Appeals Court Reinstates Age Discrimination Case

November 8, 2002 ( - A federal appeals court has reinstated an age discrimination suit by a health care audit consultant, ruling that potentially discriminatory remarks by a supervisor with hiring and firing authority should not be discounted.

The US 3 rd Circuit Court of Appeals sent plaintiff Stephen Fakete’s suit back to a District Court jury to decide whether Aetna US Healthcare fired Fakete because of his age, according to the Legal Intelligencer. The appeals court said Fakete had evidence that his supervisor told him the employer was “looking for younger, single people.”

“Viewed favorably to Fakete, the statement shows that (Supervisor Thomas) Larkin preferred ‘younger’ employees and planned to implement his preference by getting rid of Fakete,” Circuit Judge Thomas   Ambro wrote, according to The Legal Intelligencer.   “Larkin made his statement in direct response to a question from Fakete about how he fit into Larkin’s plans. In this context, a reasonable jury could find that Larkin’s statement was a clear, direct warning to Fakete that he was too old to work for Larkin, and that he would be fired soon if he did not leave Aetna on his own initiative,”

The ruling reverses a May 2001 decision by US District Judge John Padova of the Eastern District of Pennsylvania that rejected Fakete’s claims  

Plaintiff Was the Oldest Audit Consultant

According to court papers, Fakete was hired by US Healthcare in April 1992 as an audit consultant. In 1996, USHC merged with Aetna to form Aetna U.S. Healthcare.

At the time of the merger, Fakete was 54 years old and the oldest audit consultant at USHC. The merger agreement prevented Aetna from terminating any USHC employees for at least two years following the merger, absent approval from a USHC executive.

That agreement expired in July 1998, when Fakete was 56 years old and eligible to retire on a substantial pension within three years. At the same time, Aetna reorganized its audit department, and Larkin became Fakete’s supervisor.

Fakete claims that when he asked Larkin about his future with the company, Larkin responded that “the new management” — which included Larkin — wouldn’t be favorable to Fakete because they were “looking for younger single people that will work unlimited hours,” and that Fakete “wouldn’t be happy there in the future.”

Within a few months, Fakete claims, Larkin issued him a written warning alleging unexplained absences from the workplace, and threatened to place Fakete on probation if he did not explain future absences.

In December 1998, three months before Fakete’s pension would have vested, the suit alleged that Larkin fired him on charges of violating the terms of the warning, falsifying travel expense reports, and not reimbursing Aetna for personal phone calls charged to his company credit  card.