SPEAKER_01: 0:18

Okay, let's just dive right in. I want you to imagine something for a moment. You're at the absolute peak of your professional life. We're talking four decades of work. You're celebrated as a legend in your field. You hold these prestigious titles.

SPEAKER_00: 0:33

And you're not slowing down, not one bit.

SPEAKER_01: 0:35

Not at all. But you're approaching, say, the age of 70. And for years, for decades, your employment contract has had this one rock solid guarantee. The automatic renewal. Exactly. That automatic renewal. For a senior professional, that's more than just, you know, a line in a contract, right? It's the foundation of your career security.

SPEAKER_00: 0:54

It is. It sets a very clear, very reasonable expectation that the job is long term. It's continuous. Unless you really mess up or you both agree to part ways, you're staying. It shifts the whole power dynamic.

SPEAKER_01: 1:06

Right. But what happens when that security, that expectation you've built your life around, is suddenly yanked away, replaced by a non-renewable one-year deal. And the institution you help build starts insisting you should retire, even when you say very clearly, I'm not retiring.

SPEAKER_00: 1:21

That's the whole conflict. That sudden radical shift is the absolute heart of the federal court ruling we're diving into today. FASS v. Northwell Healthcare System.

SPEAKER_01: 1:30

So our mission today is to really get into the weeds of this. We're looking at how a preeminent cardiologist, Dr. Arthur Fass, alleged age discrimination after Northwell Health, refused to renew his contract.

SPEAKER_00: 1:42

And the key concept for you to follow here is pretext. We need to unpack how the court found just enough circumstantial evidence, evidence Northwell probably thought was totally harmless, to suggest that their business reasons might just be a cover-up for age discrimination.

SPEAKER_01: 1:57

Aaron Powell So we have the parties, Dr. Fass, the cardiologist with 40 plus years of experience, and the defendant, Northwell Health, a huge nonprofit healthcare provider.

SPEAKER_00: 2:08

Aaron Powell And Northwell, feeling pretty confident, asks the court for summary judgment. They're basically saying, judge, look at the contract, it's unambiguous. There's no way a jury could find for Dr. Fast, so let's just end this now.

SPEAKER_01: 2:17

Aaron Powell And the court's response was a resounding, not so fast.

SPEAKER_00: 2:22

A very resounding no. The core finding here, and this is the big takeaway, was that there was just enough detail, enough circumstantial evidence in those internal emails and the way the contract negotiation was structured to create what the law calls a triable issue of fact.

SPEAKER_01: 2:37

Aaron Powell Which means what exactly?

SPEAKER_00: 2:39

It means a jury has to decide, not the judge. A jury has to hear both sides and figure out whose story is more believable. Was Northwell's action genuinely about a new program, or was it intentionally discriminatory?

SPEAKER_01: 2:50

Aaron Powell This deep dive is, I mean, it's a masterclass for anyone in employment law, or even just high-stakes negotiation. It shows how these seemingly small things, the labels you use in an email, setting impossible goals, can completely undermine your legal defense.

SPEAKER_00: 3:06

Aaron Powell The context, the intent, it all matters just as much, if not more, than the final signature on the dotted line. It's a textbook case of how your own records can be weaponized against you.

SPEAKER_01: 3:15

Aaron Powell Okay, so let's start at the beginning, section one. The foundation of security. We need to establish the baseline of Dr. Fass's career.

SPEAKER_00: 3:23

And we have to understand, Dr. Fass wasn't just some guy they hired. He co-founded North State Cardiology, a very successful practice.

SPEAKER_01: 3:31

So he was an owner.

SPEAKER_00: 3:32

Yeah.

SPEAKER_01: 3:33

An entrepreneur. That's a different level of investment in the institution.

SPEAKER_00: 3:36

It's critical context. By 2013, he's around 60 years old, and his practice gets bought by Phelps Hospital, which is later absorbed by the massive Northwell system. When you acquire a practice like that, you're not just buying equipment, you're buying goodwill, patient loyalty, and the founders who built it all.

SPEAKER_01: 3:53

And the first contract, the 2013 one, seems to reflect that respect. It really set the stage for his expectations later on.

SPEAKER_00: 4:00

It did. It was an initial five-year term, but the crucial part was the automatic renewal provision for another five years.

SPEAKER_01: 4:05

So the default setting was renewal.

SPEAKER_00: 4:07

Exactly. Renewal was the default. To stop it, either the hospital or FASS himself had to give 180 days' notice that they intended not to renew. If everyone stayed quiet, boom, another five years. That's a huge guarantee of longevity.

