The U.S. 3rd Circuit Court of Appeals—which covers Delaware, New Jersey, and Pennsylvania—recently heard a dentist’s claim that her discharge constituted age discrimination. What did the court decide?
“Gabby” worked as a dentist for Penn Dental Medicine from 1999 to 2013. In 2012, several of Gabby’s colleagues reported concerns about her clinical work to Penn Dental’s clinical director, “Joan,” who had previously noticed what she considered to be sloppy preauthorization requests and poor treatment outcomes. Joan conducted a quality assurance audit of Gabby’s work.
Joan discussed her concerns with the dean and assistant dean of the University of Pennsylvania School of Dental Medicine. Joan, the dean, and the assistant dean met with Gabby, asked her to resign, and threatened to report her to the Pennsylvania Board of Dentistry if she did not. When Gabby refused to resign, the dean suspended her without pay pending review by Penn Dental’s quality committee.
The committee consisted of four Penn Dental dentists, the assistant dean, and a prominent dentist who didn’t work for Penn Dental. After reviewing 40 to 60 of Gabby’s patients’ charts and discussing nine cases with her in detail, the committee unanimously agreed that she wasn’t performing to Penn Dental’s standard of care and recommended placing her on probation for 6 months. The dean accepted the recommendation.
The dentists who treated Gabby’s patients in her absence during the committee’s review raised additional concerns about the quality of her work. The concerns were relayed to the committee, which broadened the scope of its investigation.
The committee met with the dentists who raised the additional concerns, reviewed patients’ outcomes, and unanimously agreed that Gabby was not performing to Penn Dental’s minimum standards. Following the committee’s second report, the dean terminated Gabby’s employment.
Gabby sued Penn Dental, alleging her discharge constituted age discrimination in violation of the federal Age Discrimination in Employment Act (ADEA) and Pennsylvania law. Penn Dental denied her claims and asserted that it terminated her because she failed to perform to its standard of care, not because of her age.
To avoid dismissal of her claims, Gabby was required to produce evidence that either cast doubt on Penn Dental’s stated reason for her discharge or permitted an inference that age discrimination was a motivating factor in her termination. The trial court concluded that she failed to produce sufficient evidence and dismissed her claims. Gabby appealed to the 3rd Circuit.
Court of Appeals’ Decision
On appeal, Gabby could not identify any direct evidence of discrimination. Instead, in an attempt to meet her burden, she relied on circumstantial evidence. First, she pointed to a younger Penn Dental dentist who had been placed on a performance management plan before being fired. Gabby argued that Penn Dental’s different treatment of the younger dentist suggested that the real reason for her termination was age discrimination.
The court, however, rejected the comparison to the younger dentist because it found that the younger dentist and Gabby were not similarly situated. Penn Dental’s concerns about Gabby involved the quality of patient care, while the primary concerns about the younger dentist involved issues like his tendency to leave work early, his failure to work on Mondays, and his refusal to accept new patients.
Next, Gabby argued that Penn Dental had pushed other dentists over 40 out of the practice. However, she was unable to establish the quality of the other dentists’ work or the reasons for their departure from Penn Dental.
Finally, Gabby challenged the quality committee’s findings regarding her performance. She relied on (1) her own testimony that she responded to all of the committee’s concerns, (2) an affidavit from a former colleague who attested that she was an excellent dentist, (3) letters from several patients stating they were satisfied with her care and were upset about her discharge, and (4) the fact that she had not received any complaints from patients.
The court rejected Gabby’s challenge, ruling that an employee’s disagreement with her employer’s evaluation of her performance is not enough to prove that the employer’s explanation for her termination is a pretext (excuse) for discrimination. Similarly, the court ruled that the letters from patients and the absence of patient complaints did not cast doubt on the validity of Penn Dental’s concerns about the quality of her work.
The court explained that its job was to assess whether Penn Dental honestly believed the reasons it provided for the termination decision, not determine whether it made the correct decision in terminating Gabby’s employment. In the absence of evidence that Penn Dental did not believe its stated reasons for the discharge and a lack of evidence of bias against Gabby because of her age, the appeals court affirmed the lower court’s dismissal of her age discrimination claim.
This case demonstrates the importance of thoroughly reviewing the reasons for discharges and treating similarly situated employees consistently. Because Penn Dental referred concerns about Gabby’s work to a committee that reviewed them thoroughly and did the same with additional concerns that arose after the committee’s initial review, the employer’s nondiscriminatory reason for terminating her employment defeated her discrimination claim.
In addition, because Gabby was unable to identify similarly situated younger employees whom Penn Dental treated differently, she could not show that the stated reason for her discharge was a pretext for age discrimination.
Howard Fetner is a contributor to the New Jersey Employment Law Letter.
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Author: Howard Fetner, Day Pitney LLP