Labor & Employment Law Daily Wrap Up, DISCRIMINATION—AGE—4th Cir.: Ousted neurosurgery chair loses age bias claims but retaliation claim based on accelerated removal revived, (Jul 13, 2026)

By Kathleen Kapusta, J.D.

The doctor argued that a VP’s statements he was looking for someone “younger” and “earlier in their career” who was willing to serve as neurosurgery chair for 10 to 15 years constituted direct evidence of age discrimination.

Despite comments by a decisionmaker in the removal of a 62-year-old medical school neurosurgery department chair that the next chair should be “younger” and have a longer “runway” to serve, the Fourth Circuit declined to revive the chair’s federal and state-law age discrimination claims as well as his claim he was removed in retaliation for his attorney’s age discrimination complaint. The court, however, revived his claim that the decisionmakers retaliatorily accelerated his removal after his attorney’s allegations (Lee v. West Virginia University Medical Corp. dba University Health Associates, No. 25-1306 (4th Cir. July 10, 2026)).

When he was hired by West Virginia University (WVU) and University Health Associates (UHA) in 2018 and appointed by a WVU vice president as Chair of the Department of Neurosurgery at WVU’s School of Medicine, the doctor was 59 years old. At the same time, he was also hired as a pediatric neurosurgeon by UHA, which provides support services to WVU faculty members who practice at West Virginia Hospitals.

Performance concerns. By the spring of 2020, however, two senior administrators raised concerns about his performance as chair, including his absenteeism, lack of engagement, and attitude. When the doctor failed to show sufficient improvement by March 2021, the VP and another executive decided to ease him out of the chair position by creating a new executive director position for him.

Although the doctor responded positively, he claimed that the VP, at a May 2021 meeting to discuss the transition, said he wanted to recruit a much younger individual who would have a 10-15 year “runway” to serve as chair. Believing the new executive director position was a demotion, the doctor declined. Nonetheless, the VP and executive, in a June meeting, informed him that he would be replaced but could remain as chair for a year and help in recruiting his replacement. According to the doctor, the VP again expressed a desire to “get someone younger and earlier in their career” for the chair position, “with more energy and interest in the job.”

After the doctor purportedly walked out of a July 2022 meeting, the VP and executive allegedly decided he had to be immediately removed. A week later, the doctor’s attorney sent a letter to WVU and UHA proposing terms pursuant to which the doctor would assist in transitioning to a new chair. He also raised a claim of age discrimination. After the attorney sent a second letter in August repeating age discrimination allegations, counsel for WVU and UHA, in an email, responded that “After much thought about the issues raised in [the] August 12, 2021 letter, WVU has decided to remove [the doctor] as Chair of the Department of Neurosurgery” and to do so almost immediately,” because he had “not met expectations in his role as Chair.”

Lower court proceedings. The doctor sued UHA for age discrimination and retaliation in violation of the ADEA and state law and WVU for age discrimination and retaliation in violation of state law. Although he alleged that WVU and UHA operated at joint employers, the district court declined to address that issue. Rather, it dismissed his claims against WVU, finding it was entitled to sovereign immunity, and granted summary judgment to UHA.

Direct evidence of age discrimination. On appeal, the doctor argued that the VP’s statements that he was looking for someone younger and “earlier in their career” who was willing to serve for 10 to 15 years constituted direct evidence of age discrimination. Disagreeing, the Fourth Circuit explained that the comments appeared to relate more to the employer’s long-range planning, a legitimate business interest.

Moreover, said the court, the VP first stated his desire to hire someone “younger” during the May 2021 meeting, which was after the doctor expressed interest in moving to the new position and during a discussion about a transition of the chair position. At the time of comments, the court observed, it was undisputed the VP expected the doctor to be leaving the chair position, and the relevant discussions were about the transition process and the doctor’s eventual successor.

Circumstantial evidence. Nor, said the court, did the doctor establish age discrimination through circumstantial evidence. He was 59 years old when he was appointed as chair with the VP’s approval and was 62 when he was removed by the VP, who was a few months older than the doctor. Taken together, the court found these facts created a “powerful inference” the doctor was not removed because of his age. In addition, his replacement was also in his sixties.

