Kelly v. Moser, Patterson and Sheridan, LLP, 2009 WL 3236054 (3d Cir., October 9, 2009) – In this claim brought under the Age Discrimination in Employment Act (ADEA), the Third Circuit Court of Appeals applied the “but for” test recently established by the U.S. Supreme Court in Gross v. FBL Financial Servs., Inc., 129 S.Ct. 2343 (2009) to affirm summary judgment for the employer.

The Third Circuit agreed with the trial judge that the employer, a law firm, had many reasons to fire the plaintiff including problems with staff, inability to meet his billable hour requirements, and the fact that he had instituted a lawsuit against the employer for alleged improper wage garnishment. The court re-emphasized the Gross court’s holding that an ADEA plaintiff must show that age was the “but for” cause of the adverse employment action (i.e., that age had a “determinative influence” on the outcome).  Even if it can be proven that age was a secondary consideration, this is insufficient to prevail under the ADEA.

Note: This article was published in the November 2009 issue of the New Jersey eAuthority.

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