No Discrimination Claim For Employee Who Set Up Personal Break Room

Kollman & Saucier
Kollman & Saucier
04/22/2015

One of the more interesting (or bizarre) “news” stories of the past few weeks was the one about the Alaska Airlines worker who fell asleep in the cargo hold a plane, awoke mid-flight, and called 9-1-1 to report his dilemma.

Napping on the job, and causing a flight to make an early landing, is not good for an employee’s job security. The same is true for employees who create their own break rooms in contravention of employer policy.

In a recent case out of the United States District Court for the Southern District of Ohio, the court granted summary judgment to an employer on a former employee’s age and disability discrimination claims where the worker was fired for creating a personal break room. Allen v. Atrium Med. Ctr., S.D. Ohio, No. 13-00811 (April 14, 2015).

In 2012, Atrium, an Ohio hospital, banned open-element cooking appliances, such as toasters, from the premises because of concerns that smoke caused by burned food (cooked by employees) might pose a threat to patients. At one point, a nurse burned a croissant in a toaster, which caused smoke to disperse through an entire floor. Atrium also prohibited mechanics from using certain rooms in the hospital as personal work spaces and break areas.

In 2012, however, the plaintiff, a 60-year-old mechanic, did just that. He placed a desk, chair, refrigerator, griddle, hot plate, skillet, and toaster into one of the prohibited areas. The Hospital discovered the break room during a routine inspection. In fact, the plaintiff walked into his break room while the inspector who found the hang out was still in the room. The plaintiff did not deny setting up his lounge and promised to remove his belongings before government officials inspected the premises.

Atrium fired the plaintiff for violating Hospital policy and he filed suit under the Age Discrimination in Employment Act and Americans with Disabilities Act. The plaintiff argued that the “violation of policy” reason for his termination was pretextual. The court disagreed, concluding that the plaintiff did not show that younger employees who were not fired for safety violations were not similarly situated. As the court stated, “[t]here is a substantial difference between failing to act to remedy a violation and affirmatively creating a longstanding and serious safety violation and then actively concealing it.”

 

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