Age Discrimination Dismissal Affirmed; Replacement by Younger Employee Insufficient

In McEvoy v. Fairfield University, 2021 WL 613626 (2d Cir. Feb. 17, 2021) (Summary Order), the court affirmed the summary judgment dismissal of plaintiff’s age discrimination claim asserted under the Age Discrimination in Employment Act of 1967.

From the Order:

The District Court held that McEvoy failed to show that Fairfield University’s proffered non-discriminatory explanations for declining to renew her appointment were mere pretext for age discrimination. In urging a contrary conclusion, McEvoy chiefly argues that the proffered performance-based reasons for declining to re-appoint her were factually inaccurate and thus pretextual. It is true that “a plaintiff’s prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000). But here, even assuming that McEvoy was a high performer, she failed to marshal evidence that the decisionmakers did not believe that her performance was deficient at least in some areas based on complaints received from others. See McPherson v. N.Y.C. Dep’t of Educ., 457 F.3d 211, 216 (2d Cir. 2006) (noting that this Court is “decidedly not interested in the truth of the allegations against plaintiff,” but rather “what motivated the employer” (quotation marks omitted)).

McEvoy’s argument that Fairfield University’s explanations were “shifting” and “inconsistent” with its response to McEvoy’s Connecticut Commission on Human Rights and Opportunities complaint is equally unavailing. While such an inconsistency can be evidence of pretext, see Kwan v. Andalex Grp. LLC, 737 F.3d 834, 846 (2d Cir. 2013), based on our reading of the record, any inconsistencies pointed out by McEvoy are too immaterial to constitute evidence of pretext here.

Finally, even if we assumed that Fairfield University’s proffered reasons were pretextual, on summary judgment McEvoy did not provide contemporaneous evidence of age discrimination, other than the fact that her replacement was much younger. The only evidence of age discrimination in the record came from a decisionmaker’s deposition, in which he described McEvoy as “traditional” and the pre-law program as “antiquated,” “backward looking,” and “frozen.” But as the District Court concluded, this testimony unambiguously referred to particular perceived issues with the program—namely, the type of legal career paths that students were exposed to and the lack of alignment with the strategic goals of the university at large—rather than to McEvoy’s age. Without sufficient evidence that Fairfield University’s decision to select a new pre-law director was because of McEvoy’s age, no reasonable juror could find that her age was a but-for cause of the decision to replace her.

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