Trying to prove that one was the victim of employer discrimination is a mighty task. Often
times there are no statements from decision-makers claiming, “you were fired because
you [had this characteristic protected under federal law].” Court opinions are legion with
statements recognizing that “direct evidence” of a discriminatory motive is typically absent. The
next best evidence is circumstantial evidence whereby one can infer discriminatory intent from a
myriad of facts. But since Illinois is an at-will employment state, employers can fire for a good, bad
or no reason at all. This makes it difficult for an employee to get past summary judgment motions
in federal court.1 To do so, the employee must show that the employer’s stated justification was“pretextual” or in other words, not the true reason for the termination.
This article will explore the ways that an employee can
attempt to show prextext so that it can overcome a summary
judgment motion and proceed to a trial on the merits. In a
disparate discipline/termination case, it is also important
to note that proving pretext will require a thorough understanding
of the employer’s discipline policies and how other
employees were treated under circumstances similar to the
employee. Crafting narrowly tailored discovery requests is essential
as well as articulating why the information is relevant.
Otherwise, a court may rule in favor of objections raised by
the employer that the discovery is not relevant to your client’s
Title VII of the Civil Rights Act of 1964. Title VII
prohibits discrimination on the basis of gender, race, color,
creed, and national origin. 42 U.S.C. § 2000e-2(a)(1). In a
Title VII disparate treatment case, the focus is one whether
in making the decision, the employer was motivated by the
employee’s protected characteristic.2
An employee can prove her case under the direct method
of proof by establishing that the employer had a discriminatory
motivation, or by the indirect method of proof by making
out a prima facie case and shifting the burden of production
as set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1981).3
Under the direct method of proof, an employee may
present circumstantial evidence that the employer’s decision
was motivated by an impermissible purpose.4 “[A] convincing
mosaic” of circumstantial evidence allows a trier of fact to infer intentional discrimination
by the decision maker.5 The circumstantial
evidence must point directly to a
discriminatory reason for the employer’s
action at issue.6
Under the indirect method of proof,
an employee must first prove a prima
facie case of discrimination. If the employee
demonstrates a prima facie case,
the burden shifts to the employer to articulate
a legitimate, non-discriminatory
reason for the adverse employment
decision. If the employer carries the
burden of production, the complainant
must demonstrate that the employer’s
proffered reasons are pretextual. Even
though the courts bemoan using the and
referring to the “direct” and “indirect”
methods of proof, the ultimate question
the trial court needs to ask is whether a
reasonable jury could find prohibited
For instance, in the typical discriminatory
termination case, an employee
relies on the “indirect” method
and must demonstrate four elements
at the summary judgment stage: 1) the
employee was a member of a protected
class; 2) she was performing her job
adequately; 3) she suffered an adverse
employment action; and 4) she was
treated differently than similarly-situated
employees not within the protected
group.8 Elements one and three
are typically easy to prove. Elements
two and four are ones where employees
find the most trouble. The point of this
exercise is to eliminate other rational
explanations for the termination so that
the only common element remaining is
the protected characteristic.
As to the fourth element,
the employee must show that
5 Rhodes v. Illinois Department of Transportation, 359 F.3d 498, 504
(7th Cir. 2004).
7 Orton-Bell v. State of Indiana, 759 F.3d 768, 773 (7th Cir. 2014).
8 Bass, 746 F.3d at 841.
outside the protected class were
treated better than the aggrieved.
The similarly-situated analysis
looks to performance, qualifications
and conduct.9 For example,
there are four employees: one female
and three males, working in
the same department, subject to
the same employment standards
and sharing the same supervisor.
All four take office supplies for
personal use and the supervisor
knows this. Yet, the female is terminated
for that reason and not
the males. The female employee
would use her male counterparts
are “comparables” arguing
that they engaged in the same
conduct and were not fired. The
only difference among the four
is that the aggrieved employee is
female and not male.
