Age Discrimination Dismissal Affirmed; Termination Was Due to Poor Performance; “Old Timer” and “Young Sharks” Comments Were “Stray Remarks”

In Downey and Bonner v. Adloox, Inc., 18‐3521‐cv (2d Cir. Oct. 24, 2019) (Summary Order), the Second Circuit affirmed the dismissal of plaintiffs’ age discrimination claims. This case aptly illustrates how the “stray remarks” doctrine operates in the age discrimination context.

In sum, the court found that – notwithstanding two arguably age-related comments – plaintiffs were terminated for poor performance, and not “because of” their age.

For example, while one plaintiff was twice called an “old timer”, both times it was outside the office and plaintiff acknowledged that on at least one of these occasions the person who made the comment was “speaking in jest”. Another age-related comment – relating to the defendant’s “looking for young sharks” – was not sufficient evidence of age discrimination; one plaintiff was not working for defendant when the comment was made, and that comment was “unrelated” to either plaintiff’s firing, and was rather “about hiring new, junior salespeople.” (Emphasis supplied by court.)

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