Age discrimination claim against Department of Education fails

The Second Circuit hears its fair share of employment discrimination cases, but very few of them result in precedential, published opinions that favor the plaintiff. This is another case where the plaintiff loses by summary affirmance. What it means is the plaintiff lost the appeal shortly after oral argument because the Court of Appeals thought this was a routine case with an easy answer.

The case is Reiss v. Hernandez, issued on July 14. Plaintiff claims age discrimination motivated the Department of Education's determination to terminate her employment. Upon such an allegation, the courts require management to articulate a reason for the adverse decision. The plaintiff then has to show this was not the real reason and that age discrimination was the true motive. The plaintiff's burden is more difficult to satisfy than you might think. The courts tend to be deferential to managerial prerogative. 

The Department says plaintiff was let go because she has ineffective ratings as a teacher. Plaintiff says the older teachers got worse ratings than the younger teachers. The court's reasoning tells us how particularized the evidence of age discrimination must be in cases like this:

Although Reiss asserted that older teachers were given disproportionately worse ratings than younger teachers, she did not provide any evidence that younger teachers who received effective ratings were similarly situated to Reiss, an above-40-year-old teacher who received ineffective ratings. Nor did Reiss adduce evidence to support her contention that Defendants pushed out older teachers for younger teachers, let alone evidence that younger teachers in fact replaced older teachers at P.S. 123.

Plaintiff needed to identify comparator, younger teachers who were a close match to her employment status in order to prove age discrimination. The Court of Appeals (Parker, Cabranes and Newman) says does not have this evidence. 

While plaintiff claims the principal made ageist comments, the Court of Appeals sweeps this evidence aside, reasoning that "were insufficient to create a triable issue of fact that Defendants’
justification was merely pretext." The district court ruling states that "Reiss specifically claims that Principal Hernandez told her to retire because she was ‘too old’ to be effective at anything.” The district court said this was not enough to win the case, as this comment "appears to be a mischaracterization. In the Second Amended Complaint, Reiss alleges that Principal Hernandez wanted her to retire because in [Principal Hernandez’s] world [Reiss] was ‘too old’ to be effective at anything.' In other words, Reiss now attributes that comment directly to Principal Hernandez, whereas it initially served as Reiss’s subjective view of Principal Hernandez’s state of mind." 

Would a jury interpret this evidence differently? Most federal complaints are not filed under oath, but the comment plaintiff highlights on appeal was probably from her sworn deposition. But the Court of Appeals agrees with the district court, and what might appear to be "smoking gun" evidence is not enough to survive summary judgment, and the case is over.