Judges Clarify "Stray" Employer Comments in Age Discrim Cases

February 21, 2007 (PLANSPONSOR.com) - A federal appellate court has thrown out an age discrimination ruling in favor of an employer and clarified its legal direction in cases where employers might make "stray" comments not strong enough to prove an age-discriminatory firing.

The 2nd U.S. Circuit Court of Appeals threw out the lower court ruling in favor of Insignia Financial Group in the suit filed by plaintiff Patricia McCarthy Tomassi, a 63-year-old woman who was fired in 2003 and replaced with a 25-year-old, according to Business Insurance.

In February 2000, when Tomassi was 60 years old, MetLife, Inc. hired her as Supervisor of Resident Services for the Peter Cooper Village and Stuyvesant Town housing complexes in New York City, which MetLife owned.

Tomassi routinely received good job performance reviews and raises during her tenure but argued that her supervisor occasionally, but routinely, commented to her or asked about her thoughts on retiring or working somewhere less demanding. She routinely received good job performance reviews and raises over that time.

When she was fired, she was told that she was being replaced only because of her lack of Web site experience. Her supervisor later testified he replaced McCarthy because she was not addressing tenants’ concerns with sufficient promptness and effectiveness.

A federal judge ultimately ruled that the supervisor’s comments and questions to McCarthy about retirement were “stray” remarks that did not show the employer discriminated against her by terminating her.

However, in sending the case back for additional hearings, the 2 nd Circuit recognized that it might bear some of the fault for the clarity of its earlier rulings.

“We recognize that our precedents may have been somewhat confusing,” the appellate judges wrote. “In some instances we have found the evidence legally insufficient notwithstanding the incidence of discriminatory remarks. To explain why the evidence was nonetheless insufficient, we noted that the remarks were ‘stray.’ That locution represented an attempt – perhaps by oversimplified generalization – to explain that the more remote and oblique the remarks are in relation to the employer’s adverse action, the less they prove that the action was motivated by discrimination. “

Appellate judges clarified how courts should examine employers’ alleged discriminatory comments. When faced with an age discrimination claim, trial judges should remember “that all comments pertaining to a protected class are not equally probative of discrimination.” It said it developed the “stray” remark classification remark to explain “in generalized terms” why evidence against a defendant in a particular case was insufficient.

“We did not mean to suggest that remarks should first be categorized either as stray or not stray and then disregarded if they fall into the stray category,” the 2nd Circuit panel explained. The appellate panel said the lower court also erred by ruling that the claims were more serious depended on how offensive they were.

Judges asserted that inoffensive remarks may strongly suggest that discrimination motivated a particular hiring or firing – such as when McCarthy’s supervisor said she was “well-suited to work with seniors.” While inoffensive, the remark “had a strong tendency” to show her supervisor believed that Ms. McCarthy’s age did not make her “well-suited” to interact with the company’s younger tenants, the judges said.

The ruling in Patricia McCarthy Tomassi vs. Insignia Financial Group Inc., is  here .