Employers may sometimes seek to 'pull punches' when informing an employee of the reasons for an adverse employment action - such as when the employee's employment is being terminated - and thus provide different reasons if the termination is later challenged before an administrative agency such as the Equal Employment Opportunity Commission (EEOC). Similarly, employers sometimes provide, in connection with agency investigations, reasons for an adverse employment action that are inconsistent with the testimony of the employer's representatives in a subsequent judicial action; this may result from the employer's less-than-adequate investigation of the claim or incomplete response to the agency.

The decision of the Eighth Circuit Court of Appeals in Jones v National American University(1) illustrates the perils of an employer providing inconsistent reasons for an adverse employment action. In Jones, an employee alleged that her employer had failed to promote her in violation of the Age Discrimination in Employment Act (1967). The employee had applied for a director of admissions position at one of the employer's campuses. The employee was not offered the position and she thereafter filed a charge of discrimination with the EEOC. The employer submitted a written response to the commission and in that submission asserted that the employee had not been promoted due to her deficient performance.

Following the commission's dismissal of the charge, the employee filed an age discrimination action in federal court. During the trial, the employee presented evidence showing that she was the most qualified applicant for the director of admissions position and that she had not been offered the position because of her age. The employer presented evidence that the employee had not been promoted because of her lack of management experience, which the employee claimed was pretextual - that is, the employer had not presented evidence at trial that the employee was deficient in her performance.

The trial court allowed the employee to introduce for impeachment purposes the university's response to her charge, which stated that she had not been promoted due to her deficient performance. A jury found that the employer discriminated against the employee on the basis of her age, and that its conduct was wilful; judgment was entered for $35,130 in damages, as well as attorneys' fees and costs.

The employer appealed the judgment. Among other challenges, the employer asserted that the employee presented insufficient evidence of age discrimination at the trial. The Eighth Circuit rejected the employer's position, ruling that the employee "presented sufficient evidence for the jury to conclude that [the employer's] proffered reason for the failure to promote was a pretext for age discrimination." In so ruling, the court held that "[p]retext may be shown with evidence that the employer's reason for the [adverse employment decision] has changed substantially over time."

In affirming the judgment, the Eighth Circuit relied heavily on evidence that between the time of the employer's response to the charge filed before the EEOC and the trial, the employer had shifted its reasons for failing to promote her. The court also found the following constituted evidence of pretext:

  • The employee had established that she was the only candidate considered who had the required recruiting experience;
  • The candidate who was awarded the position lacked the extensive management experience that the employer asserted had been its primary qualification;
  • The employee had consistently received positive reviews and performance awards; and
  • One of the members of the hiring committee made two age-related comments to her.

Jones illustrates how critical it is for an employer to be consistent when providing reasons for an adverse employment action, such as the termination of an employee's employment. When informing an employee of the decision, an employer must be honest with the employee; 'pulling punches' so as not to hurt an employee's feelings will likely be filed later in the 'no good deed goes unpunished' category.

If an employee later challenges the employer's action before an administrative agency, such as the EEOC, the employer must provide reasons for the challenged action which are consistent with the reasons provided to the employee. Thereafter, if the employee pursues a judicial action, the employer must provide reasons for the adverse employment action to the court and jury which are consistent with those provided to the employee and the administrative agency.

Being honest with the employee and consistent in later submissions will help the employer to avoid the fate of the employer in Jones. Of course, if performance issues are the true reason for the action taken by the employer, having properly documented performance issues throughout an employee's employment is critical.

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), fax (+1 212 715 8000) or email (kleblang@kramerlevin.com or rholtzman@kramerlevin.com).


(1) 608 F3d 1039 (8th Circuit 2010).

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