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The Tenth Circuit has held that for purposes of proving a claim under the Age Discrimination in Employment Act (ADEA), an age difference of 5 years or less between the terminated employee and his or her replacement does not bar a finding of age discrimination as a matter of law. Whittington v. The Nordam Group, Inc., 429 F.3d 986 (10th Cir., Nov. 29).

Plaintiff Milton Whittington, Sr., a former supervisor in Nordam Group Inc., an FAA-certified repair and manufacturing station, was terminated as part of a reduction-in-force (RIF) brought to bear by a severe downturn in airline industry business following 9/11. After determining that business conditions mandated an RIF, Gregg Miner, the General Manager of the Transparency Division, the division for which Whittington worked, asked his management team to determine criteria for selecting 15 to 20 employees to be terminated in the RIF. The team developed a list of 15 or 16 individuals, and 17, including Whittington, were ultimately selected. Whittington was the only supervisor terminated in the RIF. In the prior 8 years, only two supervisors had been terminated, both for reasons related to their competency at their jobs. Another supervisor in the Transparency Division, 57-year old Herb Overbey, was not terminated during the RIF. Whittington, at 62- years old, was the oldest employee fired in the RIF.