Monday, May 23, 2011

Second Circuit revives age discrimination claim

The Court of Appeals will vacate summary judgment in an employment discrimination case if the employer's reasons for firing the plaintiff are pretextual (or knowingly false) and there is something discriminatory about the case. In this case, an age discrimination case is revived because there was pretext all over the place, along with some ageist jokes.

The case is O'Reilly v. Marina Dodge, a summary order decided on May 19. O'Reilly was a salesman in the service department for Marina Dodge. This 58 year-old was replaced by a 36 year-old. Management said that "Mr. Kaiser would be a better option than [O’Reilly] as a result of its prior experiences with Mr. Kaiser and Plaintiff O’Reilly’s continued disorganization, lackadaisical approach to his job performance, failure and refusal to embrace new initiatives to increase profitability, and his negative attitude about the workplace.” Here is why O'Reilly wins the appeal:

1. There is no contemporaneous evidence of plaintiff's poor job performance. No negative performance reviews or write-ups and, instead, management praised his performance and gave him performance bonuses. The only evidence of poor performance comes in the form of affidavits submitted by management in support of the summary judgment motion.

2. Defendant said that plaintiff had a negative and lackadaisical attitude, but the evidence suggests that he was always a good worker for many years despite his disorganization. The Second Circuit (Parker, Pooler and Lohier) says, "Supervisor Lootens stated that “profitability expectations” became greater in 2006 and 2007, and that a more 'organized' worker would be better, but Lootens does not explain why O’Reilly was able to meet the previous profitability goals but not the new goals. Indeed, there is no evidence that O’Reilly ever was disciplined for not bringing in enough work or for being disorganized, nor is there evidence that he was spoken to about these matters. A reasonable jury could find that these post hoc explanations were pretextual."

In the context of O'Reilly's alleged bad attitude, the Court of Appeals takes into account the ageist jokes in the workplace that suggested co-workers thought he was senile and forgetful and made fun of his bald head. The Court writes, "Although it may be a close factual call, a reasonable jury could find that the employees – including President Gabriele and Supervisor Lootens, who participated directly in the decision to fire O’Reilly – were relying on stereotypes of older people when they 'teased' O’Reilly."

3. And speaking of ageist stereotypes, defendant said it fired plaintiff because he resisted new initiatives. In fact, the evidence suggests that O'Reilly did take the lead on some new initiatives and, in any event, this critique may be stereotypical. The Court writes, "Marina Dodge’s claim that O’Reilly resisted 'new initiatives' while at Marina Dodge must be evaluated in light of the arguably ageist jokes O’Reilly suffered at Marina Dodge. A common stereotype of elderly people is that they resist change and new approaches. A reasonable jury could find that Marina Dodge’s claim that O’Reilly resisted 'new initiatives' was a pretext for Marina Dodge’s desire for a younger employee to interact with customers and was based on Marina Dodge’s unfounded assumption that a younger (36-year old) employee would better implement 'new initiatives' than an older (almost-59-year old) employee."

Finally, defendant raised an argument that is common to these cases: that it did not engage in age discrimination because older people still worked there after plaintiff was fired. The Court of Appeals is not buying it. "Although people above age 59 worked at Marina Dodge after O’Reilly was fired, none worked in the Service Department. A reasonable jury could find that Marina Dodge did not (and does not) believe that older people are unsuited for all work at Marina Dodge – but that Marina Dodge believed that such people are unsuited for high-pressure sales work in the Service Department, including convincing customers to pay for more (and more expensive) maintenance or repairs. Age discrimination is illegal, regardless of whether it is targeted at certain jobs."

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