Category Archives: Age Discrimination

Pennsylvania Employee with 31-year Tenure Terminated by New Supervisor Has Viable Age, Sex & Retaliation Claims

When a long-term employee with a good performance record is terminated after a new supervisor makes ageist and sexist comments about the employee and the employee complains about the comments is then terminated, an employee has viable causes of action for age discrimination, sex discrimination and retaliation.

In Konsavage v. Mondelez Global LLC (M.D.Pa. no. 15-cv-1115) (February 3, 2017) (Conaboy, J.), the Plaintiff employee was employed for 31 years and consistently received positive performance appraisals until she began reporting to a new supervisor, the Director of Customer Service Operations. Shortly thereafter, management made ageist comments such as referring to the employee’s work area and older employees as “dead wood”; and comments like you should step aside and let the younger people shine, you’ve pretty much done everything you can do here; you have no potential at your age; you lack learning ability; and you lack agility. Evidence also included derogatory remarks about female employees and regular staff meetings that were described as “a frat house,” with the passing around pictures of women, and exist remarks and sexist stories. These actions caused the employee to complain to management and human resources.

In Konsavage, the employee was the Manager of Critical Inventory, a salary grade 12 position; shortly after her complaint, she was advised that her job was being downgraded from a salary level 12 manager to a salary level 10 team lead and her annual compensation was being reduced by over $9,000 per year. The employer advised her that the reduction was due to a company salary review, however, there was no evidence that any other employee suffered any economic loss in relation to such compensation reviews. After the salary downgrade the employee’s supervisor received a letter reflecting concerns about the employee’s performance as a manager from a subordinate, claiming that the employer requested that her team give her good rating review on an employee survey and criticizing her for micromanaging, being inflexible and being out of touch with the company’s values. The employer then conducted an investigation and terminated the employee.

The court denied the employer’s motion for summary judgment and ordered that the case should proceed to trial as a reasonable factfinder could conclude that employer’s termination of the employee’s employment was due to her age or sex, and that the demotion and termination could be found to be retaliation for engaging in protected activity (reporting discrimination at the workplace).

The federal age discrimination law (ADEA) and the Pennsylvania age discrimination law (PHRA) prohibit employers from taking adverse action against an employee who is at least 40 years old because of an employee’s age. In stances where there is no direct evidence of discrimination, a prima facie of age discrimination is established by showing that the employee was forty years of age or older; the employer took an adverse employment action against the employee (i.e. termination of employment or demotion); the employee was qualified for the job; and the employee was replaced by another employee who was sufficiently younger to support an inference of discriminatory animus. Direct evidence of discrimination alleviates the need to establish a prima facie case. Once an employer satisfies the burden of offering evidence that supports a legitimate, nondiscriminatory reason for the adverse action, the burden shifts back to the employee to offer evidence from which a factfinder could reasonably either (1) disbelieve the employer’s reason; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s action. To meet this burden the employee must demonstrate weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s reason that a reasonable factfinder could rationally find the reason to be unworthy of belief.

In Konsavage, the court concluded that the employee raised questions and came forward with evidence which would allow a reasonable factfinder to conclude that the employer’s proffered reasons for demotion and discharge were pretextual, including the employee’s 31 year tenure with numerous promotions and positive reviews prior to a change in her supervisor; numerous disparaging remarks from the employee’s supervisor about her age, his disdain for working with older women, and derogatory statements about females in general. The court concluded that such comments made by a decision maker would be indications that age and/or gender played a role in the decision to demote the employee and/or terminate her employment.

The court also found sufficient evidence of retaliation. An employee asserting a retaliation claim establishes a prima facie case by showing (1) that the employee engaged in protected employee activity; (2) the employee suffered from an adverse action after or contemporaneous with the employee’s protected activity; and (3) a causal connection between the employee’s protected activity and the employer’s adverse action. To demonstrate a link between protected activity and an employer’s adverse action, an employee may rely on the temporal proximity (i.e. the amount of time between the protected activity and the adverse action) if it is unusually suggestive. In the absence of a such a close temporal proximity, courts consider the circumstances as a whole, including any intervening antagonism by the employer, inconsistencies in the reasons the employer gives for its adverse action, and any other evidence suggesting that the employer had a retaliatory animus when taking the adverse action.

