Age Discrimination Case Dismissed, Despite “Old Timer” Comments

In Downey v. Adloox, Inc., 16-CV-1689, 2018 WL 5266875 (S.D.N.Y. Oct. 23, 2018), the court granted defendant’s motion for summary judgment on plaintiff’s federal and state age discrimination claims.

Among the evidence proffered by the plaintiff to demonstrate that he was a victim of age discrimination were comments referring to him as “old timer.” However, this case illustrates that while such comments may be evidence of discrimination, they do not necessarily indicate unlawful bias.

From the decision:

To survive summary judgment, therefore, Downey would need to proffer sufficient evidence from which a reasonable factfinder could conclude, by a preponderance of the evidence, that age was the “but-for” cause of Adloox’s decision to fire him. See Gorzynski, 596 F.3d at 106. He fails to do so. Downey points, first, to comments made by Ricci and Dufoi as evidence of discriminatory animus. (Pls.’ Mem. 2, 11-12). According to Downey, on two occasions outside the office, Ricci referred to him as an “old timer.” In the first, Downey was lighting a cigarette in Times Square during “ad week” and Ricci turned to Bellion and said, “[L]ook at the old timer, smoking a cigarette.” (Roth Decl. Ex. 1 (“Downey Dep.”), at 80:15-17). On the second, Downey ordered a huge steak at dinner, and Ricci said to the table “look at the old timer” or called Downey’s dish “[a]n old timer type of meal.” (Id. at 79:15-18). Those two comments, however, are insufficient to create a triable issue of fact on the question of discrimination. Of central importance in determining whether a comment is probative of an employer’s discriminatory intent is “the context in which the remark was made (i.e., whether it was related to the decision-making process).” Henry v. Wyeth Pharm., Inc., 616 F.3d 134, 149 (2d Cir. 2010). Only if “a nexus exists between the allegedly discriminatory statements and a defendant’s decision to discharge the plaintiff” are the statements sufficient to prove discriminatory motive. Schreiber v. Worldco, LLC, 324 F. Supp. 2d 512, 518 (S.D.N.Y. 2004); accord Tomassi v. Insignia Fin. Grp., Inc., 478 F.3d 111, 115 (2d Cir. 2007) (“The more remote and oblique the remarks are in relation to the employer’s adverse action, the less they prove that the action was motivated by discrimination.”), abrogated on other grounds by Gross, 557 U.S. at 177-78. Here, there was no nexus between Ricci’s remarks and the decision to fire Downey: They were made outside the office, in a non-business setting, and in no way related to Adloox’s work or Downey’s job. Indeed, of the steakhouse comment, Downey himself acknowledged that, during the dinner, “business was not being discussed. It was nothing more than levity, jocularity, three guys, whatever.”

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