Age Discrimination Claims Dismissed Upon Application of the “Stray Remarks” Doctrine

A recent decision, Rimpel v. AdvantageCare Physicians, P.C., 2020 WL 5517281 (E.D.N.Y. Sept. 14, 2020), discusses and applies the “stray remarks” doctrine as it applies to a claim of “disparate treatment” discrimination:

From the decision:

Here, no reasonable jury could conclude by a preponderance of the evidence that Plaintiff’s termination was partially motivated by age discrimination, let alone that age discrimination was the “but-for” cause of his termination. Plaintiff’s sole evidence that Defendant was motivated by discriminatory animus is Plaintiff’s own testimony about three sets of alleged comments by Boxbaum respecting or alluding to physicians’ ages: one in which Boxbaum asked Plaintiff when he planned to retire and two in which Boxbaum indicated a preference for hiring younger urology residents to older urologists. (Pl. Tr. at 41:4-45:10.) “In determining whether a remark is probative” in an employment discrimination claim, courts in this circuit consider four factors, none of which are dispositive: “(1) who made the remark (i.e., a decision-maker, a supervisor, or a low-level co-worker); (2) when the remark was made in relation to the employment decision at issue; (3) the content of the remark (i.e., whether a reasonable juror could view the remark as discriminatory); and (4) the context in which the remark was made (i.e., whether it was related to the decision-making process).”

Here, the allegedly probative remarks were made by a person who was neither plaintiff’s supervisor nor directly involved in the decision to terminate plaintiff’s employment. (The court noted that the remarks may have some probative value, since the person making them held a management-level position and was involved in the decision-making process.)

As for timing, while the remarks were made less than a year of his being informed of his termination, they were not made within the three months immediately preceding it. Therefore, the “timing of the remarks tends to minimize rather than amplify their probative value.”

As to the content and context of the remarks, the court observed that they “did not directly concern Plaintiff’s own age or employment status” and therefore were “at best circumstantial evidence of ACP’s intent, insofar as they suggest that [defendant] generally preferred younger physicians to older ones.” In addition, plaintiff testified that the person making the remarks “cited the lower costs of hiring younger physicians as the basis for his alleged hiring preference”; the court explained that “[a]n employer’s concern with the elevated costs of senior employees does not constitute age discrimination.”

Plaintiff also failed to rebut defendant’s “contention that behavior and performance issues were the actual reason for terminating Plaintiff’s employment,” noting that “[m]erely disagreeing with [an employer’s] assessment of work performance … is insufficient to raise a triable issue of fact regarding pretext.”

Finally, the court rejected plaintiff’s argument that defendant’s proffered justifications were pretextual because it told plaintiff that his termination was “without cause,” noting that “the fact that Plaintiff, an at-will employee, was terminated ‘without cause’ does not preclude the possibility that the termination was motivated by a legitimate, nondiscriminatory rationale, or even raise a question of fact as to the genuineness of the performance-related rationales articulated by Defendant” and that “[t]he termination of an at-will employee’s contract need not be designated as ‘for cause’ in order to be grounded in rational, nondiscriminatory reasons, and a termination designated as ‘without cause’ is not definitionally lacking in legitimate justifications.”

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