The Third Circuit holds that an employee must produce evidence that age was the determinative "but for" factor in the employment decision rather than a secondary consideration.

In Kelly, the Third Circuit Court of Appeals upheld summary judgment in favor of the employer law firm in a former attorney's age discrimination lawsuit. There, the attorney alleged that his employment was terminated because he was "older and better paid" and the employer wanted to keep the "younger kids." In response, the law firm cited several performance issues, including the attorney's failure to meet billable hour requirements, his confrontation with his secretary, and the firm having to write off more than $70,000 from a client's bill as a result of the client's complaints regarding the attorney's work product. In upholding the lower court's decision, the court determined that even if the phrase "older and better paid/younger and cheaper" was used, it is the only evidence the plaintiff produced that age played any role in the law firm's decision to terminate the plaintiff's employment. As a result, the plaintiff demonstrated that age—at most—was a secondary consideration in the law firm's decision, and he failed to demonstrate that age was the determinative "but for" factor, as required by the Supreme Court in Gross v. FBL Financial Services, Inc.

Case Law Alert - 1st Qtr 2010