"What if you're hit by a bus?"

In this age discrimination case, the incoming CEO spoke to the plaintiff about his plans for the company. The CEO, Scott State, said to plaintiff, "Burt, you're 71 years of age, how long do you expect to work? What if you're hit by a bus, and we have to plan for the future." Six weeks later, plaintiff was fired as defendant's chairman. Your instincts would say that plaintiff has a great case. He doesn't.

The case is Fried v. LVI Services, Inc., a summary order decided on October 15. The "hit by a bus" comment is indeed evidence of age discrimination. That's not enough to win the case, though. Under Supreme Court precedent (Gross v. FBL Financial Services, 557 U.S. 167 [2009]), the plaintiff has to show that "but for" defendant's age bias, he would not have been terminated. This is unlike the standard governing Title VII discrimination cases, which requires only that the age or race be a motivating factor in the decision to fire the plaintiff. Under the "but for" test, the plaintiff loses.

The Court of Appeals (Raggi, Carney and Calabresi) says that "the overwhelming documentary evidence support[s] LVI's articulated non-discriminatory reason for terminating Fried: the need to ensure that CEO State would be free to manage the company as he saw fit." Moreover, the evidence shows that:

before State accepted the CEO position at LVI, Fried had provided written assurances to Board members that the new CEO would indeed be in charge of the company and that Fried would afford State “all the room he wants” to run LVI as he saw fit. Instead, the evidence shows that, almost immediately after State assumed the CEO position, Fried attempted to arrogate to himself fifteen areas of responsibility that went well beyond the most liberal construction of “strategic growth,” his designated area of responsibility as LVI Chairman. On this record, we are compelled to conclude, as the district court did, that no reasonable juror could find that LVI’s nondiscriminatory reason for terminating Fried was a pretext for age discrimination and that “but for” Fried’s age, he would not have been terminated.

Interesting side notes. First, the EEOC wrote a brief in support of plaintiff's claim. They don't do that if liability is not consistent with EEOC policy. Second, the district court thought the ageist comment was a "stray remark" without any evidentiary value. The district court reasoned:

Fried's case hinges almost exclusively on the October 19, 2010 conversation between Fried and State, when State purportedly indicated that he would be reassigning Fried's duties and stated: "Burt, you're 71 years of age, how long do you expect to work. . . . [W]hat if you get hit by a bus . . . we have to plan for the future." However,  "[s]tray remarks, even if they occurred as plaintiff claims, are not enough to satisfy the plaintiff's burden of proving pretext. Stray remarks alone do not create an issue of material fact to defeat summary judgment." In this case, the single, isolated mention of Fried's age, the only such mention in the entire record, cannot, standing alone, create an issue of material fact sufficient to defeat summary judgment. This is especially true given that State, by Fried's own admission, qualified his remark by asking "what if you get hit by a bus."

Although the Court of Appeals rules against Fried, it does find that the "hit by a bus" comment was not a stray remark because it "expressly referenced Fried's age in the context of disputing his claimed job duties." Of course, in the end it does not matter because plaintiff was unable to show that he would not have been fired but for the ageist bias.