It is a truism that employers prefer to win discrimination cases on summary judgment rather than go to trial. In most cases, winning on summary judgment means convincing the judge there is not enough evidence that would allow the plaintiff to prove “pretext.” (Pretext: “a purpose or motive alleged or an appearance assumed in order to cloak the real intention or state of affairs.” Merriam-Webster Online Dictionary). With pretext, the plaintiff goes to trial; without pretext, the plaintiff goes home and the employer wins.
By the time the case gets to the “pretext” stage, the employee has produced enough evidence to create a presumption the employment decision was discriminatory. The employer in turn has presented enough evidence to rebut the presumption, by providing one or more reasons for the employment decision that are legitimate, and not based upon discrimination. That’s when the pretext question arises: is the employer’s stated reason(s) for employment decision the real reason(s) or is it “pretext” for unlawful discrimination?
Courts have identified a number of ways in which a plaintiff can prove pretext. One common way is to show the employer has been inconsistent over time in the reasons given for the termination. For example, at the time of termination, the employer tells the employee the decision is based upon the employee’s negative interactions with co-workers and failure to support the company. Later, after the lawsuit is filed, the employer claims poor performance and customer complaints were additional reasons. An employer’s shifting reasons often means summary judgment denied.
A recent case from the Eighth Circuit, however, shows that coming up with new reasons for the employment decision after the fact will not always mean the employer loses on summary judgment. (Rooney v. Rock-Tenn Converting Co., No. 16-3631, 1/9/2018). The employer in Rock-Tenn is the exemplar employer described above. The employer gave two reasons for its action at the time of termination, but came up with two others when it filed its motion for summary judgment. Even though the employer seemingly was inconsistent in the stated reasons for the termination, the trial court granted summary judgment.
On appeal, the plaintiff claimed the trial court failed to follow the requirements of the pretext framework by relying upon new reasons for the termination not articulated at the time of termination. The plaintiff argued his obligation was to present evidence the reasons stated at termination were pretext; he should not also be burdened with showing the employer’s new reasons identified in the summary judgment motion were pretext. Not surprisingly, the plaintiff offered evidence that the original reasons were pretext, but not the new reasons. The Court of Appeals rejected the plaintiff’s argument, and concluded the plaintiff was mistaken the employer could defeat summary judgment only based upon reasons articulated at the time of the termination. The Court’s reasoning quoted below will provide summary judgment ammunition the next time an employer identifies additional reasons for a termination during the litigation:
The employer’s burden to articulate non-discriminatory reasons for the an adverse employment action does not arise when the adverse employment action is taken-rather, it is triggered during litigation, when an employee meets his burden of establishing a prima facie case of discrimination. Title VII does not impose a legal obligation to provide an employee an articulated basis for dismissal at the time of firing, and an employer is certainly no bound as a matter of law to whatever reasons might have been provided. (emphasis added).
Despite the Court’s ruling in Rock-Tenn Converting, it remains the best practice to identify all the reasons for the decision at the time the decision is made. But, if that does not occur, the Court’s opinion in this case will provide authority to support the argument that an employer’s shifting reasons does not create a genuine dispute that will defeat summary judgment.