1. Given a conversation that an employee had with her supervisor about applying for a promotion, which resulted in a question about age and a response by the supervisor when she found out that the applicant was 63 that the applicant would “probably not” get the position, coupled with the fact that the applicant had better performance evaluations than the younger woman who was awarded the position, would not a reasonable layperson in the position of the applicant think that she had been discriminated against because of age?
2. Was the fact that the plaintiff had better performance evaluations than the younger worker promoted to the job evidence of discriminatory intent because of age?
3. Was Benko’s remark that the plaintiff would “probably not get the job” when the plaintiff revealed her age sufficient evidence for a jury to find that the defendant’s stated reasons served as a pretext to hide a discriminatory practice?

[The promotion decision about which plaintiff Joanne Zippittelli complains came in 2004. In the summer of that year, plaintiff applied for the shift operations manager job after Personnel Manager James Johnson informed her it had become available. At the time, she was working as a general lead clerk in the Call Service Center. She was one of four women-all of whom had the same job title at the time-who applied for that job. Johnson interviewed the candidates, determining that three of the candidates, including the plaintiff, were qualified for the position.
Johnson then ranked the three candidates, making plaintiff his third choice. Patti Cruikshank was Johnson's first choice, and after he consulted with his supervisor, J.C. Penney hired Cruikshank as shift operations manager.

Plaintiff blamed her age for her lack of success in seeking the promotion and told her supervisor, Anita Benko, of this suspicion. This supervisor asked her how old she was. When Benko found out she was 63, Benko said she would "probably not" get the position. Plaintiff made no formal complaint of age discrimination immediately after hearing this comment.
She did file a complaint of age discrimination with the Equal Employment Opportunity Commission in 2004, however. She received a right-to-sue letter from the EEOC in 2005. The matter was tried in U.S. district court.]
MUNLEY, J.…
The Age Discrimination in Employment Act prohibits discrimination against an individual over age 40 with respect to "compensation, terms, conditions, or privileges of employment, because of an individual's age."… To recover under the act, "a plaintiff must prove by a preponderance of the evidence that age was the determinative factor in the employer's decision at issue."…

Plaintiff here apparently contends that she has direct evidence of discrimination in the comment made by Anita Benko that she would "probably not" get a job after plaintiff revealed to Benko her age. We apply the same "direct evidence" test to claims of age discrimination that we do to claims of sex discrimination…. She points to only one remark about age from a person not involved in the decision about whether to promote her. Plaintiff could not convince a reasonable juror that this evidence proves that age was a substantial factor in the decision made by Johnson not to promote the plaintiff. Accordingly, we find that no direct evidence exists to prove that defendants discriminated on the basis of age.
Lacking direct evidence of discrimination, a plaintiff seeking recovery under the ADEA must first make out a prima facie case by showing (1) he is within the protected age class, i.e. over forty; (2) that he was qualified for the position at issue; (3) he was dismissed despite being qualified; and (4) he was replaced by a person sufficiently younger to permit an inference of age discrimination…. Once the plaintiff establishes this prima facie case, "the defendant has the burden of producing evidence that it had 'a legitimate, nondiscriminatory reason for the discharge.'"… If the defendant produces such evidence, the burden shifts back to the plaintiff, who [must] provide "evidence 'from which a factfinder could reasonably either (1) disbelieve the employer's articulated legitimate reasons[;] or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action.'" … Here, plaintiff was sixtythree years old at the time she applied for the promotion, and thus within the protected class. She has shown that she was qualified for the position, regardless of age. She did not get the promotion applied for, and the job went to a woman younger than forty. Defendants agree that plaintiff has made out the prima facie case required by federal law.

Defendants argue, however, that it had legitimate, non-discriminatory reasons for its promotion decision and that plaintiff has no evidence with which to rebut that case. … [The defendants claim that their employment decision was based on a careful assessment of which employee best fit the demands of the position and that they found the plaintiff less qualified than the successful candidate in the area of ability to make independent decisions. The employer also found the candidate who was hired to be highly qualified based on her motivation to do the job and her ability to work with and inspire other employees.] We find that the defendants have met their burden, advancing legitimate non-discriminatory reasons to explain why they passed plaintiff over for a promotion. The burden now lies with plaintiff to demonstrate that defendants' reasons serve as pretext to avoid liability for their actual motivations.

In order to meet her burden of demonstrating that defendants' stated reasons for their promotion decision were pretext to mask a discriminatory motive, plaintiff must "[produce] sufficient evidence to raise a genuine issue of fact as to whether the employer's proffered reasons were not its true reasons for the challenged employment action."… A plaintiff must do more, however, than simply demonstrate that the employer did not make the correct hiring decision: "to discredit the employer's proffered reason, the plaintiff cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether a discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent.'"
Plaintiff contends that she had better performance evaluations and that the younger worker actually promoted to the job had an inferior record in areas supposedly determinative of eligibility for promotion, like attendance. A jury could not use this evidence to find that defendants' stated reasons for its employment decision were mere pretext. That evidence could only be used to convince a jury that defendants were wrong in the employment decision they made, not that their mistake was motivated by an animus towards plaintiff because of her age. Federal courts do not sit to pass judgment on the wisdom of an employer's hiring decisions, but only on whether those decisions were made in a way that violated anti-discrimination law. …