Loose Lips Sink Ships

03.08.2012
Nossaman eAlert

Does an age-related comment made soon before an employee’s termination constitute a stray remark or evidence of discrimination?  The EEOC is arguing it is evidence of age discrimination with respect to a 71-years old employee.

In October 2011, a New York federal judge rejected Bruton Fried’s claims under the Age Discrimination in Employment Act and New York City Human Rights Law (Fried v. LVI Services [PDF]).  The EEOC appealed and recently filed its appellate brief (March 2012), arguing that (1) the federal judge (trial court) dropped the ball  by characterizing an explicitly age-biased comment made within a month of Fried’s termination as a stray remark that was not probative of age discrimination and (2) the trial court erred by failing to view the evidence of age discrimination in the record as a whole.

The district court said Fried’s case hinged almost exclusively on an October 2010 conversation in which LVI president and CEO Scott State allegedly told Fried that he would be reassigning Fried’s responsibilities.  When Fried asked why, State said, ’Burt, you’re 71 years of age, how long do you expect to work.  And what if you get hit by a truck’— a bus, rather— ‘what if you get hit by a bus, and we have to plan for the future,’ Fried said.

Fried served as LVI’s president and CEO for 17 years.  In 2005 he became LVI chairman and a new president and CEO was selected in 2006.  In 2010, State was offered the president and CEO position and allegedly started inquiring about how Fried could be removed as chairman of the board and voicing his preference that Fried retire.

Stay tuned for a decision on the appeal.

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