Ignorance Is Bliss - At Least in the Context of an Age Discrimination Claim

Fox TV purchased station WWOR in New York as part of a package deal, which left it with two stations in NYC as it already owned WNYW, better known as Fox 5. Before the merger was completed the management of Fox TV reviewed duplicate positions at the two stations and gave the current owner a list of employees that should be terminated prior to the completion of the merger. (For "tax reasons" according to a footnote in the opinion).

The general sales manager at WWOR was 61 year old Brenda Goodman, who had worked for WWOR for 16 years. Fox TV decided that the general sales manager function for both of its NYC stations would be handled by the current general sales manager at Fox 5, who was 43.

In order to obtain her almost $350,000 severance payment, Goodman signed a release. Unfortunately it did not contain a release of any claim under the ADEA and thus was not a valid waiver under the OWBPA. Thus with money in pocket, Goodman sued Fox TV for age discrimination.

The issue quickly resolved itself to whether Goodman could establish a prima facie case. The only element in contention was the 4th, [whether] the adverse employment action occurred under circumstances giving rise to an inference of discrimination, such as the fact that "the plaintiff was replaced by someone substantially younger.” The quoted language was particularly reassuring to Goodman since it would be uncontested that the person selected for the combined position was "substantially younger" (22 years) than Goodman and it came from the Supreme Court decision in O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 313 (1996).

But in the best tradition of lawyers looking to the substance behind language rather than just the words, the lawyers for Fox TV argued more than mere replacement by a younger person was required -- the decision maker had to have knowledge of the substantial age difference. Here, although not without a valiant effort, Goodman was never able to overcome the sworn denial by all the Fox TV executives involved in the decision that they made it without meeting her, reviewing her file or otherwise acquiring any information about her age.

Given that, the Court resolved the question it found the Supreme Court had not been required to address in O'Connor, holding:

[We] join our sister circuits in concluding that a defendant’s discriminatory intent cannot be inferred, even at the prima facie stage, from circumstances unknown to the defendant. Thus, in an ADEA case, where a plaintiff relies on a substantial age discrepancy between herself and her replacement, she must adduce some evidence indicating defendants’ knowledge as to that discrepancy to support the inference of discriminatory intent required by the fourth prima facie factor. In cases where such knowledge is undisputed, which we expect to be most ADEA cases, a court need not specifically address this point; rather it may be assumed in considering whether the circumstances presented indicate intentional discrimination. But, where a defendant asserts that the record fails to indicate the requisite awareness, a plaintiff must adduce some evidence, whether direct or indirect, indicating a defendant’s knowledge as to the relative ages of the persons compared.

Woodman v. WWOR-TV, Inc. (2nd Cir. 6/13/05) [pdf].

Although relatively simple and not ultimately surprising, the Court still took 41 pages to analyze the issue and carefully rebut the numerous ways that Goodman tried to not only argue that the O'Connor language should be read literally, but if it was not, to imply or impute knowledge of her age to the decision makers. Failing to do so, her suit failed.