Tag Archives: Age Discrimination

Pennsylvania School District Employee Forced to Resign has Age & Disability Discrimination Claims

When an employee “voluntary resigns”, an employee may still prevail in an employment discrimination claim based on age, disability, or other protected criteria. Some employers who have already made a decision to terminate an employee use a tactic where the employer calls an employee to a meeting and the employer states that we are going to terminate if you do not immediately resign. In such instances, when the underlying reason for the termination is protected by the law, courts can find that the “voluntary resignation” is a constructive discharge, which is in effect the same as the termination of employment. In Sorlini v. Wissahickon School District (E., D. Pa. no. 16-1837) (April 5, 2017) (Tucker, C. J.), the court denied the employer’s Motion to Dismiss, found that there was evidence to support a constructive discharge of employment and held that the employee could proceed with his age and disability discrimination claims.

In Sorlini, the employee was a 58-year-old building supervisor for a school district who suffered from heart and knee problems that affected his ability to walk or stand without pain for extended periods of time, which culminated in a heart attack and two knee surgeries. The employee took a significant amount of time off from work. The employee was terminated within 2-3 months after another employee informed him that she overheard the school principal, and a supervisor, discussing the need to terminate his employment due to his illness and numerous sick leaves. The principal met with the employee and expressed concern that he had allowed another employee’s boyfriend on school premises without authorization; the employee denied that he had any knowledge of the boyfriend being present. Prior to the principal’s meeting, the employee had never had his work performance questioned and he had no disciplinary history. The day after the principal’s meeting, the employee was called to a meeting with the employer’s human resources director, chief financial officer, and his supervisor and informed that if he did not resign immediately, he would be terminated for allowing the co-worker’s boyfriend on school premises and that he would not be eligible for disability pension benefits if he was terminated. The employee then signed a resignation letter during the meeting under the threat of immediate termination. The employee was replaced by an employee who was less than 40 years of age. The employee also alleged that there was a liberal practice of allowing individuals who were not school employees on school premises and two custodians, a secretary, and a teacher allowed individuals who were not school employees on the school premises, yet they were not disciplined.

In Sorlini, the employee filed a lawsuit against the school district alleging age discrimination in violation of the Age Discrimination in Employment (ADEA), disability discrimination in violate of the Americans with Disabilities Act (ADA) and violations of the Pennsylvania Human Relations Act (PHRA). The employee, alleged that the employer constructively discharged him because of his age and disabilities, and subsequently replaced him with a younger employee.

An employer’s Motion to Dismiss will be denied if the employee alleges a prima facie case of discrimination. To establish a prima facie case of age discrimination an employee must show: (1) the employee is older than 40; (2) the employee was qualified for the position; (3) the employee suffered an adverse employment action; and (4) the employee was replaced by a sufficiently younger person or some other evidence to support the inference of age discrimination.

In Sorlini, the employee was 58 years old, he was qualified for the job he performed for 7 years and he was subsequently replaced by a substantially younger person. Thus, the question centered around whether he suffered an adverse employment action despite the fact that he voluntarily resigned. When an employee voluntarily resigns, an adverse employment action exists if the employee was constructively discharged. A constructive discharge is established when a reasonable person in the employee’s position would have had no choice but to resign. When considering whether an employee was constructively discharged, courts look for indicia of coercion, such as threats of termination, suggestions to resign or retire, demotions or reductions in pay or benefits, alterations in job responsibilities, unfavorable performance evaluations, and false accusations of stealing or misconduct.

In Sorlini, the court found that the employee was constructively discharged because he alleged that he was subject to false accusations of misconduct and threats of discharge, he was falsely accused of letting unauthorized personnel on school premises and then told that he would be terminated for his misconduct if he did not resign. The court found that given the time constraint, the employee did not have the opportunity for due deliberation before making the decision to sign a resignation letter, thus, there was evidence that would raise a reasonable expectation of constructive discharge and the court found that the employee had sufficiently raised a claim of age discrimination to survive the motion to dismiss.

The ADA prohibits employers from discriminating against an individual with a disability in regard to termination or the terms, conditions, and privileges of employment. To establish a prima facie case under the ADA, an employee must show that he is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations and the employ suffered an otherwise adverse employment decision as a result of discrimination based on a disability. An employee may be qualified to perform the essential functions of a job based on job experience. A discriminatory adverse employment decision due to a disability may be established by a constructive discharge.

In Sorlini, the court found that the employee qualified for protection under the ADA as he alleged several musculoskeletal and cardiovascular physical impairments that limit major life activities, including heart and knee problems that affected his prolonged ability to walk or stand without pain. The court also held that the employee was qualified for the position of bundling supervisor in that he had performed the job for 7 years. Further, as with the age discrimination claim, the court found that there was evidence that could support a constructive discharge of employment which raises the reasonable expectation that Plaintiff suffered a discriminatory adverse employment action due to his disability

Andrew Abramson is a Pennsylvania employment discrimination attorney who represents employees who have been discriminated against based on their age, a disability and other legally protected criteria. For more information on age discrimination see https://www.job-discrimination.com/age-discrimination.html; for more information on disability discrimination see our website at http://www.job-discrimination.com/lawyer-attorney-1126511.htm.

