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Stray Comments Can Be Smoking Gun in Age Discrimination Suits

Age discrimination can be difficult to prove, but if you have evidence that your supervisor said he wants someone younger, you may have the smoking gun you need.

Robert Scheick was a 56 year old high school principal employed by the Tecumseh Public School system in Michigan. He began his position at the high school when he was 51 years old and, for the first three years, was employed directly by Tecumseh Public Schools (TPS). He retired from TPS after he turned 54, at which point he was hired by a staffing firm under a three-year contract between TPS and the firm. Under the arrangement, he received pension and medical benefits from the retirement system and TPS avoided over $29,000 in yearly payroll and benefit costs.

Scheick reported to the superintendent, who was ten years older. Prior to the non-renewal of his contract, the superintendent received complaints from parents, staff, and board members reflecting dissatisfaction with his performance and leadership. Two board members who had been teachers testified that they believed he was not effective. Scheick countered with favorable opinions from the assistant principal and the HR director.

The superintendent allegedly made statements suggesting age-based animus on three occasions. First, he allegedly told Scheck during his performance review on February 25, 2010 that the board wanted him to retire. The next day, he allegedly said that "they just want somebody younger." Finally, in a follow-up conversation on March 15, the superintendent told him that "they wanted someone younger" in reference to both of their positions.

Scheick sued after the non-renewal of his contract alleging age discrimination. He lost in the district court, but the Sixth Circuit Court of Appeals reversed the lower court decision. The Sixth Circuit found that the lower court erred in finding no direct evidence of bias. Though the superintendent's alleged statement that the board "wants you to retire" was insufficient, his statements that "they want someone younger" could be direct evidence. The first statement, made during the performance review, required an inference to conclude that retirement was a proxy for age. In contrast, the other two statements about wanting "someone younger" were not ambiguous and, if believed, did not require an inference to conclude that age was the primary cause of the nonrenewal decision.

Significantly, the statements represented direct references to age. Moreover, they were not ambiguous despite the lack of an explicit statement that "the board" wanted someone younger. Any suggestion that "they" could have referred to parents or staff was not credible. Rather, the superintendent could not have been referring to anyone other than the board.

Uncertainty about whether the superintendent was referring only to Scheck's position or also to the superintendent position did not make the statements ambiguous. Either way, he was at least referring to Scheick's position. There was also no ambiguity about whether the statements reflected the decision maker's intention. Since there was evidence that both the superintendent and the board were involved in making the nonrenewal decision, it was immaterial whether he was acting at the behest of the board or on his own with its input. Thus, there was sufficient direct evidence that Scheick's contract was not renewed due to his age.

The takeaway: In age discrimination claims, stray comments matter. Make a note of any statements made about your age, or age in general, made by anyone with decision making authority regarding your job.

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