“Old timer” remark does not prove age discrimination

Raymond Nidds, a highly-experienced employee in his 50’s, learned that his supervisor said he intended to get rid of all the “old timers” because they would not “kiss my ass.” Some months later, Nidds was laid off, and most of his duties were assigned to 25-year-old Greg Cardenas, a former “helper” employed by the company who had passed his mechanic’s test only 30 days earlier. This younger employee did have more seniority than Nidds. However, Nidds filed a claim of age discrimination.

The company re-hired Nidds about four months after the layoff. Nidds received complaints about his work from customers and co-workers, but continued working the same route for over a year. Then his supervisor asked him if he was still suing the company. He said yes. Two months later he was reassigned to another job which he perceived as demotion but which had the same pay. He then filed a second claim of discrimination.

Two months later, the company transferred him again, this time to a service route in a high crime area. Again Nidds received customer complaints, and his employment was terminated.

Perfect age discrimination and retaliation case? Not according to the Ninth Circuit federal Court of Appeals. The court held that the employer had legitimate business reasons for each of its decisions, and that the “old timers” remark was ambiguous and not directly tied to any decisions concerning Nidds. Therefore, the company won.


For case excerpts:

Nidds cites the “old timers” comment allegedly made by Graham as evidence of a discriminatory motive. That comment, however, was very much like the comments in Nesbit v. Pepsico, Inc., 994 F.2d 703, 705 (9th Cir. 1993), which the court held did not support an inference of discriminatory motive. In Nesbit, the plaintiff’s immediate supervisor commented to Nesbit that “[w]e don’t necessarily like gray hair.” The court found that the “comment was uttered in an ambivalent manner and was not tied directly to Nesbit’s termination,” and upheld the grant of summary judgment in favor of the employer. Id.

Similarly, Graham’s comment was ambiguous because it could refer as well to longtime employees or to employees who failed to follow directions as to employees over 40. Moreover, the comment was not tied directly to Nidds’ layoff. Like the comment in Nesbit, therefore, it is weak evidence and not enough to create an inference of age discrimination.

Also distinguishable is Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406, 1411 (9th Cir. 1996), petition for cert. filed, 65 U.S.L.W. 3085 (U.S. July 10, 1996) (No. 96-70), upon which Nidds relies. There, we reversed the grant of summary judgment in favor of the employer where the employee had alleged “that on three separate occasions, when he asked to be considered for president, he was told the Board wanted somebody younger for the job” and had submitted evidence to the same effect in the form of meeting notes and an affidavit of a coworker. Nidds’ evidence, by contrast, is neither as direct nor as weighty. It is not enough to support an inference of age discrimination.

Nidds v. Schindler Elevator Corp.
___F.4th ___, 96 C.D.O.S. 9374 (9th Cir., December 24, 1996)

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.

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