Employer Inquires About Pharmacist’s Retirement Plans

Issue of the Case

When a representative of management inquires about a pharmacist’s planning and schedule for retirement and that individual’s employment is subsequently terminated, is that sufficient evidence of age discrimination–based termination of employment?

Facts of the Case

A pharmacist with 33 years of experience in the profession was employed at a pharmacy in a north central state that was sold to new owners. Two years later, when the pharmacist was aged 59 years and serving as pharmacist in charge, an employee of the new proprietors asked about her retirement plans. The parties to the dispute disagreed on whether the questions came from someone superior to the pharmacist in the firm’s organizational hierarchy, but they did concur that the individual asking the questions was not the pharmacist’s direct supervisor.

The following year, questions about retirement plans again came from the same individual, with the pharmacist responding that no, she had no plans to retire. The questioner forwarded that information and response to the firm’s senior vice president (VP) of professional services, as well as to an official in the firm’s human resources group. Posing that question was apparently prompted by a rumor that the pharmacist planned to retire when a student in pharmacy school graduate and take over the position.

The questioner had apparently talked with the student and relayed to the VP of professional services that the student “would definitely be interested in moving to the area.” The firm had an approach that led to asking employees in the spring about retirement plans to figure out how many pharmacist positions would become available for the hiring of fourth-year pharmacy students approaching graduation.

Moreover, a local extended-care facility (ECF) was described as “an indispensable client” of the pharmacy. Local pharmacies were in a competitive relationship to serve this facility.

Indeed, some of the employees at the pharmacy had the impression that if the ECF turned elsewhere for medication and related supplies, this pharmacy business might not survive.

An employee of the pharmacy who was a member of the board of directors at the ECF began to hear complaints related to the service being provided by the pharmacist in charge, such as she was uncooperative with the ECF staff members and “tended to brush off their concerns.” A regional manager met with the pharmacist in charge to discuss these matters but left with the impression that the pharmacist did not take these concerns seriously.

To complicate matters further, a “floater pharmacist” noticed that a bottle of 100 hydrocodone tablets was missing. The pharmacist in charge was alleged to have been slow in responding to this situation and failed to complete obligatory inventory disruption paperwork.

The pharmacist in charge was notified of termination with 2 reasons stated: first, failure to provide “exceptional care” to the ECF and its patients as specified in her position description; and second, failure to follow company policy “for reporting discrepancies in inventory counts of controlled substances.”

The pharmacy firm’s employee handbook describes an approach using routine performance evaluations and reviews.

It also refers to “progressive discipline.” The pharmacist in charge reported receiving no discipline prior to her termination, despite the firm’s handbook referring to “progressive discipline.” The terminated pharmacist filed a lawsuit alleging age discrimination under the state’s human rights act.

The attorneys for the pharmacy firm that had employed her moved for summary judgment, arguing that no full trial was needed because the facts presented no genuine issue of material fact for a jury to consider.

The Ruling

The federal district court where the lawsuit had been filed granted the motion of the defendant pharmacy firm. That terminated the matter without a full trial having been held.

The Court's Reasoning

The judge concluded that the pharmacist was within the protected category of individuals the statute was designed to protect; she was aged 61 years when she was terminated. The next criterion was whether she was qualified for her position.

The employer argued that she was not so qualified because of her “poor job performance.” The employer had “articulated a legitimate, nondiscriminatory reason for [her] termination: poor performance.”

The attorney for the pharmacist pointed to the 2 inquiries about retirement to suggest that the firm considered her age when she was terminated.

The judge addressed that argument by pointing to a decision in an earlier case that “when retirement inquiries are ‘unnecessary and excessive,’ they may ‘constitute evidence of discriminatory harassment.’ ”

But another case had ruled that “an employer may make reasonable inquiries into the retirement plans of its employees.”

The pharmacist had failed to present evidence that these inquiries were “unnecessary and excessive.” The judge summed up this point with this direct ruling: “The mere fact that an employer asked about an employee’s retirement plans does not suggest pretext for age discrimination.”

Regarding the issues related to the missing controlled substances, the court stated that the “only relevant question is whether she followed the [missing] drug reporting policy, and she admits that she did not.”

The pharmacist’s lawsuit was dismissed.