Labor & Employment Law Daily Interviewer’s note that 62-year-old neonatologist was ‘at end of career’ did not support ADEA claim
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Tuesday, January 26, 2021

Interviewer’s note that 62-year-old neonatologist was ‘at end of career’ did not support ADEA claim

By Kathleen Kapusta, J.D.

The interviewer explained that as an administrator, he wanted to “build for 20, 30 years in the future, not just for the next five years.”

Affirming summary judgment against the ADEA wrongful termination claim of a 62-year-old neonatologist, who was fired along with four other neonatologists over age 50 in a restructuring, while her 35-year-old colleague was transitioned to the employer’s larger facility, the Seventh Circuit explained that the medical director fired all five neonatologists at the smaller facility and gave all five the identical opportunity to apply for the opening at the larger facility and thus there was no genuine dispute of fact that the comparators were treated identically. Nor was a note by one of the interviewers for the open position that the doctor was “at end of career” enough to revive her ADEA failure-to-hire claim, said the court, observing that it has “previously explained that the description of a plaintiff as a ‘later career person’ is ‘not an inevitable euphemism for old age’” (Marnocha v. St. Vincent Hospital and Health Care Center, Inc., January 22, 2021, Flaum, J.).

NICU program. The board-certified doctor in pediatrics and neonatal-perinatal medicine joined St. Vincent’s Hospital’s 86th Street facility in 1987. She was tasked with developing its Neonatal Intensive Care Unit (NICU) into a Level III facility, and during her tenure, the NICU advanced to a Level IV facility. When St. Vincent began building a perinatal service program at its Carmel campus, with the goal of eventually establishing a Level III NICU, the doctor was appointed to run the program. She transferred to the Carmel facility in 2003, working part-time there for the next two years, and then transitioned to full-time after the NICU became a Level III facility.

Restructuring. In February 2017, the executive director of St. Vincent’s pediatric service line in Indiana determined that there were too many neonatologists on staff. Accordingly, he decided to terminate the Carmel neonatologists and expand the responsibilities of the 86th Street neonatologists. At that time, the Carmel facility employed five neonatologists—one of whom was 35 while the other four over the age of 50—while the 86th Street facility employed 16 neonatologists and hospitalists.

High energy person. After input from HR, all Carmel neonatologists, including the doctor, were fired, and the 86th Street group was tasked with covering the Carmel NICU. All five of the Carmel neonatologists applied for the one open position at the 86th Street facility and the six-member interview panel unanimously chose the 35-year-old neonatologist. The panel articulated clear reasons for preferring her, including that the 86th Street NICU was a “very large, big, busy NICU” requiring a “kind of high energy person to be able to do the job.” Further, the interviewers, who focused on how each candidate planned to transition from a nursery with an average daily count of less than 10 babies to a NICU with an average daily count between 60 and 70 babies, noted that she was ready with a plan, had a positive attitude, and an aptitude for patient interaction.

End of her career. In contrast, the interviewers agreed that the doctor relied almost exclusively on her less-recent Level IV experience, failed to articulate how she would transition to a higher acuity and busier NICU, did not have a cogent plan for making the transition, and did not think much had changed in the past 15 years. Although one interviewer made a note to himself that she was “at end of career,” he claimed it meant she was toward the end of her career as opposed to successful candidate who was toward the beginning of her career and that as an administrator, he “want[ed] to build for 20, 30 years in the future, not just for the next five years.”

Lower court proceedings. The doctor subsequently sued under the ADEA alleging that St. Vincent discriminated against her on the basis of her age by terminating her employment as a neonatologist and not hiring her for the open position. The district court granted summary to St. Vincent on all claims.

Termination. As to her termination claim, the doctor argued on appeal that the court below erred in determining that she could not satisfy the “similarly situated” prong of her prima facie case. The district court, she asserted, impermissibly narrowed the scope of her comparators when it limited the relevant comparators to the terminated Carmel neonatologists and did not include the neonatologists at the 86th Street facility. Agreeing that the two groups of neonatologists were not comparable in all material respects, the appeals court explained that the two work environments were distinct, varying by NICU level, acuity, and pace. Accordingly, the court found the Carmel neonatologists were the proper comparators.

Further, said the court, there was simply no ambiguity in the events that transpired: Similarly situated employees under the age of 40 were not treated more favorably. Rather, the director fired all five Carmel neonatologists and gave all five the identical opportunity to apply for the opening at 86th Street facility. Accordingly, summary judgment was proper as to this claim.

Failure to hire. Turning to the doctor’s failure-to-hire claim, the appeals court found that based on the record, the successful candidate outperformed the doctor in the interview. Not only did she have a plan for the transition, she impressed the interviewers with her proactive research, and high-energy level. Noting that the doctor, in contrast, “brushed off her need for training and the existence of medical advances over the last fifteen years,” the appeals court found sufficient evidence of legitimate and non-age-related reasons for hiring the younger candidate.

No pretext. And while the doctor argued that the interviewer’s note stating that the doctor was “at end of career” established pretext, the appeals court disagreed. Putting his comment in context, there was no evidence that he steered the interview committee away from the doctor. Indeed, said the court, the record supported the claim that the interviewers independently reached their decision to hire the younger candidate. Nor, the court noted, does seeking a “high energy person” to fill the open neonatologist role, without more, evidence an inappropriate focus on age. Accordingly, summary judgment was affirmed as to this claim as well.

The case is No. 20-1374.

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