Ninth Circuit finds statements insufficient to establish age discrimination
In Pottenger v. Potlatch Corp. (9th Cir. 5/19/03), affirming summary judgment, Ninth Circuit held statements about “old business models”, “deadwood” and “old management team” were insufficient to establish that age discrimination, rather than employer’s stated reason — lack of confidence that plaintiff could make the hard decisions necessary to turn around troubled division of company he headed — was true reason for discharge
Efforts to rely on such alleged statements are commonplace, such allegations are easy to make and hard to disprove, and courts may find them unpersuasive for a variety of reasons.
Obviously, care should be taken to avoid statements that can be interpreted as age-discriminatory. The next best preventive measure is having a strong, well-documented, and consistently articulated reason for the allegedly discriminatory employment decision.
Note that here the stated reason was so subjective — the employer’s “confidence” — as to make it difficult to disprove, and it was supported by comments in a performance evaluation and evidence of a long process of evaluation and deliberation preceding the final decision. Had there been other evidence undermining the stated reason, a court might well have found these comments probative.
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