If a pharmacist feels he was passed over for a job because of age, does the pharmacist have a legal argument for age discrimination?
Dr. Fink is professor of pharmacy law and policy at the University of Kentucky College of Pharmacy, Lexington.
When an applicant for a pharmacyjob—described as an entry-level position—is not selected with the explanationbeing lack of job experience butsubsequently learns the position wasoffered to 2 younger pharmacists, mayhe maintain a legal action for age discrimination?
A pharmacist in a mid-Atlantic statesaw an advertisement for an openposition with a pharmacy chain andapplied. He underwent a telephoneinterview and was rated by a recruiterusing the firm's standard interviewscoring form. His evaluation was "TotalAcceptable Rating" of 7 and "TotalUnacceptable Rating" of 1, which qualifiedhim for employment under thefirm's standards. He indicated duringthe discussion that he was flexible andcould work weekends and holidays. Hewas 49 years old at the time.
A month later, he met with the districtsupervisor for a face-to-face interview.The supervisor emphasized the rigorsof the position and inquired why hehad not sought licensure in a neighboringstate. The pharmacist reiterated hisflexibility, stating he would work anyshift, anywhere, including weekends.
Six months later, the pharmacist,now age 50, had a second in-personinterview with the district supervisor.He again emphasized his flexibilityregarding work hours and practicelocation. The supervisor mentioned anopening at a specific location withoutdisclosing where it was, erroneouslyindicating that the "district pharmacysupervisor" was in charge of hiring forthat position. This led the applicant tobelieve that the district supervisor withwhom he was meeting was unable toextend a job offer to him. Further, thedistrict supervisor indicated that thelocation he had in mind was not accessibleby public transportation. Despiterepeated requests from the pharmacist,the district supervisor did not disclosethe exact location.
Subsequently, the district manageroffered the position to 2 younger pharmacists,aged 47 and 42. The districtmanager explained this by stating thatthe older pharmacist lacked job experience,although the position in questionwas described as being for an entry-levelpharmacist. The 47-year-old pharmacistdeclined an offer to take theposition and the 42-year-old was hired.
The oldest pharmacist filed an agediscrimination charge with the US EqualEmployment Opportunity Commission,alleging that the reasons given for nothiring him were pretexts for age discrimination.The agency investigatedand was "unable to conclude that theinformation obtained establishes violationsof the statutes." It issued a "right-to-sue" letter, meaning that the agencydecided not to pursue the matter incourt on behalf of the government. Theindividual, however, could do so within90 days. The pharmacist did, alleging aviolation of the Age Discrimination inEmployment Act of 1967, which prohibitsdiscrimination on the basis of ageagainst persons age 40 or older.
The federal trial court received amotion for summary judgment fromthe employer and ruled in its favor. Thejudge concluded that the pharmacist's"meager, unsupported allegations ofage discrimination are insufficient toestablish a prima facie case of agediscrimination, making summary judgmentappropriate." The pharmacistappealed that decision to the US Courtof Appeals, arguing the trial court judgehad made an error.
The appellate court reversed the decisionof the trial court, ruling that therewere genuine issues of material factregarding whether the reasons givenfor not hiring this individual were apretext to cloak the real reasons fornot hiring him. If that were the case,a jury could reasonably find that hewas subject to an adverse employmentaction because of his age, a violationof the federal statute. The judge erredby ruling in favor of the defendant on amotion for summary judgment, therebyeliminating the possibility for a jury toreview the matter.
The court pointed to a number of issuesfor a jury to consider, of which it neverhad a chance to review because ofthe grant of summary judgment. First,another pharmacist was offered theposition because of having prior experience,but this was posted as an entry-levelposition. Second, no managerialexperience was required for this position.Third, there were 8 full-time pharmacistpositions open with the firm inthe area under consideration. Fourth,the hiring supervisor asserted that thispharmacist would not want the position,because the location was inaccessibleby public transportation. The jurycould find pretext in 1 or more of theseif given a chance to review the matter.
Finally, the hiring of another pharmacistin the protected class, for example,those over age 40, was not determinativeof this pharmacist's case.