The case is Chapothat v. County of Rockland, a summary order issued on April 1. The district court said plaintiff could not show the County's non-discriminatory reason for denying the job was a pretext for age discrimination or that age was the "but for" reason for the adverse decision. Plaintiff claims that direct evidence wins his case, but the Court of Appeals (Calabresi, Hall and Carney) is not buying it, reasoning:
As direct evidence that age related animus gave rise to the County’s decision, Chapotkat presents only Chief Operator Gonos’s comments made during his interview. According to Chapotkat, Gonos told Chapotkat that he did not “like when people in their late fifties and sixties come and they don’t stay here,” that he did not “like the process of selection,” and that he “prefer[red] someone who could stay here for a long time.” Gonos then asked Chapotkat how old he was, to which Chapotkat responded that he was 51 and that he intended to work 15 more years.Plaintiff loses the case on summary judgment. The Court of Appeals cites authority for the proposition that the age discrimination law "aims to prevent adverse employment decisions grounded in 'inaccurate and stigmatizing stereotypes' about older workers’ 'productivity and competence.' Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993). '[E]mployment decisions driven by factors that are empirically intertwined with age are not discriminatory so long as they are motivated by ‘some feature other than the employee’s age.’' Criley v. Delta Air Lines, Inc., 119 F.3d 102, 105 (2d Cir. 1997) (quoting Hazen Paper, 507 U.S. at 609). Thus, we have held that 'decisions motivated by economic concerns do not violate the ADEA.'”
This statement by the job-interviewer does not show the County used age as a proxy for productivity or competence. "Moreover, Chapotkat’s response to Gonos’s comments—that he planned to work 15 more years—reflects Chapotkat’s own understanding that Gonos was concerned with the length of the incoming PCS’s tenure, not with his age. Although Gonos’s comments mention age, the concern expressed is with the inefficiency of a frequently-recurring hiring process."
This decision strikes me as unusual. ADEA cases typically involve evidence that the employer does not like older people and that that negative view influence the hiring (or firing) decision. But this case requires evidence that the employer held a stereotypical view of older workers' competence or productivity. If management says that plaintiff was "too old" to work here, that admission will be enough. Or if a supervisor says he wants "fresh blood" in the workplace. But what if a hiring manager simply says he wants younger people? I once settled a case when the supervisor told the job applicant that he hired a younger guy for the position. Does that violate the ADEA? Most people would say that it does.
A few cases over the years have reversed summary judgment in ADEA cases without evidence that management had expressly held stereotypical views about older workers. In one case. D'Cunha v. Genovese/Eckerd, Corp., 479 F.3d 193 (2d Cir. 2007), the Court of Appeals vacated summary judgment on the basis of straight pretext and evidence that the defendant hired people who were younger than the plaintiff. This published decision does not cite any case law referencing stereotypes. One summary order also reversed summary judgment on the basis of pretext-only, without evidence of stereotypes. See, Medeiros v. Pratt & Whitney Power Systems, 272 Fed.Appx. 78 (2d Cir. 2008).
A quick Lexis search shows that the "stigmatizing stereotypes" theory has been applied in the Court of Appeals on few occasions, including the Criley decision cited in this case. This interpretation has been off the radar all these years. Is the Court of Appeals reviving it?