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Reviving an age discrimination suit, the 3rd U.S. Circuit Court of Appeals has ruled that age-related comments made by a supervisor cannot be discounted as mere “stray remarks” if they were uttered by the person who made the decision to fire the plaintiff in a conversation about the plaintiff’s prospects for continued employment. In Fakete v. Aetna Inc., a unanimous three-judge panel found that a jury must decide whether Stephen Fakete was fired because of his age since he has evidence that his supervisor, Thomas Larkin, said he was “looking for younger, single people” and warned Fakete that, because of his age, he “wouldn’t be happy there in the future.” “Viewed favorably to Fakete, the statement shows that Larkin preferred ‘younger’ employees and planned to implement his preference by getting rid of Fakete,” U.S. Circuit Judge Thomas L. Ambro wrote. “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,” Ambro wrote in an opinion joined by 3rd Circuit Judge Dolores K. Sloviter and visiting Senior Judge Milton I. Shadur of the Northern District of Illinois. The ruling reverses a May 2001 decision by U.S. District Judge John R. Padova of the Eastern District of Pennsylvania that granted summary judgment for Aetna. According to court papers, Fakete was hired by U.S. 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, just three months before Fakete’s pension would have vested, the suit alleged that Larkin fired him on trumped-up charges of violating the terms of the warning, falsifying travel expense reports, and failing to reimburse Aetna for personal phone calls charged to his company card. Padova found that since Fakete was replaced by someone just three years his junior, he would need “direct” evidence of age-related bias to survive summary judgment. Padova concluded that Fakete failed to muster any direct evidence because Larkin’s alleged comment “was a stray remark that did not directly reflect the decision-making process of any particular employment decision.” Now the 3rd Circuit has ruled that Padova erred because his summary judgment decision “resolved a genuine factual dispute over whether Fakete’s age was a substantial motivating factor in Larkin’s decision to fire him.” Ambro found that “a reasonable jury” could conclude that Larkin’s comments were direct evidence of age-related bias, and that Fakete’s age was therefore “more likely than not a substantial factor in Larkin’s decision to fire him.” The comments allegedly made by Larkin cannot be dismissed as merely “random office banter,” Ambro found, because they “informed Fakete of [Larkin's] preference for ‘younger’ employees in a serious one-on-one conversation about Fakete’s future under Larkin’s watch.” Fakete was represented by attorney Andrew M. Smith of Marcino Bowman & Smith in Fort Washington, Pa. Aetna was represented by attorneys Eric J. Bronstein, John M. Elliott, Brian J. McCormick and Raymond J. Santarelli of Elliott Reihner Siedzikowski & Egan.

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