In Testa v. CareFusion, 2018 WL 1611378 (E.D.N.Y. April 3, 2018), the court granted defendant’s summary judgment motion on plaintiff’s federal age discrimination claim under the Age Discrimination in Employment Act (ADEA).
From the decision:
The only evidence upon which plaintiff relies are alleged stray remarks made by Stuckert [the person to whom plaintiff directly reported] to plaintiff during a discussion about his poor job performance in August 2013. Plaintiff alleges that, in discussing the difficulties plaintiff was having with the analytical part of his job, Stuckert stated, “you know, the job is changing” and “a person from your era wouldn’t have the type of analytical skills that we require.” … Plaintiff further avers that Stuckert told him, “[T]hings are different today,” and “the skills needed today are typically of a younger sales manager.” … Though Stuckert denies making these statements, … even if he had, stray remarks made months before plaintiff’s termination are insufficient to demonstrate a discriminatory intent.
In dismissing plaintiff’s claim, the court also noted, inter alia, the facts that plaintiff was 52 (i.e., within the ADEA’s protected class) when hired, that plaintiff was terminated shortly (ten months) after he was hired, and that the decision-makers as to plaintiff’s firing were both over 40 (and thus members of the same protected class as plaintiff).