Age Discrimination: Employee Who is Not Replaced Proceeds with Age Discrimination Claim

In order to prove a prima facie case of age discrimination through indirect evidence, an employee must establish that: the employee is forty years of age or older; the employer took an adverse employment action against the employee; and the adverse employment action (usually termination) occurred under circumstances giving rise to an inference of discrimination.

In many age discrimination claims, evidence supporting the discrimination claim includes the employer hiring or promoting a substantially younger new employee to replace the terminated employee. However, in some situations, there is no such evidence. While it may be more difficult to establish an inference of age discrimination when there is no replacement, other types of evidence can establish a basis for establishing an inference of age discrimination.

In Michael E. Trigg, M.D. v. Merck Sharp & Dohme Corp. (E.D Pa. May 1, 2015) (Kearney, J.)., the employee, age 64, held both an Executive Medical Director and Regional Medical Director-Oncology position at the Defendant employer. The employee received awards for excellent performance and bonuses during his tenure. In Trigg, the Court considered a situation where there was no defined replacement for the terminated employee. After making a presentation where the Plaintiff employee deviated from his employer’s mandated script, the employee was advised that he “violated corporate policy.” Despite the employee’s belief that he was following policy, the employee apologized and offered an explanation. Thereafter, the employee had a meeting with a Human Resources employee who assured him that there would be little or no discipline with respect to his conduct, and the employee was assured that his conduct was considered “at worst a minor infraction.” Three months later, the employee was terminated for his conduct during the incident at issue.

In situations where there is no replacement, the former employee must look to the employer’s treatment of similarly situated, younger employees, or comparators, to determine if the facts surrounding the employee’s termination could lead to an inference of discrimination due to age. In Trigg, the employer attempted to have the case dismissed, however, the court denied the employer’s Motion and allowed the case to proceed to discovery.

In Trigg, the employer argued that the employee did not support his claim of age discrimination well enough in his Complaint to move forward with his case. However, the Court decided otherwise, holding that the employee alleged two circumstances where younger, similarly situated employees were treated more favorably, in that the younger employees engaged in similar conduct and these alleged comparators were not terminated, which could give rise to an inference of discrimination. Further, the court found that the allegation that the employer did not administer progressive discipline as per its policy after the incident at issue, and instead moved to terminate the employee, was also sufficient to possibly establish pretext. Another facts detailed in the Complaint to support age discrimination included an allegation that the employer failed to give the employee the opportunity to participate in a severance plan at termination, whereas two substantially younger members of the same team who were dismissed for violating off-label promotion policies were offered standard severance packages.

While the employer attempted to dismiss the case based on claims that the other employees were not proper comparators, the Court held that the employer’ arguments were fact based and not appropriate for a Motion to Dismiss. Thus, the Court held that during the discovery process the parties could seek information regarding the similarity (or lack thereof) of the allegedly similarly situated employees’ conduct. Ultimately, the court concluded that at the preliminary stage of the litigation the employee must only offer evidence to nudge the claim across the line from conceivable to plausible and decided that the case would move forward to a setting where the facts and evidence provided by both the employer and employee will be further reviewed.

For more information on age discrimination and Abramson Employment Law see


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