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‘Dinosaur’ talk can revive extinct lawsuit

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in Discrimination and Harassment,Employment Law,Human Resources

Sometimes, one or two stupid comments are all it takes to fuel a lawsuit. Take, for example, talk that could be construed as ageist. It isn’t unusual to hear managers and supervisors throw around the word “dinosaur” or use the term “fresh blood” to describe changes to the workforce.

Is it code for age discrimination? That’s the problem with such comments. They can turn what would have been an employee’s losing lawsuit and send it to an unpredictable jury. That’s what happened in one recent case.

Recent case:
Lydia Elizondo was fired from her job with a county government agency for making allegedly misleading statements on her application. She wrote that she hadn’t been fired from a job in the past five years. In fact, she had lost a job, but had sued over the termination.

Of course, Elizondo sued the county, too. She said she lost out on promotions and had been fired because of her sex and age. She claimed she had been forced to work in a hostile environment, plus had experienced retaliation for filing an internal grievance.

In pretrial hearings, Elizondo testified that a supervisor had referred to older workers as dinosaurs and talked about bringing in fresh blood, all around the time she filed her grievance.

One by one, the court dismissed her claims before trial, including her age discrimination and hostile environment claims. The court said the comments hadn’t been severe or pervasive enough.

But then the court decided Elizondo’s retaliation claim could go to trial. It reasoned that since the comments occurred so close in time to the grievance, they could be evidence that the real reason she was fired was retaliation, not the answers on her application. (Elizondo v. Nueces County, No. 07-405, SD TX, 2009)

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