SPEAKER_01: 4:20

And Fass himself said this was a big deal. He testified he was pleased with it, that it gave him a degree of security. He felt it showed the hospital was planning on keeping him long term.

SPEAKER_00: 4:30

And that testimony is what grounds his expectation. In a field like cardiology, these kinds of contracts are a sign that the institution is investing heavily in retaining top talent, often well into their traditional retirement years.

SPEAKER_01: 4:43

Let's talk about performance because Northwell never said he was a bad doctor. His pay was tied to this metric: work relative value units or WRVUs.

SPEAKER_00: 4:52

Right, WRVUs. We should probably explain what those are. It's basically a standardized measure across healthcare to quantify how productive a doctor is. It's linked to billing codes. The more complex the work, the more patients you see, the higher your WRVUs. It's a direct line to revenue.

SPEAKER_01: 5:06

And the initial target for him and his two partners back in 2013 was a collective 25,000 WRVUs a year. A pretty substantial amount of work.

SPEAKER_00: 5:14

A very significant volume. And on top of that, his professional reputation was just stellar. In 2017, at age 63, he gets appointed director of medicine at the hospital.

SPEAKER_01: 5:24

So he's taking on administrative duties.

SPEAKER_00: 5:26

Big ones. Recruiting physicians, organizing committees. It took up about 20% of his time. And even his bosses, like Dr. Varender Singh, a senior VP at Northwell, called him a legend and a very good doctor. The praise was documented.

SPEAKER_01: 5:40

And there's a classic problem there, right? You get promoted into management, which is prestigious, but it eats into your clinical time.

SPEAKER_00: 5:45

It eats into your WRVUs. The system is asking you to trade raw production for institutional leadership.

SPEAKER_01: 5:51

Aaron Powell Which brings us to the 2019 contract. FAS is 66 now. It's a new three-year agreement, and it actually accounts for his administrative work by lowering that commitment to 10% of his time. But that security mechanism, it was still there. Trevor Burrus, Jr.

SPEAKER_00: 6:05

Yes. This is the second anchor for his expectations. The 2019 deal still had an automatic renewal clause, this time for one-year terms, but still renewal was the default. And again, FAST testified this was important to him.

SPEAKER_01: 6:19

So from 2013 all the way to 2022, we see a clear, consistent pattern. A decade of multi-year contracts where the default is continuation, not termination. That's the baseline.

SPEAKER_00: 6:29

That's the baseline that Northwell then tries to abruptly dismantle, which takes us right into section two. The crossroads. This is where the subtle groundwork for that dismantling begins.

SPEAKER_01: 6:41

The first hint of this, this succession planning idea, comes in an email in September 2019. It's from Dr. Zimmerman, FASS partner.

SPEAKER_00: 6:50

Right. And this is a critical point of dispute. Zimmerman emails Northwell executives about recruiting a new cardiologist, and he uses the phrase succession planning. Northwell later points to this as proof that the doctors themselves started the retirement talk.

SPEAKER_01: 7:04

But Fass had a totally different take on it.

SPEAKER_00: 7:06

A completely different take. He testified that Zimmerman was speaking for himself. Fass said yes, they needed a new doctor, but only because the practice was simply too busy. It was about growth, not about replacing him.

SPEAKER_01: 7:18

And that's a huge difference in interpretation. Is this hiring for growth or is it hiring for his exit?

SPEAKER_00: 7:23

The whole case hinges on questions like that. Now, fast forward to late 2022. The 2019 contract had automatically renewed, so he's on that rolling one-year term. And now Northwell executives, including a new chair of cardiology, Dr. Binoy Singh, start asking FASS about his long-term plans.

SPEAKER_01: 7:41

And this is where they create the leverage. October 7th, 2022. An email goes around to the executives with two proposed options for FASS's next contract.

SPEAKER_00: 7:50

And this is the moment of the false choice. We have to break these two options down because they are the legal engine of his whole pretext claim.

SPEAKER_01: 7:58

Okay. Option hashtag one. What was that?

SPEAKER_00: 8:00

Option hashtag one was the one Northwell clearly wanted him to take. Internally, and this is so important, they labeled it the career completion contract.

SPEAKER_01: 8:08

Wow. They actually wrote that down.

SPEAKER_00: 8:10

They wrote it down in an email. It was for a fixed, non-renewable one-year term. And it came with a much lighter part-time schedule, only expecting about 2,900 WRVUs.

