Appeals court revives retaliation claim over employer’s accelerated removal timing

The employee, a physician hired at 59 to chair a neurosurgery department, was removed from that role three years later. Two senior administrators had raised performance concerns in 2020, according to the court, including absenteeism and limited engagement. By March 2021, leadership decided to move him out and offered him a different position. He turned it down. 

During those transition talks, the employee says a vice president told him the institution wanted someone “younger” with a ten-to-fifteen-year “runway” in the chair role. He treated the comment as proof of age discrimination. 

The court saw it differently. The remarks came while the two were discussing a successor, after the decision to remove him was already in motion, so the judges read them as succession planning rather than bias against him. The court also noted that the executive who hired and removed him was a few months older, and that his replacement was also in his sixties – facts creating what it called a “powerful inference” that age was not the reason. 

The age discrimination claim failed. So did the argument that the removal itself was retaliation, since the record showed the removal was underway months before he complained. 

The claim that lived is narrower. The employee argued that only after his lawyer raised discrimination on July 29 and August 12, 2021 did the employer accelerate his exit, pulling it forward from summer 2022 to September 1, 2021. The employer countered that it made that call earlier, at a July 22 meeting the employee walked out of. But the court found the evidence in genuine conflict. The employer’s own removal notice said the decision came “[a]fter much thought about the issues raised in [the] August 12, 2021 letter” – the letter repeating his discrimination complaint.