Two recent US Court of Appeals cases highlight the importance of articulating and clearly documenting the reasons for employment decisions. Failure to do so can severely undermine the employer's credibility that the proffered reason for the employment decision – whether it be failure to hire or termination – was not pretextual and may help an employee to demonstrate that unlawful discrimination or retaliation was the real reason for the decision.

Sixth Circuit decision

In Pierson v Quad/Graphics Printing Corp (749 F 3d 530 (6th Cir 2014)) the Sixth Circuit reversed the district court's grant of summary judgment dismissing the plaintiff's age discrimination claim, finding that there was a "genuine factual dispute regarding whether [plaintiff] Pierson's position was eliminated or whether he was replaced by a younger individual". James Pierson was a 62-year old facility manager of a plant in Dickson, Tennessee who was terminated as part of a company-wide reduction in force. The court found that there was sufficient evidence to lead a reasonable jury to conclude that Pierson's position was not eliminated, but rather that he was replaced by a younger worker. As such, Pierson could prove prima facie discrimination, clearing the way for him to show that the employer's proffered reason for terminating him – that the company was responding to troubling economic conditions by instituting a company-wide reduction in force – was a pretext for age discrimination.

Pierson's supervisor, Carl Lentz, maintained that he had selected Pierson for termination based on his determination that Pierson's position could be eliminated. The day before Lentz informed Pierson of his termination, Lentz told human resources that the decision to terminate Pierson was due, at least in part, to Pierson's failure to be a "team player"; yet Pierson's alleged performance issues were not mentioned at the termination meeting. When Pierson sought to appeal his termination, he was told that his termination was based on performance. The court held:

"[a]lthough it is possible that Lentz had Pierson's allegedly poor teamwork in mind when he initially selected him for termination, and that both reasons played a role in Pierson's discharge, a reasonable jury could conclude that Lentz shifted the reasons for his decision over time. Such shifting justifications raise an inference that the proffered reasons are false and are pretext for discrimination."

The court determined that Pierson's supervisor's "shifting justifications for terminating him" were sufficient evidence of pretext to create a genuine issue of material fact for a jury.

Second Circuit decision

The plaintiff in Abrams v Department of Public Safety (764 F 3d 244 (2d Cir 2014)) brought Title VII race discrimination and retaliation claims (as well as a Section 1983 discrimination claim) that were dismissed on summary judgment by the district court. The Second Circuit vacated the lower court's ruling on the discrimination claims, finding that there was a reasonable question of fact for a jury as to whether statements that another applicant would "fit in better" and similar remarks were in fact statements about race.

Frederick Abrams was one of three African-American detectives in the major crimes unit of the Connecticut Department of Public Safety. However, homicides were handled by a highly selective unit within major crimes known as 'the Van'. Abrams expressed interest in joining the Van multiple times (he was the only African-American detective to do so and all members of the unit were white), and when a position became available in 2007, his supervisor personally recommended Abrams to the selection committee. However, the selection official found another applicant "to be a 'better fit' for the Van than Abrams". Similar comments about Abrams not fitting in were made on at least one occasion during a selection process for an earlier opening in the Van.

The court found that "the phrasing 'better fit' or 'fitting in' just might have been about race; and when construing the facts in a light most favorable to [Abrams], those phrases, even when isolated, could be enough to create a reasonable question of fact for a jury" that the proffered reasons for Abrams's non-selection were pretextual. Moreover, the court noted that the proffered, non-discriminatory reasons for not selecting Abrams for the Van were questionable. The Department of Safety cited poor reviews of Abrams's writing and his lack of college education; however, the poor reviews came mainly from years earlier and it had been documented that he had greatly improved, and more than one-third of the persons selected for the Van between 2004 and 2009 (the time period relevant to Abrams's claims) did not have a college degree.

Comment

These cases show the costly effect of an employer's failure to articulate clear and consistent reasons for an adverse employment decision. The 'fit' comments made by the selection official in Abrams could with have been completely innocuous; similarly, in Pierson it makes sense that an employer would consider an employee who has performance issuesfor termination in a reduction in force. Without the benefit of consistently documenting the real, non-discriminatory reasons for employment decisions, employers can be forced to rely on ambiguous, subjective or inconsistent statements, significantly undercutting their defence to discrimination claims and their ability to obtain summary judgment.

For further information on this topic please contact Kevin B Leblang or Robert N Holtzman at Kramer Levin Naftalis & Frankel LLP by telephone (+1 212 715 9100) or email (kleblang@kramerlevin.com or rholtzman@kramerlevin.com). The Kramer Levin Naftalis & Frankel LLP website can be accessed at www.kramerlevin.com.

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