In the face of a charge of discrimination, even an employer with ample documentary and other evidence supporting its adverse employment decision can be denied summary judgment and forced to proceed to trial when a decision-maker’s statements contradict the employer’s stated reasons for the decision or, even worse, suggest a discriminatory motive. Because such statements can be considered direct evidence of discrimination or support a finding that the employer’s stated reason for the unfavorable decision was pretextual, they may result in the rejection of an otherwise viable motion for summary judgment.

Comments About Plans for Retirement May Demonstrate Age-Based Animus

More than a few courts have denied summary judgment based at least in part on comments by managers conveying an expectation that an employee might soon be retiring. For example, in Sesso v. Mercy Suburban Hosp., Civ. Action No. 11-5718, 2013 WL 961625 (E.D. Pa. Mar. 13, 2013), when the plaintiff-physician expressed an interest in renewing his contract, hospital administrators commented that they assumed the sixty-three year old would be retiring. The hospital  offered several business justifications for its decision not to renew the physician’s contract. Nonetheless, reviewing these statements about retirement in the context of the hospital’s motion for summary judgment, the court held not only that were they sufficient to establish a prima facie case of age discrimination, but they could form a basis for a jury to either disbelieve the hospital’s asserted reasons for its action or find that they constitute actual evidence of discriminatory animus. 

Similarly, in Harris v. CVS Caremark Corp., No. 1:11-CV-732-VEH, 2013 WL 365259 (N.D. Ala. Jan. 29, 2013), a harmacist with CVS brought an age discrimination lawsuit, citing age-related remarks by his supervisor, including a question by the supervisor as to whether the pharmacist “planned to retire soon.” Although CVS pointed to specific evidence supporting the conclusion that the pharmacist was terminated for poor performance, the court held that a reasonable jury could infer age-related bias from the retirement comment and other comments by the supervisor. The court found that the plaintiff had provided sufficient evidence that the hospital’s reason for the termination decision was a pretext for unlawful age discrimination; thus, the request for summary judgment was denied.

Statements and inquiries concerning retirement can preclude summary judgment even where the employer has provided extensive verbal and written feedback concerning an employee’s unsatisfactory performance. In Roach v.Safeway, Inc., Civ. Action No. 12-cv-01239-RBJ, 2013 WL 1685837 (D. Colo. Apr. 18, 2013), the plaintiff, a store manager for Safeway, was terminated after he was disciplined for various performance issues. In support of its motion for summary judgment, Safeway cited to its issuance of numerous corrective action letters, multiple verbal warnings, a written warning, and a “final warning.” In opposition, the plaintiff pointed to statements by management concerning retirement, including, “Why are you still working? You should be retired by now, playing golf.” The court refused to dismiss the case, holding that the plaintiff provided sufficient evidence, including the comments and inquiries about his retirement plans, such that a reasonable jury could find that Safeway’s decision to terminate his employment was actually motivated, at least in part, by his age.

Even more problematic for employers who seek to end litigation by moving for summary judgment are comments by decision-makers that specifically link retirement to age and are related to the adverse employment decision. In these cases, the comments can be deemed direct (as opposed to circumstantial) evidence of age discrimination that, if believed, prove intentional discrimination without inference or presumption. In Hawthorne v. Truck Trailer and Equipment, Inc., No. 3:11cv518-CWR-FKB, 2013 WL 1664493 (S.D. Miss. Apr. 15, 2013), about one week before terminating the plaintiff’s employment, the defendant inquired of the plaintiff’s plans for the future, and when the plaintiff said he had no plans to retire, he was told, “At your age, David, you hadn’t even thought about retiring? You hadn’t made any plans to retire?” The court found those statements were age-related, proximate in time to the termination, made by an individual who was authorized to make the termination decision, and related to the employment decision at issue. As such, the court held that the statements constituted direct evidence of age discrimination and precluded summary judgment. 

Manager’s Age-Based Remarks to Senior Management Deemed Admissible, Resulting in Reversal of Grant of Summary Judgment

The California Court of Appeal recently held in Davis v.Los Angeles, No. B237760, 2013 WL 992228 (Cal. Ct.App. Mar. 14, 2013) that an age-based comment made outside the presence of the aggrieved employee should have been considered by the trial court and it reversed the lower court’s grant of summary judgment on this basis. At issue in Davis was a manager’s statement at a meeting with the company’s senior management about getting rid of “dinosaurs” in connection with a reorganization of the department. The appeals court decided that the statement should have been admitted as nonhearsay and reasoned that by excluding the statement from evidence, the trial court denied the plaintiff the opportunity to demonstrate that his transfer and non-promotion were tainted by age discrimination. The court held that the “dinosaurs” comment created a triable issue of fact sufficient to defeat summary judgment despite the employer’s purported reasons for its actions.

Executive’s Complimentary Remarks Concerning Plaintiff Show Pretext

Even remarks that reflect a positive assessment of an employee’s performance can preclude summary judgment if they undermine the legitimate business reasons cited by the employer. In Krager v. Takeda Pharmaceuticals America, Inc., 702 F.3d 1304 (11th Cir. 2012), the defendant claimed the decision to terminate the plaintiff, a manager at a pharmaceutical firm, was based upon her alleged violation of a company prohibition on providing gratuities to health care providers. However, when the plaintiff presented evidence that the executive who fired her stated that she was an “exceptional” employee who should not have been fired, the court held that a reasonable jury could find the executive’s statements showed the firm’s reasons for the action to be a pretext, perhaps for discrimination. The Eleventh Circuit Court of Appeals reversed the trial court’s grant of summary judgment and remanded the case for a trial on the question of whether the termination of the plaintiff’s employment was the result of age discrimination. 


While employers cannot completely insulate themselves from statements by managers that are inconsistent with the stated reasons for adverse employment actions or that otherwise show bias, employers can takes steps to minimize this risk. Human resources professionals should be directly involved in the performance management process, particularly when performance problems are to be addressed, and the communication of employment decisions. Managers should receive coaching before they discuss possible adverse actions with employees so that they may be sensitized to conduct that may increase the employer’s risk profile. In particular, managers should be sensitized to the risks associated with inquiring about the employee’s plans to retire or otherwise referencing retirement.