Allegations that a boss joked that a 61-year-old worker was alive when the Magna Carta was created may be insufficient to raise an inference of discrimination on the basis of age. In 2002, the defendant hired Paul Kelly, 55, as a vice president. In 2009, the defendant announced a new marketing strategy and raised its performance expectations. Approximately, three months afterward, Kelly was informed that his performance was inadequate. Kelly objected that he had been barred from conferences that might have helped Kelly's performance. President Jon Schriber allegedly complained that Kelly "lacked energy" and "fire in [the] belly." Kelly's boss, Gordon Olver, allegedly joked that Kelly was alive when the Magna Carta was created. A co-worker asked Kelly to invite him, if he planned a retirement party. In 2010, the defendant employer discharged Kelly, and he sued, alleging discrimination on the basis of age, in violation of the Age Discrimination in Employment Act, 29 United States Code §621. To establish a prima facie case, the plaintiff must prove: 1.) he belonged to a protected group; 2.) he was qualified; 3.) he was discharged; and 4.) he was discharged in circumstances that led to an inference of discrimination. Kelly argued that he was replaced by individuals who were substantially younger. The defendant objected that Kelly's job responsibilities were absorbed by incumbent workers, who were 52, 39 and 55 years old. Even assuming Kelly alleged a prima facie case, the defendant offered a legitimate, performance-based, business rationale. Kelly failed to prove that age considerations affected the performance evaluation. Although Kelly alleged that his boss, Gordon Olver, joked Kelly was alive when the Magna Carta was created, he also claimed that Olver attempted to defend Kelly, at the risk of his own job. Olver was not the decisionmaker. His Magna Carta remark did not create an inference of discrimination. A reasonable jury would not find that the employer's legitimate business rationale was false and that the real reason for discharge was discrimination. The court granted the defendant's motion for summary judgment on federal counts and did not exercise jurisdiction over state-law counts.

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