Reason. At the summary
judgment stage, the employer’s
burden is producing (not proving)
evidence showing that it had
a legitimate, non-discriminatory
reason for the adverse employment
action. Such reasons could
include poor performance, excessive
absenteeism, downsizing or
violation of company policies. It is
this latter category that employers
should be wary because it is easy
to get tripped up along the way,
opening the door for the employee
to argue that his termination was
Pretext.10 To survive summary judgment, the employee
needs to come forward with evidence of pretextual
reasons for the termination. Pretext requires showing
that the employer’s stated justification is dishonest.11
Pretext “means a lie, specifically a phony reason for some
action”12 or ‘deceit to cover one’s tracks.”13 An employee
may demonstrate that the employer’s reasons are unworthy
of credence through evidence showing (1) that the proffered
reasons had no basis in fact, (2) that the proffered
reasons did not actually motivate his discharge, or (3) that
they were insufficient to motivate discharge.14 To support
this, an employee may offer evidence that the employer’s
reasons are weak, implausible, incoherent or inconsistent,
and thus, the trier of fact can infer that the employer did
not act for the non-discriminatory reasons it stated.15 In
short, is the employer’s belief objectively reasonable?16
Suspicious timing and non-decisionmaker’s response.
Suspicious timing along with employee’s positive
performance reviews creates an inference of discrimination.17
In discovery, an employee’s performance reviews should be
obtained and reviewed. If the reviews show no warning or
violations of company policies, but the employer asserts that
a violation occurred during the review period, this is one bit
of favorable information.18
Another piece of information that may be relevant is
whether the employee’s supervisor actually agreed with the
termination. Sometimes a termination may not come from
the employee’s immediate supervisor, but from human resources
or some higher authority.19
Misinterpreting company rules. Pretext can also be
inferred from inaccuracies or inconsistencies in the employer’s
proffered reason for termination, selective enforcement
of a policy20, or when the employer violates its own
For instance, a policy states that employees cannot use“valuable” business items for personal use. The employee
takes some pencils home for personal use and is fired. Human
resources and upper management disagree on whether the
pencils are considered “valuable” items.22 One person says
yes, and the other says no. Another says that the policy is applicable
only to items over $5.00 in value. If the employee is
terminated for a policy violation, relevant evidence includes
terminations for all comparable policy violations, identifying
any discrimination charges that were filed as well as any subsequent
litigation. It is possible that one or more employer
representatives were deposed who may have provided useful
Similarly-situated employees outside the protected
class were treated better. An example of this principle
would be the level of investigating the misconduct. Was
the employee forewarned of an investigation and interview
with company investigators or was the employee interrogated
under a lamp in a dark room? The nature of any investigation
can surely set the tone for how important (or
unimportant) the employer considered the misconduct.
One would suspect the level of seriousness to increase
based on the gravity of the violation. But one must keep
in mind that this principle requires examining employees
outside the protected classification. If you are alleging gender
discrimination, your comparables are male employees,
Comparable misconduct treated differently. If comparable,
serious misconduct was treated differently by the
employer, this is a significant consideration.23 This can
come into play when the employer has a list of offenses
that are grounds for discipline. Let’s say that offenses A, B and C are listed as being “immediate termination” offenses.
Three males violate offense A and are not fired. A
female violates offense B and is fired. While the offenses
are different, an argument can be
made that they are of comparable
seriousness and should be used for
comparative purposes.24 Thus, relevant
discovery under this example
would be all males employees
who violated offenses A, B and C
and were not terminated.25
Departing from usual procedures.
Another indicia of pretext
is “procedural irregularities.”26 For
instance, an employer may grossly
misstate the seriousness of the offense
because there is evidence that
other employees committed comparable offenses and were
not fired.27 If the employer has a disciplinary procedure it
follows for investigating terminable offenses and does not
follow it, this could be potentially helpful evidence as well.
This is why employee handbooks and other policy statements
are crucial items in discovery.
Delay in addressing concerns. Employers cannot
monitor every event at work, but there could be things capable
of monitoring. For instance, using email or the internet
for personal business. If an employee is fired for this based on
a one-time event and the employer is capable of easily monitoring
employees’ activities, then it calls into question how
serious the violation actually was.28
Another item to be on the “look out” for is multiple
employment policies and whether certain policies are even
applicable to the same employees. A company may have
policies that pertain to one set of employees and not another
or have different standards. It is possible for an employer
to claim that an employee violated a policy that was
not even applicable to the employee’s job.29
An employee’s supervisor is fair game as well. This is
especially true if the supervisor gave the employee glowing
performance reviews and after the last review, the employee
was found to have consistently violated
a policy and was fired. Did the
employer investigate the supervisor
as well? Did the supervisor agree with
the termination decision? This issue
deserves exploration as the case may
Overstating the reasons for
termination to justify its actions.
