Last month, I highlighted a federal case in Connecticut where the court threw out an age discrimination claim because the evidence presented by the employee was not strong enough to survive a summary judgment claim.

A new federal court case however has allowed an age discrimination claim to proceed even while noting that while the evidence was "somewhat tenuous". 

So what tipped the balance here? For one thing, it wasn’t a 50th birthday party thrown on behalf of the employee. But the court said that the statistics of a reduction in force and the allegedly shifting reasons by the employer were just enough.

Background

In Edwards v. Williams Raveis Real Estate, Inc. (Sept. 21, 2010, Hall, J.) (download here), the Plaintiff was hired in 2004 to work as a Purchasing Director; she was 46 years old at the time.  She was promoted to Vice President of Facilities and Purchasing in early 2006 and fired two years later at the age of 50.  

According to the court (and viewing the facts in a light most favorable to the employee — as required at this stage of the case), she received multiple pay raises and positive performance reviews.  

But in late 2007, the Vice President of HR decided to throw the plaintiff a birthday party and placed various "age-related gag decorations around the office." Other similar parties had been held that year for two other employees.  At the party, other employees allegedly referred to her as "very old", "really, really old" and "over the hill".

Within a month or so of the party, the plaintiff was allegedly instructed to train someone on ins and outs of the department she was running.  This other employee — four years younger than the plaintiff — allegedly took over the responsibilities when the plaintiff was terminated as part of a reduction in force in April 2008. 

Birthday Party Not Enough But…..

The court first rejected the idea that the birthday party itself can give rise to an inference of discrimination.  "While the court may question the wisdom of throwing birthday parties at offices
with age-related gag decorations, the throwing of such a party, on its own, does not
create an inference of discriminatory intent on the part of Raveis."  The court found that the comments made at the party do not supply the necessary inference given the context and the "relatively innocuous content."

The court also said that the age difference between the employee and the alleged replacement was also not enough.  "The difference in age…neither supports nor disables an inference of age discrimination".  The court though rejected the application of a same actor inference to benefit the employer since the plaintiff has "categorically aged since the time of her time (…now being ‘in her fifties’ instead of ‘in her forties’)"

But the statistics of the reduction in force were enough for the court to let the case survive summary judgment finding that the layoffs skewed towards the older population (despite the relatively small sample size) and the timing as well (shortly after her birthday party).  Having found an inference of discrimination, the court also looked at the overall explanation given by the employer and found inconsistencies in the reasons provided. There was virtually no documentation supplied and, in the court’s view, it seemed to go against the positive reviews the employee had received previously.

What’s the takeaway from this case?

First, beware the birthday parties. They may be good morale boosters but some people may find them distasteful.  In any event, keep the age-related jokes to a minimum. 

Second, be consistent in the reasons for the termination and make sure they are well-documented.  Any alleged inconsistencies will be construed against the employer.