Plaintiff sues his former employer for age discrimination. He was fired in a reduction-in-force (RIF) after management thinned the herd by selecting underperforming employees. While plaintiff (56 years-old) was the oldest person in his sales group to be fired, the Second Circuit paints a dismal picture of his performance, noting that he ranked 136th among sales personnel at Bank of America in 2010. The case is dismissed on summary judgment, and the Second Circuit affirms.
The case is Delaney v. Bank of America, decided on September 5. RIF cases are hard to win because under a RIF, many employees are usually fired at once, and it is therefore hard to prove that employees were let go because of their age. These cases can be won, but my sense is that courts presume that RIF's are legitimate and require the plaintiff to overcome that presumption. Delaney cannot do so here. The Court (Winter, Wesley and Hall) says that plaintiff cannot show that the articulated reasons for his termination -- that management merely got rid of its underperforming employes in the RIF -- are not false or pretext for discrimination. Delaney was among 418 employees who were terminated "and had the worst performance of employees in his group at his level."
A few points of interest here for employment lawyers. First, the Court of Appeals applies the "but for" test articulated by the Supreme Court a few years ago in interpreting the ADEA. Citing an EDNY case for this proposition, the Second Circuit says that, under this new rule, "the condition that a plaintiff's age must be the 'but for' cause of the adverse employment action is not equivalent to a requirement that age was the employer's only consideration, but rather that the adverse employment action would not have occurred without it."
Second, plaintiff's age-related evidence in support of his claim is a draft EEOC charge by an older co-worker, which says he was fired six months after plaintiff was. The draft charge "alleges that he was terminated on the basis of his age and that colleagues and managers made repeated comments concerning his age." This will not cut it. The Court of Appeals says the draft charge is hearsay and therefore inadmissible. "Even assuming, however, that Delaney could present the evidence from the EEOC charge in admissible form at trial by calling C.G. as a witness, the evidence would not call into doubt the nondiscriminatory reason BoA has proffered for Delaney’s termination. Comments about another employee’s age, removed from any context suggesting that they influenced decisions regarding Delaney’s own employment, do not suffice to create a genuine issue of fact as to whether age was the but-for cause of Delaney’s termination."