Pretext can also be shown when the
employer overstates its reasons for
termination.31 For instance, an employer
may claim that the employee
breached a policy for which others
were also terminated, but it may turn out that the other employee
terminations were for less serious infractions that are
in no way comparable to the employee’s termination.
Post hoc justification. Pretext can be shown by afterthe-fact justifications by the employer.32 Shifting reasons for
termination is also evidence of pretext.33 Any employer may
want to “pile on” the employee by providing various reasons
during litigation as to why the employee was terminated. But some of these reasons may not have actually motivated
the adverse employment decision because they were never
contemplated. An employer whose termination decision
was documented may also give inconsistent explanations
during a deposition that do not coincide the actual employment
decision.34 This is all fodder in order to defeat summary
Conclusion. Conducting discovery in a discrimination
case requires a thorough understanding of the
reasons for the termination. It is also crucial to consult
with an employee-plaintiff to get a firm understanding
of the work environment, supervisors, co-workers
and employment policies that governed employee behavior.
It also helps if the employee is aware of other
terminations or human resources decisions concerning discipline. This is especially true in disciplinary cases
that result in termination. It is often difficult to show
that an employee is similarly-situated in all material respects
to another employee outside the protected class
who may have engaged in similar behavior and was not
disciplined/terminated. The cases are full of examples of
pretextual reasons that could help defeat an employer’s
summary judgment motion.
Employers must strike a delicate balance between
imposing discipline as they see fit and possibly (yet
unintentionally) meting out discipline that could be
viewed as discriminatory treatment. Employers with
questions on these fronts should consult with their attorneys,
and likewise, attorneys should periodically require
their client to review their employment policies
and terminations to see if there are any outstanding issues
that could possibly be used against an employer in
1 This would apply equally in cases before the Illinois Human Rights Commission, which uses a similar procedure called ”summary decision.”
2 Kimble v. Wis. Dept. of Workforce Development, 690 F.Supp.2d 765, 768 (E.D. Wis. 2010).
3 Bass v. Joliet Public School Dist. No. 86, 746 F.3d 835, 841 (7th Cir. 2014).
4 Rudin v. Lincoln Land Community College, 420 F.3d 712, 720 (7th Cir. 2005).
5 Rhodes v. Illinois Department of Transportation, 359 F.3d 498, 504 (7th Cir. 2004).
7 Orton-Bell v. State of Indiana, 759 F.3d 768, 773 (7th Cir. 2014).
8 Bass, 746 F.3d at 841.
9 Peirick v. Indiana University-Purdue University Indianapolis Athletic Department, 510 F.3d 681, 688 (7th Cir. 2007); Loyola Univ. of Chicago v. Illinois Human Rights Comm’n, 149 Ill. App. 3d 8, 18 (1st Dist. 1986).
10 Once a case reaches the trier of fact, pretext is still useful evidence. An employee may attempt to establish that she was the victim of intentional discrimination by showing that the employer’s proffered explanation is unworthy of credence
or is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000). The trier of fact may consider the evidence establishing an employee’s prima facie case and inferences properly drawn therefrom on the issue of whether the defendant’s explanation is pretextual. Id. at 143, 147. “Proof that the [employer’s] explanation is unworthy of credence is” circumstantial evidence of intentional discrimination. Id. at 147. An employee’s prima facie case, combined with evidence of pretext, permits the inference of discrimination. Id. at 148.
11 Fischer v. Avandale, Inc., 519 F.3d 393, 403 (7th Cir. 2008).
12 Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir. 1995)
13 Clay v. Holy Cross Hosp., 253 F.3d 1000, 1005 (7th Cir. 2001)
14 Mechnig v. Sears, Roebuck & Co., 864 F.2d 1359, 1365 (7th Cir. 1988).
15 Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997).
