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Topic: "Pretext" | Main

Transfer triggered due process rights
June 30, 2008 by Ross Runkel at LawMemo

Thompson sued the employer for violation of his First Amendment free speech rights and of his Fifth Amendment due process rights. The trial court granted the employer's motion for judgment on the pleadings. The DC Circuit affirmed in part and reversed in part.

Thompson v. District of Columbia (DC Cir 06/27/2008)

The court held that Thompson's complaints to Lottery Board officials about corruption were made pursuant to his official job duties and thus the employer did not violate his First Amendment rights by sanctioning him for his speech.

The court held that when an employer attempted to get rid of an employee by transferring him from a career service position to a job scheduled for imminent elimination pursuant to an otherwise legitimate reduction-in-force (RIF), the employee was constructively removed from the service at the time of the transfer.

The court explained that an employee's right to due process was triggered at the time of the pretextual action, in this case, at the time of the transfer to the doomed position.



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Supreme Court: "Slap you in the face" is the wrong test
February 21, 2006 by Ross Runkel at LawMemo

Plaintiff's superior qualifications, compared to the employee who got the job, can be evidence of pretext in a Title VII case. The US Supreme Court now has rejected the 11th Circuit's requirement that the difference in qualifications must be so great that they "slap you in the face."

Poetic imagery, but not a proper legal standard.

Two African-Americans were superintendents who were denied promotions, and sued claiming race discrimination in violation of Title VII and 42 USC Section 1981. They prevailed in a jury trial; the trial court granted the employer a new trial; the 11th Circuit affirmed in part and reversed in part. The US Supreme Court granted certiorari and remanded the case, without even hearing oral arguments.

The employees submitted evidence that their qualifications were better than the two whites that were promoted. This evidence was designed to prove pretext. The 11th Circuit's rule (also the 5th Circuit's) is: "Pretext can be established through comparing qualifications only when 'the disparity in qualifications is so apparent as virtually to jump off the page and slap you in the face.'" US Supreme Court said that this visual image "is unhelpful and imprecise." The Court rejected the 11th Circuit's standard without suggesting what the proper standard is.

Ash v. Tyson Foods (US Supreme Court 02/21/2006).



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Same-actor inference
July 08, 2005 by Ross Runkel at LawMemo

Logic dictates that if the individual who discharges an employee is the same person who did the hiring, then the decisionmaker probably is not biased against the employee. That's the "same-actor inference." The question then is whether that inference is to be applied (1) by a court on motion for summary judgment or (2) by the jury.

The 9th Circuit says the inference is for the court to apply at the summary judgment stage. Coughlan v. American Seafoods (9th Cir 07/07/2005). In some other circuits, this inference is just one more thing for the jury to work with.

My view:

  • The 9th Circuit, reputed to be "liberal" in such matters, really has taken a great deal of work away from the jury. I think that is wrong because I believe we are all better off if we let juries do their work. It is also wrong because the judges in the 9th Circuit are now in the business of weighing the evidence at the summary judgment stage.
  • The court still makes a big deal out of the difference between "direct" and "circumstantial" evidence. If the plaintiff relies on circumstantial evidence, the 9th Circuit requires that evidence to be "specific and substantial." I see no support for this in Title VII, the Federal Rules, or the decisions of the Supreme Court.
  • Add in the same-actor inference. The court says this is a strong inference that creates a "heightened burden" for the plaintiff in proving pretext. The court says the burden is "especially steep." I think this is something the lawyers ought to be addressing to the jurors - the ones who should be deciding what the facts are.



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One non-pretextual reason is enough
January 14, 2005 by Ross Runkel at LawMemo

In Dept of Transportation v. Commn on Human Rights [full text pdf] (Connecticut 01/11/2005) an employee filed a complaint with the State's Commission on Human Rights and Opportunities, alleging race and national origin discrimination (failure to promote). The Commission found that the employer's two proffered legitimate non-discriminatory reasons were pretextual. The employer appealed to the trial court, which found that one of the employer's proffered reasons (the employee's failure to obtain a professional engineer's license) justified the employer's failure to promote. The trial court therefore rejected one of the Commission's two findings of pretext but sustained the other. The Connecticut Supreme Court reversed. Because the employee's failure to obtain a license was a non-pretextual legitimate non-discriminatory reason for the employer's decision not to promote the employee, the employer was entitled to judgment s a matter of law. The court agreed, and reversed.

The trial court relied on Russell v. Acme-Evans Co., 51 F.3d 64 (7th Cir 1995), which stated "[t]here may be cases in which the multiple grounds offered by the [employer] for the adverse action of which the [complainant] complains are so intertwined, or the pretextual character of one of them so fishy and suspicious, that the [complainant] could [prevail]." The Supreme Court concluded that Russell was inapposite, however, since the employee's failure to obtain an engineering license was an "absolute bar to his promotion, and, therefore, served as an independent, nonpretextual reason for the department's decision not to promote him .... There is no likelihood of any interrelationship between any pretextual and nonpretextual reasons for the department's adverse employment decision."

This case is correct. And obviously so. Then why mention it in a blog? Well, there just happens to be a bit of confusion about how this works. Everyone can recite the formula from McDonnell Douglas: First the plaintiff-employee sets out a prima facie case (and here we'll omit the details), and that shifts the burden of production to the defendant-employer to show that it had a legitimate, non-discriminatory reason for its action. If both take place, then the burden (of production and persuasion) shifts back to the employee to show that the articulated reason was actually a pretext for race discrimination.

A bit of confusion arises when the employer has demonstrated two or more reasons. Does the plaintiff have to knock them all down? Usually the answer is yes. This is because if the employer has shown one non-pretextual reason for its action, then the employer has shown that it had a legitimate reason. Plaintiffs should demand that the employer demonstrate that the same decision would have been made in any event. See Desert Palace v. Costa [full text] (US Supreme Court 06/09/2003). That might be a bit harder for the employer to prove.



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