Too Old for NBC?

By Christen Kalkanis
(The Hofstra Labor & Employment Law Journal)

The Age Discrimination in Employment Act of 1967 (hereinafter “the ADEA”) was enacted by Congress to forbid employers from treating someone less favorably because of their age. It further prevents employers from hiring or firing potential or current employees specifically over the age of forty.1 In order for a Plaintiff to recover in an age discrimination suit, they were required to satisfy these four elements: (1) he is within the protected class, i.e., is over forty; (2) he was qualified to have been retained; (3) he suffered from an adverse employment action; and (4) the employer retained a sufficiently younger and similarly situated individual to permit a reasonable inference of age discrimination.2 Since then, tens of thousands of cases have been filed by various people alleging age discrimination by their employers.3 One specific case seen recently has further enforced the Supreme Court decision that element four, outlined in the ADEA, is no longer required to prevail in such a suit.4

One case currently being investigated is between reporter Frank W. Snepp and NBC Universal Media LLP.5 On October 3, 2013, it was reported that Snepp, a Peabody-Award Winning reporter, sued his former employer, NBC, for firing him because he was simply too old.6 Snepp alleged that the “youth movement” occurring at NBC was forcing out investigative reporters older than forty years old, in order to replace them with younger, more vivacious journalists.7 At sixty-nine years old, Snepp was a victim of the so-called “youth movement,” and therefore was discharged from his job.8 The complaint also included statements claiming that NBC hired reporters under forty years old to replace Snepp soon after he left the station.9 NBC fired back arguing that Snepp was discharged from his decade-long stint at the news station for “poor job performance” and not because of his age.10 They also argued that there is no evidence to prove that Snepp was in fact replaced by a younger reporter, and thus moved for a summary judgement motion.11 NBC relied on Hersant v. Dep’t of Soc. Servs., a California Appellate Court case from 1998, to support their argument that the claimant must “present evidence that his demotion was based on age discrimination” specifically showing that a younger replacement was indeed forthcoming.12

Recently, a California Superior Court ruled that the case will not be thrown out, and instead will proceed to trial.13 In his holding, Judge Moloney stated that NBC’s dependence on the Hersant case was invalid because “Hersant expressly stated that it was unclear whether replacement by a younger person is a required element of the prima facie case.”14 In fact, the United States Supreme Court clearly outlined in a 1996 holding that the McDonnell Douglas test will be what one must adhere to when claiming age discrimination.15 More precisely, the test states that “adequate evidence is required to create an inference that an employment decision was based on illegal discriminatory criterion.”16 Finding that the Defendant hired a younger employee as one’s replacement is not necessary nor a requirement. The holding further discloses that asking a Plaintiff to prove that he was replaced by a younger employer would go against the protections Congress tried to build; it would create situations in which it is acceptable to discriminate as long as the employee fired was replaced by a person age forty or older.17 Therefore, in November when this case proceeds to trial, we will find out if Mr. Snepp’s claim against NBC will prevail.

1 See 29 U.S.C. § 631(a).

2 Elwell v. PP & L, 47 Fed.Appx. 183 (3d Cir.2002)(quoting Sempier v. Johnson & Higgins, 45 F.3d 724, 728 (3d Cir.1995)).

3 See, e.g., Allen v. Highlands Hosp. Corp., 545 F.3d 387, 394 (6th Cir. 2008); Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344 (6th Cir. 1998); DiMascio v. Gen. Elec. Co., 27 A.D.3d 854, 812 N.Y.S.2d 145 (2006).

4 See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 134, 120 S. Ct. 2097, 2101, 147 L. Ed. 2d 105 (2000); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).

5 Frank W. Snepp v. Comcast Corp., 2013 WL 5469508 (Cal.Super. 2013).

6 See id; See Bonnie Eslinger, NBC Can’t Nix Peabody-Winning Reporter’s Age Bias Suit, Law 360 (Aug. 28, 2015, 7:47 PM),

7 Frank W. Snepp, 2013 WL 5469508 at 2.

8 See id.

9 See id.

10 Frank W. Snepp, 2013 WL 5469508 at 2; see also Eslinger supra, note 6.

11 See id.

12 Hersant v. Dep’t of Soc. Servs., 57 Cal. App. 4th 483, 485 (1997).

13 Frank W. Snepp, 2013 WL 5469508 at 2; see also Eslinger, supra note 6.

14 See id (explaining that the standard requiring an actual replacement of an older employee by a younger employee is ambiguous).

15 McDonnell Douglas Corp., 411 U.S. at 796.

16 O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312, 116 S. Ct. 1307, 1310, 134 L. Ed. 2d 433 (U.S. 1996), quoting Teamsters v. United States, 431 U.S. 324, 358, 97 S.Ct. 1843, 1866, 52 L.Ed.2d 396 (1977).

17 See id.