The court sets out the facts: The employer hired the plaintiff, who was age 70, but later terminated him because, according to the employer, he was involved in a collision with an unoccupied parked truck while driving a company vehicle, and he allegedly failed to follow protocol in reporting the accident and co-operating in its investigation. The 2-1 panel reversed the grant of summary judgment, finding disputes of material fact regarding the circumstances of the termination.
But what interests me are the alleged age-animus comments made by the plaintiff's supervisor, who said the plaintiff "needed to hang up his Superman cape,” compared the plaintiff to the supervisor's 86-year-old father who finally had left the workforce, and discussed the plaintiff’s birth year in the termination meeting.
The dissent believed that mere age-related comments were insufficient to defeat summary judgment, given the good-faith conclusions the company reached about the plaintiff's actions concerning the accident.
Age comments are always a dicey area. Is "superman cape" an age-animus comment or just friendly advice that everyone we should consider retiring? In close calls, no matter how employers’ lawyers spin it, the strike zone often expands a bit to include these types of comments as evidence of discrimination.
Several years ago, a client hired me to appeal an adverse verdict in an age-discrimination case. One piece of evidence: a comment by one of the decision-makers that his company needed "race horses, not plough horses."
One member of the panel was in his 70s. The judge kindly asked me, “Mr. Maslanka, isn't that evidence of discrimination?" Whereupon I looked him in the eye and replied, "You can be a 35-year-old plough horse or a 75-year-old race horse."
The judge smiled. Even now, I can see the thought bubble forming above his head: "Yes, I am a 75-year-old race horse. That's a good one. I am still voting against you, but that sure is a good one." And, he did.