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O'Reilly v. Marina Dodge, Inc., No. 10-2977 (2d Cir. May 19, 2011)

The Second Circuit, in an non-precedential opinion, reverses summary judgment and remands an ADEA and New York State Human Rights Act claim back to the district court for trial. The panel concludes that something seemed to smell when a 59-year-old auto service department employee was dropped in favor of 36-year-old, . . . .and the best that the employer could produce was affidavits of witnesses - years after the fact - disparaging the employee's organizational skills, flexibility and attitude.

O'Reilly v. Marina Dodge, Inc., No. 10-2977 (2d Cir. May 19, 2011): The parties agreed that the employee had made out a prima facie case of age discrimination. The only question presented, below and on appeal, was whether there was enough evidence that the employer's proffered reasons for firing the employee were unworthy of belief.

The panel holds that a jury could disbelieve the employer's post hoc criticisms of the employer. It gives the following reasons:

1.  " . . . Marina Dodge presented no contemporaneous evidence that O'Reilly's job performance was lacking. O'Reilly never was told that his job performance was unsatisfactory, never was disciplined, never received a written or verbal warning, never was told he was not producing enough, and never was sent a termination letter detailing the reason he was fired."

2.  "In contrast to the lack of contemporaneous evidence of poor work performance, there is abundant evidence of O'Reilly's good work performance. One week after he was fired, O'Reilly's supervisor, Paul Lootens, wrote a glowing letter of recommendation, stating that 'O'Reilly during his employment beginning in 1999 has performed with great excellent quality of customer satisfaction.' Not one word in the letter is negative or lukewarm, and a jury could find that the letter contains the truth about O'Reilly's performance."

3.  "[T]here is no evidence that O'Reilly ever was disciplined for not bringing in enough work or for being disorganized, nor is there evidence that he was spoken to about these matters."

4.  "O'Reilly was ten or fifteen years older than everyone in the Service Department and his fellow employees made fun of his memory (of names and directions), his speech tics, and the shape of his bald head. Although it may be a close factual call, a reasonable jury could find that the employees - including President Gabriele and Supervisor Lootens, who participated directly in the decision to fire O'Reilly - were relying on stereotypes of older people when they 'teased' O'Reilly."

5.  "Marina Dodge's claim that O'Reilly resisted 'new initiatives' while at Marina Dodge must be evaluated in light of the arguably ageist jokes O'Reilly suffered at Marina Dodge. A common stereotype of elderly people is that they resist change and new approaches. A reasonable jury could find that Marina Dodge's claim that O'Reilly resisted 'new initiatives' was a pretext for Marina Dodge's desire for a younger employee to interact with customers and was based on Marina Dodge's unfounded assumption that a younger (36-year old) employee would better implement 'new initiatives' than an older (almost-59-year old) employee."

Finally, the panel discredited an inference of non-discrimination from the fact that there were older employees working in other departments. 

"Although people above age 59 worked at Marina Dodge after O'Reilly was fired, none worked in the Service Department. A reasonable jury could find that Marina Dodge did not (and does not) believe that older people are unsuited for all work at Marina Dodge - but that Marina Dodge believed that such people are unsuited for high-pressure sales work in the Service Department, including convincing customers to pay for more (and more expensive) maintenance or repairs. Age discrimination is illegal, regardless of whether it is targeted at certain jobs."

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