16 Gordon, 246 F.3d at 889.
17 Hasan v. Foley & Lardner, 552 F.3d 520, 528-29 (7th Cir. 2008).
18 See Peirick, 510 F.3d at 592 (no warnings prior to termination is evidence of pretext); Prochaska v. Menard, Inc., 829 F.Supp.2d 710, 722 (W.D. Wis. 2011) (noting long history with company, outstanding performance and then termination).
19 Peirick, 510 F.3d at 693; Gordon, 246 F.3d at 890 (management’s disagreement over definition of violation).
20 Baker v. Macon Resources, Inc., 50 F.3d 674, 677 (7th Cir. 2014)
21 Huff v. UARCO, Inc., 122 F.3d 374, 380-82 (7th Cir. 1997)
22 Gordon, 246 F.3d at 886-87, 890 (noting the “inability on the part of … management to provide any consistent definition” of the violation); Hitchcock v. Angel Corps., Inc., 718 F.3d 733, 738 (7th Cir. 2013); Williams v. Bristol-Meyers Squibb Co., 85 F.3d 270, 275 (7th Cir. 1996) (excellent example of misinterpretation of a policy).
23 Davis v. Wisconsin Dept. of Corrections, 445 F.3d 971, 978-79 (7th Cir. 2006); 400 F.3d 1041, 1050 (7th Cir. 2005); see also Baikie v. Cook County Sheriff’s Dept. of Corrections, 2012 WL 1068774, at *7 (N.D. Ill. Mar. 29, 2012) (collecting cases) (applying discipline in an “uneven manner”; plaintiff disciplined before investigation ensued, unlike other employees).
24 Rodgers v. White, 657 F.3d 511, 520 (7th Cir. 2011); Doherty, 2007 WL 1662651, at *5 (“sharp departures from [employer’s] standard disciplinary practice” can be used to question the employer’s “honesty and motivation.”); Gordon, 246 F.3d at 890-
25 The Seventh Circuit requires the comparable employee to have engaged in a “comparable set of failings.” Taylor-Novotny v. Health Alliance Medical Plans, Inc., No. 13-3652, slip op. at 26 (7th Cir. Nov. 26, 2014), quoting Burks v. Wisconsin Dep’t of Transp., 464 f.3d 744, 751 (7th Cir. 2006).
26 Trujillo v. PacifiCorp, 524 F.3d 1149, 1158 (10th Cir. 2008).
27 Plotke v. White, 405 F.3d 1092, 1106 (10th Cir. 2005) (“grossly exaggerating” a terminable offense is evidence of pretext).
28 Peirick, 510 F.3d at 692-93.
29 See Rodgers, 657 F.3d at 519 (“The defendants, then, are effectively maintaining that they fired Rodgers for poorly performing a task that was not a legitimate employment expectation, while retaining the white employee whose job it was to perform that very task.”)
30 Woods v. Von Maur, Inc., 837 F.Supp.2d 857, 867 (N.D. Ill. 2011) (failing to interview or discipline supervisor as a result of an employee’s policy violation is evidence of pretext).
31 Peirick, 510 F.3d at 693.
32 Plotke v. White, 405 F.3d 1092, 1103 (10th Cir. 2005).
33 Harvey, 377 F.3d at 712.
34 Hitchcock, 718 F.3d at 739 (employer’s inconsistent explanation).
Donald S. Rothschild is a partner at Goldstine, Skrodzki, Russian, Nemec and Hoff, Ltd. He assists employers and employees on matters under state and federal law, provides guidance on rights pertaining to discrimination, unlawful harassment, executive employment, wrongful termination, breach of employment contracts, defamation and wage and hour disputes. Don has long been active in numerous legal circles, including the DCBA, National Employment Lawyers Association and the Labor and Employment Section of the Illinois State Bar Association, where he serves as Associate Editor of its Labor and Employment Newsletter. His Burr Ridge firm of 27 attorneys provides employment law and general legal services to closely held businesses and individuals in DuPage and Cook counties.
Brian M.Dougherty is a senior associate in the litigation group at Goldstine, Skrodzki, Russian, Nemec and Hoff, Ltd. His practice area includes representing employees and employers in employment disputes arising under state and federal law, commercial landlord-tenant matters and business torts. Brian is a member of the DCBA Labor and Employment, Bankruptcy Law and Business Law Committees.