In Konsavage, the court found that the employer’s argument that the employee’s retaliation claim fails for lack of temporal proximity was unavailing for several reasons including the close timing between the employee’s complaint and the downgrade of her job resulting in a reduced salary (as little as one month) and certain inconsistencies in the reasons for termination.

Andrew Abramson and Abramson Employment Law represent employees who are terminated and are the victims of age discrimination, sex discrimination and retaliation. For more information see our website at http://www.job-discrimination.com.

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Age Discrimination Proven When 50 Year Old+ Employees are Treated Differently than 40 Year Olds

The Age Discrimination in Employment Act (ADEA) prohibits an employer from terminating the employment of an employee or otherwise discriminating against any employee with respect to the employee’s compensation, terms, conditions, or privileges of employment, because of age provided, that an employee is at least 40 years of age. There are two types of age discrimination claims. In a disparate-treatment case, an employee is treated differently at the workplace due to the employee’s age. For instance, a 50-year-old employee with a good performance record is terminated and his replacement is 25 years old and the employee argues that there was intent to discriminate based on age. The other type of age discrimination claim is a disparate-impact claim which addresses an employer’s action that does not require proof of discriminatory intent. In this type of case the employer’s policy at issue may be fair in form, but the impact of the policy as implemented is found to be discriminatory. Disparate-impact claims usually focus on statistical disparities that have an impact on older employees due to their age.

In defending age discrimination claims employers sometimes argue that if other employees who are 40 years of age or older were not subject to discriminatory action that somehow proves that no one in the protected class (anyone who is older than 40) could possibly have been treated differently due to their age. This argument misconstrues age discrimination law and was rejected by the United States Supreme Court over 20 years ago, in O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996), an ADEA disparate-treatment case, in which the court held that a 56-year-old employee who was fired and replaced with a younger worker who was over age 40 could bring a successful claim under the ADEA.

A recent United States Court of Appeals for the Third Circuit case addressed the issue of whether an employer’s policy that impacts workers over 50 due to the age could be found to violate the ADEA if the same policy did not negatively impact the entire group of employees when the group was defined as all employees over age 40. To state a prima facie case for disparate impact under the ADEA, an employee must identify a specific, facially neutral policy, and (2) proffer statistical evidence that the policy caused a significant age-based disparity. Once a plaintiff establishes a prima facie case, an employer can defend by arguing that the challenged practice was based on reasonable factors other than age. In Karol v. Pittsburgh Glass Works, LLC, no. 15-3435 (3rd Cir. January 10, 2017), the court found that in a reduction in force case where there was a company-wide layoff, a group of employees who are 50 or older could use statistical data that showed that they were treated differently due to their age. In Karlo, the question before the court was whether a disparate-impact claim is cognizable where a “subgroup” of employees at the upper end of that range-in this case, employees aged 50 or older, were alleged to have been disfavored relative to younger employees.

In Karlo, the employer, Pittsburgh Glass Works, a Pennsylvania manufacturer of automotive glass engaged in several reductions in force (“RIFs”), laying off employees due to deteriorating sales. The RIF at issue resulted in the termination of the employment of 100 salaried employees. Directors were provided with broad discretion in selecting whom to terminate and the employer did provide any written guidelines or policies as to how go about selecting which employees to lay off. In Karlo each of the employees that filed the lawsuit were 50 years of age or older and they were all selected for layoff by the same supervisor (other employees later opted into the class action lawsuit). The Third Circuit found that the central question was whether so-called “subgroup” disparate-impact claims are cognizable under the ADEA.

Disparate-impact claims in ADEA cases ordinarily evaluate the effect of a facially neutral policy on all employees who are at least forty years old, that is, all employees covered by the ADEA. In Karlo, the employees argued that they identified a policy that disproportionately impacted a subgroup of that population: only employees that were older than 50. The court held that an ADEA disparate-impact claim may proceed when employees offer evidence that a specific, facially neutral employment practice caused a significantly disproportionate adverse impact based on age with various forms of evidence by using a statistical data group of employees who were 50 years of age or older (a subgroup) rather that all employees who were 40 years of age or older. The court’s holding was premised on the principle that the ADEA prohibits disparate impact based on age, not 40 and-older identity. Thus, the court found that a rule that disallowed subgroups of age brackets over 40 would ignore genuine statistical disparities that could otherwise be actionable through application of the plain text of the ADEA.