Moreover, the court observed, two senior administrators had raised concerns about the doctor’s performance as chair and there was no dispute that the proffered expectations—that the doctor report for work and participate in academic and clinical programs—were legitimate. Nor was there any evidence the doctor showed meaningful improvement in those areas. Further, UHA consistently took the position the doctor did not meet expectations in his role as chair. Affirming summary judgment for UHA on the doctor’s age discrimination claims, the court found he failed to show age was the but-for cause of his removal.

Retaliation--removal. As to the doctor’s claim he was removed as chair and his compensation and benefits were reduced in retaliation for reporting the VP’s discriminatory remarks, the court assumed his removal as chair and the acceleration of that removal constituted adverse actions for purposes of his employment as a clinical physician at UHA. It found, however, that he failed to show retaliation was the real reason for his removal or for the associated reduction in his compensation and benefits.

While he relied on temporal proximity—he was removed three weeks after he first complained of age discrimination in his attorney’s July letter—the undisputed evidence, said the court, showed that the plan to remove him started months before the attorney’s letter. Not only did the VP and executive decide by March 2021 to offer him a new position that would require him to step down as chair, they formally offered him that role in May. And when the doctor declined the new position, he was informed in May or June that he would be replaced as chair. Indeed, the court observed, the purpose of the attorney’s July letter was to negotiate the terms of the doctor’s transition to a new chair.

Regarding the doctor’s contention UHA also retaliated against him when it “downgraded” his employment “immediately after his removal as Chair” through the reduction of compensation and benefits and the loss of office space and administrative support, the court found he failed to dispute that these conditions were tied to his appointment as chair. “When that appointment was terminated,” the court explained, “it followed as a matter of course that UHA adjusted the conditions of his employment pursuant to the terms of his employment agreements.”

Acceleration of removal. As to the doctor’s retaliation claim based on the decision to accelerate his removal, UHA claimed that decision was also made before the attorney’s July letter. According to the VP’s and executive’s testimony, the doctor’s appointment was cut short after the parties’ unsuccessful July 2021 meeting when he refused to assist with transition efforts, ceased negotiations, and walked out of the room. Indeed, the executive testified that the decision to accelerate the doctor’s removal was made as soon as the meeting concluded on July 22, a full week before the attorney’s first report of age discrimination on July 29.

Finding conflicting evidence on when the decision was actually made to accelerate his removal, the court pointed to the doctor’s testimony that he remained open to discussions about a transition and left the July meeting only after the VP concluded the meeting by stating “we’ll let the lawyers talk.” Moreover, said the court, apart from the executive’s self-serving testimony, there was no evidence the decision to accelerate the doctor’s removal was made at the end of the July 22 meeting.

Nor was there any documentary reference regarding any removal date prior to the removal notice itself, which was contained in the August email to the doctor’s attorney from counsel for WVU and UHA, which stated that the decision was made only “[a]fter much thought about the issues raised” in the attorney’s August 2021 letter. And the issues raised in that letter, observed the court, included a reiterated complaint about the VP’s allegedly age-discriminatory comments and a concern about potential retaliation in the form of an accelerated removal schedule that the lawyer believed WVU and UHA had begun to contemplate in response to his first report of age discrimination.

Finding genuine factual disputes that could not be resolved on summary judgment, the court vacated the district court’s grant of summary judgment to UHA on the doctor’s acceleration-based retaliation claim.

Joint employment. Pointing out that the district court assumed but did not decide that the doctor’s removal from his chair position at WVU constituted an adverse action with respect to his employment as a surgeon with UHA, which was no longer a defendant in the case, the court left the issue of joint employment to the lower court to resolve in the first instance on remand.

The case is No. 25-1306.

Judge: Harris, P.

Attorneys: Marie Milie Jones (JonesPassodelis) for Mark R. Lee. Justin M. Harrison (Jackson Kelly) for West Virginia University Medical Corp. dba University Health Associates.

Companies: West Virginia University Medical Corporation; University Health Associates

Cases: AgeDiscrimination Discrimination Retaliation Discharge MarylandNews NorthCarolinaNews SouthCarolinaNews VirginiaNews WestVirginiaNews