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Dr. Fink is professor of pharmacy law and policy at the University of Kentucky College of Pharmacy, Lexington.
A pharmacist in a mid-Atlantic state saw an advertisement for an open position with a pharmacy chain and applied. He underwent a telephone interview and was rated by a recruiter using the firm's standard interview scoring form. His evaluation was "Total Acceptable Rating" of 7 and "Total Unacceptable Rating" of 1, which qualified him for employment under the firm's standards. He indicated during the discussion that he was flexible and could work weekends and holidays. He was 49 years old at the time.
A month later, he met with the district supervisor for a face-to-face interview. The supervisor emphasized the rigors of the position and inquired why he had not sought licensure in a neighboring state. The pharmacist reiterated his flexibility, stating he would work any shift, anywhere, including weekends.
Six months later, the pharmacist, now age 50, had a second in-person interview with the district supervisor. He again emphasized his flexibility regarding work hours and practice location. The supervisor mentioned an opening at a specific location without disclosing where it was, erroneously indicating that the "district pharmacy supervisor" was in charge of hiring for that position. This led the applicant to believe that the district supervisor with whom he was meeting was unable to extend a job offer to him. Further, the district supervisor indicated that the location he had in mind was not accessible by public transportation. Despite repeated requests from the pharmacist, the district supervisor did not disclose the exact location.
Subsequently, the district manager offered the position to 2 younger pharmacists, aged 47 and 42. The district manager explained this by stating that the older pharmacist lacked job experience, although the position in question was described as being for an entry-level pharmacist. The 47-year-old pharmacist declined an offer to take the position and the 42-year-old was hired.
The oldest pharmacist filed an age discrimination charge with the US Equal Employment Opportunity Commission, alleging that the reasons given for not hiring him were pretexts for age discrimination. The agency investigated and was "unable to conclude that the information obtained establishes violations of the statutes." It issued a "right-to-sue" letter, meaning that the agency decided not to pursue the matter in court on behalf of the government. The individual, however, could do so within 90 days. The pharmacist did, alleging a violation of the Age Discrimination in Employment Act of 1967, which prohibits discrimination on the basis of age against persons age 40 or older.
The federal trial court received a motion for summary judgment from the employer and ruled in its favor. The judge concluded that the pharmacist's "meager, unsupported allegations of age discrimination are insufficient to establish a prima facie case of age discrimination, making summary judgment appropriate." The pharmacist appealed that decision to the US Court of Appeals, arguing the trial court judge had made an error.
The appellate court reversed the decision of the trial court, ruling that there were genuine issues of material fact regarding whether the reasons given for not hiring this individual were a pretext to cloak the real reasons for not hiring him. If that were the case, a jury could reasonably find that he was subject to an adverse employment action because of his age, a violation of the federal statute. The judge erred by ruling in favor of the defendant on a motion for summary judgment, thereby eliminating the possibility for a jury to review the matter.
The court pointed to a number of issues for a jury to consider, of which it never had a chance to review because of the grant of summary judgment. First, another pharmacist was offered the position because of having prior experience, but this was posted as an entry-level position. Second, no managerial experience was required for this position. Third, there were 8 full-time pharmacist positions open with the firm in the area under consideration. Fourth, the hiring supervisor asserted that this pharmacist would not want the position, because the location was inaccessible by public transportation. The jury could find pretext in 1 or more of these if given a chance to review the matter.
Finally, the hiring of another pharmacist in the protected class, for example, those over age 40, was not determinative of this pharmacist's case.