ADEA Claim Fails Because it Did Not Meet the “But For” Test in Gross v. FBL Financial Servs., Inc.
From the ruling:
United States 3rd Circuit Court of Appeals Reports: KELLY v. MOSER, 08-3318 (3rd Cir. 10-9-2009) No. 08-3318. Filed: October 9, 2009. Unpublished
In November 2004, John Kelly was fired from the law firm Moser, Patterson & Sheridan, LLP, [fn1] where he worked as an “of counsel” attorney. He was fifty-two years old at the time. Kelly brought suit under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634, alleging he was fired because of his age. The District Court granted summary judgment for defendants, and Kelly appeals.[fn2] We will affirm. Kelly began working at Moser, Patterson & Sheridan as a patent lawyer in April 2003. When he was hired, Kelly was offered a choice between two compensation plans. He could be paid a fixed $180,000 annual salary or be paid based on a percentage of his services that were billed to clients. Under the percentage-of-billing plan, Kelly might have been able to earn more than $180,000 a year, but he also might have earned less. Kelly had spousal and child support obligations that, he claims, prevented him from taking the risk inherent in the percentage-of-billing compensation plan. He chose the fixed salary. As such, he was expected to bill 1,850 hours annually. He did not meet that goal.
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.