Add this case to your “Be Sure to Document Your Non-Discriminatory Reasons” file. An employee doing bad things lost on summary judgment in an employment discrimination action, even though she alleged that the company did not properly investigate the reasons for her termination. The Fifth Circuit affirmed a summary judgment on an age claim because the plaintiff’s own poor conduct was enough of a non-discriminatory reason to terminate her.

Misconduct Still Carries a Lot of Weight

In this case, Patricia Gill worked as a sales director at the aptly named environmental firm, DIRTT. Ms. Gill’s coworkers complained that she engaged in bad behavior such as 1) disseminating false information to coworkers and clients; 2) attempting to take over responsibilities of other workers; 3) excluding coworkers from necessary contract negotiations; and 4) improperly marking contracts so as to increase her own commissions. She also failed to comply with company standards. DIRTT finally had enough and terminated her. Ms. Gill then filed an EEOC charge and eventual lawsuit claiming she had been terminated due to her age.

In defense of the suit, DIRTT noted that even if Ms. Gill could show a prima facie case of age discrimination, it had numerous legitimate, non-discriminatory reasons to terminate her and she could not show that it was pretextual. The court agreed and dismissed the case. Ms. Gill appealed to the 5th Circuit.

Is Failure to Investigate Enough to Show Pretext?

Ms. Gill’s primary arguments on appeal were that the district court failed to properly consider DIRTT’s failure to investigate as evidence that its reason for terminating her was pretextual. If an employee presents evidence that the unfavorable employment decision was based on a protected status, in this case age, then the burden switches to the employer to show a legitimate non-discriminatory reason for the employment decision. Here, both sides agreed that both those prongs were met. The big question was whether Ms. Gill showed that DIRTT’s explanation for the termination was “false or unworthy of credence” and was therefore pretextual.

To show pretext, Ms. Gill argued first that DIRTT failed to follow its own policies and procedures when coworkers reported her bad behavior. The Fifth Circuit said that DIRTT’s failure to follow the policies was not relevant because Ms. Gill couldn’t connect it to her age. Next, Ms. Gill argued that DIRTT lied to the EEOC when it said that they did an investigation of her alleged misconduct. While the Fifth Circuit recognized that erroneous statements in an EEOC position statement may be circumstantial evidence of discrimination, it ultimately held that the language in the statement was not inconsistent with what actually occurred. As such, it could not constitute proof of pretext. Finally, Ms. Gill argued that DIRTT could not claim that the coworker complaints were the actual basis of the termination because DIRTT did not investigate the complaints or tell her about them. The Fifth Circuit found that it was not required to determine that the company made the decision in good faith– only that the company did not make the decision for a discriminatory reason. It held that Ms. Gill failed to show that DIRTT did not make a reasonably informed decision in firing her. The court noted the numerous complaints and proof that DIRTT tried to meet with Ms. Gill about them. The Fifth Circuit found that despite Ms. Gill’s allegations of a shoddy or non-existent investigation, she ultimately failed to show that the termination reasons given were pretextual.

What Do We Learn from This?

Again, to beat an already well-beaten drum, it is imperative that employers document their decisions. Here, the employer was fortunate that it had enough proof of the bad employee’s misconduct and complaints from coworkers to overcome the allegations that an investigation didn’t occur. But the opinion does note that a failure to properly investigate or inconsistent statements in an EEOC position statement can be used as evidence of pretext. This is why it is important to take complaints seriously and fully document the investigation process.