You can prove age discrimination in employment through circumstantial evidence. Unless a decisionmaker makes an ageist comment in the workplace, you are going to have to show pretext, i.e., the employer's reasons for terminating your termination are false and offered in bad faith. This was illustrated in a recent decision of the Court of Appeals.
The case is Gorzynski v. JetBlue Airways Corporation, decided on February 19. The Gorzynski case is notable for its interpretation of the Faragher affirmative defense in sexual harassment cases. But this decision also reversed summary judgment on Gorzynski's age discrimination case, where someone in management made an ageist statement but much of the evidence of discrimination is in the form of false reasons and disparate treatment.
Under a recent Supreme Court ruling, Gross v. FBL Financial Services, 129 S.Ct. 2343 (2009), age discrimination plaintiffs have to show that age was the "but for" reason behind their termination. This test overrides the Second Circuit's prior standard allowing plaintiffs to win if discrimination "was motivated at least in part by age discrimination." Plaintiff satisfies the Supreme Court's more burdensome requirement.
JetBlue argued that Gorzynski was fired for poor job performance. But the jury can reject each of the particulars, the Court of Appeals (Calabresi, Walker and Wesley) holds. True, she was made aware of an employee complaint against her, normally a good starting point in dismissing the case. But supervisor Thro did not bring that complaint to her attention until right after plaintiff complained about discrimination in enforcing airline policy. "It is unclear whether Thro would have brought Cruz's complaint to her attention at all had she not raised her concerns about discrimination. And this is especially so given that what Cruz had said was not serious enough for Thro to record it independently as part of any formal disciplinary process."
More pretext is found in plaintiff's negative performance evaluation, written by the same guy who is accused of committing much of the age discrimination against her. He also wrote it after supervising her for only a week, so he barely knew her; the negative review is hardly reliable. And, the evaluator gave a positive review to a much younger employee who had all sorts of disciplinary infractions. While the district court in dismissing the case noted that plaintiff was on probation, it was the suspicious performance review that triggered the probation in the first place. The Court of Appeals also notes that a specific incident of plaintiff's alleged misconduct was a sufficiently flimsy basis to justify her termination since her accuser was "out to get" her and the company conducted a "questionable at best" investigation into this incident. It also seems that Gorzynski may not even have done anything wrong in connection with that incident.
There is some affirmative evidence of age discrimination, specifically that younger employees were not disciplined for violating numerous company policies. The Court also notes that "Gorzynski presents a list of policies that younger crewmembers, although not of her same position, were allowed to break with impunity." Management argued that these other workers were not comparable as a matter of law because they were lower-level employees and she was a supervisor. The Second Circuit says that plaintiff does not have to be the same rank as these workers to draw the inference of discrimination. Last, but not least, was a supervisor's off-hand comment that plaintiff reminded him of his aunt, who was in her eighties.