Therefore, it is necessary to examine whether objectively the "end result" of the hospital's decisions reflects the existence of discrimination.
- As noted, both Mrs. Shapira and Prof. Merin testified that the guiding consideration in the decision whether to allow the employment of a doctor after retirement age is a medical need of the hospital, due to the inability to find a replacement for the retiring physician or because the retiring doctor's occupation is a profession in distress in which there is a shortage of doctors. In addition, employment after retirement age is approved in those cases in which the hospital derives financial benefit from the doctor's continued work after reaching retirement age, when the doctor is in demand in terms of his profession or personally. These criteria were not met by the appellant at the time of her retirement, since her profession or the demand for her services did not match the needs of the hospital, since there is no shortage of the appellant's profession or specialization.
- The Regional Court accepted Prof. Merin's testimony that his decision was based on these considerations, which are not impossible. He further ruled that there was no contradiction in Prof. Marin's testimony that the department was intended at the time of the appellant's retirement to undergo changes in medical needs, and to focus on areas in which the appellant has no experience – bone marrow transplantation and the use of CART. The court also accepted Prof. Marin's testimony that the question of whether a profession is in need or distress is not permanent and subject to change, and therefore the employment of Prof. Rowe and Dr. Ashkenazi after retirement age does not prove that in the decision in the appellant's case, gender was a consideration in the decision or tarnished it. The Regional Court also ruled that this conclusion does not change due to the fact that Dr. Ashkenazi continued to be employed after his service above retirement age was extended for a long period of time due to his tenure as director, even after he ceased to be the director of the day hospitalization department and continued to be employed as an internist in a day hospitalization. Our opinion is different, and we are of the opinion that insofar as the hospital's version is examined objectively , it has not been able to prove it, and as a result, the burden of proving that the decision not to allow the appellant to continue working after retirement age is not tainted by discrimination.
- We will preface by saying that we accept the Regional Court's determination that the considerations presented by Prof. Marin and Ms. Shapira are relevant considerations in deciding whether to continue employing an employee after he has reached retirement age. In addition, as part of the employer's managerial prerogative, he is authorized to determine the criteria for continuing employment after retirement age, provided that the criteria did not create improper discrimination under the Equality Law. However, the question that we must examine is whether it has been proven that these considerations did indeed guide Prof. Marin at the time of making the decision to reject the appellant's request to continue working at the hospital after she reached retirement age. In this regard, we have reached the conclusion that the hospital did not meet the burden of proving that the decision was made on the basis of the considerations it presented to the court, and as a result, it did not raise the burden of proving that the decision was not tainted by discrimination.
First, it emerged unequivocally from Prof. Marin's testimony that the consideration that guided him was the opinion of Prof. Rowe and the other doctors in the department, who recommended (or even demanded) not to extend the appellant's employment beyond retirement age (transcript of April 30, 2023, p. 35, paras. 14-17; ibid., p. 37, paras. 1-3). Thus, both on the basis of his many years of acquaintance with Dr. Ashkenazi (who managed an internal day hospitalization that became a hematology day hospital during the period when Prof. Marin was a student at the hospital) and in the opinion of the doctors in the department, there was room to prefer Dr. Ashkenazi over the appellant for the benefit of the patients and the staff (p. 45, paras. 13-36; p. 47, paras. 11-14). The Regional Court ruled that the plaintiff's "revolt in her summaries" against the new version raised by Prof. Merin in cross-examination was justified, since it was not detailed in his affidavit, but not giving weight to this testimony does not change the outcome, since the appellant must prove positively that her qualifications are not inferior to those of Dr. Ashkenazi. Indeed, both because this is a complete change of front from the hospital's argument in the statement of defense and in the affidavits, and because Prof. Rowe and Dr. Ashkenazi (or other doctors) were not summoned to testify, this version should not be given weight and this version cannot be accepted as an explanation or justification for the decision to reject the appellant's request to continue working after the age of 67. However, in our opinion, the very presentation of this new version undermines the version raised by Ms. Shapira and Prof. Merin in their affidavits, namely, that there was no medical need for the appellant's continued work. It should be emphasized that the hospital, which has the information and full data on the number of personnel in the department, the standards of physicians assigned to each field of activity in the department, etc., did not present these data. Thus, for example, no data was presented on a number of physician positions in the day-hospital unit, how many of them were staffed at the time of the appellant's retirement, whether the appellant's standard after her retirement was staffed or transferred to another field in the department, etc. Thus, the casual statement that there was no medical need for the appellant's work was not backed up by any evidence. Since the evidence is under the control of the hospital, it is obligatory to refrain from presenting it.