Inferring Pretext in Employment Discrimination Cases: A Baker’s Dozen

Proving employment discrimination without direct evidence – regardless of whether its based on age, handicap, or some other protected category – ultimately boils down to whether the employee can show that the employer’s stated reason for the adverse employment action (e.g., termination, demotion, failure to promote) is a pretext for unlawful discrimination. As discussed in Proving Employment Discrimination Through Circumstantial Evidence, employment discrimination cases are typically proven through circumstantial (as opposed to direct) evidence under a three-part, burden-shifting framework.

It is in the final stage of this framework that an employee must carry the burden of showing pretext. As the non-exhaustive, baker’s dozen list below illustrates, there are numerous ways in which pretext for unlawful employment discrimination can be inferred:

1.  Changing Reasons

  • Velez v. Thermo King: “It was not until over a year later that Thermo King, responding to this lawsuit, first said that Vélez had been fired for stealing and selling company property. The fact that the employer gave different reasons at different times for its action surely supports a finding that the reason it ultimately settled on was fabricated.”
  • Haddad v. Wal-Mart: “Wal-Mart employees gave inconsistent reasons for the plaintiff’s termination and were also inconsistent regarding who was responsible for the decision. … The jury could have decided that all of Wal-Mart’s proffered reasons for terminating the plaintiff’s employment were false.”
  • City of Salem v. MCAD: “The fact finder may properly take into account weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action.”

2.  Comparators

  • Matthews v. Ocean Spray Cranberries: “The most probative means of establishing that the plaintiff’s termination was a pretext for racial discrimination is to demonstrate that similarly situated white employees were treated differently.”
  • Smith College v. MCAD: “[A]lthough the fact of discriminatory motive must be proved, it can be inferred from differences in the treatment of two groups.”
  • Dorman v. Norton: “The principle, i.e., that evidence that similarly situated employees were treated differently can establish that a proffered reason for an adverse job action was a pretext, is sound.”

3.  Delay

  • Peirick v. IUPUI Athletics Department: “IUPUI never warned Peirick that her foul language, poor driving, inattentiveness to trailing vehicles, and expression of frustration during a scheduling conflict could lead to dismissal. … IUPUI’s delay in addressing its alleged concerns undermines its claim that Peirick’s behavior was unsafe or severe. … In sum, we find IUPUI’s post hoc explanations, delay, exaggeration, and unusual conduct more than enough to create a question of fact concerning the legitimacy of its explanations for Peirick’s termination.”
  • Daoud v. Avamere Staffing: “Of course, nothing in the law required defendant to give plaintiff a warning or tell plaintiff about the alleged client complaints; not doing so, however, supports a reasonable inference the complaints did not trigger plaintiff’s termination.”
  • Hendricks v. Mid-America Pipeline: “The court agrees that reasons advanced by a defendant to explain its conduct, which are first advanced after a considerable delay, suggest that the reason was a pretextual afterthought to avoid the consequences of improper motive. Such delay is especially significant when the explanation is articulated for the first time in response to the plaintiff’s charges of discrimination.”

4.  Designing Failure

  • Willnerd v. First National Nebraska: “[I]t is permissible for a jury to view the imposition of an unattainable goal as evidence of pretext because a jury may reasonably view the goal or production quota as an effort to set up an employee for failure.”

5.  Deviation from Policy

  • Kouvchinov v. Parametric Technology: “We agree with the plaintiff that pretext can be demonstrated through a showing that an employer has deviated inexplicably from one of its standard business practices.”
  • Trustees of Health & Hospitals of Boston v. MCAD: “The fact finder readily could conclude that there was a discriminatory hierarchy in who would be spared from the layoff procedure, with white males at the top, women below them, and African-American women at the bottom.”
  • Dartt v. Browning-Ferris: “[E]vidence that BFI may have deviated from its normal management procedures when it summarily terminated Dartt could support a reasonable inference that BFI had terminated Dartt because of his perceived handicap.”
  • A. Larson, Employment Discrimination §8.04, at 8-81 to 8-82 (rev. ed. 2015): “[P]retext can be shown by demonstrating … irregularities in … the procedures for discharge.”

6.  Disbelief or Mendacity

  • St. Mary’s Honor Center v. Hicks: “The factfinder’s disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination.”

7.  Failure to Document

  • Laxton v. Gap: “Gap produced no contemporaneous written documentation of any employee complaints, despite testimony that the corporation abides by rigorous record-keeping policies.”
  • Cicero v. Borg-Warner Automotive: “The evidence of Cicero’s qualifications, coupled with a lack of contemporaneous criticism of his performance and Borg-Warner’s continued grant of bonuses, could allow a fact finder to find that Borg-Warner’s proffered reason either had no basis in fact or that it was insufficient to motivate the discharge decision.”
  • MCAD & Baker v. Plymouth County Sherriff’s Office: “I concur with Complainant that the scant evidence of Complainant’s purported deficient performance and the lack of supporting documentation or testimony other than Neri’s and Gillan’s supports the conclusion that Respondent’s reasons for demoting him are not credible.”

