Labor & Employment Law Daily Wrap Up, DISCRIMINATION—AGE—N.D. Tex.: Texas anesthesiologist loses age discrimination case on summary judgment, (Jan 17, 2025)

By Ursula Furi-Perry, J.D., MBA

There was no genuine issue of material fact as to whether the reasons for terminating the plaintiff were merely pretextual.

Finding no genuine issue of material fact as to whether the reasons for terminating an anesthesiologist were merely pretextual, a federal district court in Texas granted summary judgment against his age discrimination claim. The anesthesiologist presented a prima facie claim, but after the employer showed a legitimate non-discriminatory reason for his termination, he failed to prove pretext. The fact that the employer did not immediately terminate the plaintiff, nor was concerned about his effect on patient safety, was not evidence on which a jury could reasonably infer pretext, the court said (Axmann v. U.S. Anesthesia Partners Holdings, Inc., No. 3:22-CV-01635-N (N.D. Tex. Jan. 14, 2025)).

Anesthesiologist. The plaintiff worked as an anesthesiologist and was terminated by his employer at the age of 64. He was placed on a “no-list” by at least 36 different surgeons, who indicated they did not want to work with him for various reasons. This was much higher than the average “no-list” rate among anesthesiologists, which was about three to four. There were numerous other complaints against the plaintiff, including being late or canceling cases, having inappropriate conversations with patients, lacking confidence in the operating room, sleeping in a day surgery room, and making slightly-above-average narcotics requests.

Coaching? The employer’s Clinical Governance Board, which makes employment decisions, met with the plaintiff regarding those concerns and requested that he undergo professional behavior coaching for one year. The plaintiff responded by demanding documentation to support each complaint made against him, and then raised concerns that the employer was targeting him for being one of the eldest and most senior doctors at the practice, alleging that the complaints were simply pretext for forcing him into early retirement.

Another incident. Around the same time, an incident happened at a facility where he was not able to perform a regional block due to skill set, and the facility requested that he not be assigned any longer.

Discharge and lawsuit. After he refused to attend coaching and stopped answering his phone for weeks, the plaintiff’s employment was terminated. He filed suit for age discrimination and retaliation in the U.S. District Court for the Northern District of Texas, Dallas Division. The employer filed a motion for summary judgment.

Age discrimination. The court granted summary judgment on the age discrimination claim, applying the McDonnell Douglas burden-shifting framework. The court noted in its decision: “Between 2014 and 2024, the percentage of anesthesiologists over forty years old in the North Texas region of U.S. Anesthesia decreased from one hundred percent to sixty-six percent and the percentage of anesthesiologists over sixty years old decreased from about fifty percent to twenty percent…Further, the average age of anesthesiologists decreased from fifty-eight to forty-seven.”

Prima facie case. As the plaintiff presented “statistical evidence of trends of the average age of anesthesiologists decreasing significantly and the ratio of younger anesthesiologists and nurse anesthetists growing in relation to the proportion of older anesthesiologists,” the court found that the plaintiff met his burden of proving a prima facie age discrimination claim.

Legitimate, nondiscriminatory reason. However, the court held, because the plaintiff refused to attend professional coaching, the employer presented a legitimate, nondiscriminatory reason for the termination.

No pretext. Further, the court held that the plaintiff failed to prove that the employer’s decision to terminate him was pretextual. The fact that the employer did not immediately terminate the plaintiff and was not concerned about his effect on patient safety was not evidence on which a jury could reasonably infer pretext, the court stated. The employer’s disciplinary action policy was just a general guideline, and the employer was not required to follow it, so its departure from the policy in disciplining the plaintiff also was not evidence of pretext. The subjective nature of the complaints against the plaintiff and the employer’s use of testimonial evidence did not suggest pretext, and the employer’s decision was not predetermined. Because there was no genuine issue of material fact as to whether the reasons for terminating the plaintiff were merely pretextual, the court thus granted summary judgment on the discrimination claim.

Retaliation. The court also granted summary judgment on the retaliation claim, holding that the plaintiff did not establish a prima facie claim. The record did not support the plaintiff’s allegation that his employer did not respond to his complaints of discrimination, and the plaintiff failed to establish a causal link between his protected activity and the condition of continued employment.

The case is No. 3:22-CV-01635-N.

Judge: Godbey, D.

Attorneys: Robert E. Goodman, Jr. (Kilgore and Kilgore) for David Axmann. Jennifer A. Youpa (Littler Mendelson) for U.S. Anesthesia Partners Holdings Inc.

Companies: U.S. Anesthesia Partners Holdings Inc.

Cases: AgeDiscrimination Discrimination Discharge TexasNews