Court Leaves Comparator Dispute to Jury In Sleepy Child Care Employee's Age Claims

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By Chris Opfer

A 64-year-old child care worker fired for sleeping on the job raised triable age discrimination and retaliation claims by showing that two younger employees were not similarly disciplined for leaving children unattended, the U.S. District Court for the District of New Jersey ruled July 10 (Jenkins v. Knowledge Learning Corp. , D.N.J., No. 1:10-cv-05058, 7/10/13).

The court said it was for a jury to decide whether Knowledge Learning Center fired Alberta Jenkins from her job for leaving three infants unsupervised when she allegedly fell asleep at work or if the justification was simply pretext for age discrimination.

Jenkins claimed that supervisors peppered her with questions about her retirement during an event eight months before she was fired.

KLC argued that the two employees cited by Jenkins were not appropriate comparators because they were cited for leaving children unsupervised, rather than sleeping on the job. The company further asserted that it had fired nine other employees, many of whom were younger than Jenkins, for sleeping at work.

Citing competing versions of the facts, the court denied the company's motion for summary judgment on Jenkins's discrimination and retaliation claims under the Age Discrimination in Employment Act.

Judge Joseph H. Rodriguez noted that KLC fired Jenkins roughly three months after she filed a charge of discrimination against it with the Equal Employment Opportunity Commission.

Nevertheless, the court granted summary judgment to KLC on Jenkins's retaliation claim under the Americans with Disabilities Act Amendments Act. It found that she was unable to draw a nexus between her request for an accommodation related to a back injury and her termination. 

'Don't You Want to Retire?'

Jenkins began working for KLC as an infant room staff member in July 1986 and continued there until she was fired more than 21 years later.

After undergoing back surgery in April 1999, Jenkins said she requested permission not to be required to sit on the floor with children while working. The company denied this request.

Jenkins filed the EEOC charge in October 2007, alleging that KLC discriminated against her based on disability and age by refusing to grant the accommodation and subjecting her to selective discipline.

She attended a 20th anniversary celebration for the company in May 2007. Following the event, Jenkins claimed that center Director Amanda Dawicki and Assistant Director Amanda Scalise made several comments to her about retirement, asking when she intended to start collecting Social Security benefits. One of the women also allegedly said, “Isn't retirement looking good?” or “Don't you want to retire?”

Dawicki and Scalise later denied making these statements.

Jenkins was fired Jan. 15, 2008, following an incident in which she was allegedly found sleeping on the job while three infants in her care were left unsupervised. A memo accompanying the decision said it was based on Jenkins's “violation of company policy or procedure.”

According to the company, it observed a “zero-tolerance” policy with respect to leaving children unsupervised. The policy states that “[l]ack of supervision will result in termination, unless there are significant extenuating circumstances.”

Jenkins sued KLC, alleging claims for discrimination and retaliation under the ADEA as well as retaliation in violation of the ADAAA. 

Policy Enforcement in Question

The court ruled that summary judgment was inappropriate on the age discrimination claim because the company's motivation for the decision remained unclear.

Specifically, the court noted that the parties gave differing factual accounts of the events surrounding the decision.

Jenkins claimed that the company did not enforce the “zero-tolerance” policy against younger employees. She asserted that one younger co-worker was issued a written warning, rather than fired, after leaving “a classroom full” of children unattended. Another younger worker received the same punishment, according to Jenkins, for leaving a toddler alone in a classroom when she took other children outside.

Conversely, the company argued that these workers were not valid comparators because they did not actually fall asleep on the job. KLC also claimed that it had fired nine other workers, many of whom were younger than Jenkins, for sleeping on the job between April 2007 and 2010.

“It is due to the inconsistencies between the two accounts, leading to the need for a determination of credibility, that the motion for summary judgment must be denied,” the court found.

Assuming that she also could raise an ADEA hostile environment claim, the court nevertheless ruled that the alleged discriminatory conduct was not sufficiently severe and pervasive to support the claim.

Jenkins had alleged that her hours were changed and that she was suspended for two weeks after being wrongly accused of force-feeding a child and other inappropriate conduct. She also claimed that the retirement questions from Dawicki and Scalise contributed to the hostile environment. 

Court 'Troubled' by Proximity

The court found that Jenkins also raised a triable question of whether KLC fired her in retaliation for filing the EEOC charge.

The company argued that the charge filing was not a protected activity under the ADEA because it referred only to unfair treatment generally. The court disagreed, however, finding that the charge specifically referenced Jenkins's age as a basis for the alleged mistreatment.

“In addition, with a clean record of discipline and no documented or noted performance concerns before her twentieth anniversary with the Defendant, the Court is troubled by the fact that Plaintiff was terminated within three months of her questioning whether disciplinary action … was due to her age,” Rodriguez wrote.

Meanwhile, the court found no evidence supporting Jenkins's claim that she was also retaliated against after requesting that, as a reasonable accommodation, she not be made to sit on the floor.

Observing that Jenkins had been cleared to return to work with no restrictions following the surgery, the court questioned whether the accommodation request was a protected activity. To the extent it was protected, the court said Jenkins did not establish a nexus between the accommodation request and her termination.

Ari R. Karpf and Christine E. Burke of Karpf, Karpf & Cerutti in Bensalem, Pa., represented Jenkins. KLC was represented by Daniel M. Young and Amy L. Hansell of Ward Greenberg Heller & Reidy in Marlton, N.J.

Text of the opinion is available at

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