This guy’s discrimination claims were so bad. (How bad were they?)


They were so bad that a federal judge applied a rarely-used rule of civil procedure to consider summary judgment on its own after identifying for the parties material facts that may not be genuinely in dispute.

Boy, that was about as witty as Groundskeeper Willie’s standup routine at Springfield Elementary.

(Note to self: take after the Clown.)

Early last month, the court determined that no reasonable jury would conclude that the 62-year-old plaintiff could prevail on his claims of age discrimination because another 62-year-old man took over his job duties.

Naturally, the court remained skeptical about the viability of the plaintiff’s remaining claims for hostile work environment and retaliation. So, it invited the parties, which had not addressed these claims at summary judgment, to weigh in on whether the court should grant summary judgment on these claims.

After the parties briefed the issues, the judge’s opinion followed shortly after that. When I read it, something about the opening paragraph foreshadowed problems for the plaintiff’s remaining claims. See if you agree.

Jury service is a duty and a privilege of citizenship. We call on citizens to step out of their day-to-day lives and resolve disputes to which they have no connection. And their willingness to do so is the engine that drives our nation’s justice system. But judges and lawyers must be mindful of the burden that jury duty poses. Considering that burden, they should only summon jurors when there’s a real dispute to resolve.

So I read on, wondering if the judge would do something unexpected — like Hulk Hogan joining Kevin Hall and Scott Nash to form the NWO at the Bash at the Beach.

Metaphorically, that didn’t happen.

[The plaintiff] wants this Court to summon 20 to 30 jurors from 9 counties, have those jurors sit through jury selection, and then take 8 of those jurors away from their personal and professional obligations for the duration of a trial. The problem is he doesn’t have any evidence to support his remaining claims for hostile work environment and retaliation.

So, what gave it away?

At his deposition, the plaintiff testified, “I can’t give concrete examples of experiencing age discrimination during my tenure there. But who knows? I don’t know. Discrimination is a very subtle, very — very tricky thing.

But, bro, you’re alleging a hostile work environment.

His evidence was the company’s President and CEO telling him “of his desire to have younger people at the company.”

Except here’s the thing. A plaintiff alleging a hostile work environment must show that the discrimination was severe or pervasive, detrimentally affected him, and would detrimentally affect a reasonable person in like circumstances.

One statement is not pervasive. And a single remark about wanting younger employees is not “severe.” Indeed, the plaintiff had no evidence that this stray remark detrimentally affected him or would detrimentally affect a reasonable person in a similar situation.

The retaliation claim suffered from a separate fatal flaw. A plaintiff alleging retaliation must engage in a protected employee activity, like complaining about discrimination to the company or filing an EEOC charge. The plaintiff didn’t do that here. Instead, he asserted that he “was a member of the protected age class.”


Case dismissed. Jury duty canceled.

“Doing What’s Right – Not Just What’s Legal”
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