In Karlo, relying on the Supreme Court’s decision in O’Connor the court held that a specific, facially neutral policy that significantly disfavors employees over 50 years old supports a claim of disparate impact. Thus, in Pennsylvania, employees who bring age discrimination claims under either age discrimination theory can use evidence that they were treated differently than younger employees even when those “younger” employees are over age 40.

Andrew Abramson represents Pennsylvania employees who have age discrimination claims against their employers. For more information on age discrimination see https://www.job-discrimination.com/age-discrimination.html

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$922,060 Jury Verdict for Age Discrimination Retaliation Claim

When employers take adverse action against employees who have filed good faith age discrimination claims with the Equal Employment Opportunity Commission(EEOC) and/or the Pennsylvania Human Relations Commission(PHRC) employers can be subject to a separate claim of retaliation even when a good faith age discrimination claim is found to lack merit. In Karlo v. Pittsburgh Glass Works, LLC (W. D. Pa. no. 2:10-cv-1283), the employee filed a retaliation claim under the Age Discrimination in Employment Act (“ADEA”). The employee, a 58-year-old engineering specialist and production line supervisor, worked for the employer and its predecessor company for more than three decades. The employee was one of about 100 workers terminated as part of a company-wide workforce reduction. Thereafter, the employee and six other former employees filed Charges of age discrimination with the Equal Employment Opportunity Commission, claiming that they had excellent performance records and younger, less experienced employees were retained instead.

Ironically, after the initial termination of employment, the employee in Karlo, was rehired through a subcontractor to work as a shift maintenance supervisor for the same employer with whom he had been previously directly employed. The employee contended that after the employer became aware that he had filed a charge of discrimination with the EEOC, the employer encouraged him to withdraw his EEOC charge, and that when he refused to do so, the employee’s contract employment position was terminated and he was denied a new permanent employment position. The employee contended that the termination of his contract and not being hired for a permanent position was retaliation against him in violation of the ADEA for having filed and maintained a charge of discrimination with the EEOC. In Karlo, the jury found the motive was retaliation and that it was a willful violation of the ADEA, awarding the employee $362,052.00 in back pay and $560,008.00 in front pay for a total of $922,060.00. On May 18,2016,the Court denied Defendant’s Post Trial Motions upholding the jury’s verdict. (The employer recently filed an appeal to the U. S. Court of Appeals for the Third Circuit).

The ADEA prohibits an employer from taking any adverse action against an employee who files a charge of age discrimination. As such, the ADEA protects those who participate in certain age discrimination proceedings and those who oppose discrimination made unlawful by the ADEA. As in most discrimination and retaliation cases, where there may be an absence of direct evidence of retaliation, retaliation claims under the ADEA proceed under the McDonnell Douglas framework where a plaintiff asserting a retaliation claim first must establish a prima facie case. Under the ADEA, a prima facie case of retaliation for asserting age discrimination requires an employee to show that (1) the employee was engaged in a protected activity; (2) the employer took an adverse employment action after or contemporaneous with the employee’s protected activity; and (3) a causal link exists between the employee’s protected activity and the adverse employment action taken by an employee.

If the plaintiff establishes a prima facie case of retaliation, the burden of production shifts to the employer to present a legitimate, non-retaliatory reason for having taken the adverse action and the employer makes that showing, the burden of production returns to the plaintiff to establish that the proffered justification for the adverse action is pretextual and the Plaintiff must establish that his protected activity was a ‘but-for’ cause of the adverse employment action. To make a showing of pretext, the plaintiff employee must point to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer’s articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a . . . determinative cause of the employer’s action. In so doing, the plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence.