SPEAKER_01: 8:19

Okay. And option hashtag two.

SPEAKER_00: 8:20

Option hashtag two was labeled the full-time renewal. It was a full-time schedule with a clinical-based salary, but and this is the kicker, it came with an expectation of 7,785 annual WRVUs.

SPEAKER_01: 8:32

Wait, 7,785. Let's put that in perspective. The target for all three partners back in 2013 was 25,000. So almost 8,000 for one person is a huge solo commitment.

SPEAKER_00: 8:45

It's massive. And this is where the operational reality collides with the legal claim. Remember, FAS still has his 10% administrative duties as director of medicine. He's teaching residents.

SPEAKER_01: 8:55

Those aren't billable WRVUs.

SPEAKER_00: 8:57

Exactly. Those activities, which are vital to Northwell's mission, don't generate WRVUs. FASS testified he was already working at maximum capacity. To hit that 7,785 target on top of everything else, I mean it would be like working 120% of a full-time schedule. He said it was impossible.

SPEAKER_01: 9:14

So he's caught.

SPEAKER_00: 9:21

Right. Or a non-renewable contract that guarantees his exit in one year. He felt he did not have a choice. He felt he was being forced into the part-time dead-end contract.

SPEAKER_01: 9:29

And the internal emails back this up. One of the executives, a Dr. Gotlock, sends an email to the group.

SPEAKER_00: 9:34

Yes, and this email is just a gift to the plaintiff's lawyers. He writes that he's okay with whichever plaintiff accepts, but then he adds this line. Although I think it's clear to most of us that option one seemingly makes most sense.

SPEAKER_01: 9:48

So they're documenting their own preference. They're steering him toward the career completion contract.

SPEAKER_00: 9:54

That's the argument. That email transforms a supposed choice into a management recommendation. They were already viewing this 69-year-old doctor through the lens of career completion. They had already decided his path.

SPEAKER_01: 10:06

But let me play devil's advocate for a second. They still offered him the full-time option. Why didn't he just take it and then try to negotiate the WRVU target down? Isn't that on him?

SPEAKER_00: 10:16

That's Northwell's defense, of course. But the court looks at the totality of the circumstances. They were pressuring him to choose quickly. Dr. Varinder Singh replied to one email saying, sooner the better, we need a decision. When you combine that pressure with the impossible metric, a jury can infer that they knew exactly what they were doing.

SPEAKER_01: 10:33

They created a scenario where any rational person would see option two as a setup for failure.

SPEAKER_00: 10:39

Leaving option one as the only path to short-term stability. So Fass signs it, December 28, 2022. But he's not happy about that no renewal clause. It's a huge break from his entire history.

SPEAKER_01: 10:54

And this next part is maybe the single most important dispute in the whole case. It's what saves him from summary judgment.

SPEAKER_00: 11:00

It is. Fass testified that when he raised his concerns about the non-renewal part to Dr. Benoit Singh, he was led to believe the situation would be readdressed during the course of the following year.

SPEAKER_01: 11:11

But he admits there was no explicit promise, right? No handshake deal, no, don't worry, we'll renew you.

SPEAKER_00: 11:16

Correct. Northwell denies any such implication was ever made. But for the purpose of a summary judgment motion, the court has to take FASS testimony as true. His subjective belief that the contract's clear words were softened by this vague promise to talk later is just enough to create that triable issue.

SPEAKER_01: 11:34

So a jury has to decide who was telling the truth in that conversation.

SPEAKER_00: 11:37

Exactly. And what's really telling is what Northwell did internally right after he signed. They immediately start planning to initiate, develop practice transition strategy, and discuss recruitment.

SPEAKER_01: 11:47

Which is both their defense and potentially the proof of their intent.

SPEAKER_00: 11:51

Aaron Powell It's a double-edged sword. It shows they were making business decisions based on his contract choice. But it also supports Fass's argument that they had already decided he was retiring, and this was just the mechanism to make it happen, regardless of what he wanted.

SPEAKER_01: 12:04

And that fuse they lit in late 2022 burns all the way to August 2023. This brings us to section three: the refusal and the argument over adverse action.

SPEAKER_00: 12:15

Yes, the confrontation. Fass, now turning 70, decides it's time to have that conversation he thought was promised. He goes into Dr. Benoit Singh's office and asks what his employment will look like after 2023.

SPEAKER_01: 12:26

And the answer is just blunt.

SPEAKER_00: 12:28

Incredibly blunt. Dr. Singh just confirms his employment ends December 31st. And Fass is, in his words, incredulous, taken aback and extremely upset.

