By Gregory J. Hare and Shera Varnau
In an age, race and sex discrimination case, the fact that the employer offered a variety of explanations for an employee’s termination was not evidence of pretext because the explanations were not “fundamentally inconsistent,” the 11th U.S. Circuit Court of Appeals has ruled.
Discrimination claims typically are evaluated using a three-step burden shifting framework established by the U.S. Supreme Court. First, a plaintiff is required to provide prima facie evidence raising an inference of discrimination. Once he or she has done so, the employer must explain its legitimate nondiscriminatory explanation for taking the adverse employment action. Then, the plaintiff must produce sufficient evidence to allow a reasonable fact-finder to conclude that the employer’s proffered reasons were a pretext for unlawful discrimination. Pretext is an employer’s ostensible or professed purpose for an adverse employment action which a plaintiff claims is a ruse to hide illegal discrimination.
John Phillips, a white male over 40 years old, was terminated from his sales associate position with Aaron Rents Inc. in May 2005. Phillips later brought suit alleging age discrimination and reverse discrimination based on race and gender. The Alabama federal district court held that Phillips failed to prove a prima facie case of race, gender or age discrimination, and granted summary judgment on all claims in favor of Aaron Rents. The 11th Circuit reviewed the decision and affirmed.
In support of his reverse race and sex claims, Phillips alleged that the assistant manager at his store (a black female) and an outside sales representative (a white female) received more-favorable treatment. Neither of Phillips’ alleged comparators had engaged in misconduct “nearly identical” to his own, and both had job duties that were significantly different from Phillips’ job duties. The 11th Circuit held that neither woman was similarly situated to Phillips. Thus, Phillips failed to prove a prima facie case of discrimination with respect to his reverse race and gender claims.
However, the court held that a reasonable fact-finder might conclude that Phillips had proved a prima facie case of age discrimination. Therefore, the court engaged in a somewhat detailed discussion of Aaron Rents’ legitimate, nondiscriminatory reasons for Phillips’ termination, followed by Phillips’ arguments of pretext.
At the time of Phillips’ termination, he was told that he was being terminated for having opened the store late one day and for unprofessional behavior toward a customer. However, according to Aaron Rents’ internal personnel action form, Phillips was terminated because he opened the store late without notifying a manager and because he violated company dress code. Aaron Rents’ response to Phillips’ claim for unemployment compensation, its response to Phillips’ Equal Employment Opportunity Commission claim, and its responses to Phillips’ interrogatories and various other documents all presented variations of the above-mentioned explanations for Phillips’ termination.
Phillips pointed to the variety of explanations offered by Aaron Rents in the course of discovery as evidence that the reasons were likely untrue, claiming that the inconsistencies were evidence of unlawful discrimination. The 11th Circuit held that even if an employer offers various explanations for terminating an employee, those reasons must be “fundamentally inconsistent” to be regarded as pretextual and unworthy of credence.
In this case, Aaron Rents’ explanations for Phillips’ termination varied slightly by occasion, but the court held that Phillips’ problems with tardiness, customer service and dress code violations were not “fundamentally inconsistent.” Furthermore, the employer had issued verbal and/or written warnings pertaining to each of these issues.
Phillips v. Aaron Rents Inc. , 11th Cir., No. 07-11477 (Jan. 11, 2008) (unpublished).
Professional Pointer: It is important to document all performance deficiencies consistently so that they may be relied on if an employee’s termination becomes necessary. To minimize the chances of an adverse court decision or jury verdict, a company should thoroughly investigate all discrimination and harassment claims at the outset so it can document and present the explanation for the company’s decisions consistently and accurately at all steps of the dispute.
Greg Hare and Shera Varnau are attorneys in the Atlanta office of Ogletree Deakins , a national law firm that provides counsel to companies in all areas of employment and labor law.
Editor’s Note: This article should not be construed as legal advice.