Pressing an Employee About Retirement Can be Evidence of Age Discrimination

Employers are often tempted to make inquiries to older employees about their retirement plans. At times these inquiries are motivated by a desire to be prepared for future staffing needs in the event of a retirement, but at others they are driven by a desire to rid the workplace of “dead wood” to make room for “fresh talent.” However, federal and state law prohibit age discrimination in employment and employers must tread carefully when making any inquiries about an employee’s retirement plans. Although an employer is permitted to make proper inquires under certain circumstances, one employer found out how easily these inquires can bu used as evidence of age discrimination.

Recently, the District Court of New Jersey denied Defendants, Wildwood Beach Patrol and two individual employees, summary judgment on Plaintiff Louis Cirelli’s age discrimination claim, on the basis that Plaintiff offered sufficient evidence of discriminatory animus. Along with a reduction in Plaintiff’s duties and responsibilities, the court noted that Defendants’ questions to Plaintiff regarding how long Plaintiff, who was 66 years old, intended to work for the Wildwood Beach Patrol was evidence of unlawful discriminatory treatment constituting a discriminatory animus sufficient to deny Defendants’ motion for summary judgment.

Facts: Plaintiff Louis Cirelli, age 66, was employed by the Wildwood Beach Patrol for 48 years. According to Cirelli, in 2011 the Commissioner of Public Safety and Cirelli’s immediate supervisor asked him when he was going to retire, told him to concentrate on his administrative duties, and delegated his operational duties to the Captain of the Beach Patrol who was 20 years younger. At a 2012 meeting the Captain asked Cirelli “just how long are you going to be hanging around here?” According to Cirelli, at that same meeting the Captain presented him with a list of “Best Practices” for the Beach Patrol. Finally, Cirelli maintained that his name was not included on the Beach Patrol website and on training information and forms provided to new lifeguards. Cirelli had net been subject to any prior reprimands or discipline.

In May 2012, Plaintiff submitted a complaint to the City’s Director of Human Resources alleging age discrimination and hostile work environment, who thereafter investigated the complaint and issued a report without further input from Cirelli. As a result, Cirelli filed a discrimination charge the Equal Employment Opportunity Commission (“EEOC”) on July 11, 2012, which was served upon the City on July 23 or July 24, 2012. Cirelli was terminated for poor job performance on July 24, 2012 and filed a second EEOC charge. After receipt of a right right-to-sue letter from the EEOC, Cirelli initiated an age discrimination suit in the Federal District Court, District of New Jersey. Predictably, the City files a motion for summary judgment seeking to dismiss Cirelli’s suit.

Ruling: The Court denied the City’s motion, finding that Cirelli established a prima facie case of age discrimination and hostile work environment. Although the City pointed to various alleged performance deficiencies by Cirelli, the court deemed these reasons were pretextual. In addition, the court found ample evidence of discriminatory age animus to survive summary judgment, including the City’s reduction of Cirelli’s duties, shutting him out of staff responsibilities, inquiring into when he planned on retiring, and promoting the far younger employee who had assumed his former duties into Cirelli’s position once he was terminated. Likewise, the Court denied Defendants’ motion for summary judgment on Cirelli’s retaliation claim, pointing to the timing of the service of Cirelli’s EEOC and his termination.

Takeaway: Employers should be cautious in making suggestions or questioning employees about their retirement plans to avoid liability under the ADEA. Although other evidence of unlawful discriminatory treatment was present in this case, the court noted that the questions from superiors regarding how long Cirelli planned to work contributed to its finding of sufficient evidence of age discrimination. Employers should effectively train supervisors to avoid conduct towards older employees that may be viewed as evidence of discriminatory treatment supporting an employee’s age discrimination claim.