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).

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).


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).