Age-Related Comments During Job Interview Insufficient to Establish Failure-to-Hire ADEA Claim

In a recent Summary Order, Dunaway v. MPCC Corp. (2d Cir. Sept. 27, 2016), the Second Circuit affirmed the summary judgment dismissal of plaintiff’s age discrimination claim under the Age Discrimination in Employment Act.

This decision teaches that asking age-related questions during a job interview is not, alone, necessarily sufficient to sustain a failure-to-hire discrimination claim. While such questions might, under the circumstances, support such a claim, in this case they did not.

The facts, as summarized by the court:

[Plaintiff] Dunaway applied to be a senior project manager for MPCC Corp. — a construction general contractor based in New Rochelle, New York — and was interviewed by its president, Joseph Urbinati. Dunaway avers that in the interview, Urbinati said: that he was looking for an employee who would stay for 10 to 15 years; asked Dunaway his age (he was 65 but responded only that he was “up in years” and in good physical condition); mentioned Urbinati’s septuagenarian father who was no longer running the company, though he remained involved with it; and asked Dunaway whether he was “capable of withstanding the vigors [sic] of the position.” Urbinati did not hire Dunaway, and (consistent with company practice) he did not notify Dunaway that his application was rejected, but he continued seeking candidates for the position.

Plaintiff sued, alleging age discrimination (failure to hire) and retaliation for filing an administrative claim. The district court granted summary judgment to defendant, and the Second Circuit affirmed.

From the Order:

To establish a prima facie case of age discrimination, the plaintiff must show (1) that he was within the protected age group, (2) that he was qualified for the position, (3) that he experienced an adverse employment action, and (4) that the action occurred under circumstances giving rise to an inference of discrimination. The parties agree that the first three requirements are satisfied. The district court ruled that the fourth requirement was not. We agree.

Urbinati made several references to age, direct and indirect, when he interviewed Dunaway. The ADEA, however, does not make all discussion of age taboo. [A]n employer’s concern about the economic consequences of employment decisions, such as the likelihood of an employment candidate’s retirement within a short timeframe, does not constitute age discrimination under the ADEA, even though there may be a correlation with age. More broadly, employers may consider factors that are empirically intertwined with age without violating the ADEA so long as they are motivated by some feature other than the employee’s age..

There are quibbles as to what was said (which we must resolve in Dunaway’s favor); but by either party’s account, the questions were germane to the probable length of Dunaway’s potential employment and his fitness to do the job. It is also undisputed that MPCC employed workers of similar age or older than Dunaway, and that after he was passed over for a position as senior project manager, a candidate who was hired was only one year younger. Even if a jury credits Dunaway’s account of Urbinati’s questioning, those circumstances do not give rise to an inference that Urbinati had a discriminatory motive not to hire him. The district court therefore did not err by concluding that Dunaway failed to make out a prima facie case of age discrimination.

(Emphasis added.)

The court also affirmed the dismissal of plaintiff’s retaliation claim under the NYS Human Rights Law, finding that plaintiff “has not established a genuine issue of fact as to whether the decision not to hire him occurred before or after Urbinati received notice of his NYSDHR complaint, and the circumstances do not give rise to an inference that Urbinati had a retaliatory motive when he decided not to hire him.”

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