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Venable's Michael J. Volpe and Nicholas M. Reiter prevailed at the U.S. Court of Appeals for the Second Circuit, upholding a lower court’s grant of summary judgment for our general contractor client in an age discrimination and retaliation case. Reiter argued the appeal before the three-judge panel. The case is Dunaway v. MPCC Corp., 2016 BL 317309, 2d Cir., No. 15-2587.

The Plaintiff alleged the Defendants, MPCC Corp. and the company president, unlawfully rejected his job application due to his age and subsequent complaint of discrimination. He was 65 at the time of the job interview and alleged the company president asked his age and made other age-related comments. In upholding summary judgment, the Second Circuit noted that the Age Discrimination in Employment Act (ADEA) "does not make all discussion of age taboo." Employers may consider factors that "are empirically intertwined with age" without violating the ADEA. The court concluded that "the questions [asked at Plaintiff's interview] were germane to the probable length of Dunaway's potential employment and his fitness to do the job," and do not give rise to a discriminatory motive under ADEA.

Bloomberg BNA featured the decision in its Daily Labor Report on September 27, 2016.