Age discrimination suit reinstated on ‘open declaration of bias’

A supervisor’s comment about making way for a younger generation was an “open declaration of bias,” says a federal appeals court in reinstating an age discrimination lawsuit filed by a terminated New York Metropolitan Transit Authority worker.

Deborah English was told by her supervisor’s supervisor during a reduction in force in July 2010 that “people who are eligible to retire should retire and make room for the younger generation,” according to Friday’s ruling by the 2nd U.S. Circuit Court of Appeals in New York in Maria Martinez et al. v. New York City Transit Authority et al., in which Ms. English is a plaintiff. Ms. English, a computer specialist, was 58 at the time, according to court papers. 

“Although stray remarks, without more, cannot defeat summary judgment ... (the supervisor’s) alleged statement is less a ‘stray’ remark than an open declaration of bias,” said the ruling by a unanimous three- judge panel of the 2nd Circuit in overturning a ruling dismissing her case by the U.S. District Court in New York.

“It not only reflected a highly discriminatory attitude, but also came at the time of the (reduction in force) and referred directly to the particular employee’s tenure with the Transit Authorities in negative terms. Compared to statements considered ‘stray remarks’ in our past cases, these remarks are very strong indicators of discrimination.”

Because the supervisor’s supervisor, rather than Ms. English’s regular supervisor, “served as her primary reviewer for the (reduction in force) a jury could infer” that his comments “gave her a low rating for discriminatory reasons.”

Particularly in light of his statement, “a reasonable jury might also be influenced by other indicia of discrimination in this case, such as a (reduction in force) form in English’s department that assigned very low weight to categories related to experience or length of service with the company, and low weight to objective categories such as absenteeism, but extremely high ratings to intangible, subjective categories such as ‘initiative’ and ‘communication skills,’ the ruling said.

“Moreover, a jury could infer that (the supervisor) intended to harm English based on evidence in the record that he reduced her job duties, and assigned her work unsuited to her skills, over a period of time” before the reduction in the force, said the panel in remanding Ms. English’s case for further proceedings.

The ruling also affirmed the District Court’s dismissal of age discrimination charges filed by five other MTA workers in the same case on the basis of insufficient evidence.