discrimination harassment retaliation

Stray Remarks Lead to Age Discrimination Claim

The Ninth Circuit today held that stray remarks could support an age discrimination claim, particularly when a supervisor considers age as being pertinent to a promotion decision.  In France v. Johnson, an employee who was denied a vacant GS-15 position, and later sued claiming he was denied the position because of his age.

The employer defended the action, claiming the employee lacked the leadership and judgment for the GS-15 positions. The employer gave six reasons why it did not recommend promoting the, including the employee’s lack of leadership, flexibility, and innovation.

Age in Promotion Decision

The employee claims that during a staff meeting, one of the interviewers expressed his preference for “young, dynamic agents” to staff the GS-15 positions.  Another employee confirmed he ageist comment.  The employee also claimed that throughout his tenure one of the interviewers repeatedly asked about the employee’s retirement plans:

For example, during a meeting in June 2007, Gilbert asked if France was interested in teaching firearms as a “rehired annuitant” after retirement, but France said he did not want to retire. A few months later, Gilbert again asked what France wanted to do, and France said that he “was not going to retire and that [he] was going to apply for the GS15 positions.” France recalled that Gilbert had responded that if he were in France’s position, he would retire as soon as possible.

The district court concluded that the employee did not present direct evidence to establish an inference of age discrimination.  The Ninth Circuit Court of Appeals agreed that it was “a close question.” The appellate court felt the interviewer’s statement about his preference for “young, dynamic agents” to staff the GS-15 positions “probably goes beyond a stray remark.”  The court pointed out that “a speaker of discriminatory statements need not be the final decisionmaker of an employment decision.”  Under the “Cat’s paw” theory, even if a subordinate employee with bias was not the final decisionmaker, the plaintiff can establish a causal link by proving that “the biased subordinate influenced or was involved in the decision or decisionmaking process.”

The appellate court faulted the lower court for not considering the repeated retirement discussions in assessing whether the articulated nondiscriminatory reasons were pre textual.

This is a good reminder to employers that stray remarks, and repeated questions about retirement plans, can lead to significant problems.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.
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