An auto and home insurance company was having financial problems. The owners became particularly concerned about the

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An auto and home insurance company was having financial problems. The owners became particularly concerned about the cost of the company’s health plan. Dismayed by the rate quotes they were getting from health insurers, one of the owners sent e=mails asking fo a review of the company’s rates in light of the fact that two employees older than age 50 had recnetly left. On another occasion, he stated, “We have lost several of the older, sicker employees and should have some consideration on this.” The owners of the insrurance company approached two employeses who were older than age 65 and requested that they nmove off of the company’s health plan and onto Medicare to save the company money. The employees declined to do so. With continuing financial problems and the prospect of anotehr round of downsizing hanging in the air(seven employees had been terminated in a RIF two years earlier), the owners formally reprimanded one of these employees, a 68-year old, for alleged performance deficiencies. A few months later, she was terminated in anotehr RIF that inclueded a 72-year old and two other employees in their late thirties. The 68-year old was the only employee from her department selected for downsizing. Her job tasks wer distributed among the four remaining employees in the department, whose ages were 66, 49, 46, and 25. The owner said that the decision to downsize the 68-year old was basd on her performance deficiencies, and not her age or the cost of providing her with health insurance. Several months after the termination, the owner had additional e-mail conversations with the company’s health insurer and complained “Since last year we have losgt our oldest and sickest employees [listing severl names, including that of the 68-year-old who was downsized]. Please let me know if this is the best we can do, what choices we have with you as I would like to stay with you but we were expecting a rate decrease from the group becoming younger and ehalthier not an increase.”  The 68-year old woman sued for age discrimination. What should the court decide? Why? (See Tramp v. Associated Underwriters, Inc., 768 F.3d 793 [8th Cir. 2014]. )

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