8.  Lying in Wait

  • Hamilton v. General Electric: “We have held that when an employer … waits for a legal, legitimate reason to fortuitously materialize, and then uses it to cover up his true, longstanding motivations for firing the employee, the employer’s actions constitute the very definition of pretext.”

9.  Performance History

    Plaintiff

  • Smith v. Davis: “While absenteeism may have been what defendants had in mind when they terminated him, there is a genuine issue as to whether this reason was legitimate or pretextual, particularly since there is evidence that Smith performed his duties to the apparent satisfaction of his supervisors for over six years and carried a case load substantially higher than his coworkers.”
  • Watson v. Nationwide Insurance: “Nationwide subjected Watson to differential treatment … by conspiring to create trumped up charges of inadequate job performance …. Watson had previously always received excellent employment ratings ….”
  • Kalinoski v. Gutierrez: “Given the uncontroverted evidence of plaintiff’s stellar performance reviews, her substantial experience, and her score relative to Mr. Flynn on the objective qualifications evaluation — along with the different rationales offered by defendant for this action as compared with the closely related reassignment action — the Court concludes that plaintiff has come forward with enough evidence to create a genuine issue of material fact about whether defendant’s proffered rationale was the real reason defendant declined to select plaintiff for the position.”
  • 59 Causes of Action 2d, Cause of Action under Age Discrimination in Employment Act §24 (2013): “[E]vidence of satisfactory or superior performance evaluations … may tend to show … the illegitimate nature of the defendant’s articulated reason.”
  • Replacement/Selected Candidate

  • Ash v. Tyson Foods: Collecting cases holding that a evidence of a replacement’s qualifications may suffice to show pretext for employment discrimination.
  • Patterson v. McLean Credit Union: “[S]he might seek to demonstrate that respondent’s claim to have promoted a better qualified applicant was pretextual by showing that she was in fact better qualified than the person chosen for the position.”
  • Loeb v. Best Buy: “Pretext may be proven by evidence showing a younger, less-qualified, weaker-performing employee replaced an older employee.”
  • Raad v. Fairbanks North Star Borough School District: “In this Circuit, we have held that a finding ‘that a Title VII plaintiff’s qualifications were clearly superior to the qualifications of the applicant selected is a proper basis for a finding of discrimination.'”

10.  Post Hoc Rationalizations

  • McKennon v. Nashville Banner Publishing: “McKennon’s misconduct was not discovered until after she had been fired. The employer could not have been motivated by knowledge it did not have and it cannot now claim that the employee was fired for the nondiscriminatory reason.”
  • Perkins v. Brigham & Women’s Hospital: “[A]n employer cannot avoid liability in a discrimination case by exploiting a weakness in an employee’s credentials or performance that was not known to the employer at the time of the adverse employment action (and that, therefore, could not have figured in the decisional calculus).”
  • City of Boston v. MCAD: “The basis for discharge must be one which is known to the employer at the time of termination.”

11.  Severe Punishment

  • Stalter v. Wal-Mart : “More compelling is the severity of the punishment in relation to the alleged offense. … This strikes us as swatting a fly with a sledge hammer. That Wal-Mart felt compelled to terminate Stalter for this offense does not pass the straight-face test ….”

12.  Shoddy Investigation

  • Trujillo v. PacifiCorp: “We also consider the failure to interview Dan Michaelis in the course of the investigation a significant circumstance contributing to the inference of discrimination.”
  • Humphries v. CBOCS West: “[T]he quality of Christensen’s investigation may have some bearing on the truthfulness of Cracker Barrel’s proffered reasons for terminating Humphries. In short, these are the sort of disputed factual issues that a jury should sort out.”
  • Mastro v. Potomac Electric Power Company: “Record evidence suggests that Duarte’s investigation, which was central to and culminated in Mastro’s termination, was not just flawed but inexplicably unfair.”

13.  Subjective Criteria

  • Lilly v. Harris-Teeter Supermarket: “The evidence further revealed well-settled indicia of an employment environment where race discrimination could flourish. Harris-Teeter considered only subjective criteria in making warehouse promotion decisions. Departmental supervisors testified that promotability depended on such intangibles as correct attitude and the desire to ‘get ahead.’ Seniority counted for little. Notices of job vacancies were not posted. Required qualifications for open positions were never communicated, and written guidelines not used.”
  • Stewart v. General Motors: “The process described, while perhaps intended only to recognize merit, is highly susceptible to abuse. While some subjectivity is inevitable in filling jobs of an executive character, the total lack of objective standards at Broadview could only reinforce the prejudices, unconscious or not, which Congress in Title VII sought to eradicate as a basis for employment.”
  • Brown v. Gaston County Dyeing Machine Company: “In sum, the lack of objective guidelines for hiring and promotion and the failure to post notices of job vacancies are badges of discrimination that serve to corroborate, not to rebut, the racial bias pictured by the statistical pattern of the company’s work force.”

As discussed in Summary Judgment In Sexual Harassment & Employment Discrimination Cases, all reasonable inferences must be drawn in the employee’s favor when opposing summary judgment. Inferences, however, are not always self-evident. Connecting the dots for a busy judge with an overloaded docket and clearly articulating each way in which pretext may be inferred in your favor can be the difference between a dismissal and a jury trial.

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