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Employment Law Blog
James Tarquin, P.A
As part of our commitment to assist and educate employees in fighting back against the abusive employment practices of employers, we offer a broad range of information about employment law issues in our employment blog.

Is Replacing A Fired Older Employee With A Younger Worker Evidence Of Age Discrimination?

Age Discrimination is shown on the conceptual business photo

For the past two decades, our Citrus County, Florida lawyers for age discrimination victims have fought for the rights of Florida employees who have been fired because of their age. Through their extensive experience in handling age discrimination cases, our Inverness, Florida attorneys for age discrimination victims have learned that many discharged older workers mistakenly believe that an employer must tell them that they were fired on the basis of age in order to have a meritorious age discrimination case. However, as observed by the U.S. Second Circuit Court of Appeals in Rosen v. Thornburgh, 928 F.3d 533 (2d Cir. 1991), “an employer who discriminates is unlikely to leave a ‘smoking gun,’ such as a notation in an employee’s file, attesting to discriminatory intent.” Because employers rarely will admit to a discriminatory motive when discharging older employees, age discrimination cases almost always must be proven through circumstantial evidence.

In the age discrimination context, one form of circumstantial evidence used to prove that an employee’s age played an impermissible role in a termination decision is the age of the replacement. When an employer replaces the discharged older worker with an individual who is substantially younger, the age of the replacement constitutes circumstantial evidence of an age-based discriminatory discharge decision. In this article, our Citrus County, Florida lawyers for age discrimination victims explain how the recent decision by the U.S. Third Circuit Court of Appeals in Martinez v. UPMC Susquehanna, Case No. 19-2866 (3d Cir. Jan. 13, 2021) illustrates that an employer’s decision to replace a terminated older worker with a significantly younger individual is an important piece of evidence in proving that the older employee was fired because of his or her age.

Worker Claims Fired Because Of Age

In that case, Zeferino Martinez (Martinez) brought an age discrimination case against his former employer, UPMC Susquehanna (UPMC), pursuant to the Age Discrimination in Employment Act (ADEA). Under the ADEA, it is an unlawful discriminatory employment practice to discriminate against employees on the basis of age. To be protected from age discrimination under the ADEA, an employee must be at least forty years of age. Martinez claims that UPMC violated the ADEA by firing him because of his age.

Martinez is a board certified orthopedic surgeon with four decades of experience. In 2016, a hospital hired Martinez on a three-year contract as its only orthopedic surgeon. In 2017, UPMC bought and took over the hospital. UPMC representatives told Martinez that they would continue his contract. They also discussed acquiring new equipment and hiring an x-ray technician to help him and other doctors.

But just a month later, UPMC’s chief operating officer and its executive director of the musculoskeletal division fired Martinez. Their only explanation was that the hospital was “moving in a different direction and [Martinez’s] services were no longer needed.” Both executives told Martinez that his firing “had nothing to do with [his] performance.” Indeed, when Martinez was fired, his surgery schedule was booked up for several months. Martinez was then seventy years old.

Soon after firing him, UPMC hired two doctors. One doctor, Hunter, took over at least some of Martinez’s duties. In addition, UPMC posted an opening for an orthopedic surgeon. Martinez applied three times for this spot, but never got a response. Instead, UPMC hired a doctor named Jarvis. Both Hunter and Jarvis were, according to Martinez, “significantly younger,” “less qualified,” and “less experienced” than Martinez.

Younger Replacement Evidence Of Age Discrimination

The trial court dismissed Martinez’s age discrimination claim. In doing so, the trial court ruled that Martinez was required to allege the ages of Hunter and Jarvis in order to state a prima facie case of age discrimination. On appeal, the Third Circuit reversed the trial court’s decision and reinstated Martinez’s age discrimination claim. Unlike the reversed trial court, the court of appeals ruled that Martinez did not have to allege his replacements’ exact ages in order to state a prima facie case of age discrimination. In support of its conclusion, the appellate court reasoned that employees claiming race or national origin discrimination can allege a replacement’s race or national origin “based on observation, without genealogy, even though these observations are fallible.” “So too,” the court of appeals explained, an employee claiming age discrimination can allege “a substantial age gap without knowing dates of birth.”

In reversing the trial court, the Third Circuit also determined that Martinez had alleged enough facts to state a prima facie case of age discrimination. The court of appeals explained that Martinez “says he is over forty, he is qualified for the job,” and “he was fired and not rehired.” Martinez further alleges, the appellate court noted, that “his replacements were not only significantly younger, but also less qualified and experienced.” “These factual allegations of age differences,” the court of appeals determined, “are enough.” The court of appeals also pointed out that Martinez “adds suspicious details, like the hospital’s earlier assurances that it would keep Martinez on and its executives’ statements that his firing was not based on his performance.” Taken cumulatively, the Third Circuit concluded, Martinez’s allegations of fact were sufficient to plausibly establish that he was fired because of his age in violation of the ADEA.

Inverness, FL Age Discrimination Lawyers

Based in Ocala, Florida and representing employees throughout Central Florida, our Citrus County, Florida attorneys for age discrimination victims have litigated age discrimination cases in Florida courts for more than two decades. If you have been fired on the basis of age or have questions about your rights as an age discrimination victim, please contact our office for a free consultation with our Inverness, Florida lawyers for age discrimination victims. Our employment and labor law attorneys take age discrimination cases cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.

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