?Takeaway: To show that an employer’s asserted reason for an employee’s discharge is a pretext for discrimination, an employee must do more than point to inconsistencies in the narrative or the use of subjective criteria. There must be some evidence that the employer acted with a discriminatory motive.
A nurse who sued her former employer, a medical practice, for wrongful termination in violation of public policy, claiming that the practice discriminated against her due to a disability and for taking medical leave could not proceed with her lawsuit, a California appeals court ruled.
The court concluded that the nurse failed to show that the medical practice acted with a discriminatory motive or that the reason they gave for her termination — a long history of unsatisfactory job performance, including communication problems with patients and staff — was pretextual.
The court first noted that the elements of a claim for wrongful discharge in violation of public policy are:
- An employer-employee relationship.
- The employer terminated the plaintiff’s employment.
- The termination was substantially motivated by a violation of public policy.
- The discharge caused the plaintiff harm.
To evaluate discrimination and retaliation claims, the court explained, California uses the three-part burden-shifting framework laid out by the U.S. Supreme Court in 1973 in McDonnell Douglas Corp. v. Green (411 U.S. 792)
Under that approach, the employee must establish a case of unlawful discrimination or retaliation. Next, the employer bears the burden of articulating a legitimate reason for taking the employment action. Finally, the burden shifts back to the employee to demonstrate that the employer’s proffered reason is a pretext for discrimination or retaliation.
To be able to proceed with a case, the employee must produce substantial evidence that the employer’s stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, so that a reasonable observer of fact could conclude the employer engaged in intentional discrimination.
A reason cannot be proved to be a pretext for discrimination unless it is shown both that the reason was false, and that discrimination was the real reason, the court said.
No Evidence of Pretext
The nurse challenged the trial court’s ruling in the final step of the analysis. She alleged that there was enough evidence to support her claim that the practice’s reason for her termination was a pretext for discrimination.
In support of her claim of pretext, she referred to:
- Factual inconsistencies regarding an alleged medication error that she made.
- The temporal proximity between her return from medical leave and corrective action that was taken against her.
- The vague and subjective nature of the various criticisms about her work performance.
The court concluded that the evidence did not support the nurse’s argument. She presented no direct evidence that the practice’s actions resulted from discrimination or retaliation.
Although she disagreed with the employer’s version of what happened concerning a medication error she allegedly made, the court noted that, in demonstrating that an employer’s proffered reason is false or pretextual, an employee cannot simply show that the employer’s decision was wrong or mistaken. The factual dispute at issue, the court said, is whether discriminatory animus motivated the employer, not “whether the employer is wise, shrewd, prudent, or competent.”
Inconsistencies in the evidence alone do not support a finding that the basis for termination was pretextual, the court explained. Furthermore, even though corrective action was taken against her for longstanding performance issues shortly after she returned from medical leave, temporal proximity alone is not sufficient to raise a discrimination claim once the employer has offered evidence of a legitimate, nondiscriminatory reason for the termination, the court said.
The medical practice’s concerns about her communication with staff and patients dated back to 2015, before she went on leave. Moreover, the nurse did not submit any evidence suggesting that the practice considered her leaves or medical issues to be problematic. Temporal proximity, without more, does not support a finding of pretext or discriminatory animus, the court said.
Finally, the court concluded that even though the nurse found the medical practice’s criticisms of her performance to be subjective, they did not support an inference of pretext.
Although subjective evaluations are susceptible of abuse and more likely to mask pretext, the court said, the evidence did not suggest that this was the case here. The criticisms all related to specific interactions involving communication among staff or with patients. The fact that an assessment was based upon subjective criteria does not, by itself, demonstrate pretext, the court said.
Thus, the practice established nondiscriminatory reasons for the nurse’s discharge, and she did not produce evidence that would permit an observer of fact to find that intentional discrimination occurred. The trial court properly dismissed the nurse’s wrongful termination action before trial, the appeals court ruled.
Ransford v. So. Cal. Permanente Medical Group, Calif. Ct. App., No. B309713 (June 30, 2022).
Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md.