The general rule in employment law is that an employer’s inconsistencies and contradictions breathe life into discrimination claims.
But there are some exceptions.
For example, last night, I read this federal court decision involving an employee fired shortly after complaining to HR about an offensive comment from a manager (“You have to work harder than a slave and outwork Mexicans”).
The employee claimed that another manager (the decisionmaker) created his termination documents “two days after [he] complained and after or on the same day” the decisionmaker learned of his complaint.
On rare occasions, timing alone can be enough for a plaintiff alleging retaliation to survive summary judgment and have his day in court. But where a defendant provides sufficient nondiscriminatory reasons rebutting a plaintiff’s case for retaliation, the plaintiff needs to present additional evidence of retaliation, specifically, a nexus between his complaint and his termination. It’s called pretext.
A plaintiff can show pretext directly by demonstrating that a discriminatory purpose actually motivated the employer’s actions or indirectly by demonstrating why the employer’s presented nondiscriminatory reasons are not credible.
In this case, the employee highlighted how the company presented him with two termination letters.
Two termination letters? That’s weird. But pretextual? Let’s see.
The first stated that the termination of employment was due to a “no call no show” on two separate occasions, despite timecards indicating he was present on the alleged days. The second described the reasons (plural) for the termination as his continued absences and the “no call no show.”
The employer claimed that the first termination letter was a draft. More importantly, the employee appeared to concede that the reasons outlined in each termination letter were valid. Plus, the employee could not identify anyone who hadn’t complained about discrimination whom the employer had treated any better after engaging in the same or similar workplace infractions.
Would I recommend giving an employee both the draft and final version of termination letters? No.
But it is ok to draft a termination letter before giving a final version to an employee. Suppose the legitimate reason(s) supporting the termination are well documented and communicated to the employee in advance. In that case, the company should be able to defend any related discrimination claims that follow.