When the Employment Lawyer Becomes the Plaintiff: Lessons from an ADEA Case

In a recent decision, the United States District Court for the Southern District of New York granted summary judgment in favor of the defendant, dismissing the plaintiff’s age discrimination claims under the Age Discrimination in Employment Act (ADEA). This case serves as a critical reminder for employment lawyers and human resources professionals about the stringent requirements for establishing a prima facie case of age discrimination under the McDonnell Douglas framework. And yes, it also serves as a reminder that sometimes, the law can be as unforgiving as a Monday morning without coffee.

The plaintiff, an employment lawyer and former Associate Counsel for employee benefits with a history of documented performance issues alleged that her employer terminated her because of her age.

The plaintiff did not have any direct evidence of age bias. After all, “Hey, you’re too old for this job” cases are about as rare as my pet unicorn. And, no, you can’t pet her. Indeed, the court highlighted that the plaintiff did not identify any age-based disparaging or discriminatory comments made by her supervisors or colleagues.

Instead, she had to present evidence that her termination occurred under circumstances giving rise to an inference of discrimination. She began by attempting to show disparate treatment by comparing her situation to that of younger employees. She argued that younger attorneys with similar performance issues were not terminated. However, the court noted significant differences between her and the younger employees, particularly the long-standing and documented concerns about her performance. The court emphasized that isolated instances of negative feedback for younger employees did not equate to the sustained performance issues noted in the plaintiff’s record.

Indeed, the court found ample evidence of consistent concerns regarding the plaintiff’s performance long before her termination. Testimony from senior leaders and direct supervisors, along with documented performance reviews, indicated ongoing issues with her communication and drafting skills. In other words, her performance reviews read like the Dallas Cowboys’ playoff performances—consistently underwhelming and falling short of expectations.

For employment lawyers and HR professionals, this case is a reminder to meticulously document performance issues and ensure termination decisions are based on legitimate, non-discriminatory reasons. It also highlights the necessity for plaintiffs to present more than just subjective beliefs or isolated instances of differential treatment to survive summary judgment in age discrimination cases.

Because, in the end, the law doesn’t care about your feelings—it cares about the facts.