A sixty-two year old employee who worked for a steakhouse in Florida was fired for alleged performance reasons.  However, he sued and claimed that he had direct evidence that he was fired because of his age:  his boss referred to him as an “old dinosaur,” and said that she thought that he was “too old to do the job” and that he was “just getting old.” The two higher bosses told his boss that “it was either her or [the employee]” and that “she needed to go younger.”

Although one might think that this was sufficient direct evidence of age discrimination to defeat the employer’s motion for summary judgment, one would be wrong, according to the Court:

“Direct evidence of discrimination is evidence which establishes discriminatory intent without inference or presumption.” “[O]nly the most blatant remarks, whose intent could mean nothing other than to discriminate on the basis of some impermissible factor constitute direct evidence of discrimination.”  

The Court held that none of these comments constitutes direct age discrimination evidence; they “are not directly related to [his] termination.  Thus, although some of these statements may arguably suggest discriminatory animus, none are blatant remarks from which employment discrimination can be found without the aid of an inference.”

However, the Court did find that these comments, when coupled with the factual dispute raised by the employee that he had cured his performance deficiencies created a circumstantial case of age discrimination which would “permit the inference that the defendants were trying to get rid of [him] due to his age. … [and] permit a fact-finder to conclude that the plaintiff was terminated due to his age.”   

The employee is still required to prove at trial that age was a factor in his firing, but surviving summary judgment was likely his biggest hurdle, and with the comments he claims to have heard or been made aware of a jury may very well find his way.