We tend to collect age discrimination cases in which employers use all kinds of different words and terms to refer to an employee’s age, except “old.”

On July 25th we warned employers (which we do often) “not to call an employee ‘old’ or ‘ancient,’ which is clear direct evidence of age discrimination, and not to use code words, such as calling an employee: ‘old school,’ or ‘set in his ways,’ or ‘not a proper fit for the “new environment,’ or ‘lacking in energy,’ or ‘not being up to date,’ or ‘sounds old on the telephone,’ or “is like a bag of bones. … We later added ‘a little long in the tooth’ to our list. … One does not need legal advice to know that these comments are unlawful.”

However, a new case illustrates that sometimes words and expressions are ambiguous and the intent of the person uttering them is anything but clear.

Plaintiff, an IRS agent, was 55 years old with and had reached the minimum retirement age – that is, he was eligible to retire if he wanted to.  However, a position became available to which Plaintiff applied, which would have been a promotion.

Plaintiff was not promoted, and contended that this was age discrimination because the person who made the promotion selection — one Sereti — allegedly told Plaintiff’s union rep that “she would not promote [him] because he ‘was ready to retire,’ and she wanted a candidate who would fill the position ‘on a consistent basis for years to come.’”

In fact, Plaintiff never had an intention of retiring, and worked for at least another four and a half years, and it appears that the only reason that he was thought “ready to retire” by Sereti was simply her assumption based upon the fact that he was eligible to retire.

The Court denied a motion to dismiss made by Defendant, finding that the key to the motion “depends entirely on what Sereti meant by ‘ready to retire’. … If Sereti merely intended to distinguish between those applicants who were and were not immediately eligible to retire, her comment would not support an inference of discrimination. The ADEA does not prohibit adverse employment decisions based on any reasonable factor other than age, even if such a factor is correlated with age: for example, retirement eligibility or pension status.”

However, the Court held that “As it stands, the record does not permit the Court to determine precisely what Sereti meant by the pleaded ‘ready to retire’ comment; nor does a Rule 12(b)(6) motion [to dismiss] call upon it to do so. … The Court concludes that [Plaintiff] has plausibly pleaded that Sereti assumed, on the basis of his age, he intended to retire presently and decided against considering him for the available promotion on the basis of that belief. Whether such an inference survives summary judgment is a matter for another day.”