?Takeaway: While the U.S. Supreme Court ruled that courts cannot require “pretext-plus” to establish discrimination, there may still be cases in which evidence of pretext alone is not sufficient to send a discrimination case to a jury.
?The plaintiff was an Asian woman who worked for a medical company named Aerocrine. She was promoted to regional sales manager, and Aerocrine was subsequently acquired by Circassia. Circassia sold NIOX, a medical device, and Tudorza, a pharmaceutical product.
The plaintiff was supervised initially by the senior vice president and later by an area sales director, both of whom were white males. Both supervisors conducted performance reviews of the plaintiff. In her reviews, she was rated a 3 out of 5 overall, which meant “valuable contribution” under Circassia’s metrics. Each review flagged her “team development” as an area that needed improvement.
Her performance reviews stated that she was not putting enough effort into developing her team into independent salespeople but instead was causing her team to rely on her to succeed. She was criticized for spending insufficient time on field visits and for inadequate field reports.
Nevertheless, the ratings still recognized that she was a solid performer and performing well. Her region consistently ranked among the best in the company in overall revenue. Many of the plaintiff’s subordinates were promoted, and several others were listed as top performers.
In February 2018, the plaintiff reported to her supervisor an incident with a male accounts director. She claimed that after she e-mailed the accounts director about a new account and copied her team, she called him and he responded in a hostile and abusive volume and tone, and told her she was underperforming.
The plaintiff later claimed that the accounts director made sexist comments that she reported to her supervisor and the senior director of human resources. However, her supervisor said that she never alleged conduct based on gender, race or national origin, and the senior director of HR confirmed their conversation in an e-mail, and it did not mention discrimination.
In March 2018, the plaintiff told the senior director of HR that communication with the accounts director had improved. Later that month, the plaintiff’s supervisor decided to put the plaintiff on a performance improvement plan (PIP) with two other regional sales managers, both white men.
Circassia’s national sales director supported putting the plaintiff on a PIP after attending several of the plaintiff’s conference calls with her team. He thought the conference calls lacked structure, that the plaintiff did not review current business and failed to review a new company initiative, and that the team focused on NIOX rather than Tudorza as they had been directed.
In April 2018, the plaintiff’s supervisor met with her and placed her on the PIP, which required that she show improvement in 60 days or she could be terminated. The plaintiff complained of discrimination to the senior director of HR. The senior director of HR interviewed the plaintiff’s supervisors and three other individuals, but did not find support for her claims.
The plaintiff met with the senior director of HR in May 2018, who proposed a severance option. After this meeting, the plaintiff e-mailed HR and her second-level supervisor claiming discrimination based on gender and ethnicity. She also alleged that Circassia was involved in unlawful kickbacks and pricing and excessively charging Medicare.
HR and Circassia’s director of compliance investigated these claims, but did not find evidence supporting them. The national sales director attended a team conference call and observed little improvement in the plaintiff’s performance. On June 7, three days before the PIP expired, the plaintiff’s supervisor met with the Senior Director of HR and decided to terminate the plaintiff.
The plaintiff sued Circassia in federal court in California for discrimination under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1983, as well as California whistleblowing and fair employment laws. The case was transferred to federal court in Texas, and the plaintiff effectively abandoned her California law claims. Circassia moved for summary judgment, which the district court granted.
The plaintiff appealed to the 5th Circuit. In reviewing the evidence, the 5th Circuit found facts that contradicted Circassia’s reasons for firing the plaintiff. The evidence showed that the plaintiff spent the recommended time for her field visits, had regular conference calls with subordinates for professional development and only provided subordinates support when asked. Her team consistently ranked highest in the company in overall sales revenue.
Nevertheless, this evidence of pretext alone was not strong enough to infer discrimination absent other evidence of discrimination. Thus, the 5th Circuit upheld the district court’s decision.
Owens v. Circassia Pharmaceuticals Inc., 5th Cir., No. 21-10760 (May 13, 2022).
Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.