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Byrnes v. LCI Communication Holdings Co.

12/11/1996

on.


First, it assumes that discriminatory comments about "older workers in general" are insufficient to support an inference of age discrimination. The lead opinion states that "this theory, called the `toothpaste tube' theory by the court of appeals, has no basis in law." Instead, it reasons, " ge-related comments referring directly to the worker may support an inference of age discrimination."


Leaving aside for the moment the lead opinion's characterization of the court of appeals' reference to oral hygiene, comments about "older workers in general" may indeed support an inference of age discrimination. Comments about entire groups or classes in society, particularly when directed at the desirability of employing them and their ability to work, are the very stuff of individual disparate-treatment cases. In fact, even courts which require direct evidence of discrimination to shift the burden of persuasion in a Price Waterhouse v. Hopkins (1989), 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268, "mixed motives" type of case do not preclude expressions of discriminatory animus from serving this function merely because they are general in nature. Thus, even " irect evidence of discrimination usually entails a general comment about a minority group in society. The courts infer from such a remark that the defendant had discriminatory animus toward the particular plaintiff in the particular job." Milligan-Jensen v. Michigan Technological Univ. (D.C.Mich.1991), 767 F.Supp. 1403, 1413, reversed on other grounds (C.A.6, 1992), 975 F.2d 302. See, also, Talley v. Bravo Pitino Restaurant, Ltd. (C.A.6, 1995), 61 F.3d 1241, 1249; Stacksv. Southwestern Bell Yellow Pages, Inc. (C.A.8, 1993), 996 F.2d 200, at 202-203; Linn v. Andover Newton Theological School, Inc. (C.A.1, 1989), 874 F.2d 1, 3-4; Sennello v. Res. Life Ins. Co. (C.A.11, 1989), 872 F.2d 393, 394-395; Miles v. M.N.C. Corp. (C.A.11, 1985), 750 F.2d 867, 874, 876. Even a cursory review of these cases reveals a myriad of comments which clearly support an inference of discrimination, despite the fact that they do not refer directly to the plaintiff-worker.


Second, the lead opinion concludes that comments which are "made in reference to totally unrelated employee categories cannot support a finding of age discrimination against employees in a wholly different classification." In this regard, it explains that " he remarks did not relate to Byrnes and Otto or the decisions to terminate their employment. They related to other persons and positions within the company, specifically an executive secretary and sales and marketing personnel."


The underlying assumption here is that discriminatory statements must directly relate to the challenged employment decision in order to support a finding of discrimination. Thus, in the absence of a direct relationship between the employer's ageist remarks and the decisional process at issue, an inference of discrimination is impermissible. In Radabaugh v. Zip Feed Mills, Inc. (C.A.8, 1993)9 997 F.2d 444, 449, the court explained:


"We do not believe corporate planning documents that set forth a company's overall direction and that demonstrate that a decisionmaker considers youth a positive factor (and, by inference, age a negative factor) can fairly be characterized as `stray remarks,' even if the documents do not directly relate to the challenged employment decision." (Emphasis added.)


In Cooley, supra, 25 F.3d at 1331, the court, in considering two ageist comments made by the employer outside the employment context about older people in general, stated that " lthough those two quoted comments were not made in the context of [plaintiffs] termination, * * * they do help t

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