Jottings By An Employer's Lawyer

Monday, November 17, 2003

Another Way For Plaintiff To Lose At McDonnell Douglas, Concede A Different But Not Illegal Reason

If the plaintiff argues that there is a different reason than the one articulated by the employer in response to its burden of production, it is enough to sink their own discrimination claim according to the 10th Circuit. Neal v. Roche (10th Cir. 11/17/03) [pdf]. Here plaintiff did not get a promotion she desired. Instead a white candidate was selected because of "her experience as a purchasing agent, her knowledge of the cost centers and the process through which a major portion of the hospital budget is spent."

Plaintiff challenged that, claiming the real reason was that she was selected in order to protect her from a layoff, since her position was being eliminated. Relying on cases approving the legality of 'cronyism', the Court noted this was a narrow example where proving pretext alone was not enough to get past summary judgment. Where plaintiff concedes a reason for the action, that while different from that voiced by the employer, is not discriminatory, plaintiff loses. The lesson, prove pretext, but be careful of what you allege the real reason is.

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