"You can’t teach a old dog new tricks."
In discrimination cases, analysis of whether a remark like this is probative has typically moved into whether the comment was a "stray" remark. Indeed, Justice O’Connor’s concurrence in the Price Waterhouse v. Hopkins case in 1989, in fact, talked about whether "stray remarks" could satisfy a plaintiff’s burden to prove discrimination.
A new District Court of Connecticut decision released this week — taking the lead of some comments by the 2nd Circuit — has now refused to categorize certain comments as "stray" or not . Instead, the court has applied a four factor test from a Southern District of New York case that could set the tone for other District Court cases in Connecticut.
In Koestner v. Derby Cellular Products,3:06-cv-00188 (VLB), the Plaintiff argued that his employment had been terminated because of his age. Judge Vanessa Bryant, a relatively new appointee to the federal bench, held that the Plaintiff presented sufficient evidence to defeat the company’s motion for summary judgment.
- The Plaintiff alleged that the Company President stated during a managers’ meeting that the company was “getting killed on insurance premiums due to the average age of the company’s employees” and that the company “had to get younger.”
- He also alleged that the company’s CEO told him that the company “had to do something about” a 60-year-old employee in poor health. That employee and the Plaintiff were later terminated on the same date.
- Lastly, he alleged that when his supervisor terminated his employment, he told the Plaintiff that “someone more energetic” would be better suited for the job.
Court’s Analysis Denying Summary Judgment:
The Court, in determining whether the Plaintiff was terminated because of his age, held that it "does not need to determine whether the remarks by [the executives] are ‘stray.’" Instead, the Court said it would decide "whether the remarks are sufficiently probative of age discrimination such that the jury could reasonably find that the Plaintiff was terminated because of his age."
The Court then went on to apply four factors to determine the probative nature of the comments:
- who made the remark, i.e., a decisionmaker, a supervisor, or a low-level co-worker;
- when the remark was made in relation to the employment decision at issue;
- the content of the remark, i.e., whether a reasonable juror could view the remark as discriminatory; and
- the context in which the remark was made, i.e., whether it was related to the decisionmaking process.
Ultimately, the court applied the four factors and found that the first two comments could be probative of age discrimination but that the "energetic" comment was not. (Obviously, the court was not ruling on the underlying merits of the claim, only whether the case should proceed to trial.)
For employment lawyers in Connecticut, this decision provides a workable framework for analyzing such comments. It is admittedly much easier to apply four factors than to determine, in the abstract, whether such comments are probative or not. But whether this test will ultimately hold up on appeal remains unanswered for now.
At the same time, this decision further emphasizes the importance that alleged discriminatory remarks can have on a case. Here, the Plaintiff’s evidence to defeat summary judgment on the ADEA claim rested solely on the alleged comments. For employers, The case demonstrates that what they say can have tremendous implications down the road, even where the comments may be otherwise innocuous.