Selective Enforcement of “Sleeping on the Job” Rules Plausibly Supports Age Discrimination Claim

A recent Southern District of New York decision, Fitzgerald v Signature Flight Support Corp., 13 CV 4026 VB, 2014 WL 3887217 [SDNY Aug. 5, 2014], is illustrative of how a plaintiff may plausibly allege age discrimination under the Age Discrimination in Employment Act of 1967.

There was no dispute that plaintiff satisfied the first three elements of a prima facie case of age discrimination under the ADEA – i.e., plaintiff was 49 at the time of his termination; his termination was an “adverse employment action”; and he was qualified to work in his position.

The court thus turned to the issue of whether plaintiff alleged facts supporting a plausible inference of age discrimination. In holding that he did, the court reasoned:

[P]laintiff alleges [that] Linero [his manager] repeatedly complained to numerous employees that [p]laintiff and another older worker made ‘too much money.’ And after terminating plaintiff, Linero allegedly replaced him with two men in their twenties, each of whom earned less than half of plaintiff’s salary. … 

[T]aken as true, plaintiff’s allegations cast doubt on the alternative explanation that he was fired for sleeping. If, as here alleged, employees were permitted a “rest break” during overnight shifts, and Linero did not care if employees rested “as long as someone was ‘on point’ to cover emergencies,” then it would be incongruous if plaintiff were abruptly terminated after nearly thirty years at Signature for taking a break to rest, or even sleep. And even if Signature did not permit its employees to take rest breaks, the fact that other employees allegedly “slept or napped on the job without adverse consequences” allows the plausible inference that Linero discriminated against plaintiff by selectively enforcing the rules.
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