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Best Age Discrimination Attorneys Answers: Can a manager’s jokes about retiring support my age discrimination claim? What can I do If I was passed over for a job in favor of less qualified, much younger candidates? What evidence do I need to prove a claim for age discrimination against the company that I work for?

The best employment law insight typically comes from the most recent cases. Our discrimination lawyers make sure to follow this law closely. The Sixth Circuit Court of Appeals, the federal court of appeals sitting over Ohio, issued an interest decision January 24, 2022 in a failure-to-hire age discrimination under the Age Discrimination in Employment Act of 1967 (“ADEA”) and Ohio Revised Code Chapter 4112. This case, Aday v. Westfield Ins. Co., No. 21-3115, 2022 WL 203327, at *1 (6th Cir. Jan. 24, 2022), is notable at the onset because it reversed the entry of summary judgment (dismissing the case) by the United States District Court, which is incredibly unusual.

In the case, the employee, Steven Aday, asserted two claims worthy of note: failure to hire based on age and retaliation by the employer, Westfield Insurance Company, based on its filing meritless counterclaims against him. (Our attorneys will address the retaliation claim in a separate blog, see How Do I Prove A Claim For Post-Employment Retaliation?).

Aday was originally hired by Westfield, a subsidiary of Ohio Farmers Insurance Company, in 2005. Prior to that hire, Aday had approximately 28 years of experience in the insurance industry, including 12 years in leadership roles. During his time at Westfield, Aday rose the ladder and succeeded in a variety of roles while working in Cincinnati. In April 2017, when he was 63 years old, Aday notified his employer that planned a move to Seattle, Washington as a result of his domestic partner, Moira Tamayo, accepting an executive-level position there. The employer denied his request to work remotely but permitted him to stay in his Cincinnati position as long as he wanted.

Unsatisfied with his option, Aday continued to look for opportunities in the company that would allow him to work remotely from Seattle. In July 2017, Sheila Lilly, Westfield’s Casualty Injury/General Liability Leader, posted job opportunities to fill two vacancies for Unit Leader roles in her department, with one located in the “Mid-west and east,” and the other “in the Western states.”

During that summer, while Aday was in the lunchroom with several employees when someone raised the topic of who would retire next. Robert Bowers, Westfield’s National Claims Leader, gestured toward Aday and said, “this one is up.”

On August 8, 2017, Aday interviewed with Lilly and another manager, Jason Bidinger. Aday presented a travel calendar and flight information detailing how he would travel to the positions’ direct reports. The map showed the airfare costs from Seattle to the respective offices of the direct reports, which demonstrated that the cost of air travel from Seattle to these locations was no more expensive than traveling from Cincinnati. At the end of the interview, Lilly and Bidinger told Aday he had “hit it out of the park.” Bidinger even told Aday, “You’re the one to beat” following the interview.

Lilly and several other managers who participated in the 14 interviews had a meeting to discuss each applicant and eventually narrowed the list to the top four candidates, which included Aday. Pursuant to the meeting notes Aday possessed “wide experiences” and was the “most plug [and] play – ready to go.”

While the decision was pending, Terry Neumeyer, a complex claims analyst at Westfield’s home office reportedly told Aday that he had talked with one or more managers about their decision not to hire Aday that, “everyone thinks it’s time for you to put up your piggies, relax, and let … your wife be the breadwinner, you’ve earned it.” Important to note, Neumeyer was not Aday’s supervisor, nor was he involved in the hiring decisions.

Shortly thereafter, the employer informed Aday that he did not get it, and Aday retired and moved to Seattle.

After Aday sued Westfield for age discrimination, it countersued for a wrongful appropriation of trade secrets based on the fact that Aday had sent work back and forth to his personal email in order to work at home. Aday amended his complaint to assert retaliation for a meritless counterclaim, which was eventually dismissed by the court as being without merit. The United States District Court for The Southern District of Ohio granted summary judgment against Aday and in favor of Westfield, dismissing the case.

Let’s look at the ADEA Age Discrimination Claim.

The ADEA makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of an individual’s age.” 29 U.S.C. § 623(a)(1). An employee may use either direct or circumstantial evidence to satisfy this burden of proof. Evidence of discrimination is direct when, “if believed, [it] requires the conclusion that unlawful discrimination was at least a motivating factor in the employer’s actions…. Circumstantial evidence, on the other hand, is proof that does not on its face establish discriminatory animus but does allow a factfinder to draw a reasonable inference that discrimination occurred.” Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 570 (6th Cir. 2003).

A prima facie case of age discrimination requires an employee or applicant to prove: (1) s/he was at least 40 years old at the time of the alleged discrimination; (2) s/he was subjected to an adverse employment action; (3) s/he was otherwise qualified for the position; and (4) s/he was replaced by a younger worker.” In this case, the employer concedes that Aday satisfied his burden of proving a prima facie case of age discrimination but asserted a legitimate business reason that it “place[d] more value on the qualifications and experience of other candidates.”

