Pharmacy Law: Allegation of Age Discrimination in Termination

AUGUST 17, 2010
Joseph L. Fink III, BSPharm, JD
Was the employer entitled to have the case dismissed before trial if the plaintiff failed to include direct or indirect evidence that the termination was based on age?

Issue of the Case
When a 53-year-old pharmacist was terminated from employment and replaced with a recent pharmacy school graduate, was the employer entitled to have the case dismissed before trial if the plaintiff failed to include in the lawsuit direct or indirect evidence that the termination was based on her age?

Facts of the Case
A woman in a Midwestern state was hired by a pharmacy chain in 1995 and remained employed until she was terminated in 2007. Initially assigned as a staff pharmacist at several locations of the chain, she was promoted to the position of pharmacy manager after 7 years. Between 2002 and 2006, the pharmacist received several performance evaluation ratings of “meets expectations.” In the spring of 2006, however, she was given a rating of “needs improvement.”

Early the following year, the pharmacy supervisor received complaints from several employees that the pharmacist was violating pharmacy policy and procedures. Upon investigation, it was concluded that she had dispensed medications on prescriptions that were no longer valid and had modified prescription prices in violation of company policy. The pharmacist was demoted to a staff pharmacist position and transferred to another location. She was warned that another violation of company policy would result in termination. When filing her lawsuit, the pharmacist did not allege that her demotion was based on her age.

At the new location, the pharmacist claimed that her pharmacy manager referred to her as “old and slow” and made derogatory references to her demotion. She said that her coworkers at the new location referred to her as “old, crazy, and slow,” and that she reported these comments to the pharmacy supervisor, but no action was taken against the coworkers. In response, the pharmacy supervisor said she was “old enough to know better” and “too old” to take such remarks seriously. It was also alleged by the pharmacist that, on several occasions, the pharmacy supervisor questioned whether she could “keep up,” was “past her prime,” or was “too old to do this anymore.” In court filings, the employer denied that such comments were made.

The basis for dismissal of the pharmacist, as identified by the employer in court filings, was her handling of a prescription in a manner that could have had very severe consequences. A patient had presented a prescription for dispensing that, when entered into the pharmacy’s computer, generated a warning of a severe potential adverse interaction with another medication the patient was using. The plaintiff was not on duty at the time, and the pharmacist who saw the alert set the prescription aside to contact the prescriber. The prescription was put into an “exception queue” until the prescriber called back.

When the plaintiff arrived at work that day, she was told about the “exceptional” treatment of the prescription, according to the pharmacy manager. The plaintiff reported in court filings that she was not alerted to these unique circumstances. She dispensed the prescription, overriding the computer-generated warning and entering into the computer log that she had reviewed the patient’s history. The next day, the physician called to indicate that the prescription should not be dispensed, and that is when the pharmacy manager discovered that the plaintiff had already done so. This incident led to termination of the plaintiff. She was replaced with a recent pharmacy school graduate.

The employer moved for summary judgment to have the employment discrimination claim dismissed by the trial court judge.

The Court’s Ruling
Summary judgment is appropriate when the materials on file with the court show that there is no genuine issue of material fact to require a trial. The court granted the motion and dismissed the case.

The Court’s Reasoning
The federal Age Discrimination in Employment Act prohibits an employer from firing an employee who is aged 40 years or older because of his or her age. An employee claiming that such a discharge occurred may choose between proving the case directly or indirectly. Direct proof of discrimination consists of statements made by the employer’s representatives that the decision was based on unlawful criteria. Indirect proof uses more circumstantial evidence. Under either approach, the important question is whether the person would have been terminated regardless of his or her age.

A key element of the case in the view of the court was whether the pharmacist’s performance was meeting the employer’s legitimate expectations. If the answer is no, then she could be terminated regardless of her age. The employer was able to offer a legitimate, nondiscriminatory reason for plaintiff’s firing: her mishandling of the prescription from the exception queue after having been warned that another violation of company policy would result in her termination.

Dr. Fink is professor of pharmacy law and policy at the University of Kentucky College of Pharmacy, Lexington.

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