Establishing Pretext - A Plain and Important Test
by Michael Fox
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?