manager and co-workers continually verbally and physically abused her by, for example, kicking and spitting at her at management's direction. When this plaintiff complained about her suspension following this treatment, management said, "[i]f you don't like it, you can quit. Why don't you quit already."

This case is not so profound that the Court of Appeals had to wait over a year to issue the decision. Maybe it was the final holding interpreting the tension between Rules 15(a) and 16(b) of the Federal Rules of Civil Procedure. Tension between these rules? You bet! Rule 15(a) allows the plaintiff to amend the Complaint if the Answer has not been served. That is what happened here. Except that the scheduling order under Rule 16(b) gave the plaintiff an earlier deadline. "We hold that amendment of a pleading as a matter of course pursuant to Rule 15(a) is subject to the district court's discretion to limit the time for amendment of the pleadings in a scheduling order issued under Rule 16(b)." So Rule 16(b) trumps Rule 15(a).

After finding, as noted above, that the second plaintiff plead an actionable age harassment complaint in the proposed amended complaint, the Court of Appeals remanded the case for the district court to worry about whether (1) the plaintiff acted with due diligence and (2) the amendment would prejudice the defendants at this stage of the proceedings.