A 57 year old employee claimed age discrimination when he was terminated as part of a reduction in force (RIF). He claimed that the RIF disparately impacted employees age 40 and over because 14 of the 15 employees terminated were over age 40. The major issue here was who made up the relevant pool of workers. As the RIF was plant wide, the relevant pool of workers was not simply employees in the art department, and certainly not just the 15 terminated employees, rather the relevant pool of workers consisted of all of the non-management employees in the company’s St. Louis facility. In this case, of the 43 non-management employees, 34 were over age 40, which meant the percentage of workers over the age of 40 went from 81.4% to 76.5%. The Court has not adopted a ridged mathematical formula for determining what drop in percentage is sufficient to establish that age was a factor in the termination decision, however, the Court previously held that a 4% drop was not adequate for such a determination, and this percentage was very similar. In this case, the Court held that to prove disparate treatment, the employee needed to show that age was a “but for” cause of his termination, and not just a factor. Under the new “but for” cause termination, the employee’s performance record and skills are weighted heavily by the Court in making determinations regarding age discrimination. The Court found that such things as providing AARP materials, comments about “just trying to make it to retirement” or suggesting to another worker that he could “always become a Wal-Mart greeter” were not significant proof of age discrimination, even when these statements were made by a decision maker. However, such statements do require closer scrutiny of intent. The Court held that isolated remarks regarding retirement age are generally insufficient, and there is no way of showing that the employer made these remarks in reference to a termination decision. Clark v. Matthews International Corp. (8th Cir. 2010)