?Takeaway: A claim of pretext essentially is a claim that the company is lying about an action taken against an employee. Here are three things to remember when defending against a claim of pretext:
1) Pretext involves more than simple mistakes in business judgment or faulty reasoning; it must include a lie, a purposeful misstatement or some other bad-faith behavior on the part of the employer. Train employees—especially supervisors and managers—to understand that honesty really is the best policy.
2) The court will not put itself in the position of a super-HR department and try to second-guess a company’s business rationale. Therefore, a plaintiff’s argument that pretext exists simply because the individual disagrees with the company’s action is unlikely to succeed.
3) Evidentiary support is critical. Full documentation or testimony that supports the proffered legitimate business reason will support the company’s position that its action was unrelated to the plaintiff’s protected characteristic.
?One of the elements an individual must show in order to succeed on a claim of discrimination is that an employer’s reason for a particular adverse action is simply a pretext for discrimination. That is, the explanation given by an employer for its action is simply to cloak the real reason for the action—and the real reason is discrimination.
Recently, one federal district court dismissed an individual’s claim of age discrimination for failure to show pretext. In that case, the former employee claimed that he was fired because of his age. He argued that the company’s reason for his firing—that he had told a subordinate to lie to management—was a pretext for discrimination. The court’s review of the situation and its explanation for ultimately dismissing the case provides a road map for anyone trying to understand how the courts review pretext in discrimination cases.
Facts of the Case
Here are the facts of the case:
- The plaintiff was hired at the age of 58 by a real estate services company as a staff recruiter and manager.
- One year later, a subordinate asked that plaintiff for permission to take time off to take her mother to medical appointments.
- The employee’s brother had recently died, so the plaintiff advised the subordinate to e-mail the office manager and say that the time off was paid leave for the purpose of attending a memorial for her brother.
- The employee did so, but the office manager denied the leave.
- When the company discovered that the plaintiff had advised the employee to misstate the reason for her leave, the plaintiff’s direct supervisor decided that directing the falsification was a serious policy infraction and fired the plaintiff.
Procedural History
The company filed a motion for summary judgment, asserting that the plaintiff could not show that “but for his age, the adverse action would not have occurred.” To succeed on that argument, the employer had to articulate a legitimate nondiscriminatory reason for its action—in this case, the fact that the plaintiff was fired for a policy infraction.
The core of the dispute, as viewed by the court on summary judgment, was whether the company took its action because the manager told his subordinate to lie, or whether the firing was a pretext to terminate the manager because of his age.
How the Court Reached Its Decision
The manager argued that the company’s investigation was a sham, that the company didn’t follow its standard progressive disciplinary policy and that a younger person absorbed some of the manager’s duties after the older manager was fired.
The court rejected all three of these arguments:
- First, it pointed out that the company’s failure to produce specific documents that the manager believed to exist was an insufficient basis for the discrimination claim, because there was no affirmative evidence that the company had destroyed any documents or conducted the investigation in bad faith.
- Second, the company provided evidence that the manager’s actions of perceived dishonesty created fiduciary issues with certain clients and required strong action.
- Third, there was no evidence that the company knew, when it fired the manager, that a younger person ultimately would be absorbing some of the manager’s responsibilities.
Based on the entirety of the evidence, the court held that “no reasonable jury could find that [the company’s] stated reason for terminating [the manager] was a lie to conceal discrimination on the basis of age.”
Desuno v. Accurate Group LLC, N.D. Ill., No. 20-0848 (March 28, 2022).
Maria Greco Danaher is an attorney with Ogletree Deakins in Pittsburgh.