Dive Brief:

• A 59-year-old dispatch supervisor was criticized for his "dinosaur age related theories" has survived a motion for summary judgment on his age bias claim (Cyr v. Hannaford Bros. Co. LLC, No. 2:17-cv-00321-GZS (D. Maine, March 12, 2019)).
• Alleged "cold shoulder" treatment, cancellation of a long-term project, a performance improvement plan, a suspension and a change in hours did not meet the legal standard for adverse employment actions, but the employee's termination did, the court noted.
• The "dinosaur" comment was "highly probative" of discriminatory animus, said the court, because it was: (1) made by the decisionmaker in the plaintiff's termination; (2) causally connected to the termination; and (3) made within six months of the termination.

Dive Insight:

The comment in question came after the plaintiff, Robert Cyr, complained about a policy relating to speed limits for drivers. In response, his manager's boss said they needed to move away from Cyr's "dinosaur age related theories." Also relevant was the fact that Cyr had never been counseled about his performance, but was fired for allegedly falsifying driver logs and replaced with a 38-year-old.

The "numerous contradictions" in the record suggested pretext, the court said in refusing to dismiss Cyr's claims, adding that it was "difficult to interpret [the] 'dinosaur age related theories' comment as anything other than disdainful of Plaintiff's advanced age," and that "discriminatory statements made within six months of an adverse action can be considered temporally proximate to that action."

While the court in this case cited six months as a benchmark, there is no hard-and-fast rule about how close in time one action must occur to another in order for it to be suggestive of bias. But, in general, the closer in time, the worse it tends to look for employers — and timing alone can establish a prima facie case, according to experts.

Manager training is essential to avoiding these types of claims, particularly for those new to their roles. In this case, Cyr had enjoyed a blemish-free three decades with the employer until management changed hands. HR can work to ensure discipline is applied evenly, and double check terminations that seem out of place.