Notice of termination can support discrimination claim -3rd Circ.

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The AT&T logo in Golden, Colorado United States. REUTERS/Rick Wilking

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(Reuters) - An employee who was told she might be laid off can sue for discrimination even if the layoff did not ultimately happen, a federal appeals court ruled Friday, in an age and disability discrimination lawsuit brought by a former AT&T Inc employee.

Nonetheless, the 3rd U.S. Circuit Court of Appeals ruled against plaintiff Kathleen Fowler, who found a new job within AT&T when her position was eliminated in 2016 but was eventually laid off months later. Circuit Judge Thomas Ambro, writing on behalf of a unanimous panel, said the company had shown non-discriminatory reasons for its actions.

Fowler's attorney and AT&T did not immediately respond to requests for comment.

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Fowler began working for AT&T in 1986, according to her 2018 lawsuit, which was filed in U.S. District Court in New Jersey, where she lived. In 2006, she was diagnosed with epilepsy, which she said caused cognitive impairment, and in 2015 she began treatment for breast cancer.

In January 2016, AT&T placed Fowler, then a market research analyst, on "surplus status," meaning that her position was being eliminated and she had 60 days to find a new job at the company, according to her lawsuit. She found a new job as a systems engineer, but was laid off in December 2016, at age 60.

Fowler claimed she was targeted for her age in the initial layoff notice, and that AT&T failed to accommodate her medical condition in her new role. She accused AT&T of violating the Americans with Disabilities Act and Age Discrimination in Employment Act.

AT&T said that Fowler was chosen for layoff in both instances because of her performance, and that the initial surplus status was not an "adverse employment action" that could give rise to a discrimination claim since she remained employed.

U.S. District Judge Michael Shipp agreed, granting the company summary judgment in May 2020.

Ambro wrote that being notified of imminent termination is an adverse employment action, noting that the holding put the 3rd Circuit in line with the 2nd, 10th and D.C. Circuits. He wrote that avoiding termination "means merely that the employee was able to lessen the adversity."

However, he agreed with Shipp that Fowler had not supported her discrimination claim, noting Fowler herself had said in a deposition that she did not have the necessary skills for her new job.

Ambro was joined by Chief Judge D. Brooks Smith and Circuit Judge Theodore McKee.

The case is Fowler v. AT&T Inc et al, 3rd U.S. Circuit Court of Appeals, No. 20-2247.

For Fowler: Brian Farrell of Console Mattiacci Law

For AT&T: Kenneth Gage of Paul Hastings

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Brendan Pierson reports on product liability litigation and on all areas of health care law. He can be reached at