While a 61-year-old U.S. Department of Homeland Security employee who was passed over for promotion has established a prima facie case of age discrimination, he could not meet the "but for" standard necessary to sustain the claim, Eastern District Judge William Kuntz II has held. In Andretta v. Napolitano, 09-cv-4759, Kuntz said plaintiff Paul Andretta established that he was part of a protected class, was qualified for the position he sought and was not offered the job. But Kuntz said Andretta could not show that but for his age, he would have been promoted.
Andretta is a supply chain specialist with the Bureau of Customs and Border Protection and has worked at John F. Kennedy International Airport since 1970. He has been promoted several times and in 2008, at age 61, applied for a supervisory position. He was among 27 applicants but was not among those recommended by officials. Those recommended for the post were all at least 10 years younger than Andretta, and he responded with a complaint to the Equal Employment Opportunity Commission. An administrative law judge, Kevin Berry, found that Andretta had not proven age bias, prompting the federal claim.
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