A company's reductions in force for budgetary reasons during an economic recession can qualify as a legitimate, nondiscriminatory business rationale for discharge. In 2005, Sleepy's LLC hired the 61-year-old plaintiff, Barry Goldberg. Goldberg was responsible to monitor construction. In 2007, a manager wrote Goldberg was "one of the leaders of the pack in his ability to get high quality projects opened." In 2008, his manager issued a written warning, because Goldberg allegedly violated policy when he sent a purchase order request for work that already had been completed. (Months earlier, Goldberg had been reminded that construction work could not begin without an approved purchase order.) The following month, his manager allegedly discovered that Goldberg had approved payment for work that had not yet been completed, in violation of policy. In 2008, Sleepy's discharged Goldberg and six other workers. Goldberg sued, alleging age discrimination. The court assumed that Goldberg alleged a prima facie case that he was a member of a protected class, he was qualified and he suffered an adverse employment action in circumstances that led to an inference of discrimination. Sleepy's offered a legitimate, nondiscriminatory business rationale, because Goldberg did not comply with policy and Sleepy's did not require as many workers as a result of the recession. Errors can provide a legitimate, nondiscriminatory reason for discharge. Goldberg did not prove that Sleepy's nondiscriminatory, business rationale constituted a pretext for discrimination on the basis of age. Although Goldberg claimed that a younger worker, Shannon MacInnis, replaced him, MacInnis was discharged in October 2008. A remark by the chairman of Sleepy's, Harry Acker, about allegedly not wanting to hire anyone over 40, was hearsay. Even if admitted, it was not made by a relevant decision maker. The fact that Goldberg was hired, and the president of Sleepy's, David Acker, approved the decision, reduced its significance. "Goldberg," wrote the court, "has failed to meet his burden in showing that the nondiscriminatory reasons Sleepy's cites as its reasons for terminating Goldberg were merely pretextual and their true motivation for [terminating] Goldberg rested on age discrimination." The court granted Sleepy's motion for summary judgment.

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