Labor & Employment Law Daily Wrap Up, DISCRIMINATION—AGE—M.D. Pa.: Temporary and permanent replacements considered in determining whether employee sufficiently alleged age claim, (Mar 28, 2025)

By Robert Margolis, J.D.

Court denies employer’s summary judgment motion, citing fact issues as to two elements of prima facie case as well as whether reasons given for termination were pretext.

The fact that a 61-year-old employee was temporarily replaced by workers in their twenties and mid-forties, before a 57-year-old was ultimately hired to fill his position, created issues of fact as to whether he was replaced by a sufficiently younger individual to give rise to an inference of age discrimination, ruled a federal district court in Pennsylvania. The court denied an employer’s motion for summary judgment motion, also finding material factual issues as to whether the employee’s alleged performance issues rendered him unqualified for his position, and whether the performance issues, which the employer asserted as the legitimate, non-discriminatory reason for his termination, were pretext (Drasba v. Follett Higher Education Group, LLC, No. 3:23-cv-01409-CFB (M.D. Pa. Mar. 24, 2025)).

Termination. The employer assigned the employee to work at the University of Scranton bookstore, where he served as store manager for 22 years. He worked alongside a general merchandising manager at the bookstore. The employer claimed that university notified it of its intent to terminate its agreement with the employer, because it sought to move the bookstore in a “new direction.” In an effort to meet the university’s requirements, the employer transferred an assistant manager in his twenties to the bookstore. According to the employee, the store never had an assistant manager in the 22 years he worked there, so he anticipated the addition of one would mean either he or the merchandising manager would be let go.

Performance issues. The employer asserts the employee had performance-related issues, including an incorrectly sent email and a problem with a professor over the availability of a textbook. These issues arose in December 2022 and January 2023. While the employer contends these issues were significant, and indicative of other performance issues over the years, the employee asserted the issues were not significant because the email problem was caused by a technical issue, and the professor ended up apologizing to him about escalating the textbook issue. He also noted that he had not been told of performance issues in the past.

Shortly thereafter, in early February 2023, the employer terminated the employee. He was 61 years old when fired. The employer named as acting general manager a 45-year-old, who had served as a manager of another store and had previously worked at the Scranton store. In May 2023, it transferred a 57-year-old to replace the acting manager and serve as general manager of the Scranton store. Later, the merchandising manager also was let go; she was 53 years old at the time.

Age claim. The employee sued for age discrimination under the ADEA, as well as Pennsylvania law. He asserted that the younger assistant manager took over some of his job duties, and an assistant manager had never been needed at the store in more than 25 years. The employer asserted the termination was for poor performance, and also in response to the university’s threat to terminate its relationship with the employer due to issues at the bookstore. To counter, the employee asserted he was never disciplined or counseled in any manner and that he was terminated without warning or explanation. The employer moved for summary judgment. The court denied the motion, finding fact issues as to both the employee’s prima facie case, and whether the employer’s stated reasons for the termination were pretext.

Prima facie case. The court applied the McDonnell Douglas burden shifting analysis to the employee’s claim, and because there was no dispute as to the first two elements (the employee is over the age of 40 and he suffered an adverse employment action), the focus was on the remaining two elements: whether the employee was qualified for his position, and whether he was replaced by a sufficiently younger individual so discrimination can be inferred. The court found that disputed material facts as to those two elements precluded summary judgment.

The employer contended the employee was not qualified for his position because the performance-related issues it claims he was having meant he was not meeting the employer’s requirements. But the court noted that the employee disputed that contention. He asserted that the email problem was the result of a technological issue, not error by him, and that the issue with the professor over the textbook was resolved with the professor apologizing to him. These material fact disputes meant that the employer could not establish that as a matter of law, the employee was unqualified.

As to the final prima facie case element, the employer contended the employee’s ultimate replacement was only four years younger than him, and also within the protected age group, so no inference of discrimination could arise. The employee countered that not just the ultimate replacement is relevant, but also the twenty-something assistant general manager who took over some of his duties, and the acting general manager who immediately replaced him and was sixteen years his junior. The court noted it may consider evidence of the ages of individuals who replaced the employee on an interim basis, but that cannot be the only evidence. Considering all of the above facts, in a light most favorable to the employee as the non-movant, the court determined the evidence sufficed for the employee to show he was replaced by sufficiently younger individuals to raise an inference of discrimination.

Pretext. By raising performance issues it had with the employee, the employer met its “relatively low burden” in the McDonnell Douglas framework to provide a legitimate, non-discriminatory reason for the termination. That shifted the burden to the employee to show that the performance issues were pretext. The court found factual issues as to the issue of pretext, based on evidence the employee pointed to as discrediting the performance reasons given for the termination, including: the problematic email resulted from a technical issue, positive performance reviews the employee received over 28 years, a lack of evidence that the university requested his termination as part of its desire to take the store in a different direction, and the fact that the employer was sold to an investment firm after which a number of employees were terminated and replaced by younger individuals. The employer disputed all this evidence, thus requiring a jury to resolve the pretext issue.

The case is No. 3:23-cv-01409-DFB.

Judge: Bloom, D.

Attorneys: Gerald John Hanchulak (Hanchulak Law Offices) for Donald Drasba. Richard B. McGiffin (Ogletree Deakins Nash Smoak & Stewart) for Follett Hight Education Group, LLC.

Companies: Follett Higher Education Group, LLC

Cases: Discrimination AgeDiscrimination Discharge PennsylvaniaNews