Hyland v. American Int’l Group, 2010 WL 95059 (3d Cir., January 12, 2010) – The Third Circuit Court of Appeals has ruled that a plaintiff cannot demonstrate age discrimination merely by pointing to a “politically incorrect” comment made by the plaintiff’s direct supervisor months before, in an entirely different context.

The plaintiff was a lawyer whose position as senior attorney was eliminated. The employer hired an attorney nine years younger than the plaintiff for the position of Associate General Counsel. Although this age difference was sufficient to create an inference of age discrimination, the court found the differences between the two positions were so significant that a reasonable trier of fact could not conclude that the new attorney had “replaced” the plaintiff.

In a significant commentary on the purpose and application of age discrimination laws, the Third Circuit discounted a comment made by the plaintiff’s supervisor nine months earlier, in which he referred to the plaintiff as the “old man of the operation,” stating it was insufficient to support an inference of discrimination in light of the evidence available at the time of separation regarding the differences between the two positions. The appellate court stated, “it would be unfortunate if the courts forced the adoption of an employment culture that required everyone in the structure to be careful so that every remark made every day passes the employment equivalent of being politically correct lest it be used later against the employer in litigation.”

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