Direct evidence of ageist bias not enough to survive summary judgment

Plaintiffs sued an employer which fired them in a reduction in force. One plaintiff is Ledlum, and another is Zaremski, both of whom claim that a decisionmaker made ageist remarks. That evidence is not enough. Summary judgment for the employer is affirmed.


The case is Crawford v. Department of Investigation, decided by summary order on May 13. The Court of Appeals certainly provides a good summary of the current state of employment discrimination law and the burdens of proof that the parties must satisfy. After noting that the plaintiff must prove a prima facie case of discrimination and the employer has to then articulate a neutral reason for the discharge, the Court says:

If and when the employer meets that burden of production, "'the McDonnell Douglas framework . . . disappear[s] and the sole remaining issue . . . [is] discrimination vel non.'" The plaintiff must then prove the ultimate issues without any "benefit of . . . intermediate burdens and presumptions." The plaintiff may satisfy this burden by showing "pretext," i.e., that the employer's proffered reason was false; but even in the absence of such a showing, a plaintiff may prevail by demonstrating that "an employment decision was motivated both by legitimate and illegitimate reasons."

"[I]f the record conclusively reveal[s] [a] nondiscriminatory reason for the employer's decision, or if the plaintiff create[s] only a weak issue of fact [as to pretext] and there [i]s abundant and uncontroverted independent evidence that no discrimination ha[s] occurred," then the employer is entitled to judgment as a matter of law. (Citations omitted).

A plaintiff's lawyer cannot ask for a better summary of the law. But the case is dismissed even though the plaintiffs produce direct evidence that a decisionmaker, Green, made age-related comments reflecting hostility toward older workers.


Plaintiff Ledlum says that Green "asked at a meeting in which news of the layoffs was transmitted, "Do you think I would leave my young guys who are working, who are working real good[?]" And plaintiff Zaremski stated that Green said she was "too old" for Peace Officer training.


These admissions are not enough for the plaintiffs to win their age discrimination case. The Court of Appeals concludes that these admissions "come from one uncorroborated source, nothwithstanding the fact that the comments were allegedly made to groups of people who could have been deposed." In addition, the Court says, Ledlum could not remember Green's statement with "specificity" and, as for Zaremski's evidence, Green's admission fails because Green made this ageist comment one year before everyone was let go.


The Court of Appeals is saying that the Ledlum comment is not enough by itself for a trial. But isn't the comment -- "Do you think I would leave my young guys who are working, who are working real good?" -- the kind of statement that would permit the jury to conclude that the reduction-in-force fell heavily on older workers? The Court of Appeals does not provide additional reasoning, but the district court ruling addresses this evidence in a footnote:

Plaintiffs argue that “age-related remarks” are evidence of age discrimination. For example, they argue that Green told Plaintiff Zaremski she was “too old” for Peace Officer training and that Green stated that he wanted to retain younger employees who were doing a good job. Assuming, arguendo, that DOI supervisors made age-related remarks, DOI's evidence that Plaintiffs' jobs were eliminated or that Plaintiffs' were terminated for poor performance remains unrebutted. Crawford v. Department of Investigation 2007 WL 2850512, *5 (S.D.N.Y. 2007).