Labor & Employment Law Daily Wrap Up, DISCRIMINATION—AGE—S.D.N.Y.: 69-year-old cardiologist presented with nonrenewable contract advances bias claims, (Jul 25, 2025)

By Kathleen Kapusta, J.D.

“A reasonable jury could conclude defendant would not have offered the 2022 agreement—and then refused to renew it against plaintiff’s wishes—if plaintiff were younger.”

Denying summary judgment to a healthcare provider against the federal and state-law age discrimination claims of a cardiologist who was purportedly forced to accept a nonrenewable one-year contract at the age of 69, a federal court in New York found a reasonable jury could conclude that the employer wanted the doctor to retire, maneuvered him into choosing the one-year contract, and refused to continue his employment even when he wanted to do so. Though many of the typical indicia of pretext were not present, the court observed, including a lack of discriminatory remarks about his age or evidence that he was replaced by a younger physician, a reasonable jury could still find the employer discriminated against him based on his age (Fass v. Northwell Healthcare System, No. 24 CV 257 (VB) (S.D.N.Y. July 24, 2025)).

Beginning in the 1990s, the doctor worked at a cardiology practice he helped found with two other cardiologists. When that practice was acquired by a hospital in 2013, the doctor, who was then around 60 years old, and his colleagues accepted individual employment agreements. The doctor’s agreement was for an initial term of five years with an automatic renewal for another five years.

Acquired again. In 2015, the hospital was acquired by the employer, a large nonprofit healthcare provider, and the doctor’s employment agreement transitioned to that entity. In 2017, the doctor was appointed Director of Medicine at the hospital. Two years later, he entered into another employment agreement that included a term of three years with automatic renewal for successive one-year terms.

Shortly after that, doctors at the cardiologist’s new employer began discussing their “desire to recruit a new noninvasive cardiologist for our practice and begin the process of succession planning.” For his part, the doctor agreed that a new cardiologist was needed because the practice was busy, not because he was planning to retire.

Two options. In July 2022, executives with the employer discussed with the doctor his “long-term plans” and the prospect of retirement. A group of administrators presented him with two options: the first, a “career completion contract,” provided him with a one-year employment term and no renewals and the second, labeled as a “Fulltime Renewal,” contained performance objectives the doctor believed were “impossible” to achieve. Although he was upset with the nonrenewal provision of the first option, he felt he had no choice but to accept it. He was 69 years old at that time.

Contract expiration. The doctor repeatedly met with various administrators about the nonrenewal provision and was given the impression by one that he intended to reverse that decision. Despite that, the doctor was asked to write letters to his patients informing them that he was retiring, which he refused to do. A month later, the employer sent letters to his patients, telling them that the doctor would be “end[ing] his storied tenure” with it and asking them to choose a new cardiologist. Although the doctor was offered a role as interim director of medicine until a replacement could be found, he declined and his employment ended at the expiration of his contract.

Adverse employment action. The employer first argued that its decision not to renew the doctor’s employment agreement was not an adverse employment action. The court, however, pointed out that the Second Circuit, in Leibowitz v. Cornell Univ., held that “where an employee seeks renewal of an employment contract, non-renewal of an employment contract constitutes an adverse employment action for purposes of... the ADEA.”

Moreover, even accepting, as the employer argued, that Leibowitz’s holding contains an implied requirement that a plaintiff reasonably expects renewal, there was evidence the doctor was led to believe the parties would discuss the possibility of renewal at some point in 2023. Thus, the court found the nonrenewal of his contract was an adverse employment action.

Pretext. Because the employer provided a nondiscriminatory reason for not renewing the 2022 agreement—the time-limited structure of the agreement and the desire to follow a programmatic vision for the cardiology department—the court examined the doctor’s evidence of pretext. Here, it found a fact issue as to whether the doctor’s age was a but-for cause of the nonrenewal.

Specifically, the court noted that at some point in 2022, prior to offering him an employment agreement, executives discussed with the doctor his “long-term plans” and potential retirement. Then in October 2022, they discussed with each other the two options they intended to give him, and one executive made it clear that he preferred the first option. After the doctor stated that he had “problems” with the lack of a renewal provision in the first option, he was led to believe the parties would discuss the potential for renewal at a later date.

He also felt he was presented with a false choice because the second option contained performance objectives that were “impossible” to achieve. When he later asked about the renewal options, he was told his employment would end at the conclusion of the 2022 agreement. Finally, the employer attempted to convince him to inform his patients of his pending retirement, even though he refused to retire.

Based on this evidence, said the court, a reasonable jury could conclude that the employer decided it wanted the doctor to retire, maneuvered him into choosing the one-year option by including prohibitively high performance objectives in the three-year offer and leading him to believe they would discuss renewal of the one-year contract at a later date, and then refused to continue his employment even when he wanted to do so.

Tied to age. As to the employer’s contention there was no evidence other than his age that could show discrimination, the court disagreed. The employer asked him about his retirement, presented him with a contract option it understood to signal the end of his career, and then asked him to send a retirement notice to his patients even when he wanted to continue his employment. “This” said the court, “is all directly tied to his age.”

Same actor presumption. The employer also pointed to the fact that the same individual who signed the doctor’s 2022 employment on behalf of the employer also refused to extend the agreement. But while this same actor presumption cut against his claim and would likely be a compelling argument for the employer at trial, said the court, it did not warrant summary judgment as the inference—that “when the person who made the decision to fire was the same person who made the decision to hire, it is difficult to impute to her an invidious motivation that would be inconsistent with the decision to hire”—is permissive, not mandatory.

And while the court noted that many of the typical indicia of pretext were not present here—there was no evidence of age-based discriminatory remarks by executives or evidence that the doctor was replaced by a younger physician—a reasonable jury, after evaluating the credibility of the witnesses, could still conclude that the employer discriminated against the doctor on the basis of his age.

The case is No. 24 CV 257 (VB).

Judge: Briccetti, V.

Attorneys: Michael Howard Sussman (Sussman & Watkins) for Arthur Fass. Jonathan Stoler (Sheppard, Mullin, Richter & Hampton) for Northwell Healthcare System.

Companies: Northwell Healthcare System

Cases: AgeDiscrimination Discrimination Discharge NewYorkNews