The pharmacist who refused to give flu shots lost his age discrimination claim

In a world, where an employee cannot prove age discrimination after getting fired for playing golf during his medical leave, comes the story of a pharmacist *** dramatic pause *** who wouldn’t give flu shots. While we wait for Hollywood to greenlight this movie — I’m thinking Gary Oldman as the pharmacist and Blossom‘s Jenna von Oy as the customer — you’ll just have to settle for a short blog post about the age discrimination lawsuit that ensued after the pharmacist was fired.

As detailed in this recent Pennsylvania federal court opinion, a drug store decided to require that its pharmacists immunize customers upon request. The plaintiff, a pharmacist, was morally opposed to administering the flu vaccine because a close friend of his had contracted Guillain-Barre Syndrome after receiving a flu vaccine. The drug store didn’t doubt the sincerity of the plaintiff’s beliefs. Nonetheless, it fired him because he refused to immunize customers, which was an essential part of his job.

No pretext.

Here, without any direct evidence of discrimination — basically, the opposite of this case — the plaintiff had to build his case with circumstantial evidence of discrimination. Unfortunately for him, the court concluded that plaintiff lacked any “single shred of evidence to support pretext”:

To the contrary, evidence in the record shows that the plaintiff himself agrees that his objection to immunize was the reason he was suspended and then terminated. The plaintiff himself testified that his supervisor Mr. Anderson had no dislike for him because of his age or otherwise. The plaintiff testified that he was not allowed to work because of his conscience objection.The plaintiff proceeded under the theory that his suspension/termination were “wrongful” based on his moral objection up until he realized that this claim was legally deficient. The plaintiff admitted that he knew of no pharmacists who refused to immunize and who continued to be employed at [the drug store].

Yep, still difficult to prove age bias.

As I noted in the golf post, proving age discrimination can be a real bear. Remember that baseball analogy I borrowed from Supreme Court Justice Scalia. In a 1-0 game featuring a home run,  it’s easy to explain why that team won. But, when the final score is 5-2, it’s not as easy to argue that a solo home run hit from the winning team was the reason that the victors prevailed.

Here, at his deposition, the plaintiff testified that both his age and conscience objection contributed to his termination. How then can age be the motivating reason behind his termination? It can’t. For, even if age played some role in the plaintiff’s demotion and termination, his age was not the “determinative” factor in the decision to demote him or terminate his employment.

So, file this one on fleek away for the next time that you need to defend an age discrimination claim.



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