Tag Archive for: pretext

Third Circuit holds that an employer’s decision to conduct an investigation can be used as evidence of pretext even if the investigation produces credible evidence of a violation warranting discharge

In Canada v. Samuel Grossi & Sons, Inc., Third Circuit held that an employer’s decision to conduct an investigation can be used as evidence of pretext even if the investigation later produces credible evidence of a violation warranting discharge. In the case, the company asserted that it had terminated an employee after a search of his phone confirmed he’d been soliciting sex workers during working hours. The employee asserted that the company had looked at his phone only in retaliation when he requested FMLA; he also asserted other claims including FMLA interference, disability-related claims and racial discrimination.

For the reasons we have already explained, we reject a rule that incentivizes employers to dig up reasons to fire an employee who has engaged in protected activity, and then immunizes them from suit based upon a subsequent fortuitous discovery of grounds for termination.

Here, as in Hobgood, there is a “ ‘convincing mosaic’ of circumstantial evidence,”63 which, when taken as a whole and viewed in a light favorable to Canada’s case, could convince a reasonable jury that he was the victim of unlawful retaliation.64 In other words, the evidence could support a finding that the search itself was retaliatory.

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Tenth Circuit reinstates some claims by a worker but affirms dismissal of others

In a case involving rather significant allegations of misconduct, the Tenth Circuit parsed through the evidence to hold, on summary judgment, that some of the worker’s claims were properly dismissed but other should have been allowed to proceed.

On her claim of discrimination, her case included a claim that an officer of the company said he felt she was “building a case” against the company and was “more trouble than she’s worth,” that he called her and another African-American female employee “Black b*s from Atlanta” and “resident street walkers.” However, the Tenth Circuit rejected the claim because it found no evidence that the officer was a decisionmaker or that he had any input in the adverse employment decision affecting her.

On her claim of retaliation, though, the Court noted that the same officer had allegedly laughed and said, “Let her try,” when the possibility of her re-applying for promotion in the future was discussed.

The court analyzed a number of other claims and multiple other allegations of specific evidence, including an incident involving rather graphic allegations of sexual harassment at a party attended by plaintiff and her co-workers, which the Court held was not sufficient to support a claim because the party occurred well before the time period for filing a charge of discrimination (300 days). But, the Court noted she claimed that she’d been asked multiple questions at work about her breasts, been subjected to “sexual banter,” on a near “daily basis,” much of which was corroborated by other female workers. The Court held this was sufficient to support claims of hostile work environment and constructive discharge.

The case is Ford v. Jackson National Life Ins. Co.

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Eighth Circuit weighs in on Shifting Reasons doctrine

In a recent post, this blog discussed an Eleventh Circuit case on the Shifting Reasons doctrine, in which a plaintiff argues that their case warrants a trial because the employer has provided shifting reasons, suggesting the real reason was an unlawful intent. As noted in our prior blog post, this is one of the most common arguments plaintiffs make in response to a motion for summary judgment.

Now it’s the Eighth Circuit’s turn, and like the its sister, the Eleventh Circuit, the Eighth Circuit rejected the plaintiff’s claim of shifting reasons, holding that an employer can “elaborate” on its reason, provide additional examples or flesh out its reason, without it being considered “shifting reasons.”

(I)t is well-established that a employer may elaborate on its explanation
for an employment decision. Evidence of a substantial shift in an employer’s explanation for a decision may be evidence of pretext, but an elaboration generally is not.

(Citations omitted.)

In this case, when Rock-Tenn fired Rooney, it told him the reason was poor performance with regard to his “interaction with coworkers” and “failure to support” one particular client. Then after he sued, it gave as additional examples his (alleged) poor performance as to other clients. The Court held that was not a shift in the reason for his discharge, just further explanation.

These two Circuit Court decisions illustrate how common the Shifting Reasons doctrine is used by plaintiffs and the need for plaintiffs to show a true shift in the reason, not simply an elaboration of the reason.

Source: Rooney v. Rock-Tenn Services, Inc. (8th Cir. 1/9/18).

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Disability discrimination claim denied, despite claims of shifting reasons and temporal proximity

Shifting reasons and temporal proximity are two of the most common arguments in discrimination cases. Employees often (correctly) argue either or both as part of efforts to withstand a motion for summary judgment. A recent Eleventh Circuit case illustrates how these arguments work.