SPEAKER_01: 12:37

The testimony includes him yelling, You're not gonna fuck me. That's not the reaction of someone who expected their contract to end.

SPEAKER_00: 12:44

Not at all. And what's more, his partner, Dr. Zerman, was in the room and was also incredulous. He reportedly asked Dr. Singh, You don't really mean to do that, do you? If this was all just the natural expected end of a contract, why would they both be so shocked?

SPEAKER_01: 12:59

Right after this confrontation, the pressure to officially call it a retirement starts to build.

SPEAKER_00: 13:04

It does. A VP, Mrs. Hathaway Rosseter, talks to Fess, and in her own notes, she documents that he asked her point blank if the non-renewal was because of his age.

SPEAKER_01: 13:14

And what was her response?

SPEAKER_00: 13:15

Her immediate response was to ask him if he would consider retiring but continuing to teach residents in a voluntary capacity.

SPEAKER_01: 13:23

So unpaid. After he just raised the issue of age discrimination, they ask him to work for free.

SPEAKER_00: 13:28

It sends a terrible message. It suggests they value his expertise only if it costs them nothing. Then, in a September meeting, the executives repeatedly asked him to write a letter to his patients saying he was retiring.

SPEAKER_01: 13:40

And he refused. He said, I'm not retiring. That's your decision, not mine. He drew a very clear line. This was involuntary.

SPEAKER_00: 13:48

But Northwell just went ahead anyway. In November, they sent letters to his patients announcing he was ending his storied tenure and listing other doctors they could see. They created the retirement narrative they wanted, completely overriding his wishes.

SPEAKER_01: 14:01

So Northwell's defense to the court was what? What were their legitimate reasons?

unknown: 14:06

Dr.

SPEAKER_00: 14:06

Varinder Singh laid out two main points. First, FASS made his choice. He signed the one-year deal, and they were simply holding him to his decision. It was a business deal.

SPEAKER_01: 14:16

Okay, that's sounds plausible. What was the second reason?

SPEAKER_00: 14:19

Second, Singh said he had a vision of a program that required recruiting cardiologists with specific specialties and long-term commitments. Since FASS chose the short one-year term, Singh took FASS out of that vision. He argued that if FASS had taken the three-year deal, he would have been part of the plan.

SPEAKER_01: 14:36

That sounds like a very strong, logical business argument.

SPEAKER_00: 14:40

It is. It's the core of their motion. They even offered him an extension of his administrative role, which he turned down because he wanted his clinical job back, so they could argue they were trying to accommodate him.

SPEAKER_01: 14:50

Which brings us to the legal fight. Section four. The legal showdown. This is where the court picks apart that very plausible story.

SPEAKER_00: 14:59

Aaron Powell To understand this, we have to look at the McDonnell Douglas framework. It's the three-step legal test for discrimination cases.

SPEAKER_01: 15:06

Aaron Powell Step one is the employee has to show a basic or prima facie case.

SPEAKER_00: 15:10

Right. You're in a protected class over 40, you're qualified, you suffered an adverse action, and there's some inference of discrimination.

SPEAKER_01: 15:18

Step two, the burden shifts to the employer to give a legitimate, non-discriminatory reason.

SPEAKER_00: 15:23

Aaron Powell Which Northwell did. The contract, the programmatic vision.

SPEAKER_01: 15:27

Step three, the birdie shifts back to the employee to prove that reason was just a pretext, a cover story, and that age was the real but for cause.

SPEAKER_00: 15:35

Aaron Powell Exactly. And Northwell's first attack was on step one. They argued this wasn't even an adverse employment action.

SPEAKER_01: 15:42

Aaron Powell How could ending a 40-year career not be an adverse action?

SPEAKER_00: 15:46

Their argument was that it was just the natural end of a contract he chose. A contract with no renewal clause. Therefore, he had no reasonable expectation of renewal, so legally nothing adverse happened.

SPEAKER_01: 15:58

But the court didn't buy that.

SPEAKER_00: 16:00

Not at all. They cited a key precedent, Leibowitz v. Cornell, which says non-renewal can be an adverse action. And they said Fass's testimony, that he was led to believe renewal would be discussed, was enough to establish a reasonable expectation, at least for this early stage of the case.

SPEAKER_01: 16:18

So he clears that first hurdle. Northwell easily clears the second with their business reasons. So it all comes down to step three, pretext.

