Jottings By An Employer's Lawyer

Sunday, August 13, 2006

Establishing Pretext - A Plain and Important Test


It's a retaliation case that cites to Burlington Northern v. White, but that is only window dressing because the case turns on the employee's ability to establish pretext. Too often courts fail to make clear just what that takes for purposes of avoiding summary judgment. That was not the case in Yindee v. CCH Inc. (7th Cir. 8/11/06) [pdf]:

[O]nce a non-retaliatory explanation has been articulated, the plaintiff must show that this explanation is a pretext for discrimination. To do this the employee must establish that the explanation is a lie, which permits a jury to infer that the tale has been concocted to conceal an unlawful truth. ... It is not enough to demonstrate that the employer was mistaken, inconsiderate, short-fused, or otherwise benighted; none of those possibilities violates federal law. ... Poor personnel management receives its comeuppance in the market rather than the courts. [emphasis added, internal cites omitted]

For those interested in keeping score, the employee didn't hit the standard. At best:

[Her boss] may have acted precipitately. He may have been wrong in denigrating Yindee’s skills or productivity. But on this record a reasonable jury could not find that he lied to the court about his reasons. Yindee has not created a material dispute about the pretext question, so CCH is entitled to prevail as a matter of law.
The direct language of Judge Easterbrook set out in bold above, is, or should be, at the heart of any motion where pretext is an issue -- did the employer lie?


Comments:
[O]nce a non-retaliatory explanation has been articulated, the plaintiff must show that this explanation is a pretext for discrimination. To do this the employee must establish that the explanation is a lie,

A "pretext" is not a lie, it is (in this CONTEXT) a truth used to deceive.

"The word pretext is derived from the Latin Praetextus, meaning outward display. The word Praetextus was used to describe the outer weave of a fabric, which was something in the front and used as border or disguise. It was formed by juxtaposing Prae with texere (textile)."

The lawyer who recently won almost a mil against his (Pasadena CA) firm was pretextually fired for attending a funeral which in some way supposedly violated the firm's policy, but the jury saw that the real reason was his need to be treated for an illness.

the typical pretext employers use is a truth the employer seizes upon to cover (see above) their real reason.

For instance-- a habitually tardy employee gets pregnant.. the employer calls us and says "can I fire her?"

Of course, we said "no" but the truth was the 'ee was tardy AND the desire to fire her arose from her her pregnancy.

so-- this test is B O G U S.
 
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