The Journal of The DuPage County Bar Association

Back Issues > Vol. 27 (2014-15)

Proving Discrimination Circumstantially Through Evidence Of Pretext
By Donald S. Rothschild and Brian M. Dougherty

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 case.

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 discrimination.7

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). 6 Id. 7 Orton-Bell v. State of Indiana, 759 F.3d 768, 773 (7th Cir. 2014). 8 Bass, 746 F.3d at 841. similarly-situated employees 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.

Legitimate, Non-Discriminatory 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 pretextual.

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 policies.21

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 evidence.

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, not females.

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 be.30

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 judgment.

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 future litigation.

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).

6 Id.

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- 91.

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.

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