Virginia Lawyers Weekly

In this decision from Richmond U.S. District Court, a securities firm wins summary judgment in this age-discrimination suit filed by a 51-year-old securities salesman, despite a supervisor’s alleged comment about trading being “a young people’s game,” and that plaintiff was “too old to want to be a trader.”

Plaintiff, who alleges he was constructively discharged, has offered no direct evidence that age-based animus was the cause of any putatively intolerable employment conditions. A supervisor’s alleged statement to the effect that trading was a “young people’s game and that I [plaintiff] was too old to want to be a trader” comes closest to constituting direct evidence. This statement allegedly was made in August 2005 after plaintiff expressed his dislike of a young interviewee, and the statement is not directly indicative of the supervisor’s intent to discriminate against plaintiff. Even assuming plaintiff’s hearsay testimony is enough to create a genuine issue of material fact as to whether the allegedly offensive statement occurred, it does not have the requisite nexus to any change in employment conditions instituted by the supervisor to qualify as direct evidence of discrimination.

Plaintiff has provided no probative evidence that age was a causal factor in any employment decision made by defendant employer. There is no evidence in the record that plaintiff’s age was even considered by any employee of defendant in connection with any employment action taken with respect to plaintiff. Further, plaintiff has not put forth any evidence that any decision made by defendant was made with the intent to force him to resign because of his age. Plaintiff’s claim is further weakened by the inference that age discrimination was unlikely to have been a motivating factor when the same individual who hired plaintiff took the adverse employment actions against him a short time later.

Nor has plaintiff provided any direct or circumstantial evidence that his working conditions were objectively intolerable, based on the following allegations: the temporary withholding of the Goldman Sachs commission; being placed on probation; the institution of the $500,000 minimal annual production expectation; the temporary removal of plaintiff’s access to technology; the problems with plaintiff’s later access to RealPoint online research service; and the removal of plaintiff’s access to company capital for risk transactions. Three of these conditions – the Goldman Sachs commission, being placed on probation and the temporary denial of technological access – had been resolved, largely in plaintiff’s favor, long before his resignation. The remaining issues simply do not rise, individually or collectively, to the level of objective intolerability.

Plaintiff’s claim of constructive discharge has failed on both elements: deliberateness and intolerability of working conditions.
Plaintiff also has failed to show a hostile work environment or retaliation against him.

Summary judgment for employer.

Martin v. Scott & Stringfellow Inc. (Payne, J.) No. 3:08cv417, June 17, 2009; USDC at Richmond, Va. VLW 009-3-343, 39 pp.

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