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Investment co's harassment probe wasn't pretext for age bias - 2nd Circ

3 minute read


  • Senior manager fired after sexual harassment complaint
  • Court found there was no evidence to back up claims

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(Reuters) - A U.S. appeals court on Friday refused to revive a $45 million lawsuit accusing an investment firm of using sexual harassment claims against a senior managing director as a pretext to fire him because of his age.

A unanimous three-judge panel of the 2nd U.S. Circuit Court of Appeals agreed with WAFRA Investment Advisory Group Inc, represented by Paul Weiss Rifkind Wharton & Garrison, that Francis Lively failed to detail what he said was a campaign to purge the company of older workers, and fell far short of proving that his age was the sole reason for his termination.

Lively was fired in 2018 after a female subordinate complained that he had for years sent her romantic messages, even after she repeatedly rebuffed him.

New York-based WAFRA and its lawyers at Paul Weiss did not immediately have comment. Lively's lawyers at Brewer Attorneys & Counselors did not immediately respond to requests for comment.

Lively worked at WAFRA for 21 years before he was fired in 2018, when he was 63 years old and was the firm's senior managing director of real estate.

He denied harassing the subordinate, claiming she voluntarily solicited his involvement in her personal life and he had no reason to believe that she did not welcome their interactions.

Lively claims that in the year or so prior to his termination, his direct supervisor had made multiple disparaging comments about his age. At a 2017 office party, the supervisor told Lively's son that WAFRA needed younger workers like him to replace older employees like his father, Lively said.

Lively in 2019 sued WAFRA and his former supervisor in Manhattan federal court. He said he was fired because of his age and in retaliation for complaining about the supervisor's conduct, in violation of the Age Discrimination in Employment Act.

U.S. District Judge Paul Oetken last year granted judgment on the pleadings to WAFRA. The judge said Lively's complaint was "devoid of facts plausibly alleging" that his age was the sole cause of his termination, which is required to prove an ADEA claim.

Oetken also noted that Lively was fired weeks after the subordinate first complained, and that his replacement was 66 years old.

Lively appealed, arguing that Oetken had conflated the distinct standards for deciding motions for judgment on the pleadings and summary judgment, and in doing so improperly considered assertions WAFRA made in its answer to his complaint.

The 2nd Circuit on Friday agreed, but said Oetken was still correct that Lively had failed to state plausible bias or retaliation claims.

Lively's claim of a company-wide campaign targeting older workers was vague and conclusory, the court said. While he alleged that other executives were fired or forced out, he did not provide their ages or the reasons for their terminations, the panel found.

The alleged remarks by Lively's supervisor were made months before Lively was fired, and the supervisor had no involvement in his termination, Circuit Judge Michael Park wrote.

"More significantly, Lively has failed to raise a reasonable inference that there is 'a direct link' between the age-related remarks and his termination," Park said.

The panel included Circuit Judges John Walker and William Nardini.

The case is Lively v. WAFRA Investment Advisory Group Inc, 2nd U.S. Circuit Court of Appeals, No. 20-2709.

For Lively: Philip Furia of Brewer Attorneys & Counselors

For WAFRA: Brette Tannenbaum of Paul Weiss Rifkind Wharton & Garrison

Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at daniel.wiessner@thomsonreuters.com.

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