Message to Employers: Stick to your story

by McAfee & Taft

A decision by a federal court in Oklahoma City reminds employers that when terminating an employee for a legitimate business reason, an employer does not need to sweeten the pot with additional reasons for termination – especially when the additional reasons may be interpreted as being inconsistent.

Glasco’s complaint about hiring practices

Vicki Glasco was hired by Advanced Dental Implant & Denture Center, LLC as an HR manager in September of 2011. Throughout the next several months, Glasco alleged she took several actions in opposition to discrimination by her employer. For example, when Dr. Offell, a management individual for Advanced Dental, allegedly failed to hire someone based on their race, Glasco went to another manager, Dr. Steffen, and relayed the conversation. Glasco also had another conversation with Dr. Steffen, wherein he allegedly stated he would not “hire a black to work in Beverly Hills or a white to work in Compton.” Glasco responded she “would hire the person best qualified.” Finally, in October of 2011, Dr. Steffen allegedly claimed that certain black hiring managers were hiring “too many of their own kind.” As a result, management began requiring these candidates to be interviewed a second time with a person from HR. Glasco claims she pointed out to Dr. Steffen that the same interview requirement was not placed on white regional managers. Glasco asserted she made this comment to alert Dr. Steffen to the improper nature of in his “second interview” requirement. Glasco was terminated in January of 2012 and filed suit alleging her termination was in retaliation for engaging in activity protected by Title VII, i.e., opposition to unlawful race discrimination.  

terminated-female-employeeHer retaliation claim

Title VII prohibits retaliation for engaging in protected activity opposing violations of discrimination. To prove a claim for retaliation, a plaintiff must show (1) she engaged in protected opposition to Title VII discrimination; (2) she suffered an adverse employment action; and (3) there is a causal connection between the protected activity and the adverse employment action. Advanced Dental claimed Glasco’s statements and actions noted above were not sufficient to show her opposition or put Advanced Dental on notice that she was complaining about their alleged discriminatory practice. The court, however, disagreed, holding that Glasco’s statements and actions were adequate to notify Advanced Dental’s management team that she was opposed to their discriminatory conduct. 

Once the plaintiff successfully made her initial showing, the court then asked Advanced Dental to demonstrate a legitimate, non-retaliatory reason for Glasco’s termination. The employer argued that it fired Glasco because she was unable to complete her assigned tasks efficiently and to the satisfaction of management, which is a legitimate business reason for termination. To keep her claim alive, Glasco had to show Advanced Dental’s expressed reason for her termination was actually pretext for retaliation.

Glasco argued the grounds for her termination had changed over time and were inconsistent. She claims she was given four different reasons for her termination: (1) poor job performance; (2) the “dynamics” weren’t right; (3) the HR position had been eliminated; and (4) she was responsible for hiring too many blacks in a certain location. The first three reasons for Ms. Glasco’s termination were addressed in a letter given to her by her by Dr. Steffen. In the letter, Dr. Steffen stated Glasco did a very good job, brought a lot to the organization, and that he would recommend her to any HR position to which she may aspire. This letter also stated that the Glasco’s position had been eliminated; however, evidence indicated that her position still existed after her termination. 

It is well-settled law that, “Where an employer gives mutually inconsistent reasons for a plaintiff’s termination, pretext is established.” Given the various and inconsistent reasons for Glasco’s termination, coupled with evidence of racial animus, the court found that the legitimate, non-retaliatory reasons offered by Advanced Dental for Glasco’s termination were fabricated.

The takeaway

It is important for the individual responsible for disciplinary and termination decisions in your organization (1) to understand the reason for the employment action, (2) to ensure that it actually is job-related, (3) to be able to articulate it succinctly, (4) to document it in writing, and, (5) to be consistent about why an employment decision is made. Multiple, inconsistent reasons will lead to an inference of pretext in discrimination and retaliation claims, and make them difficult, if not impossible, to defend.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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