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When an employer says it eliminated an older worker’s job for economic reasons, the worker cannot simply claim that it would have been just as cost-effective to retrain him for the newly created post, but must present actual evidence to prove that fact, a federal judge has ruled. In his 12-page opinion in Merriweather v. Philadelphia Federation of Teachers Health & Welfare Fund, Senior U.S. District Judge Robert F. Kelly of the Eastern District of Pennsylvania dismissed an age discrimination suit after finding that the plaintiff had no evidence to rebut the defendant’s proffered reason for laying him off. Similarly, Kelly also found that Ernest Merriweather failed to make out a prima facie case because he claims that he was qualified to handle the added responsibilities of the newly created position, but offered no solid evidence to prove that point. “Merriweather has not provided any evidence, other than his bald assertions, to reinforce his claim,” Kelly wrote. According to the suit, Merriweather, who is now 57, worked for 14 years as a benefits coordinator until he was laid off in June 1999. The fund contended that it eliminated Merriweather’s job for economic reasons. Because it wanted to add new programs to train teachers, the fund said, it decided to hire new workers instead of training Merriweather to handle the added tasks. The fund chose not to lay off a man who is seven months older than Merriweather — he was retained as the only full-time benefits coordinator. Two new workers then were hired to divide their time between benefits coordination and teacher training. The two workers hired for the new posts were aged 42 and 50. In a summary judgment motion, the fund’s attorney, Linda M. Martin of Willig Williams & Davidson in Philadelphia, argued that laying off Merriweather and hiring the two new workers was the only way the fund could expand its programs within its budgetary constraints. By doing so, she said, the fund saved more than $6,000 in wages. Martin argued that Merriweather failed to make out a prima facie case because he was no longer qualified for the job when the new duties were added. But Merriweather’s lawyers, David P. Baker, Yvette D. Cooper and Michael J. Kurtis of Delaney & O’Brien, argued that Merriweather was qualified for the new job as a result of 13 years experience teaching and his coursework toward a master’s degree that included classes in education research and development. But Kelly found that Merriweather failed to present evidence to back up his claim. “Merriweather has not provided a transcript or adequate description of the courses he took, despite numerous requests for such information,” Kelly wrote. Although Merriweather claims that his new duties would not have been significantly altered and that he would not have required much training, Kelly found that a plaintiff “cannot rely on unsupported assertions, conclusory allegations, or mere suspicions in attempting to survive a summary judgment motion.” Merriweather also claimed that he had qualifications that were “roughly equivalent” to those of the two new workers, but Kelly found that “other than his statement to this effect, he provides no proof that this is so.” As a result, Kelly found that Merriweather failed to make out a prima facie case. But even if he had cleared that hurdle, Kelly found that Merriweather’s case was still doomed by his failure to rebut the fund’s argument that economics — and not age bias — was the reason for its decision. Merriweather argued that since one of the new workers was paid a higher salary than he had earned, the fund’s economic explanation could not be true. But Kelly found that Merriweather could not dispute the fund’s evidence that the reorganization resulted in savings of more than $6,000 in wages. Kelly also found that the fund’s decision to retain the other benefits coordinator — who is older than Merriweather — was evidence that “certainly helps to dispel any inference of age discrimination.”

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