If you fire an employee for sleeping on the job, is it age discrimination?

Sometimes, lawsuits sound like screenplays or comedy sketches - and this one is no exception.

In a Third Circuit (Pennsylvania) decision filed July 6, 2012, Vasbinder v. Secretary Department of Veterans Affairs , truth is definitely stranger than fiction.  Employee Barry Vasbinder was employed as a Utility Systems Repairer Operator Leader by Butler Veterans Administration Medical Facility.  In plain English, that means he was tasked with continuously monitoring a boiler plant at a hospital.  According to the Third Circuit opinion, boiler malfunction could lead to explosions, property damage, interruption of medical services, injuries or fatalities.


On  a Saturday morning in November 2008 (when there is no doubt that the boiler was operating at full capacity - after all, we are talking winter in Pennsylvania) Vasbinder arrived for work at 7:45 a.m.  He was alone in the boiler plant.  What happened next is extraordinary: according to his supervisor, who arrived at the plant at 9 a.m., Vasbinder had placed a blanket and pillows on the floor, set an alarm clock, and was fast asleep.

Considering the potential harm a boiler malfunction would have caused (fatalities, according to the opinion), this was a serious employment offence.  However, Vasbinder denied having blankets, pillows or being asleep, and said he was just "relaxing."  His supervisor wrote up the incident, and within a few days the Chief Engineer of Facilities recommended that Vasbinder be terminated.  Ultimately, instead of being terminated, he was demoted.  Vasbinder filed an EEOC complaint about the demotion, but it was denied.


When a position closer to his original role opened up, Vasbinder applied, but did not get the job (a younger employee, who was shown to be more qualified, did).  He then sued the Butler VA over the demotion and for age discrimination.


To establish a prima facie case of age discrimination under the Age Discrimination in Employment Act, or ADEA, Vasbinder needed to demonstrate (1) that he was forty years of age or older; (2) that the Butler VA took an adverse employment action against him; (3) that he was qualified for the position in question; and (4) that the adverse employment action occurred under circumstances giving rise to an inference of discrimination.


Vasbinder's argument was that his supervisor had an unspoken policy of getting rid of older employees.  The supervisor had once mentioned that he was eager for older employees to retire, but there was no other evidence of this "policy."  Vasbinder also used the report of him being found sleeping on the floor, which he maintained was unreliable and had not been adequately investigated, as evidence of the age discrimination.


Vasbinder ultimately lost the case - but in my opinion, noone won.  The Butler VA, tasked with caring for returning veterans (and keeping them warm in winter) had to continue employing a litigious employee who had been accused of sleeping on the job, albeit in another role, and merit-less cases like this make a mockery of laws designed to protect employees.