As a general rule, when a plaintiff in an age discrimination case alleges that a decision maker frequently referred to him as an “old man,” and the plaintiff was replaced by a younger employee, the plaintiff probably has a pretty decent case. At the very least, the judge is going to let the case go to trial.  Generally speaking… 

But what if the plaintiff got fired the day after he allowed a truck carrying a 70-feet steel beam to slide 15 feet into his employer’s wall, knocking the wall down?  And what if customers had complained about the plaintiff’s job performance? And what if the plaintiff admitted that he was excessively chatty, disrupted other employees, and slept on the job?  Will the “old man” comments and the fact that he was replaced by someone younger be enough to defeat the employer’s summary judgment motion?

Not according to the Eleventh Circuit Court of Appeals.  In Ritchie v. Industrial Steel, Inc., Case No. 10-10945 (11th Cir. May 19, 2011), the court, faced with the above facts, affirmed the district court’s grant of summary judgment to the employer.  The court noted that the plaintiff failed to show that the age-related comments were related to the decision to terminate his employment; thus, they were not direct evidence of discrimination. And, the plaintiff failed to show circumstantial evidence of discrimination because he could not demonstrate that the employer’s explanation that he was terminated for performance-related reasons was pretextual. 

The Ritchie case serves as a reminder to employment law practitioners to evaluate all the facts of a case before making a prediction about the outcome.  Discriminatory comments by decision makers are never good facts for an employer.  But sometimes, an employee’s poor performance is so apparent and indisputable that even discriminatory comments by the decision makers are not enough to get the case to a jury.  In other words, when an employee is terminated after he accidentally knocks down his employer’s wall, he’s got a tough row to hoe to prove discrimination.