Why it matters

Does a supervisor’s comment about a “new face” constitute age bias? The U.S. Court of Appeals, Eighth Circuit answered in the negative in a case where the plaintiff accused his employer of violating the Age Discrimination in Employment Act after his supervisor made the comment and the plaintiff was subsequently terminated. James Aulick alleged that in 2012, his new supervisor issued a memo expressing disappointment with his division’s performance, suggesting the company should explore other managerial options. When an outside individual was hired for the role, the supervisor stated it was based in part on a desire for a “new face.” After Aulick was terminated in 2013—at the age of 63—he sued, pointing to the comment as evidence of age bias. But the federal appellate panel disagreed, affirming a district court’s grant of summary judgment. “The comment about a ‘new face’ was facially and contextually neutral when made to Aulick,” the Eighth Circuit wrote. “No reasonable fact finder could hold otherwise.”

Detailed discussion

An information technology professional, James Aulick was hired by Skybridge Americas when it purchased the company he worked for in 2011. The company comprised a warehouse and distribution business that fulfills orders (where Aulick worked as the senior IT director) and a call center business.

In 2012, the Skybridge CEO submitted a memorandum on the fulfillment division, writing that management was not optimum, discussing Aulick’s shortcomings as a leader and suggesting that “other alternatives for management of IT” be explored. The company also conducted an external audit and decided to combine the separate IT departments of the fulfillment business and the call center into a single unit overseen by a chief technology officer (CTO).

Aulick, who knew that one person had already been offered the job and had turned it down, interviewed for the new position. He was told, “The job is yours to lose,” but was also cautioned that he was “not guaranteed to get this position.” When an external candidate was selected, the CEO repeated the phrase “new face” four times, leading Aulick to believe that the comment was related to his age.

A few months later, Aulick and two other employees, all of whom were over the age of 60, were terminated. Aulick sued, alleging that Skybridge violated the Age Discrimination in Employment Act (ADEA) as well as state law in its failure to hire him for the CTO position and its subsequent termination of him.

A district court granted summary judgment in favor of the employer, and the U.S. Court of Appeals, Eighth Circuit affirmed.

Aulick first tried to demonstrate direct evidence of discriminatory animus based on the CEO’s repeated use of the term “new face,” but the court was not persuaded. “The comment about a ‘new face’ was facially and contextually neutral when made to Aulick,” the panel wrote. “No reasonable fact finder could hold otherwise.”

The plaintiff then attempted to rely on circumstantial evidence after the court found that Skybridge articulated legitimate, nondiscriminatory reasons for selecting another candidate and terminating Aulick. As evidence of pretext, Aulick pointed to the fact that no one at Skybridge accepted responsibility for the decision to terminate him, with various executives giving contradictory statements as to who fired him.

“No reasonable juror, however, could infer pretext from these facts because there has been no substantial change in the reason given for Aulick’s termination,” the court said. “Aulick’s argument centers on the issue of who made the decision to terminate him. But the analysis at the pretext stage revolves around why an employment decision was made. The reasons given for Skybridge’s employment decisions concerning Aulick have remained constant.”

The employer’s reasons for hiring the external candidate were based on his experience with both call centers and fulfillment businesses, while Aulick had never worked with the call center. Once the CTO position (created as a result of “an independent audit and not animus”) was filled, Aulick’s job was superfluous, the court added. “The record also shows that [the company] had hired three new executives over the age of 57 in the two years prior to Aulick’s termination, further undercutting any claim of age discrimination.”

Concluding that Aulick failed to show a genuine issue of material fact as to pretext, the panel affirmed summary judgment in favor of Skybridge on both the state and federal age discrimination claims.

To read the opinion in Aulick v. Skybridge Americas, Inc., click here.