In order for a plaintiff to prove age discrimination, he/she must show that age is a “but for” reason for the termination or other employment action. In other words, but for the plaintiff’s age, the termination decision would not have occurred. Last month in an unpublished opinion, the Fourth Circuit Court of Appeals (which includes North Carolina and South Carolina) affirmed dismissal of an age claim on summary judgment despite testimony that the supervisor told the plaintiff that he was too old for the job and needed to retire.

In Arthur v. Pet Dairy, the plaintiff was a route delivery driver who experienced repeated performance problems and threats of termination. Pet finally fired him after receiving notice from its largest customer in the area regarding the plaintiff’s work deficiencies, and demanding his replacement. The plaintiff sued, noting the manager’s earlier comments as proof that the decision was motivated by his age.

The Fourth Circuit disagreed, affirming dismissal of the suit on summary judgment. The court concluded that the plaintiff could not raise a prima facie case of age discrimination because he could not demonstrate that he met the employer’s legitimate performance expectations. The customer complaint served as clear evidence of these performance problems. The employer’s failure to terminate the plaintiff for prior work problems was not evidence of satisfactory performance. The supervisor’s derogatory comments did not create a “but for” reason for termination, because they were separated in time from the customer complaint. More importantly, the performance problems demonstrated clear, independent grounds for termination despite the age-related comments.

Employers should obviously train managers not to evaluate employees or make comments based on protected classifications such as age. However, isolated remarks that involve these classifications do not get plaintiff’s claims before a jury if the employer can demonstrate compelling independent business reasons for the adverse employment decision.