This put the burden back on the employee to establish pretext – a fancy legal way to saw that the employer was lying. (Best Law Read: Employment Discrimination Question: What Is Pretext?). When the issue is the relative qualifications of candidates, the employee must present evidence demonstrating that either (1) s/he was the “plainly superior candidate, such that no reasonable employer would have chosen the latter applicant over the former,” or (2) s/he “was as qualified as if not better qualified” than the one hired or promoted, and the record contains “other probative evidence of discrimination.”

Proving the “plainly superior candidate” is nearly impossible unless the candidate accepted lacked necessary qualifications of a critical job function, such as a particular level of education or experience in a particular area. As the United States Court of Appeals for the Sixth Circuit held that there is “an exceptionally high standard for satisfying the burden of proving a plaintiff is the plainly superior candidate.” This standard requires the employee to demonstrate that “that no reasonable employer would have chosen” other candidates of him/her. “If two reasonable decisionmakers could consider the candidates’ qualifications and arrive at opposite conclusions as to who is more qualified, then clearly one candidate’s qualifications are not significantly better than the others.” The United States Court of Appeals for the Sixth Circuit held that courts may not engage in “second-guessing employers’ business decisions.” Given the extremely high burden, Aday argued that his technical experience, leadership experience, and his unique qualifications for the position “in the Western states” made him the plainly superior candidate. These subjective arguments were destined to fail and did.

So, let’s turn to option to show “as qualified as if not better qualified” than the one hired or promoted, and the record contains “other probative evidence of discrimination.” Given that Aday was a top candidate and that the employer admitted that it was a close call, the United States Court of Appeals for the Sixth Circuit turned to the “other probative evidence of discrimination” element. “In assessing the probative value of discriminatory statements, courts consider “the declarant’s position in the [employer’s] hierarchy, the purpose and content of the statement, and the temporal connection between the statement and the challenged employment action, as well as whether the statement buttresses other evidence of pretext.” Aday at *9.

To me, this was the key holding in this case by the United States Court of Appeals for the Sixth Circuit:

The first discriminatory comment on which Plaintiff’s claim is based was made by Bowers. Bowers was the National Claims and Customer Service Leader at Westfield and Lilly’s second-level manager. In fact, only the position of Westfield’s chief operating officer separated Bowers’ position from that of the chief executive. The district court erroneously found that Bowers was not a decisionmaker in the hiring process for the Unit Leader positions and therefore his comments offered little probative value. Not only do the parties dispute Bowers’ decisionmaker status, the witnesses’ depositions explain that Bowers had authority to override Lilly’s hiring decision but doing so would be highly unusual. Nevertheless, we need not determine whether Bowers was a decisionmaker because this Court has “held that discriminatory remarks, even by a nondecisionmaker, can serve as probative evidence of pretext.” Risch, 581 F.3d at 393….

Defendants first respond, and Plaintiff has admitted, that Bowers was joking. This Court has held, however, that statements may be probative evidence of discrimination even if they are made as a joke. Bartlett v. Gates, 421 F. App’x 485, 491–92 (6th Cir. 2010) (holding comments, including jokes by a decisionmaker, “provide[d] strong ‘probative evidence of pretext.’ “ (citing Risch, 581 F.3d at 393)). Thus, even if Defendants are correct in arguing that Bowers was joking when he made this comment, it may still operate as probative evidence of discrimination.

Additionally, in Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 356 (6th Cir. 1998), we considered whether the plaintiff’s managers’ comments contributed to a “discriminatory atmosphere.” We noted that evidence of a discriminatory atmosphere “may serve as circumstantial evidence of individualized discrimination directed at the plaintiff.” Id. And while a workplace atmosphere replete with discrimination is not conclusive proof that an individual plaintiff is the victim of age discrimination, a discriminatory atmosphere “ ‘tend[s] to add “color” to the employer’s decision-making processes and to the influences behind the actions taken with respect to the individual plaintiff.’ “ Id. (quoting Conway v. Electro Switch Corp., 825 F.2d 593, 597 (1st Cir. 1987)). Here, Bowers was a very senior leader at Westfield and his willingness to comment on and “joke” about a junior employee’s retirement status in the midst of that employee’s search for a new position could reasonably be interpreted as contributing to a discriminatory atmosphere at Westfield.

Aday, at *9–10.

As such, the takeaway is that even comments and jokes about age and retirement, when combined with other evidence, can precent an age discrimination case from getting dismissed at the motion for summary judgment stage of a case. This means that the case will get to a jury if it does not settle. While the case might be won or lost in front of a jury, the likelihood of facing a jury increased the chances that a case will settle.

If you are an employee or applicant over the age of 40 years old and believe that you are being discriminated because of your age; or have be wrongfully terminated or fired instead of someone younger or were replaced with someone younger than you, you may have an age discrimination claim under Ohio law or the federal Age Discrimination in Employment Act (ADEA). Even if you are not sure about your age discrimination claim, you should call the right attorney as quickly as possible to schedule a free and confidential consultation. Call our wrongful termination lawyers right now. Age discrimination claims have very short statute of limitations, which means that you only have a very short amount of time to figure out if you have an age discrimination claim and take action. It is unlawful for employers to treat older employees differently. At the free initial consultation, you can tell us the specifics about how “my boss is trying to force me to retire” or what happened on “my job.”


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