Way back in September 2013 we wrote that age cases would not be age cases if not for the vast number of creative ways employers refer to employees as “old.”

We reported on cases in which the following terms were used:  “ancient,” “old school,” “set in his ways,” “not a proper fit for the “new environment,” “lacking in energy,” “not being up to date,” “sounds old on the telephone,” “is like a bag of bones,” “not enough runway,” and “a little long in the tooth.”

In that same post we discussed an appeals court decision which was reported at the time in which a 76-year old security guard in Missouri claimed that he was fired because of his age, and his direct evidence of this was his supervisor’s comment to him, among other things, that he “needed to hang up his Superman cape.”

New one for our list.

old cape man : Full length portrait of an elderly in superhero costume isolated on white background

The appeals court panel held 2-1 that the employee stated a prima facie case of age discrimination.

But wait!

We have just learned that the full bench of 12 federal appellate judges re-heard the case, and by a 9-3 vote reversed the prior decision – holding that while plaintiff indeed proffered direct evidence of age animus, such as the “Superman cape” comment, he nonetheless failed to show that the reasons given for his firing were pretextual.

Takeaway:  Don’t pick up your erasers — there was nothing in the new decision that would lead us to delete this “Superman” comment from our ever-growing list of age-related comments.