In Benson v. Family Dollar Operations, Inc., 2018 WL 5919905 (2d Cir. Nov. 13, 2018) (Summary Order), the Second Circuit, inter alia, affirmed the dismissal by summary judgment of plaintiff’s age discrimination claim. This case is one example of how courts evaluate statistics as proffered evidence of in an employment discrimination case.
The court summarized the well-established legal framework for evaluating age discrimination claims under federal and New York state law:
The McDonnell Douglas framework applies to claims under the Age Discrimination in Employment Act (“ADEA”). Bucalo v. Shelter Island Union Free Sch. Dist., 691 F.3d 119, 128-29 (2d Cir. 2012). Under McDonnell Douglas, after a plaintiff establishes a prima facie case of discrimination, the employer must demonstrate a legitimate, non-discriminatory reason for the adverse employment decision. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 63 (2d Cir. 1997). If the employer does so, the burden then shifts back to the plaintiff to show a triable issue as to whether age was the but-for cause of the employer’s adverse action. See Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177–78, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009); Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 105–06 (2d Cir. 2010). Claims of age discrimination under the New York State Human Rights Law (“NYSHRL”) are analyzed under the same standards as ADEA claims.
Applying the law, the court concluded:
The district court correctly granted summary judgment to Family Dollar on the age discrimination claim. We assume, as the district court did, that Benson established a prima facie case. Family Dollar presented evidence that Benson’s demotion was a part of a department-wide reorganization, that promotions were based on work performance and leadership qualities, and that it did not consider age in its decision-making process. At step three of McDonnell Douglas, Benson failed to show a triable issue as to whether age was the but-for cause of his demotion. The evidence he offered—his own statistical analysis of the number of employees, the number of promoted employees, and the percentage of those categories over age 40—was insufficient. First, it was unreliable because there were only 41 employees in Benson’s department and only 13 promotions made in the reorganization. … Second, the statistics do not reveal any information about the performance reviews or assessments that were considered by Family Dollar in making its decisions. Without evidence showing that the younger, promoted employees were similarly situated to the older, demoted employees, these statistics do not raise a genuine dispute of material fact.