If a conversation with one's supervisor about applying for a promotion results in a question about age and a response by the supervisor when she found out that the applicant was 63 that the applicant would "probably not" get the position, coupled with

Question

the fact that the applicant had better performance evaluations than the younger woman who was awarded the position, would not a reasonable lay person in the position of the applicant think she had been discriminated against because of age?

Answer 1

Ms. Zippittelli would have a reasonable basis to think that she had been discriminated against because of her age on the facts of this case as they initially developed. She filed a charge with the EEOC on this matter, and in the investigation and conciliation process before the EEOC she would be informed of her burden of proof under a "direct evidence discrimination theory" and under the McDonald Douglas model. A critical evaluation at this point matching up her facts with the legal theories should have indicated that her case was not strong. The EEOC issued her a "right to sue" letter, and she hired an attorney to evaluate and pursue her case on the age theory (and other theories) of discrimination. Discovery and depositions followed. This expensive process for the plaintiff and the employer sometimes yields evidence allowing a plaintiff to build a solid case. A solid case meeting the high standards of proof required did not develop in the pre-trial procedures, however. After perhaps thousands of dollars in legal fees at this point, one could speculate a decision to "go for it with the jury", who in their common sense and experience might see the discrimination perceived by the plaintiff and award her damages. However, the defendant's motion for summary judgment was granted for the reasons set forth in the opinion, and the matter did not get to a jury. If no material fact in the case is disputed, either party may file a "motion for summary judgment". Using affidavits or deposition testimony obtained in discovery, the moving party was able to establish that there were no factorial issues in dispute and the case could be decided as an issue of law by the judge.