In Karlo, the court denied the employer’s post-trial motions noting that the case turned on the credibility of the witnesses and based on the verdict, the jury evidently disbelieved the employer’s witnesses and found the Plaintiff employee credible, drawing several inferences in his favor: including that a manager encouraged the employee to withdraw his EEOC charge and that after he refused to withdraw his EEOC charge and the employer terminated his contract employment position and denied him a permanent employment position. The court noted that in other words, the jury apparently found a causal connection between the end of the employee’s contract employment, the decision thereafter to not hire him as a permanent employee and his EEOC charge.

The Court also rejected the employer’s argument that a five-month gap between the filing of the EEOC charge and the adverse employment action (the termination of the contract and not hiring for the permanent position), is not close enough to support a causal connection, as the jury was entitled to find a causal connection based on more than just timing. Even assuming that the filing of the EEOC charge constitutes the only form of protected activity, the law also provides that in the absence of such a close temporal proximity, the circumstances as a whole, including any intervening antagonism by the employer, inconsistencies in the reasons the employer gives for its adverse action, and any other evidence suggesting that the employer had a retaliatory animus when taking the adverse action, could be sufficient.

The court also rejected arguments that the jury’s finding of wilfulness was not supported by the record. wilfulness is significant because the ADEA provides double damages when the employer’s discriminatory conduct is willful. The issue of whether an ADEA violation is willful depends not on any additional proof adduced by a plaintiff in excess of the evidence required to sustain an ADEA claim but whether the facts of the case meet the legal definition of wilfulness, i.e., did the employer know or show a reckless disregard for the fact that its conduct was prohibited by the ADEA.

Abramson Employment Law represents employees in age discrimination and retaliation claims. For more information on age discrimination and Abramson Employment Law see http://www.job-discrimination.com/lawyer-attorney-1126515.html.

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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 http://www.job-discrimination.com/lawyer-attorney-1126515.html.

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ADA Disability Discrimination: Employee Who Requests Reasonable Accommodation & is Terminated has ADA & Age Discrimination Claims

While it is often difficult for an employee only employed for a brief period of time to proceed with an employment discrimination claim, under certain circumstances, particularly where the claim centers around a perceived disability, it may be possible as illustrated in Palish v. K&K RX Services, L.P (E. D. Pa. June 13, 2014), 2014 U.S. Dist. LEXIS 80606 Sitarski M. J.), where the Plaintiff employee filed claims under the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA). The Plaintiff, a licensed Pharmacist, 53 years of age with more than 25 years of pharmaceutical experience, suffered from Spondylolisthesis, Degenerative Disc Disease, and Retrolisthesis, all of which affect the vertebrae of his back, previously requiring spinal fusion surgery. The employee contended that back pain still results in certain limitations in his ability to do work-related activities, namely his ability to stand.

In Palish, the employee was a Pharmacy Manager, supervising employees, ensuring that all prescriptions were accurately filled, providing information on medications and their proper indications and maintaining records. On his first day of work, he informed his manager of his back issues and asked that he be allowed to sit occasionally. Defendants told Plaintiff they could not provide him with a stool or let him sit because they would have to allow other employees to sit. During his 15 days of employment Plaintiff testified that he was able to do his job, albeit with pain. According to Defendants, there were several issues with Plaintiff’s job performance. Defendants ultimately decided to put together an action plan for Plaintiff to use as a guide to improve his performance to meet the requirements that Defendants wanted, setting forth deadlines for Plaintiff to improve in specific subject areas, such as product knowledge, the work flow system and how to order inventory. However, only a few days late, the decision was made to terminate Plaintiff’s employment. When Plaintiff was notified that he was being terminated, his supervisor stated “you’re just not — you’re not a good fit. But it’s not your fault. It’s my fault. I should have hired somebody younger and more energetic.” Defendants then hired a 31-year-old to replace Plaintiff. The Court found that the Plaintiff could proceed to trial with claims for disability discrimination, retaliation for requesting a reasonable accommodation and age discrimination.

A prima facie case of disability discrimination requires that the employee show that: the employee is disabled within the meaning of the ADA; is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodation by the employer; and was subject to some adverse action as a result of his disability. Even if an employee cannot show he was disabled within the meaning of the ADA, the “disabled” requirement can be met by showing that the employee was “regarded as” disabled, where the question is not the actual condition, but rather how the condition was perceived by his employer, including the reactions and perceptions of the persons interacting or working with him; so that an employee may establish a genuine issue of fact for “regarded as” disability by showing that a decision maker knew of the impairment.

