For many years, motions to dismiss in discrimination cases were becoming a rarity, mainly because courts were loath to grant them.  But the U.S. Supreme Court in the last few years has given the motions new life and recent District Court decisions are now showing the effects.

Latest case in point: Barker v. UBS AG (download here), decided late last month in Connecticut District Court.  In that case, the Court granted the employer’s motion to dismiss her federal age discrimination (ADEA) claim. 

What was deficient in the complaint? Well, the court said that even though a prima facie case of age discrimination need not be plead, courts use it as a "guidepost" to see if the claims have provided defendant with "fair notice" of her claim.  And in this case, the court said that she "has not, and cannot show that she was fired under circumstances giving rise to an inference of discriminatory intent". 

The court did say that such circumstances can be found in:

  • "employer criticisms of the plaintiff’s performance using degrading, age-related terms,
  • invidious comments about others in the employee’s protected group,
  • the transferring of plaintiff’s duties to younger employees,
  • more favorable treatment of employees not in the protected group,
  • the sequence of events leading to plaintiff’s discharge,
  • or the termination of two out of three older employees but no younger employees"  

(In doing so, the court has essentially created a road map for bringing an age discrimination claim that will survive a motion to dismiss.)

In this case, the court said that evidence that women 20 years younger than her were promoted to positions over her had no relevance in the absence of the plaintiff seeking such promotions as well. 

She also alleged that as part of a reduction in force, she was in the top five in terms of age and one of five employees over 40 years old terminated (out of 8 total individuals).  That too was not enough, particularly because she hadn’t alleged that she was replaced by someone younger. 

Before employers rejoice too much, however, the court did allow a claim of retaliation under the whistleblower provisions of the Sarbanes-Oxley act to survive the motion. So the case will march on.

But for employers, this case is the latest example that motions to dismiss — when used in limited circumstances — may still be a viable option in some federal discrimination cases.