67-Year Old Employee A “Carry Out” – He Will Pass Away On The Job

As you likely know if you are a reader, I “collect” direct and indirect evidence of age discrimination.  That is, with a zeal and laser-like focus not usually found in attorneys my age (joking!), I search for and post about the different language used by employers to refer to their employees “of a certain age.”  Employers can be very creative – to their own detriment – in crafting terms or phrases synonymous with “old.”

How about “he is a ‘carry out’ — he will pass away on the job.”

Emergency, Rescue, Stretcher, Injured

Here’s my previous post:

“For example, you do not call an employee ‘old’ or ‘ancient’ (I once had a case where the boss referred to another employee of the same age as the one he fired as “ancient”) since that is direct evidence of age discrimination. You stay away from calling an employee ‘old school,’ or ‘set in his ways,’ or ‘not a proper fit for the “new environment,’ or ‘lacking in energy.’  And, of yes, ‘Hang up your Superman Cape,’ and ‘get it together you f…. old people’ should also be avoided (although the latter remark can hardly be considered particularly well “coded”).”   The same with ‘looks old,’ ‘sounds old on the telephone,’ and is ‘like a bag of bones.’” (See my post from a week ago).

Let’s Look At A New Decision

I just found a new decision from the federal court in NYC in which a 67 year old employee sued for age discrimination (as well as gender, national origin and ethnicity discrimination under Title VII) which provides us some additional age-related language (and jokes) which plaintiff alleged show age animus.

The case is worth discussing, however, because the allegations of age discrimination were summed up by the Court in a few sentences and give us a chance to see what must be pleaded in an age case, or conversely, what is insufficient in an age case.

The Complaint Allegations

The Court noted the allegations concerning age as follows:

“Plaintiff alleges he was “frequently the brunt of embarrassing and hurtful age-related jokes.” Plaintiff alleges the following three facts: (i) one of the jokes was “at age 67, [p]laintiff had four children who were barely teenagers”; (ii) “[p]laintiff’s superiors allowed him to be depicted as old and decrepit in unflattering cartoons”; and (iii) one of the jokes plaintiff’s superiors condoned was “referring to [plaintiff] as a ‘carry out’, i.e. someone who would pass away on the job.”  Plaintiff alleges these jokes were made or condoned by “peers,” “higher management,” or his “superiors,” including a Vice President of Human Resources. Plaintiff does not allege who said which comments, who created the cartoons, how his superiors “condoned” the comments and cartoons, or when these events occurred.

Plaintiff also alleges “[u]pon information and belief,” he was replaced by a ‘much younger female worker.’”

The Coded Age Language

Of interest, perhaps only to me, we now have a couple more age-related somewhat-coded  comments:  the employee as a “carry out;” some undescribed cartoons in which he is “depicted as old and decrepit;” and a joke that “at age 67, [p]laintiff had four children who were barely teenagers” (I am not sure what this is supposed to mean or imply).

Illustration of a grim reaper

But enough of the age language – what does this case mean?

Sometimes allegations which assert forth age-related comments, coded or otherwise, are just not enough to make out a plausible case, especially if they are unspecific and vague.  The comments sound ageist enough, granted, but they lack any evidentiary support.

Listen to the Court:

“[P]aintiff’s allegations that ageist comments and cartoons were made about him are too conclusory and lacking in sufficient detail to create a plausible inference he was terminated because of his age. … Of course, ‘verbal comments constitute evidence of discriminatory motivation when a plaintiff demonstrates that a nexus exists between the allegedly discriminatory statements and a defendant’s decision to discharge the plaintiff.’ …  However, plaintiff failed to allege when these acts occurred or who made the comments or cartoons that could support an inference of a ‘nexus’ between the comments or cartoons and his termination.

For instance, if [his alleged replacement] or plaintiff’s superiors made those age-related comments and cartoons, or if the age-related comments and cartoons had been made with some temporal proximity to the accusation or investigation of plaintiff’s alleged inappropriate or sexist conduct in the workplace, then those allegations might support a plausible inference that age played a role in his termination. Instead, plaintiff asserted only vague allegations devoid of a plausible nexus to his termination.”

Takeaway:  What else?  Forget the defects of this case, don’t make ageist comments, or jokes, or references, even if you think they are funny or harmless, or that you can escape the consequences – it’s not worth it.

See Franchino v. The Roman Catholic Archdiocese of N.Y., 15 CV 6299 (S.D.N.Y. June 15, 2016).

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Richard Cohen

Richard B. Cohen is a partner in the New York City office of FisherBroyles, LLP, a national law firm. Richard Cohen has litigated and arbitrated complex corporate, commercial and employment disputes for more than 35 years, and is a trusted advisor to business owners and in-house counsel both in the United States and internationally. His clients have included Fortune 100 companies, domestic and foreign commercial and investment banks, Pacific-rim corporations and real estate development companies, as well as start-up businesses throughout the United States. Email Richard at [email protected]