Jottings By An Employer's Lawyer

Monday, September 08, 2003

Is Pretext Plus Alive and Well in Texas?

Probably not in those words, but the Texas Supreme Court has made clear that mere flaws in an investigation alone are not enough to provide an inference of discrimination on the basis of a protected class. Last week's decision in Wal-Mart Stores, Inc. v. Canchola (Tx. 9/4/03) reversed a jury verdict which had been affirmed in an opinion [pdf] of the Corpus Christi Court of Appeals. A long tenured deli manager, who had been forced to work a reduced schedule because of a heart condition, was accused of sexual harassment. The store manager conducted an investigation and obtained statements concerning the allegations and then terminated the deli manager for violation of the sexual harassment policy. At trial, the deli manager raised numerous questions about the thoroughness and accuracy of the investigation.

The Supreme Court noted that it had a long policy of encouraging employers to conduct investigations before exercising their right to terminate at will employees, by not making them liable if their investigation were subject to challenge as imperfect. Recognizing the slippery slope of trying to draw lines about how good an investigation must be to pass muster, the Supreme Court wisely avoided trying to do so. Instead, the Court noted that the question to be asked was not merely whether there was pretext, but what the pretext was for. In order to support the jury's finding of disability discrimination, the Court held there must be some evidence that there was discrimination on the basis of a disability. Finding none, that claim was reversed.

The Court also reversed the jury's finding of intentional infliction of emotional distress. Noting that while the investigation and termination were undoubtedly unpleasant, an employer must be free to investigate and supervise its employees.

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