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In order for the individual to have valid age discrimination claim, he would have to prove that he was terminated due to his age and not some other factor. In other words, he would need to show that age was the motivating factor (for example, if he was replaced by someone under 40).
there have been over the past couple of months much conversation about how he was not doing the job the way we had outlined it , calling attention to the fact that when given a specific task that he agreed to 'do today' that 3 weeks later it was not done. There were more than one of these.
No one in our company has ever referred to his age. I did tell him in the conversation on Friday (3/29) and the conversation Tuesday morning that I felt he was better suited to what he has been doing for the past 12 years - consulting to companies and agencies in the federal government. But I never referred to age.
and...I will pick up the work we were asking him to do and i am 63, I probably fit into that "old" category as well.
If you have documentation about the insufficiencies of his work, then that would definitely work in your favor should any investigation take place.
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