Where the record showed an employee’s position was eliminated because of a need to downsize and because he scored the lowest of three sales managers on a decision matrix, a federal trial court in Virgnia concluded that his age discrimination and retaliation claims could not go forward.

Age bias

Plaintiff William Farley sued CMFG Life Insurance Company, or CUNA, for wrongful termination, retaliation and failure to hire under the Age Discrimination in Employment Act. CUNA moved for summary judgment on all counts.

In a force reduction case, a plaintiff must prove that (1) he was 40 years of age or older at the time of the termination; (2) he was qualified for the job and performing in accordance with his employer’s legitimate expectations; (3) his employer nonetheless discharged him; and (4) his “job duties were absorbed by employees not in the protected class or … [the employer] did not treat [the plaintiff’s] protected characteristics neutrally when deciding to terminate [him].”

Here, Farley has not shown that CUNA disbursed his job duties to other employees not in the protected class and has not established that a material issue of fact exists as to whether CUNA treated his age neutrally in the decision to terminate him. Farley has provided no evidence to support his assertion that age constituted the but-for reason for his termination or that his age was the reason for the elimination of his position.

Further, even if Farley had established a prima facie case of discrimination, Farley does not cite to any evidence in the record to challenge CUNA’s stated reason for terminating his employment: that the select segment needed to downsize and he scored the lowest of the three sales managers on the decision matrix. The suggestion that a vice president at CUNA held personal animus against Farley is not sufficient to demonstrate that CUNA’s real reason for termination was Farley’s age even if Farley has shown that the company’s basis was “false.”

Retaliation

To establish a prima facie case of retaliation, Farley must demonstrate that (1) he engaged in protected activity; (2) his employer took adverse action against him and (3) a causal connection existed between the protected activity and the adverse action. Assuming two emails sent by Farley constituted protected activity under the ADEA, the evidence does not raise a genuine dispute over whether Farley’s protected activities caused his termination.

Failure to hire

Farley alleged that both during and after termination of his employment, CUNA failed to hire him for other positions because of his age. However, Farley does not address this claim in his brief in opposition to summary judgment. Farley’s abandonment of his failure to hire claim constitutes a concession that summary judgment is appropriate on the claim.

The case is Farley v. CMFG Life Insurance Company.