Trust me. The title of this post will make sense in about a minute or two.
Last year, a small sports bar and restaurant sought summary judgment to dismiss the age discrimination claims one of its former employees had asserted against the company.
The company’s position was that it ended the plaintiff’s employment because she was late to work.
According to the court’s opinion, the plaintiff’s manager testified that the plaintiff began arriving late within the first three months of work. The plaintiff knew that her tardiness was an issue. She signed an employee handbook that addressed on-time arrivals to work and — get this! — reported to her medical providers that she was “always late.”
Throughout 2019 and 2020, the plaintiff “chronically, repeatedly continued to text in late to work.” At one point, she texted her manager, “I’m never leaving, and I’ll never be late again,” to which he responded, “I’m taking a picture of your last text.” The plaintiff then replied, “Already got it tattooed.”
Things had gotten pretty bad by then, and the company fired her shortly after.
The plaintiff claimed that her termination violated the Age Discrimination in Employment Act and a comparable state law prohibiting age discrimination, but both claims had big problems.
First, the ADEA covers employers of 20 or more. The defendant employed approximately 17 or 18 during the relevant period. So, the ADEA claim was DOA.
That left the state law claim.
At a minimum, a plaintiff alleging age discrimination must demonstrate that she was qualified for her position and that the adverse employment action was because of her age. However, her repeated lateness rendered her unqualified for a job that required punctuality.
The plaintiff, who often texted work that she would be late, argued that her texts merely let people know she might be late. Except she was late. A lot. She signed a disciplinary notice for being late. She told her doctors that she was always late. She almost got a painful, permanent reminder on her arm to arrive at work on time. Her inability to consistently report to work on time rendered her unqualified for the position.
There was also no evidence of employees outside the plaintiff’s protected class who were chronically late like her. Plus, she couldn’t establish that anyone younger replaced her. Indeed, the restaurant replaced her with, among others, an employee ten years older! The plaintiff testified that she found this “pretty convenient,” acknowledging that another protected class member replaced her.
And, on second thought, I don’t think the tattoo would have helped at all.