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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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Female Pennsylvania Manufacturing Employee’s Sexual Harassment, Retaliation & Sex Discrimination Claims Proceed to Trial

Female employees who work in male dominated manufacturing production environments may confront unique issues at the workplace. In Vollmar v. SPS Technologies, LLC E. D. Pa. no. 15-cv-2087 (December 2, 2016, Pratter J.), the court denied a motion for summary judgment, ruling that a female Pennsylvania employee can proceed to trial with her sex discrimination, retaliation, and sexual harassment claims against her current employer. The employee, who has worked for her employer for 27 years in a manufacturing plant where men comprise over 90% of the workforce, alleged that she was repeatedly exposed to sexual harassment at the workplace where there were ever-present sexual overtones of materials.

In Vollmar, the employee’s evidence included sexually oriented material at the workplace including a sign on a refrigerator that included phrases such as “My sexual preference is . . . often” and “I am not a bitch. I’ve just been in a very, very bad mood . . . for the past 30 years”; photographs of women, one with the word “PIG” written across it; a small box containing four small plastic or candy breasts, where the lid read “Bet you can’t eat just one”; and a Penthouse pornographic magazine. The employee also alleged that coworkers and managers regularly directed sexist comments toward her, including calling her a “bitch” several times a week; she had been told that “It’s just like a woman to do that”; she was regularly told that she did not know what she was talking about because she was a woman; and evidence that a coworker had a habit of staring at her during work hours.

Ironically, the female employee was being investigating by Human Resources for a code of conduct violation regarding a relationship with a male coworker. At that time, she complained about the untoward comments made to her and disparate treatment. The employee testified that
that Human Resources representatives acknowledged that bringing the toy breasts or a pornographic magazine into the workplace would violate SPS’s Sexual Harassment policies. Following the investigation, the female employee received a written warning for a violation of the Code and returned to work after a 10-day suspension and the male coworker was terminated.

To establish what the law terms a prima facie case of a sexually hostile work environment, an employee must show: (1) the employee suffered intentional discrimination because of sex; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected the employee; (4) the discrimination would detrimentally affect a reasonable person in that position; and (5) the existence of respondent superior (employer) liability.

To determine whether an environment is sufficiently hostile or abusive, courts look to a number of factors, including the frequency of the discriminatory conduct; its severity; whether the conduct at issue is physically threatening or humiliating, or a mere offensive utterance; and whether the conduct unreasonably interferes with an employee’s work performance. Workplace conduct may be severe, pervasive, or both, as a single incident of severe harassment in the workplace may contaminate the work place to such a high degree that it will be considered hostile. Where the harassment is not severe, a collection of incidents of harassment must occur either in concert or with regularity. The use of derogatory and insulting terms relating to women at the and the posting of pornographic pictures in common areas and in personal work spaces may serve as evidence of a hostile environment.

In Vollmar, the court found that considering the frequency and variety of the types of gender-based and sexual language, material, and conduct a jury could determine that the harassment was severe or pervasive.

It is important to keep in mind that even where there is sexual harassment, in some instances the employer is not automatically liable for the conduct. Employer liability may depend on whether the sexual harasser is the employee’s coworker or a manager / supervisor. Unlike nonsupervisory harassment, employers can be liable for harassment by supervisors with authority even if the employer did not have notice of the harassment. In circumstances where the sexual harassment is not by a manager or supervisor, an employee must show that management level employees had actual or constructive knowledge of the sexual harassment and the employer failed to take prompt and appropriate remedial action such as failing to train, discipline or terminate employment upon receiving notice of the sexual harassment.

The foundation of a retaliation claim is that the employee reported conduct that is protected by the law and the employer took action against the employee for reporting the conduct. In evaluating retaliation claims in Pennsylvania, federal courts apply the McDonnell Douglas three-part burden-shifting framework which requires that an employee must first establish a prima facie case, showing that the employee engaged in protected activity; the employer took an adverse employment action against the employee; and there was a causal connection between the employee’s participation in the protected activity and the adverse employment action. Once the employee meets this burden, the employer must offer a legitimate, non-discriminatory reason for the adverse employment action. Then the employee must show pretext by pointing to some evidence from which a jury could reasonably either disbelieve the employer’s articulated legitimate reason; or believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s action.

To make out a prima facie case of retaliation, a plaintiff must also show evidence that establishes a causal link between the protected activity and the adverse action. In Vollmar the employee argued that the record established a causal link between the adverse action and her complaint as the employee complained about certain conduct, as well as other sexual harassment, as late as seven days before she was suspended. The court held that the written warning constitutes an adverse action and that a reasonable jury could find that such action constitutes retaliation.