An employer may file a motion for what is called “summary judgment” when it believes that the undisputed evidence requires dismissal of a plaintiff’s claims. In employment discrimination cases, when an employer has given a legitimate nondiscriminatory reason for the adverse employment action at-issue (discharge, demotion, etc.), a plaintiff most prove an issue of fact suggesting that the employer’s reason is “pretext” for discrimination. The plaintiff need not convince the judge of discrimination, merely produce sufficient evidence to support a jury verdict, assuming the jury were to believe that evidence. Two common ways that employees try to establish pretext are to show that the employer gave shifting reasons and that there was a temporal proximity. This case illustrates both arguments.

When an employer gives shifting reasons, it can suggest that its failure to provide a consistent statement of its reasoning suggests its reasons were in fact pretext for discrimination. Here, the plaintiff made such an argument. The Eleventh Circuit disagreed, noting that the employer’s reasons didn’t shift, its supervisors just didn’t articulate the company’s reasoning clearly. But, as unclear as the supervisors might have been, they all said the same basic reason: Her performance. Likewise, one supervisor gave an extra reason (“the needs of the Center”), but that reason was also related to performance. Thus, the Eleventh Circuit rejected the argument that the employer’s position had shifted.

(H)ere Cappetta’s supervisors consistently gave verbal and written warnings about her workplace violations. The fact that one supervisor also pointed to the needs of the Center does not undermine its consistent concern about her attendance issues, attitude problems, and cash handling violation.

Next she argued that there was a temporal proximity (a closeness in time) between an MRI she’d undergone for her disability and her suspension. The Eleventh Circuit agreed that the timing was certainly close and might have suggested more than coincidence; however, when a plaintiff establishes a temporal proximity, the employer can respond that there was no coincidence, rather, there was an intervening act that produced the adverse employment action. Here, the employer argued that was an incident with her handling of cash. The Eleventh Circuit agreed that intervening act broke the alleged temporal proximity.

Second, Cappetta argues that the close temporal proximity between her MRI and her suspension demonstrates pretext. We have held that close temporal proximity can be evidence of pretext, but it is not necessarily sufficient on its own. Hurlbert, 439 F.3d at 1298 . Cappetta has presented no evidence, other than closeness in time, that the MRI or her diagnosis impacted the Center’s decision. And the remaining evidence actually suggests otherwise. The day she had the MRI taken was the same day as the cash handling violation, and the forced leave came after weeks of documented concerns about her attendance and attitude. Given that evidence, the close temporal proximity between her diagnosis and her termination is insufficient to rebut the Center’s reasons for her termination.

Lacking evidence of pretext, the Eleventh Circuit affirmed summary judgment in favor of the employer. HR professionals interested in temporal proximity and shifting position arguments may find the Cappetta case a helpful, brief illustration.

Source: Cappetta v. North Fulton Eye Center, Case No. 17-11581 (11th Cir. 2017).

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Tenth Circuit restates summary judgment test with extensive discussion of multiple ADA and general employment law doctrines

The Tenth Circuit restated the test for granting summary judgment in favor of employers, and in doing so extensively discussed multiple doctrines frequently raised in such motions, including the honest belief doctrine, the adequacy of an employer’s investigation and the reasonableness of requested accommodations. With the regard to the last doctrine, the court noted that, as a matter of law, when workers advise their employers of a disability and request an accommodation after they have engaged in workplace misconduct, it is not a reasonable accommodation to ask that such misconduct be excused due to their disability. The court cited its 2004 precedent, Davila v. Quest Corp., Inc., for the proposition that “excusing workplace misconduct to provide a fresh start/second chance to an employee whose disability could be offered as an after-the-fact excuse is not a required accommodation under the ADA.” The Court concluded that “a denied request for retroactive leniency cannot support an accommodation claim.”

The case was DeWitt v. Southwestern Bell Telephone Co., 845 F.3d 1299 (10th Cir. 2017).

 

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Allegedly condescending use of “she” in reference to plaintiff held sufficient to support triable claim of gender discrimination

Discrimination and harassment claims are often supported by a constellation of evidence designed to show that the employer’s proffered legitimate business reason for discipline or discharge was in fact a pretext for discrimination. In this case, the First Circuit held a supervisor’s use of “she” in a condescending tone to refer to the plaintiff was, along with other evidence, sufficient to warrant a trial, because a “speaker’s meaning may depend on various factors including context, inflection, tone of voice.”

Here, a meeting attendee, SFAM Ouellette, stated in an affidavit that Johnson “made frequent references to the way `she’ was doing things. He emphasized the word `she.'” SFAM Ouellette opined that he “felt it was a condescending way to speak about her and picked up on [Johnson’s] disdain for her and for [Ouellette] when [he] defended her.” SFAM Ouellette’s observations about Johnson’s tone are based on his perception as a seasoned manager on what he had just observed, not mere speculation.

The case was Burns v. Johnson, 829 F.3d 1 (1st Cir. 7/11/16).

 

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