Age Discrimination and FMLA Retaliation: 65 year old Employee Whose Job Duties Are Assumed by a 35 year old Has Viable Age Discrimination and FMLA Retaliation Claims

In Staffieri v. Northwestern Human Services, Inc., 2013 U.S. Dist. LEXIS 72115 (E. D. Pa. May 22, 2013)(Kelly, J.), the court denied the Defendant employer’s Motion for Summary Judgment, finding that a 65-year-old employee whose duties were assumed by a 35-year-old employee may proceed to trial with his claims of age discrimination, retaliation and violation of the Family and Medical Leave Act (“FMLA”).

In Staffieri, the Plaintiff employee, who was employed as a Director of Security, was terminated 7 months after taking a FMLA leave for knee surgery after he made multiple complaints of age bias and discriminatory treatment to management. The Defendant employer contended that the Plaintiff could not establish that his responsibilities were transferred to a significantly younger employee. The Court relied upon Torre v. Casio, Inc., 42 F.3d 825, 831 (3d Cir. 1994), finding that indirect evidence that other younger employees were not fired when the Plaintiff was terminated was sufficient and in the context of a job elimination setting, the facts permitted an inference of age discrimination because Plaintiff was the only employee terminated and younger employees were retained.

As to the FMLA claim, in looking at the time between the FMLA leave and the termination of employment, approximately 7 months, the court noted that while temporal proximity (the time between the protected activity and the termination of employment) is an “obvious method” to raise an inference of unlawful activity, it is not the only consideration and circumstantial evidence of a pattern of antagonism after a Plaintiff takes FMLA leave may also give rise to the inference of causation under Kachmar v. Sungard, 109 F.3d. 173, 177 (3d Cir. 2007). Thus, in Staffieri, the court concluded that the Plaintiff demonstrated a pattern of antagonism related to qualifying FMLA leave based upon evidence that he was treated “very badly;” was denied a request for a handicapped parking spot even though he was recovering from knee surgery; was excluded from meetings; job responsibilities were being handled by another employee and the employer was attempting to move Plaintiff to a smaller office.

For more information on age discrimination, FMLA leave and Abramson Employment Law see,


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Filed under Age Discrimination, FMLA, Retaliation

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