Andrew Abramson of Employment Law represent Pennsylvania employees who have been subjected to sexual harassment and retaliation by their employers. For more information on sexual harassment and retaliation see http://www.job-discrimination.com/sexual-harassment.html.

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Terminated Employee Who Brings Shotgun to Work May Have Age and Sex Discrimination Claims

How can a terminated employee prove employment discrimination based on protected criteria such as age or sex when no one ever told the employee that the reason for termination was the employee’s age or sex? The answer is that federal and Pennsylvania law permits a Plaintiff employee to offer indirect evidence of discrimination. A recent Commonwealth Court of Pennsylvania case demonstrates that even when a gun is brought to work, if a similarly situated employee outside of a protected discrimination class is treated differently, courts may allow a discrimination claim to proceed.

In Leibensperger v. Carpenter Technologies, Inc. (Pa. Commwlth. Court September 22, 2016), the Commonwealth Court of Pennsylvania reversed the trial court and found that a terminated male employee may be able to show age and sex discrimination when the employer relied upon a policy which was not applied uniformly to a younger employee or a female employee. In Leibensperger, the proffered reason for termination of the male employee was that the employee violated the employer’s firearm policy that provides that bringing a firearm or other dangerous weapon onto the employer’s premises is considered an intolerable offense for which an employee will be immediately suspended with intent to discharge.

In Leibensperger, the employee brought an inoperable antique gun to the employer’s parking lot after his female co-worker said that she knew someone who could refurbish the shotgun and the co-worker agreed to transport the shotgun to the refurbisher’s place of business. While exchanging the shotgun in the parking lot, two other employees observed the transfer of the shotgun and reported the situation to the employer. After an investigation, the 53-year male employee was terminated but the female coworker was only suspended and then given a written warning. The terminated male employee filed age and sex discrimination claims regarding the termination and identified two other employees who were not terminated and received less harsh punishments for violating the employer’s dangerous weapons policy by bringing hunting bows onto the employer’s property.

Pennsylvania courts follow the analytical model established by the United States Supreme Court in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802 (1973) in determining whether summary judgment is appropriate for employment discrimination cases, involving indirect discrimination, where the Plaintiff employee must establish that: (i) the employee is a member of a protected class; (ii) the employee was qualified for the position; (iii) the employee suffered an adverse employment action; and (iv) the employee was discharged under circumstances that gave rise to an inference of discrimination. An employee can establish circumstances giving rise to an inference of discrimination by demonstrating that the employee was discharged and replaced by someone outside of his protected class and that similarly situated employees were not treated equally. Whether a comparator is similarly situated is generally a question of fact for a factfinder.

Once the employee establishes a prima facie case, the burden then shifts to the employer to articulate a legitimate, non-discriminatory motive for its action. If the employer does so, the employee is then given the opportunity to demonstrate that the proffered reason for termination was pretextual. There are two ways by which an employee can demonstrate that the employer’s legitimate, nondiscriminatory reason was pretextual. The first is to point to evidence that would allow a factfinder to disbelieve the employer’s reason for the adverse employment action. An employee may also point to evidence that would allow a factfinder to believe that an invidious discriminatory reason was “more likely than not a motivating or determinative cause” of the employer’s action.

In Leibensperger, the Commonwealth Ccourt found that the two employees who bought hunting bows to work were similarly situated in that they worked for the same supervisor, performed roughly the same job duties, and were both punished for violating the policy but not terminated, even though those employees violated the dangerous weapons policy prohibiting firearms on the employer’s property. The Court also found that the fact that firearm was an inoperable, rusty, antique shotgun that was not functional created a question whether the firearms policy was even applicable to the shotgun; while the hunting bow brought to work by younger employees who were not terminated, could fall within the policy as a “dangerous weapon.”

Ultimately the Commonwealth Court concluded that given the disparate treatment of other employees as compared to the terminated employee, as well as the potentially ambiguous nature of the employer’s policy, a reasonable factfinder could conclude that the employer’s policy was not violated by bringing an inoperable gun onto the employer’s parking area and that employer’s proffered reason for terminating employment could be a pretext for discrimination. Therefore, the Court found that viewing the evidence in a light most favorable to the terminated employee there was credible evidence that a reasonable factfinder could conclude that the employer’s proffered reason for terminating employment, thus, the Court reversed the trial court’s decision.

Abramson Employment Law represents employees in age discrimination and sex/gender discrimination claims. For more information on age and sex discrimination and Abramson Employment Law see http://www.job-discrimination.com/lawyer-attorney-1126515.html,http://www.job-discrimination.com/lawyer-attorney-2130157.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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Filed under Age Discrimination, Americans with Disabilities Act - Disability Discrimination, Retaliation