SPEAKER_00: 16:26

The whole ballgame. And Northwell hammered the point that Fass had no direct evidence. In his deposition, he literally said, I have no other explanation for why this happened, other than his age. They argued that that's just a subjective feeling, not proof.

SPEAKER_01: 16:39

But this is where the court connects all the dots, all the little pieces of circumstantial evidence.

SPEAKER_00: 16:43

The court weaves them into a single compelling narrative that a jury could believe, and they lay it out point by point.

SPEAKER_01: 16:49

First, the timing. They started asking about his retirement before they even offered him the contracts.

SPEAKER_00: 16:55

Second, the language, that internal label, the career completion contract. That's a huge piece of evidence about their state of mind. It's legally toxic.

SPEAKER_01: 17:05

Third, the false choice itself, offering a long-term option with an impossible performance target. A jury could easily see that as a setup.

SPEAKER_00: 17:14

Fourth, the pressure. Sooner the better. We need a decision. They wanted him locked into that short-term deal so they could move on.

SPEAKER_01: 17:21

Fifth, the immediate planning for his transition as soon as he signed. And finally, the aggressive push for him to call it a retirement.

SPEAKER_00: 17:29

Exactly. When you add it all up, the court said a reasonable jury could see this as Northwell systematically maneuvering him into retirement. Not just honoring a contract, but engineering an outcome.

SPEAKER_01: 17:40

But what about Northwell's best defense, the same actor presumption?

SPEAKER_00: 17:44

Right. This is a strong legal shield for employers. The idea is if the same person who hired or contracted with you, knowing your age, is the same person who makes the adverse decision, it's unlikely that age was the reason.

SPEAKER_01: 17:56

And here, Dr. Varinder Singh approved the one-year deal knowing Foss was 69, and he was the ultimate decision maker not to renew it. That seems to fit perfectly.

SPEAKER_00: 18:06

It does, but the court said the presumption is permissive, not mandatory. And they made a really clever distinction about advancing age.

SPEAKER_01: 18:14

What does that mean?

SPEAKER_00: 18:15

It means a jury could find that while Dr. Singh was okay hiring a 69-year-old for one more year, he wasn't okay with that same person turning 70 and continuing to be part of the long-term programmatic vision.

SPEAKER_01: 18:27

Aaron Powell So it's the difference between he's old but fine for now, and okay, now he's too old for our future plans.

SPEAKER_00: 18:34

Precisely. The programmatic vision itself could be seen as a cover for a decision based on his advancing age.

SPEAKER_01: 18:41

So in the end, the judge acknowledges that Foss's case is on thin ice because so much of it hangs on his word against theirs about that one conversation.

SPEAKER_00: 18:48

Aaron Powell It all comes down to a classic he said he believed credibility fight. Did Dr. Sing mislead him or did Dr. Foss misunderstand? And because only a jury can decide who's more believable by listening to them testify, the judge had to deny summary judgment.

SPEAKER_01: 19:02

The court's job is issue identification, not issue resolution. They found the central issue, and now it's up to a jury to resolve it.

SPEAKER_00: 19:10

And the lesson there is that your internal conduct, your emails, your labels can completely empower an employee's subjective perception and blow up the cleanest contract you have.

SPEAKER_01: 19:20

So synthesizing all of this, what's the key lesson here?

SPEAKER_00: 19:24

I think the key lesson is that in these age discrimination cases, especially with fixed-term contracts, the internal chatter matters immensely. A label like career completion contract or creating an impossible choice can completely overcome the legal protections an employer thinks they have.

SPEAKER_01: 19:41

The documentation just betrayed them. They might have had a legitimate vision, but the way they executed it, by pushing the retirement narrative and using that loaded language, created all the evidence a plaintiff needs to get to a jury.

SPEAKER_00: 19:52

It's a masterclass in what not to do. If you have a legitimate, non-discriminatory plan, you have to execute it with absolute consistency and clarity. The moment you start talking about retirement or using exit focused language with an older employee, you are handing them the building blocks for a lawsuit.

SPEAKER_01: 20:09

So what happens now? The court has set a conference for September 2025 and told the lawyers to discuss settlement in good faith, which leads to our final. Final provocative thought.

SPEAKER_00: 20:20

How likely is it that Northwell actually risks this going to a jury? A jury that is just going to be deciding who they believe about a conversation from years ago. This denial of summary judgment completely changes the leverage. They're now staring down the barrel of a very unpredictable trial where the jury's feelings about fairness might matter a lot more than the fine print in a contract. The pressure to settle is now immense.