Labor & Employment Law Daily Wrap Up, DISCRIMINATION—AGE—M.D. Pa.: Nurse advances age bias claim despite failing to apply for ‘reposted’ position, (Oct 7, 2026)

By Kathleen Kapusta, J.D.

After 40 years of employment with the hospital the nurse alleged that it posted her position and filled the role with someone much younger.

A pre-op charge nurse who had been with the hospital for 40 years and in her position for 12 of those before she was informed her job was being reposted can proceed to trial on her ADEA and state-law age discrimination claims even though she never applied for the reposted position, a federal court in Pennsylvania ruled, citing evidence she was replaced by a much younger individual and her application would have been a futile gesture. The court, however, granted summary judgment against her retaliation claims (Shuey v. Geisinger Health System, No. 4:23cv1400 (M.D. Pa. Oct. 6, 2026)).

The plaintiff, who began working for the hospital in 1979, served as a pre-op charge nurse with a Clinical Enhancement Program (CEP) designation with the same-day surgery unit from 2009 to 2021. In November 2020 to February 2021, she was placed in charge of a combined pre-op unit.

Reposting email. In May 2021, the team coordinator informed the nurse that her job was being reposted. The following day, the coordinator sent an email to unit staff stating that the position was being reposted as part of the “normal rotation” of charge roles and asking interested parties to email an updated resume by a specified date.

According to the operations manager, the reposting was part of a “restructuring” to “get more engagement in leadership... and hold staff accountable to move patients through the department.” The hospital ultimately hired a nurse whom the plaintiff believed was in her late 20s. At the time, the plaintiff was 64.

Adverse employment action. Moving for summary judgment on the nurse’s age discrimination claims, the hospital first argued that she was not subjected to an adverse employment action. The court, however, noted evidence that one day she was the pre-op charge nurse/CEP in the same-day surgery unit at the hospital as she had been for 12 years and the next day, her boss told her that her job would be posted, which was sufficient to meet the “some harm” standard for an adverse employment action.

Also rejected was the hospital’s contention she could not show she was replaced by a younger nurse. It was undisputed that the hospital, after announcing the reposting, hired a nurse 30 to 35 years younger than the plaintiff as a charge/CEP for pre-op in the same day surgery unit.

Pretext evidence. Because the hospital claimed it reposted the position due to a restructuring, the court turned to evidence of pretext. While the hospital argued that the posted position was “vastly different” than the nurse’s previous role, the coordinator testified that the nurse was both a charge nurse and CEP and that her replacement became the “charge nurse CEP.” In addition, the operations manager testified that in restructuring, he “wanted to develop a concept where we could offer a CEP/charge position[.]” He agreed, however, that the new position required the same skill set that the nurse described in discussing her role. While he added that the posted position involved “looking at paths more, follow through, getting more involved with decision making and holding people accountable which was not in the original role,” a reasonable jury, said the court, could find the absence of a distinction within the operations manager’s narrative.

The operations manager also testified that the reposting was his idea and his vision “because the CEP structure and title was owned by nursing education” and he “wanted to try to bring the concept back.” Citing the nurse’s testimony that she had been a charge nurse with a CEP designation for 12 years, the court observed that a jury could see his vision as creating something that already existed.

New position? A jury, the court continued, could also “have a hard time squaring a ‘new position’ explanation” with the nurse’s testimony that the coordinator called her into her office at the end of a shift and told her that the hospital was posting her job. A reasonable juror could question why the coordinator told the nurse her job was going to be posted if the hospital was really creating a new position. Moreover, the coordinator, in her email the next day, stated that the hospital would be reposting the position as part of its normal rotation of charge roles.

Rotational changes. The operations manager’s and coordinator’s “explanations about ‘rotational change’ also might make a reasonable juror's head spin with respect to any ‘educational CEP’ and ‘charge CEP’ distinction in this case,” said the court. The coordinator’s email referred to a “normal rotation of Charge roles” and in her deposition, she referred to CEPs in any form as being on a two-year rotation. Similarly, the operations manager testified about educational CEPs rotating every two years.

According to the employee, however, she held the pre-op charge nurse/CEP position for 12 years and her replacement held the position for four years and was only replaced when she moved. Nor did the hospital produce a policy document, meeting notes, or even an email chain showing that a new position was going to be created with a planned rotation. Instead, the hospital produced only the coordinator’s and operations manager’s testimony and documents created after the fact.

Failure to apply. As to the hospital’s assertion the nurse’s failure to apply for the reposted position was fatal to her claim, the nurse testified that it “was abundantly apparent by the general environment that I was working in, that [the coordinator] was very interested in getting younger people involved” and she was “not going to subject myself to aggressive interviewing, which I had been witness to when [the operations manager] was interviewing other staff for positions he didn't want them in.”

She also claimed the coordinator referred to “younger, younger, younger” at a meeting discussing the need to attract younger nurses to the same day surgery unit and the operations manager, at a different meeting, told her, “I can see how it would be difficult for you to have staff listen to you, since you have been working side by side with them for so long.” A jury, said the court, would need to sort through the facts and weigh credibility on the failure-to-reapply issue. Based on all of this, the court denied summary judgment on the nurse’s age discrimination claims.

Retaliation. As to her retaliation claim, however, the court found the only protected activity she engaged in was the filing of a discrimination charge in September 2021, after the reposting of her position. While she alleged the coordinator retaliated by micromanaging her, orienting nursing assistants, and not backing her up on issues with a physician or staff, this was not enough to support her claim.

The case is No. 4:23cv1400.

Judge: Munley, J.

Attorneys: Marc A. Weinberg (Saffren & Weinberg) for Rondi Shuey. Samantha Wolfe (Buchanan Ingersoll & Rooney) for Geisinger Health System.

Companies: Geisinger Health System; Geisinger Medical Center

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