In light of evidence that younger employees committed similar infractions as the plaintiff, and did not suffer significant disciplinary action, an Illinois federal district court denied an employer’s summary judgment motion. The Court ruled that evidence of disparate treatment plus age-based comments by management was sufficient to create a fact issue as to whether the plaintiff’s age was the but-for cause of termination. Wyman v. Evgeros, Inc. (N.D. Ill. Jan. 27, 2017).

In Wyman, the plaintiff, worked morning shifts prior to undergoing surgery. Following post-surgery recovery, she asked to resume morning shift. Her request was denied by the employer which, citing business needs, placed her on an afternoon schedule. Although the parties disputed whether the plaintiff knew she had to work these shifts, it was undisputed that the plaintiff missed three afternoon shifts – a violation of company policy. As a result, the employer terminated her employment.

Although compliance with Company policy ordinarily is a nondiscriminatory reason for termination, the court found that similarly situated younger employees committed different but seemingly similar infractions but were not terminated. Specifically, younger employees allegedly arrived at work intoxicated; arrived late for work; and exposed their tattoos, all in violation of company policy. None failed to report for work on three days. Despite that significant difference, and finding that a reasonable fact-finder could conclude that the employer’s “legitimate expectations were disparately applied,” the court found this evidence sufficient to permit an inference of discriminatory intent. Furthermore, the plaintiff presented evidence that the restaurant’s shareholder and her son made disparaging comments about elderly people. After considering these statements in conjunction with the employer’s alleged differential treatment of younger employees, the court reserved for trial whether age was the but-for cause of her termination.

This decision serves as a reminder to employers of the importance of ensuring consistent application of the spirit of company work rules. Distinctions based upon factual differences may not be enough where the seriousness of the violations are similar, at least says this court. Regularly scheduled management training can help reduce such incidents that create liability to the company.