Appeals Court Emphasizes Big Picture


A federal appeals court has ruled that judges should not view evidence in age discrimination cases in isolation but should assess the big picture when deciding whether to dismiss the case. 

A three-judge panel of the U.S. Court of Appeals for the Second Circuit in New York said lower courts should view the record “as a whole.”

The panel reversed the  pre-trial dismissal of a case filed by Gene Friedman, 50, who was terminated by Swiss Re American Holding Corp. in  November 2008 in a supposed reduction in force. Thirty-one of the 37 employees who were terminated were over the age of 40.

The panel said the lower court erred when it granted Swiss Re’s motion for summary judgment because it viewed each piece of evidence in isolation instead of “the record as a whole, just as a jury would, to determine whether a jury could reasonably find an invidious discriminatory purpose on the part of an employer.” 

“For instance,” the panel said, “the district court discounted the allegation that Swiss Re replaced Friedman with a younger, less-qualified employee because ‘the replacement of an older worker with a younger worker or workers does not itself prove unlawful discrimination.’”

The panel also said the lower court erred by dismissing ageist comments by Friedman’s supervisor, Risto Wieland, as inadmissible hearsay. Wieland allegedly asked the age of every employee at a March 2007 staff meeting and  told Friedman, then 48, that his “hair and teeth would be falling out soon.” The statements were “nonhearsay, as Friedman did not seek to introduce them for their truth, but instead to show bias on the part of Wieland,” according to the panel.

Friedman also alleged he began receiving fewer end-of-year bonuses under Wieland’s supervision.

The appeals court panel sent the case back to the lower court for reconsideration.

The panel’s ruling inexplicably was issued in the form of a “summary order” that does not have precedential effect. However, the ruling is significant because age discrimination cases are particularly vulnerable to dismissal as a result of a 2009  U.S. Supreme Court decision that requires  plaintiffs to prove a higher standard of causation than is required under Title VII of the Civil Rights Act.  

The ruling came in the case of  Friedman v. SWISS RE AMERICA HOLDING CORP., Court of Appeals, 2nd Circuit 2016.  

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