Dr. Set Shahbabian, a neurosurgeon, relinquished his surgical privileges at his employer, TriHealth Inc. following a peer review committee repeatedly determined he committed several serious surgical errors. Let’s look at some specific facts. Dr. Shahbabian, who was in his 70s, was having increasing health issues. Due to primary osteoarthritis, the doctor’s knees would suddenly and unexpectedly buckle; and he was seen holding on the hallway wall for support just to walk. Needless to say, unexpected buckling knees are not a good thing for a brain surgeon. Dr. Shahbabian was also being treated for worsening anxiety, fatigue, and hypertension.
In one instance, Dr. Shahbabian’s patients sustained excessive blood loss during surgery, was left paralyzed following the procedure, and later died. The surgery peer review committee concluded that Shahbabian engaged in “reckless or recurrent at-risk behavior,” which is the most serious rating a physician can receive. He was allowed to continue doing surgeries. Subsequently, the peer review three more of Dr. Shahbabian’s cases were flagged for reckless or recurrent at-risk behavior. One was because Shahbabian’s patient experienced post-surgical complications that required another neurosurgeon to perform a second operation; another because Dr. Shahbabian prescribed an unapproved antibiotic that left the patient at risk of severe infection; and a third because Dr. Shahbabian failed to remove part of a catheter from a patient before completing surgery.
Dr. Shahbabian then sued his employer based on age for pressuring him to give up his surgical privileges and eventually firing him when he refused to take a pay cut reflecting his inability to perform most of his job duties, i.e., brain surgery. The United States Court of Appeals for the Sixth Circuit presumed that Dr. Shahbabian could prove a prima facie case of age without deciding that issue so that it could skip to the issue of pretext.
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What does pretext mean in employment discrimination cases?
In the context of employment discrimination cases, “pretext” refers to a false reason given by an employer to justify a decision that adversely affects an employee, when the true reason is based on discriminatory motives. Under Title VII of the Civil Rights Act of 1964, employers cannot discriminate in any aspects of employment based on the employee’s race/color, gender, gender identity, sexual orientation, national origin, and religion. Likewise, the Americans with Disabilities Act (“ADA”) and Age Discrimination in Employment Act of 1967 (“ADEA”) make disability discrimination and age discrimination unlawful.
The legal definition of pretext comes from the landmark U.S. Supreme Court case of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), which established a framework for analyzing claims of employment discrimination. Under this framework, a plaintiff must first establish a prima facie case of discrimination by showing that (1) they belong to a protected class, (2) they were qualified for the job in question, (3) they suffered an adverse employment action, and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination.
If the plaintiff establishes a prima facie case, the burden then shifts to the employer to provide a legitimate, non-discriminatory reason for the adverse action. If the employer does so, the burden shifts back to the plaintiff to show that the employer’s stated reason is merely a pretext for discrimination.
Some examples of pretext in employment discrimination cases include:
- An employer claiming that an employee was terminated for poor performance, when in fact the employee had a history of positive performance evaluations and had recently complained about discrimination.
- An employer claiming that a qualified job applicant was not hired because of their lack of experience, when in fact the employer hired a less qualified applicant who was not a member of a protected class.
- An employer claiming that a promotion was denied to an employee because of their lack of leadership skills, when in fact the employee was passed over for a less qualified, but more senior employee who was not a member of a protected class.
Here are some notable cases where pretext was an issue:
- Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000): In this case, the Supreme Court held that a plaintiff can prevail in an employment discrimination case if they can show that the employer’s proffered reason for an adverse employment action is not only pretextual, but also that discrimination was the true reason for the action.
- Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993): In this case, the Supreme Court held that a plaintiff must show that the employer’s proffered reason for an adverse employment action is false, and that discrimination was more likely than not the true reason for the action.
- Kwan v. Andalex Group LLC, 737 F.3d 834 (2d Cir. 2013): In this case, the Second Circuit held that a plaintiff can show pretext by presenting evidence that the employer’s proffered reason is unworthy of credence, or by showing that the employer acted contrary to its own policies or practices in making the adverse employment decision.
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Can older employees be fired because their skills are declining?
Under the Age Discrimination in Employment Act (“ADEA”), employers are prohibited from discriminating against employees who are 40 years of age or older. This includes firing an employee based on their age, even if the employer believes that the employee’s skills are declining due to their age.
However, there are some limited circumstances in which an employer may be able to justify firing an older employee based on their declining skills, if it can be shown that the employee’s skills are no longer adequate for the job and that reasonable efforts were made to address the issue. This is known as the “reasonable factor other than age” defense.
One case that addressed this issue is O’Connor v. Consolidated Coin Caterers Corp., in which the United States Supreme Court held that an employer could use the “reasonable factor other than age” defense to justify firing an older employee based on declining skills, as long as the employer can demonstrate that the decision was based on a reasonable factor other than age.
Another case is EEOC v. Exxon Mobil Corp., in which the employer argued that it had a policy of requiring certain employees to retire at age 65 due to declining skills, and that this policy was a reasonable factor other than age. However, the court held that the employer had not adequately demonstrated that the policy was based on anything other than age, and therefore the policy violated the ADEA.
Overall, while there are limited circumstances in which an employer may be able to justify firing an older employee based on declining skills, it is important for employers to carefully document the reasons for the decision and ensure that any policy or practice is not based on age discrimination.
In Shahbabian, the United States Court of Appeals for the Sixth Circuit held that this was one of the cases that fell within the limited circumstances:
“Plaintiffs typically show pretext in one of three ways: ‘(1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did not actually motivate the employer’s action, or (3) that the proffered reasons were insufficient to motivate the employer’s action.’” Miles, 946 F.3d at 888 (quoting Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009)). Shahbabian’s attempt to show pretext essentially covers categories two and three.
Shahbabian makes little attempt on appeal to dispute the findings of the peer review committees that his reckless medical judgment caused his patients significant harm and did not contest the findings at the administrative level. Instead, he insists that his peers’ criticism of his competence was a proxy for his age. While “an older employee [cannot] be fired because the employer believes that productivity and competence decline with old age,” the ADEA does not condemn decisions “wholly motivated by factors other than age … even if the motivating factor is correlated with age.” Hazen Paper Co. v. Biggins, 507 U.S. 604, 610–11 (1993). Here, it is clear that the peer review committee was “wholly motivated by factors other than age,” namely patient safety, given Shahbabian’s alarming outcomes that included rendering a patient impotent, leaving another a quadriplegic, repeatedly failing to administer proper antibiotics, and performing elective surgery that left a patient in severe pain. … As the district court put it, “[n]o reasonable juror would think that reckless or recurring at-risk behavior in a neurosurgical context did not actually motivate or was insufficient to warrant the committee’s discussion with Dr. Shahbabian about temporarily abstaining from operating.” … . In short, Shahbabian’s peers acted because of his declining competency, not because of his advancing age. Nothing in the record is to the contrary. And absent evidence of age discrimination, Shahbabian’s aiding and abetting age discrimination claims against TriHealth and Mayfield fail too.
Id. at *4.
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What should I do if I was fired today because my manager thinks I’m too old?
Best Employment Lawyer Answer: Age discrimination claims are tricky. There is no stock answer regarding what an older employee should do if potentially wrongfully fired because of age discrimination. Every case presents different facts and circumstances. Thus, the most important thing to do after getting fired isst to call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?; Why Having Skilled Employment Attorneys Is Critical; Employment Law: Avoid Hiring The Wrong Attorney). Call our lawyers in Ohio, Michigan, North Carolina, and Kentucky to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.
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