Labor & Employment Law Daily Wrap Up, DISCRIMINATION—AGE—M.D. Fla.: Employee replaced by younger individual after position was eliminated advances bias claim, (Oct 21, 2025)

By Molly Platnick

The employee, an 88-year-old woman who worked as a Senior Contracting Specialist for a government contracting consulting firm, described herself as an exemplary employee who generated significant profits.

A federal district court in Florida denied a government contracting consulting firm’s motion to dismiss in a case brought by a former employee who, while in her 80s, was fired after being required to work from home during the COVID-19 pandemic. The employee alleged the firm was liable for age discrimination in violation of the ADEA and Florida Civil Rights Act (FCRA). Although she did not provide direct evidence of age discrimination, the court found her circumstantial evidence met all four elements of the McDonnell Douglas test to survive a motion to dismiss. The firm argued the former employee could not state a claim because she failed to show younger employees were treated more favorably but the court found she proffered sufficient circumstantial evidence for a prima facie age discrimination claim (Testa v. GSA Access Group, No. 8:24-cv-2739-CEH-SPF (M.D. Fla. Oct. 17, 2025)).

Work from home. The employee, who is now 88 years old, worked for the firm as a Senior Contracting Specialist from 2011 to 2023. She described herself as an “exemplary employee who generated significant profits.” Because of the employee’s age and risk of illness, the firm’s then president decided to have her work from home during the COVID-19 pandemic but initially did not change her pay. Two weeks later, the president informed the employee she would no longer be paid by the hour and would instead be paid for two times the amount of time she spent talking to clients. The employee generally spent two hours a day talking to clients and her pay decreased from $114,000 in 2021 to $74,000 in 2022.

Different pay. The firm’s vice president of sales knew the employee was working 60 hours per week but only being paid for four of her eight hours of work. Younger employees were permitted to work in person and were paid for their full eight hours. The firm’s president denied the former employee’s repeated requests to return to the office and suggested she “retire and enjoy her senior years” or “form her own company so she could be paid exclusively based on her commissions using a Form 1099 to declare her income.”

Fired. In March 2023, the consulting firm discharged the employee, stating her position had been “eliminated.” Shortly thereafter, the firm hired a “significantly” younger Sales Account Specialist.

Direct evidence. The court dismissed the employee’s previous amended complaint for lack of direct evidence of age discrimination and gave her leave to amend to add any direct evidence. The employee’s second amended complaint did not add any new allegations of direct evidence and the court decided she could not succeed on a theory of age discrimination based on direct evidence.

Circumstantial evidence. Under the indirect method, the firm argued the employee did not satisfy the fourth element of the McDonnell Douglas test because she did not plausibly allege she was replaced by a significantly younger contractor. However, the Supreme Court has held that a plaintiff need only “allege facts giving rise to an inference of disparate treatment or intentional discrimination” to establish a prima facie age-discrimination case and survive a motion to dismiss.

The court concluded the employee satisfied the elements of the McDonnell Douglas test because at 88 years old she was in the group the ADEA and FCRA are designed to protect; being fired is adverse employment action; she was an “exemplary employee;” she was required to work from home while younger employees were permitted to go into the office; and after she left, her duties were delegated to younger employees.

Based on these facts, the court found the former employee plausibly alleged the firm discriminated against her based on her age and denied the motion to dismiss.

The case is No. 8:24-cv-2739-CEH-SPF.

Judge: Honeywell, C.

Attorneys: Craig L. Berman (Berman Law Firm) for Sandra Testa. Jounice Laverne Nealy-Brown (Gunster, Yoakley & Stewart) for GSA Access Group, LLC dba FedBiz Access.

Companies: GSA Access Group, LLC; FedBiz Access

Cases: AgeDiscrimination Discrimination Discharge Covid19 FloridaNews