In Palish, it was undisputed that Plaintiff’s supervisor, who was involved in the decision to terminate him, was aware of Plaintiff’s back pain and the fact he had spinal fusion surgery, which the court held provided a basis to establish that he was “regarded as” disabled. While the Defendants contended that Plaintiff did not possess certain subjective qualifications for the job, the court held that the objective evidence, that Plaintiff has over 25 years experience as a pharmacist, a Doctorate of Pharmacy degree, and had previously held a position supervising at least one individual, created a genuine issue of material fact that would allow a reasonable juror to conclude that he was sufficiently qualified for the job from which he was terminated.

In considering the ADA retaliation claim, a prima facie case of retaliation requires an employee to show: (1) engagement in a protected activity; (2) an adverse employment action after or contemporaneous with the protected activity; and (3) a causal link between the adverse action and the protected activity. In Palish, the court held that the Plaintiff could establish a prima facie case because he requested a reasonable accommodation which constitutes protected activity, the employee suffered an adverse action when he was terminated, and the temporal proximity (two weeks) between his protected activity and his termination is sufficient to establish the requisite causal link. The Court also held that Defendants proffered a legitimate non-discriminatory reason for terminating Plaintiff’s employment, numerous alleged performance issues during his 15 days of employment. Thus, the burden shifted to plaintiff to show that the defendants’ proffered reason is pretextual by submitting evidence sufficient for a fact finder to either (1) disbelieve the employer’s articulated legitimate reason; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s action.

In finding pretext in Palish the court held that there was evidence that a similarly situated individual who was not disabled and did not request an accommodation was treated differently where the other employee had the same supervisor, held the same position as Plaintiff (Pharmacy Manager), had the same duties, did not request an accommodation and was also confronted at the onset of her employment because the same supervisor was also not satisfied with her managerial skills, the primary reason for terminating Plaintiff. The court held that the similarly situated employee was treated more favorably because she was not terminated within two weeks of requesting a reasonable accommodation, and was instead given an opportunity to improve performance, which would allow a reasonable fact finder to conclude that Defendants’ proffered reason for termination Plaintiff was pretextual.

As to the age discrimination claim, to establish a prima facie case of age discrimination, an employee must present evidence that (1) the employee was 40 years of age or older, (2) was subject to an adverse employment action such as termination (3) was qualified for the job from which he was terminated, (4) and was replaced by a substantially younger employee. In Palish, the court found that since Plaintiff’s supervisor directly referenced age as a reason for terminating Plaintiff, and then actually replaced Plaintiff with somebody over 20 years younger, a reasonable juror could conclude that age discrimination was a “but for” cause of Plaintiff’s termination.

In Palish, the court did grant summary judgment on one ADA claim, finding that the Plaintiff could not proceed to trial with his failure to accommodate claim finding that there is no evidence in the record that would allow a reasonable juror to conclude that Plaintiff’s back pain substantially limits him in a major life activity.

For more information on the Americans with Disabilities Act, disability Discrimination, age discrimination and Abramson Employment Law, see http://www.job-discrimination.com/lawyer-attorney-1126511.htm, http://www.job-discrimination.com/lawyer-attorney-1126515.html.

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Age Discrimination: Replacement by Substantially Younger Employee & Inconsistent Reasons for Termination Establish Age Discrimination

In an age discrimination case when an employer offers inconsistent reasons for terminating an employee with a long period of successful service, and the employee is replaced by a substantially younger employee, courts often find that there a basis for prevailing at trial.

In Heins v. Alan Ritchey, Inc. 2014 U.S. Dist. LEXIS 79905 (E. D. Pa. June 12, 2014 (Baylson, J.), the Plaintiff employee filed age discrimination claims against his former employer under the Age Discrimination in Employment Act (ADEA) and the Pennsylvania Human Relations Act (PHRA). The Plaintiff was employed as the Plant Manager of Defendant’s Mail Transportation Equipment Services Center for 12 years and was terminated at age 69. Defendant offered inconsistent explanations for the termination of Plaintiff’s employment at various times, including the reason for termination being a cost reduction, poor performance, complaints from the principal customer and lack of profitability. Despite these reasons the Plaintiff was never issued any disciplinary warnings or write-ups and the employee received a substantial bonus only months prior to being terminated.

