Comments from a supervisor with respect to a promotional position that he was going for “a more youthful approach” supported a teaching hospital employee’s nonpromotion claim for age discrimination under the ADEA and the New York State Human Rights Law (NYSHRL), a federal district court in New York ruled. As to the employee’s termination, however, she presented no evidence of age discrimination, and it looked like relations between the employee and her department head had soured in the months leading up to her dismissal (Mullinix v Mount Sinai School of Medicine, July 24, 2014, Castel, K).
New position created. The hospital hired the employee as an associate director when the employee was 65 years old. The director to whom she reported left the hospital soon after, and the employee stepped in as interim director under a two-year contract. At that time, a dean at the hospital decided to create a new position, Vice President, who would head the department and to whom to the director would report. The employee expressed an interest in the VP role. While the employee was getting installed as the director, the employer hired a headhunter to find someone for the VP position.
During his search, the headhunter wrote, in reference to the employee, “mid 60’s to Retire.” Of her eventual meeting with the headhunter, the employee said that he seemed uninterested in discussing her credentials. The employee’s name was never listed on any monthly report reflecting the status of candidates for the job, nor were any of her references contacted. Just before the employer eventually hired a 51-year-old candidate for the VP job, the operations manager allegedly said with respect to the position that he was “looking for a more youthful approach.”
Rocky inter-office relations. The new VP received complaints from other faculty members about the employee’s performance and observed that the employee was antagonistic and abrasive. Part of the employee’s job as a director was to negotiate agreements with other organizations, and the new VP expressed concern to the employee that the employee treated negotiations more like a “battle” and not a “partnering exercise.” As the employee’s contract renewal drew near, the new VP told the employee that she would recommend that her contract be extended, but she later told her superiors that the employee was difficult to work with.
In addition, the new VP accused the employee of “hijacking” a department meeting by giving a too-lengthy presentation that cut in to the time left over for others. Then the new VP informed the employee that the employer would not be renewing her contract because the employee was “not sufficiently congenial with the faculty.” Although she initially planned to find a new position for the employee within the hospital, after speaking with the operations manager, the new VP decided to dismiss the employee before her contract ran out.
Failure to promote. First, the court looked at whether a reasonable jury could find that the employer did not promote the employee to the position of VP on the basis of age discrimination. The employee established a prima facie case for race discrimination; the mere fact that the successful candidate for the VP position (51 when hired) was significantly younger than the employee (67 when the new VP was hired) was a reliable indicator of age discrimination, noted the court. The employer stated a legitimate, nondiscriminatory reason for hiring the new VP by pointing out that she was a qualified candidate who came highly recommended with particular praise for how she interacted with faculty and administration.
“A more youthful approach.” The employee pointed to several incidents showing that the employer acted with discriminatory intent when choosing not to promote her: Her references were not checked, her interview with the headhunter was perfunctory, and she never appeared on the headhunter’s list of candidates being considered. This was not enough to show discriminatory intent, since the employee was an internal candidate and the person responsible for hiring a new VP, the operations manager, had plentiful opportunities to observe her work up close that made lengthy interviews and a thorough reference check unnecessary. However, a comment made by the operations director that he was “looking for a more youthful approach” and that “the office is going to be different,” could convince a reasonable jury that the employee’s age was a “but for” cause of the decision not to hire her as VP, especially since the remark bore directly on the position for which the employee was the oldest candidate and was made by a key decision-maker.
Same actor. The court next rejected the employer’s argument that, because the operations manager was the person who hired the employee (then 61) and promoted her to the position of director, he could not have made his decision not to promote her to VP on the basis of her age. While the operations director did promote the employee to director, that was only an interim position, and she was told that the VP position was being created as she was promoted to director, facts which minimized the application of the same actor defense. The note written by the headhunter marking the employee as “mid 60’s to Retire” was also slightly probative of discrimination. Based on the collected facts, a reasonable jury could find that the employer failed to promote the employee because of her age.
Termination. The court next turned to whether a reasonable jury could find that the employee was terminated on the basis of her age. The employer’s non-discriminatory reason for the employee’s termination was that the new VP had continuing complaints about the employee’s attitude and performance, and that the new VP thought that the employee had hijacked a departmental presentation for her own self-promotion. Unlike her arguments concerning the employer’s failure to promote her, the employee did not show that the employer’s offered reasoned was a pretext for age discrimination.
Souring relations. Considering the factual circumstances the hospital offered to support its decision, the court noted that the new VP decided not to renew the employee’s contract. While she previously indicated that she planned to renew it, she wrote in later communications with coworkers that “working with [the employee] is misery.” The employee’s behavior during a an hour-long meeting when she spoke for 45 minutes, well over her allotted time, further soured relations. Finally, the new VP decided to end the employee’s association with thehospital earlier than she originally intended after speaking with the operations director. While this might cast doubt as to who exactly made the decision to let the employee go, there was no indication that it had anything to do with her age.
The court denied the employer’s motion for summary judgment with respect to the employee’s promotion and granted the motion with respect to the employee’s termination.
By Dan Selcke, J.D.