What kind of statements are sufficient evidence of unlawful discrimination based on age?
How about a description of an employee as a “later career person”? Or an employer’s statement that it is looking for a “high energy person” to fill a particular position?
In a new decision from the U.S. Court of Appeals for the Seventh Circuit, the court said neither of those comments were sufficient to support a neonatologist’s claim that she was illegally terminated based on her age.
The court rejected the neonatologist’s allegation that her termination, which occurred in connection with a restructuring, violated the federal Age Discrimination in Employment Act.
She built hospital programs
Anne Marnocha worked as a neonatologist at St. Vincent’s Hospital in Indianapolis, where she focused on providing care to newborns.
Marnocha began working at St. Vincent’s in 1987 and helped to develop the facility’s Neonatal Intensive Care Unit.
When St. Vincent’s decided to build a new program at another campus location in Carmel, Indiana, it appointed Marnocha to run it. She transferred to the new location when it opened in 2003, and she was again tasked with developing the facility.
In February of 2017, the executive director of the pediatric service line for St. Vincent’s in Indiana decided the number of neonatologists staffing the two locations was too high. He formulated a restructuring plan that contemplated the termination of all neonatologists at the Carmel location. Under the plan, the neonatologists at the Indianapolis location would cover the Carmel location as well.
At the time, the Carmel location had five full-time neonatologists. Marnocha was 62 years old. Three of the others were at least 53, while the fifth was 35.
One more was needed
The Indianapolis location employed 16 neonatologists and hospitalists who had been there for less than five years. In addition, 20 of 32 physicians in those positions in Indianapolis were over 40.
The executive director assumed that the neonatologists in Indianapolis could go to Carmel but that the reverse was not true. This was because of the two locations, only the Indianapolis location was certified to treat babies in extreme need.
There were 22 neonatologists at the Indianapolis location. The executive director decided that 23 were needed. As a result, he allowed all five of the terminated neonatologists from the Carmel location the opportunity to apply for the Indianapolis opening.
The hospital created a six-member interview panel, and four of the five Carmel neonatologists interviewed for the position in Indianapolis. The panel’s task was to interview the candidates and make recommendations; it did not have the power to hire. They took notes, filled out an informal questionnaire, and met for discussion.
Panelists all agree
The panelists unanimously agreed that the 35-year-old neonatologist, Melissa Landis, was best suited for the Indianapolis position. They noted that the Indianapolis location was big and busy. The average daily count of babies in Carmel was in the single digits, whereas in Indianapolis it was between 60 and 70. They said it takes a “kind of high energy person to be able to do the job” in Indianapolis.
Landis was highly qualified. She had researched surgical protocols and ventilation procedures used in critical care facilities. She also had received fellowship training at a nationally recognized facility. In addition, the panel viewed her as displaying an aptitude for patient interaction as well as a positive attitude.
By contrast, the panel’s consensus with regard to Marnocha was “lukewarm,” the court said. They believed she did not adequately explain how she would transition to a higher acuity and busier facility.
Interviewers not impressed
The panelists also raised concerns about Marnocha’s approach to patient care and her interpersonal skills. One said she did not have a “cogent plan” to make the transition to the Indianapolis facility.
One of the panelists made a note to himself that Marnocha was “at end of career.” The panelist later explained that what he meant was that Marnocha was toward the end of her career while Landis was near the start of hers.
He added that he “want[ed] to build for 20, 30 years in the future, not just for the next five years.” But he insisted that was not the sole reason he preferred Landis, instead saying she was the most qualified candidate overall. He also said he did not recall talking to the other panelists about his “forward-thinking projections,” the court said.
St. Vincent hired Landis in February of 2018.
Marnocha sued St. Vincent’s to allege violations of the federal Age Discrimination in Employment Act (ADEA). She specifically alleged that St. Vincent’s violated the ADEA by terminating her employment and then not hiring her for the open position.
Lower court rules for hospital
A federal district court granted the employer’s motion for summary judgment, ruling that no reasonable fact finder could find that it terminated Marnocha’s employment based on her age or declined to hire her for that reason. Marnocha proceeded to file an appeal.
The Seventh Circuit affirmed the lower court’s decision.
As to her unlawful termination claim, Marnocha argued that the lower court mistakenly determined that she could not show she was treated differently than similarly situated neonatologists. She also argued that the lower court improperly rejected her evidence that she said showed the hospital’s reasons for terminating her were a pretext for unlawful age bias.
Same boat for all
The court said there was no dispute that all the similarly situated neonatologists – that is, all those who worked at the Carmel facility – were treated the same with respect to termination because they were all terminated from employment.
The neonatologists at the Indianapolis facility were not valid comparators because the work environment there was so different, the court explained.
Having found that this was enough to defeat her wrongful termination claim, the court declined to address her arguments regarding alleged pretext.
No hiring discrimination
Next, the appeals court upheld the lower court’s determination with respect to Marnocha’s claim of unlawful failure to hire based on age.
As to this claim, Marnocha alleged that a panel member – the one who made the note about Marnocha being near the end of her career – tainted the entire interview panel. She said the panel was used to hide St. Vincent’s preference for Landis.
The appeals court disagreed, saying that the interview panel “conformed to the ADEA’s command” to evaluate candidates based on their merits.
Landis, the younger candidate who got the job, had a better interview, had a transition plan, and impressed the interviewers with her proactive research, the court said.
Marnocha relied heavily on the “end of career” comment to support her argument that the hospital’s proffered reasons for denying her the position were pretextual. But the court said that when taken in context, it was insufficient to show bias.
Marnocha had to show she would have been hired but for her age, the court explained. She did not meet that high burden, it said.
Marnocha v. St. Vincent Hospital and Health Care Center, Inc., No. 20-1374, 2021 WL 220761 (7th Cir. 1/22/21).