In Jones v. Pate Rehab. Endeavors, Inc., Docket No. 14-CV-2218 (N.D. Tx. June 17, 2016), the Court denied Defendant’s motion for summary judgment dismissing Plaintiff’s age discrimination claim under the ADEA.  By way of background, Defendant employed Plaintiff as a Patient Transporter, which required him to transport patients in a motor vehicle.  During his employment, Plaintiff was involved in three car accidents in less than a three-year period.  Under the employer’s interpretation of its policies, Plaintiff’s employment was required to be terminated.  Accordingly, at the age of 73, Plaintiff’s employment was terminated.  In support of its motion for summary judgment, Defendant asserted that Plaintiff’s employment was terminated in accordance with its workplace policies; not age-based animus.  In opposition, Plaintiff produced evidence that, among other things, a 28 year old Patient Transporter was not terminated despite being involved in four accidents in a two year period.  Defendant, however, asserted that its failure to terminate the younger Patient Transporter was an administrative error.  In denying summary judgment, and finding that an issue existed worthy of a jury trial, the Court held that Defendant’s inconsistent application of its workplace policies, and its assertion that it mistakenly failed to terminate the younger employee, were issues of fact precluding summary judgment.  “[A] reasonable jury could disagree that Defendant’s stated reason for Plaintiff’s discharge was the true or real reason for terminating him, and find that the stated reason was pretext for intentional age discrimination.”  As a result, Plaintiff’s age discrimination claim would proceed to trial.

This case serves a reminder that employers must vigilantly monitor consistent application of their workplace policies.  Inconsistent application, even if inadvertent, may allow an otherwise defensible claim to survive summary judgment.