Inconsistent Rationales for Termination Create Dispute That Sends Case to Jury

By Maria Greco Danaher March 2, 2022

Takeaway: First, assume that discriminatory remarks made by decision-makers will not go unnoticed—those remarks are almost certain to create a roadblock to summary judgment. Second, always review termination situations to assure that no recent protected activity has taken place, including application for a protected leave or a report of discriminatory treatment. Third, if the reason proffered for termination is "position is being eliminated," do not fill the position, or hire someone to take on the responsibilities, even if the title is different. Fourth, when terminating an individual—whether during a restructuring or for other reasons—be clear and factual about those reasons. Providing two different bases for a termination always creates an issue of disputed fact, and often looks like something is being covered up. 

A jury could decide claims of age and disability discrimination and retaliation under the Family and Medical Leave Act (FMLA) when there were inconsistent reasons for termination, a district court decided.

Juries are the decision-makers when it comes to the facts of a case that goes to trial. However, if a party can show that there are no disputed issues of fact in the case and that the case hinges on a question of law, then it is the judge who decides the matter on "summary judgment."

In order to succeed in a motion for summary judgment, a moving party must show that there is no genuine dispute as to any material fact, and that the judge can decide the case without input from the fact-finder jurors. If the opposing party shows some disputed question of fact, or inconsistencies in those facts, the judge cannot decide the case alone and must allow a jury to make the final determination.

A federal court judge in Florida was asked to rule on a motion for summary judgment. The undisputed facts before the judge included these:

  • The plaintiff was an HR generalist who had worked for the employer since 1981.
  • The plaintiff was over 40 years old.
  • She was eligible for leave under the FMLA for some work-related impairments, which had been accommodated by the company during the years she worked there.
  • The employer went through a restructuring.
  • Part of the restructuring involved removing two HR managers and replacing them with further restructuring.
  • The plaintiff was told that her position was being eliminated for business-related reasons.
  • The company terminated the plaintiff's employment in June 2018.

The plaintiff, however, added to those facts the following:

  • The plaintiff overheard one of the two in-house lawyers making negative age-related statements before deciding to terminate her employment.
  • The plaintiff initially was involved in the restructuring efforts until—soon after her application for FMLA leave—her own position was eliminated.
  • While the company stated that the plaintiff's position had been eliminated, the company opened a position similar to the plaintiff's after her termination.
  • In its motion for summary judgment, the employer asserted that the reasons for the plaintiff's termination included performance and behavioral issues.

Based on the additional facts and the inconsistencies that  the plaintiff raised, the judge determined that she had "shown enough to survive summary judgment," if only barely. The case went to a jury for final determination.

Payne v. Seminole Electric Cooperative Inc., M.D. Fla., 3:19-CV-1173 (Feb. 1, 2022).

Maria Greco Danaher is an attorney with Ogletree Deakins in Pittsburgh.



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