Labor & Employment Law Daily Wrap Up, DISCRIMINATION—AGE—S.D. Ill.: Fired 72-year-old lawyer who allegedly slept during Zoom hearing gets lawsuit tossed, (Apr 2, 2025)

By Marjorie Johnson, J.D.

He denied sleeping and claimed his computer screen may have been frozen or he may have been looking down at papers.

A 72-year-old attorney who worked as county’s assistant public defender for nearly 14 years and was fired for allegedly falling asleep during a Zoom hearing—which he vehemently denied—failed to defeat summary judgment on his ADEA claim of age discrimination since none of the evidence cast doubt on his supervisor’s honest belief that he was sleeping during the criminal hearing, which was supported by her contemporaneous texts with the office manager. A federal magistrate judge also held that his coworkers’ alleged “old man” and “Colonel Sanders” comments and his supervisor’s one-time inquiry about his retirement plans did not create an actionable hostile work environment, and that his failure-to-promote and retaliation claims were also wholly unsupported by the record (Moyer v. Jackson County Public Defender’s Office, No. 3:23-cv-02353-GCS (S.D. Ill. Mar. 31, 2025)).

Non-promotion. The attorney worked at the public defender’s office since 2008. He claimed that he applied for the position of chief public defendant (the CPD) in 2020 and 2021, but younger and less-experienced candidates were hired. However, he did not dispute that a state statute provided that the state judges and not the public defender’s office made the hiring decision.

Ageist comments. He also claimed that beginning in around 2016, two coworkers began referring to him as “old man,” and that the office manager also made a similar remark. He testified that he was never bothered by the remarks until he was passed over for the promotions and admittedly never complained. During court hearings in 2020 and 2021, attendees started calling him “Colonel Sanders.” The former CPD also gifted him a Colonel Sanders tie. Despite his denial that he ever wore it, he was seen with it on in a photo and wore it for Halloween 2023 at his new job in another public defender’s office.

Retiring comments. About a month after the new CPD took office in April 2021, she allegedly asked the attorney if he was planning to retire soon. He responded no, and she never asked him about his retirement plans again.

Sleeping incident. On May 24, 2022, the attorney was in his office on Zoom for a preliminary hearing before a judge. There were many people on the call initially, and his case was close to the last one to be called. During the meeting, the office manager sent a text to the CPD, who was attending the Zoom hearing remotely, asking if the attorney was sleeping. She responded, “Omg.” The office manager texted back, “WTH. At first, I thought he was passed out or something.” The CPD responded, “[g]uess he and I need to have a meeting tomorrow And also, damnit.” She then called the judge to see if he noticed the attorney sleeping, and letter texted back to the office manager that the judge had not noticed.

The next day, the CPD and the office manager confronted the attorney about his sleeping at the Zoom meeting. Though he denied that he fell asleep, the CPD told him that people saw him sleeping and as a result he was being terminated because it was not good for his case or for his client. She later replaced him with an attorney in his late thirties.

Non-promotion, reprisal claims tossed. The court swiftly disposed of the attorney’s failure-to-promote claim since he brought the claim against the wrong party. Significantly, he did not dispute that the hiring process was determined by a state statute which provided that judges of the circuit court appoint the CPD and not the public defender’s office. His retaliation claim similarly also failed since it was undisputed that he never complained about of age discrimination prior to his termination.

Honest belief. The court next found that he could not make out his prima facie case of age discrimination since he failed to demonstrate that he was meeting his employer’s legitimate expectations. Despite his assertions that he was not sleeping during the Zoom hearing, that the CPD did not thoroughly investigate the incident, and that she asked him about retirement one time, he failed to refute that she and the office manager honestly believed he was sleeping during the hearing. Despite his denials, “it is the employer’s belief, not the employee’s, that is critical to the analysis,” explained the court. Moreover, even if he could establish his prima facie case were established, there was simply no evidence of pretext.

Progressive discipline not mandated. The court rejected his contention that he could nevertheless defeat summary judgment because he was not given progressive discipline. While the employee handbook established a policy that had several levels of discipline, it also stated that a progressive approach did not have to be followed depending on the circumstances. It also noted the “at-will” status of the employee and stated that the employer had the right and sole discretion to decide the appropriate disciplinary action in each situation, including termination. He also failed to present any evidence that younger comparators were treated more favorably.

No HWE. He also failed to advance his hostile work environment (HWE) claim since the alleged comments were not sufficiently severe or pervasive. Indeed, he never complained about them and testified that they did not bother him until he was twice passed over for a position filled outside of the PD office. In sum, “there is not enough evidence for a reasonable jury to connect the dots from ‘old man,’ ‘Colonel Sanders’ and questions about retirement to an objectively ‘hostile environment.’” He also failed to present evidence that the alleged harassment unreasonably interfered with his work performance. Rather, he contended that he was an exemplary employee with only one verbal reprimand in his 14-year tenure and denied that he felt that his peers showed hostility toward him.

The case is No. 3:23-cv-02353-GCS.

Judge: Sison, G.

Attorneys: Alexander J. Taylor (Sulaiman Law Group) for Thomas Moyer. Julie A. Bruch (IFMK Law) for Jackson County Public Defender’s Office.

Companies: Jackson County Public Defender’s Office

Cases: AgeDiscrimination Discrimination Discharge Retaliation IllinoisNews