The ADEA prohibits age discrimination in employment against any person over age forty. In order to establish a prima facie case of age discrimination, a plaintiff must demonstrate that the employee (1) is older than 40; (2) applied for and/or was qualified for the position in question; (3) suffered an adverse action; and (4) was replaced by a sufficiently younger person to support an inference of age discrimination. If the plaintiff establishes a prima facie case, the burden shifts to the defendant employer to offer a legitimate, non-discriminatory reason for the adverse employment action. If the employer is able to come forward with a legitimate, non-discriminatory reason for its action, the plaintiff can defeat a motion for summary judgment by providing evidence from which a fact finder could reasonably either (1) disbelieve the employer’s articulated legitimate reasons or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s action. If the plaintiff employee produces sufficient evidence of pretext, the employee need not produce additional evidence of discrimination beyond his prima facie case to proceed to trial.

In Heins, the court held that there were several material factual issues in dispute behind the employer’s decision to terminate Plaintiff’s employment including (1) the extent a new plant failed to comply with a customer’s policies and procedures, (2) whether the employer received complaints about the new Plant’s lack of compliance with the policies and procedures or Plaintiff’s job performance, (3) whether the alleged compliance issues and/or diminishing profits could be attributed to Plaintiff employee’s job performance or to the employer’s plant relocation, and (4) whether the employer expressed any dissatisfaction to Plaintiff regarding his job performance. Given the disputed facts, the Court held that the Plaintiff employee established sufficient pretext by showing that (1) the employer’s reason for termination could be implausible and directly contradicted by the record, (2) the employer’s articulated reasons for firing Plaintiff have been inconsistent and the employer treated, Plaintiff’s substantially younger replacement differently, casting doubt on the proffered reason. Therefore, the Court held that based on the record, and viewing the evidence in the light most favorable to Plaintiff, a reasonable fact finder could conclude that the employer’s proffered reason for terminating Plaintiff’s employment lacks credibility and constitutes mere pretext.

For more information on age discrimination and Abramson Employment Law see http://www.job-discrimination.com/lawyer-attorney-1126515.html.

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Employee Age Discrimination Claims Are on the Rise

A recent article in the AARP Bulletin titled, “Forced Out, Older Workers Are Fighting Back”, highlights the fact that age discrimination claims by employees are on the rise. In 1997, 15,785 Charges of age discrimination were filed with the Equal Employment Opportunity Commission. In 2013, 21,396 Charges were filed, an increase of more than 35 per cent. This trend follows an aging of the workplace population. More than 20 percent of workers in the United States (33 million), are age 55 and up. In addition, an AARP survey of more than 1,500 older employees, found that almost 64 percent indicate they have seen or experienced age discrimination in the workplace, and of those, 92 percent say it is very or somewhat common.

The Age Discrimination in Employment Act (ADEA) protects employees who are 40 and older from personnel decisions based on age in hiring, firing, layoffs, promotions or demotions, and applies to employers with at least 20 workers; the Pennsylvania Human Relations Act provides protection for employees employed by employers with 4 or more employees. The increase in the filing of Charges of age discrimination has not been impacted by a 2009 U.S. Supreme Court ruling, Gross v. FBL Financial Servs. Inc, which set what is viewed as a more difficult standard for employees to prove age discrimination, by requiring employees to prove that “but for” the plaintiff’s age, adverse action would have not been taken. Legislation introduced last year, the Protecting Older Workers Against Discrimination Act, would amend and clarify federal anti-discrimination laws. The AARP article presents 5 real life examples of age discrimination in the workplace and can be viewed at http://www.aarp.org/work/on-the-job/info-2014/workplace-age-discrimination-infographic.html

While the U.S. Supreme Court ruling changed the legal standard to prove age discrimination, age discrimination claims remain viable and Abramson Employment Law frequently represents employees in age discrimination cases. For more information on age discrimination and Abramson Employment Law see http://www.job-discrimination.com/lawyer-attorney-1126515.html.

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