Two arguments show up in almost every termination lawsuit: that the employer’s reason changed, and that it didn’t follow its own policy. The Eleventh Circuit recently explained why neither argument, without more, is enough to get a case to a jury.
TL;DR: In a recent Eleventh Circuit decision, the court affirmed summary judgment for an employer on race and age discrimination claims brought by three long-tenured construction employees. Additional consistent reasons do not equal shifting explanations, and failure to follow progressive-discipline procedures, standing alone, does not prove discrimination. What mattered was what the decisionmaker believed at the time.
Three brothers and a disputed termination
Three African American brothers worked for a heavy construction contractor for more than twenty-five years. At the time they were sent home, all were over fifty. They held roles including foreman, crane operator, and welder.
Between revenue-producing projects, the company assigned them to non-revenue “special projects.” Management said it observed a decline in their work ethic during that period.
The turning point came after a lunch break. Two of the brothers left the jobsite and, in the decisionmaker’s view, returned late. He sent them home. The third brother left with them and was sent home the following day. For summary judgment purposes, the court treated those actions as terminations.
They sued for race discrimination under Title VII of the Civil Rights Act of 1964 (Title VII) and 42 U.S.C. § 1981, and for age discrimination under the Age Discrimination in Employment Act (ADEA).
Pretext focuses on the decisionmaker’s belief
So the real question wasn’t whether the employees were late. It was whether the employer’s explanation was a cover for discrimination.
That is what courts mean by pretext.
In discrimination law, pretext means the employer’s stated reason is not the real reason. It is not enough for a plaintiff to show the employer was mistaken. The plaintiff must produce evidence that the employer did not believe the reason it gave and that discrimination was the true motive.
Here, the employees argued they were not late and therefore the employer’s explanation was false. The Eleventh Circuit focused instead on what the decisionmaker believed at the time. Even assuming the employees were correct about the clock, the record showed the decisionmaker perceived them to be late and viewed the incident as part of broader concerns about work ethic.
An employer may act on mistaken information or imperfect judgment, as long as the decision is not motivated by discrimination.
Additional consistent reasons are not shifting explanations
The employees also argued that the employer’s rationale changed. Was it about a late lunch, or about declining work ethic?
The court drew a clear line. Inconsistent explanations can suggest pretext. But providing additional consistent reasons does not demonstrate discrimination. A perceived extended lunch fit within the broader concern about work ethic. The explanation became more detailed; it did not become contradictory.
Policy deviations do not equal discrimination
The employees further contended that the company failed to follow its progressive-discipline policy because there was no documented prior discipline.
The Eleventh Circuit was not persuaded.
Departures from internal procedures can matter. But the mere fact that an employer failed to follow its own procedures does not, by itself, establish discriminatory intent. Without evidence that the policy was applied differently to similarly situated employees, a deviation alone does not prove pretext.
Employer takeaways
- Pretext turns on what the decisionmaker believed at the time, not on who later proves they were right.
- Additional consistent reasons do not equal shifting explanations.
- Deviating from progressive discipline is not automatically unlawful — but uneven application is risky.
- Consistency in explanation and documentation remains your best defense.
Bottom line
Courts are looking for discriminatory intent, not perfect process. If your reasons are consistent and grounded in documented performance concerns, plaintiffs will have a difficult time converting workplace disputes into viable discrimination claims.