Labor & Employment Law Daily Wrap Up, DISCRIMINATION—AGE—M.D. Pa.: Decisionmakers’ alleged remarks reflecting pre-firing concern about employee’s age bolsters ADEA claim, (Jan 7, 2026)

By Marjorie Johnson, J.D.

The two allegedly made remarks about him being an older person prone to slipping and falling.

A 60-year-old plant operator at a water treatment plant with Meniere’s disease, who was terminated after a fourth disciplinary incident in two years in which he allegedly violated safety protocols during a chemical spill, failed to defeat summary judgment on his disability bias claims, but his age bias claims will proceed to trial. A federal district court concluded that his testimony was not enough to establish that his condition was a covered disability, and there was also no evidence suggesting disability-related animus. However, an inference of age bias could be made based on evidence that substantially younger new hires took over a “substantial portion” of his job functions after his termination, and a jury could also find that the proffered reason for his termination was pretextual based on evidence that he did not violate safety policies and that decisionmakers made prior remarks reflecting concern about his age (Cabrera v. Pennsylvania American Water Company, No. 3:24-CV-01258 (M.D. Pa. Jan. 6, 2026)).

The employee worked at a water treatment plant operated by the employer since 1996, and in 2000 he became a plant operator. He suffered from Meniere’s disease, which he claimed caused him to periodically suffer from episodes of vertigo. He did not seek any specific work-related accommodations.

Prior discipline. Between 2022 and 2023, he was disciplined four times, with the final discipline resulting in his termination. First, he was suspended for ten days in July 2022 for an unspecified incident. He was again disciplined in May 2023 following an incident in which he sat on a chain outside the loading dock, the chain broke, and he fell onto the asphalt below. The employer claimed he was not supposed to sit on the chain and then lied about what caused him to fall by claiming a bird flew down at him. He countered that he fell because his Meniere’s disease caused him to experience vertigo, and that he sat on the chain to allow the vertigo to pass but it broke.

The third discipline occurred in July 2023 following a flooding incident after he noticed the phosphate pump was leaking. He initially failed to shut off the valve to stop the spill, but after hearing the alarm sound he realized the phosphate was overflowing. The employer asserted that its procedures required him to shut off the phosphate valve, but he denied that such a procedure existed. He then began to fill buckets with overflow water and dump it in the grass outside. The employer asserted that he entered the flooded, contaminated area to do this, which he denied. His supervisor suspended him for violating safety policies after observing him wearing shorts and a phosphate-soaked lab coat that exposed his chest.

Termination. The final discipline and the employee’s eventual termination related to an October 2023 flooding event which caused an alarm to go off, which he believed was a nuisance alarm. Several hours later, he noticed a crack in piping that had caused a chemical (alum) to spray and flood the containment areas. The alum got on his clothes, and he repeatedly entered the containment area. This incident took the plant out of service, had to be reported to the state environmental agency, presented a risk to safe drinking water, and was the most significant incident his supervisor had seen, with the cleanup taking months.

The supervisor investigated the incident and discussed his findings with other superiors, who concluded that he should be terminated for violating company safety policies. On November 7, the supervisor and others, including an HR officer, informed the employee that he was being terminated based on its investigation into the October 2023 chemical spill.

Age-related concerns. The employee testified that after the first flooding incident, his supervisor and the HR officer made comments about him being an older person prone to slipping and falling. The supervisor allegedly remarked something like, “you’re an older person and you’re in the basement. You could slip and fall.” The HR officer allegedly made the same comment and stated “we understand you’re older, and we just want to make sure you’re okay.”

Lawsuit. The employee sued, alleging the employer violated the ADEA, ADA and Pennsylvania Human Relations Act by discriminating against him on the basis of age and disability.

Failed to show disability. The court first held that he could not establish that he disabled since he failed to present any evidence outside of his own testimony that his Meniere’s disease caused him to suffer vertigo about once a year, which caused him to feel so dizzy that he needed to either sit or lay down for several minutes. There was no medical documentation of his disability, nor did he present evidence that he was considered disabled, such as HR documentation or requests for accommodations.

Lack of causation. He also failed to present any evidence of discriminatory animus. Even with regard to the discipline related to his falling after sitting on a chain, there was no evidence that any decision maker displayed any animosity towards him or treated non-disabled, similarly situated employees more favorably. Though he claimed that a few coworkers used to call him derogatory nicknames like “mini ears,” he did not report the comments to any of his supervisors.

Prima facie case of age bias. Turning to his age discrimination claims, the court rejected the employer’s contention that he failed to establish a prima facie case under the McDonnell Douglas framework since he was not qualified due to his repeated discipline for safety policy violations. Prior to the accidents which led to his termination, he was considered to be “the most experienced and capable” operator at the plant. Thus, a reasonable jury could conclude that he was qualified based on his decades of experience and the prior approval of his job performance.

He also presented sufficient evidence from which age bias could be inferred. In the six months following his termination, the employer hired one plant operator in his thirties, and four operators in their twenties. Though the company claimed these new hires held a more junior title, his supervisor testified that they performed his job functions. Thus, bias could be inferred based on the evidence that substantially younger new hires took over a “substantial portion” of his job functions after his termination.

Pretext. Finally, based on the employee’s evidence that he did not violate safety policies and that the decisionmakers were concerned about his age, a triable issue existed as to whether his age was “a determinative, but-for factor” in the decision to terminate him. First, although the employer claimed that he violated PPE policies during the second spill incident, he testified that he wore the requisite PPE—such as gloves, safety glasses, and his work boots. He also presented evidence suggesting he did not act carelessly during the incident, but instead promptly notified his supervisor and took action upon realizing there was a flooding incident.

The court also found that pretext could be inferred from the age-related concerns allegedly voiced by his supervisor and the HR officer, rejecting the employer’s contention that these were merely stray comments unrelated to his termination. Importantly, the supervisor undisputedly led the investigation into his actions and the HR officer was present for his termination. Thus, a reasonable jury could infer that prior to his termination and the second spill, two decisionmakers were concerned about his age and made comments connecting those concerns to their eventual proposed rationale for his termination.

The case is No. 3:24-CV-01258.

Judge: Mehalchick, K.

Attorneys: Gerald John Hanchulak (Law Offices of Gerald John Hanchulak) for William Cabrera. Joseph M. Carr (Littler Mendelson) for Pennsylvania American Water Co.

Companies: Pennsylvania American Water Co.

Cases: AgeDiscrimination DisabilityDiscrimination Discrimination Discharge PennsylvaniaNews