Age Discrimination: Doctor Whose Contract is Not Renewed Establishes Age as a Determinative Factor Which Meets “But For” Standard of Age Discrimination

Following the Supreme Court’s decision in Gross v. FBL Financial Services, Inc., 557 U.S. 167, 129 S. Ct. 2343, 174 L. Ed. 2d 119 (2009,) there has been considerable debate as to how an employee prove that age was the “but-for” cause of an employer’s decision to terminate employment. Some commentators have even concluded that the “but-for” standard make it incredibly difficult to prove age discrimination. In a recent case, Sesso v. Mercy Suburban Hospital, 2013 U.S. Dist. LEXIS 34401(E. D. Pa. March 13, 2013)(Rufe, J.), the Court denied a Motion for Summary Judgment on an age discrimination claim, concluding that a jury could reasonably either disbelieve the decision-makers’ asserted, legitimate reasons or find that statements regarding the expectation that the employee would retire were evidence of a discriminatory animus, which was a determinative factor. Thus, in Sesso, the District Court made it clear that by finding that age is a “determinative” factor, a Plaintiff employee can meet the “but for” test in Gross.

In Sesso, the employee, a 63 year old doctor, filed age discrimination and retaliation claims against the employer hospital. The doctor whose practice was acquired by the defendant hospital several years before, entered into two successive employment contracts but the hospital did not renew his contact when the doctor was age 63.

The Court found that the doctor established a prima facie case of discrimination because he was qualified for the position and under the circumstances, retirement related remarks by hospital management created a plausible inference that age-based discrimination was the “but-for” reason for that adverse action. While the Defendant argued the decision not to renew the contract was economic and strategic based upon the employee doctor’s practice having too few patients and a lack of need for his services for intensive care inpatients, the court found that the fact that the doctor was never asked if he was willing to work as a full-time hospitalist, or otherwise asked to take on duties more closely aligned with the hospital’s strategic plan, combined with his duties being re-assigned to younger doctors, would allow a reasonable jury to disbelieve the decision-makers’ asserted, legitimate reasons for terminating employment. Thus, the Court concluded that material issues of fact necessitate a trial on the employee’s age-discrimination claims.

Sesso confirms what an experienced employment attorney has seen in practice, while at first
the Supreme Court’s decision in Gross seemed to create a very difficult standard to meet to prove age discrimination; in practice, plaintiff employees can continue to be successful in their pursuit of age discrimination claims in court.

For more information on age discrimination and Abramson Employment Law see


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