May an employer ask an employee whether they are thinking about retiring sometime in the foreseeable future without running afoul of the Age Discrimination in Employment Act (ADEA)? Some federal courts of appeals have answered this question in the affirmative.
In a recent Fourth Circuit case, Palmer v. Liberty University, Inc., Nos. 21-2390, 21- 2434, 2023 U.S. App. LEXIS 18467 (4th Cir. June 30, 2023), a 79-year-old professor was notified by the university where she had taught studio art for over 30 years that her annual contract would not be renewed. Nearly all of the university’s faculty members were employed on an annual basis and served without tenure. Before informing the professor of the nonrenewal of her contact, the Dean and the Provost had privately decided to offer the option ofretirement to the professor, but only if she brought up the subject herself. After receiving the nonrenewal notice, the professor “responded unfavorably” but she did not raise the issue of retirement. As a result, she was not offered that option, and she lost her employment upon the expiration of her contract. In the ensuing ADEA lawsuit, the district court entered summary judgment for the university.
As an initial matter, the Fourth Circuit noted that at least two other circuits – the Fifth and the Sixth – had held that an employer’s comments or inquiring about possible retirement, without more, do not constitute direct evidence of age discrimination. The court stated simply: “We agree with and adopt that well-reasoned proposition.” Applying this rule to the facts of the case, the court determined that the Dean’s and the Provost’s comments to each other about offering retirement to the professor did not amount to direct evidence of age-based discrimination attributable to the university. The comments had not been made directly to or in the presence of the professor, and, even if they had been, they were devoid of any reference to her age. Further, the comments were made after the two officials had concluded that the professor, who was reluctant to learn digital art, was not meeting the university’s legitimate expectations.
The court then assessed whether the professor’s ADEA claim could be premised on the indirect/circumstantial evidence theory of McDonnell Douglas v. Green, 411 U.S. 79293 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). The parties disputed whether she had satisfied the third element of the prima facie case – that she was performing her job duties at a level that met the employer’s legitimate expectations at the time of her nonrenewal. The court determined that even though she had been promoted to the position of Full Professor just two years before, the summary judgment evidence showed that she nonetheless had not satisfied the university’s legitimate expectations at the time of her nonrenewal because of her failure to develop digital art skills.
During that two-year period, the Dean and the Art Department Chair had repeatedly informed her that she needed to bring digital art skills up to a teaching level, but she inexplicably failed to do so. In addition to dooming her prima facie case, this failure also rendered her unable to show that age discrimination was the “but-for” cause of the nonrenewal of her contract. Summary judgment for the university was affirmed.
In reaching this result, the court followed Lefevers v. GAF Fiberglass Corp., 667 F.3d 721 (6th Cir. 2012) (questions concerning an employee’s retirement plans do not alone constitute direct evidence of age discrimination), and Moore v. Eli Lilly & Co., 990 F.2d 812 (5th Cir. 1993) (questions about employee’s age and retirement plans did not reveal discriminatory intent).
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