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  • December 5, 2013

Proving Pretext

Proving Pretext

150 150 Gregory A. Hall

Proving pretext means offering evidence that the defendant’s proffered reason taking the adverse employment action is false. In other words, the employer’s proffered reason is a phony one to cover up the employer’s discriminatory intent. Unless a plaintiff has direct evidence of discrimination, the court will analyze a Title VII claim under the McDonnell Douglas burden-shifting framework which requires that the plaintiff establish a prima facie case of discrimination. If the plaintiff establishes a prima facie case of discrimination, then the defendant must articulate a legitimate, nondiscriminatory reason for its actions, which the plaintiff may then show to be pretext for discrimination. In other words, the plaintiff has the burden to demonstrate that the proffered reason was a pretext or a cover-up, and not the real reason for the employment decision.

There are two stages of litigation in which evidence of pretext is critical. The first is at the summary judgment stage and the second is before the jury. At trial it is a matter of proving both that the employer’s reasons are false and that the real reason is discriminatory. This can often be done through effective cross examination of the of employer’s witnesses or, in some cases, by discrediting the employer’s counsel.

Pretext may be established directly by showing that the employer “was more likely than not motivated by a discriminatory reason,” or indirectly by presenting evidence that the “employer’s explanation is not credible.” A plaintiff demonstrates pretext by producing evidence of such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons.

If a plaintiff does not have direct evidence of pretext, he may show pretext indirectly by presenting evidence that (1) defendant’s explanation for the adverse job action had no basis in fact; (2) the explanation was not the “real” reason for the adverse job action; or (3) the reason given was insufficient to warrant the adverse job action. To survive summary judgment a plaintiff need only produce enough evidence to rebut, but not disprove, the defendant’s proffered reason. In order to disprove the proffered rationale, a plaintiff must show one of the following: “ The plaintiff can rebut the employer’s explanation by showing circumstances which tend to prove that an illegal motivation was more likely than the one offered by the defendant.

For example, pretext can be established where the employer changes its reasons for the termination as an after-the fact justification. Jaramillo v. Colo. Judicial Dep’t, 427 F.3d 1303, 1310 (10th Cir. 2005). Moreover, where an employer “pursues a shotgun approach under McDonnell-Douglas runs a risk of destroying its own credibility ‘”the factfinder’s rejection of some of the defendant’s proffered reasons may impede the employer’s credibility seriously enough so that a factfinder may rationally disbelieve the remaining proffered reasons.’” Id. at 1310-11 (citation omitted). The shotgun approach can fail where the employer offers a multitude of reasons for its conduct and those reasons changed over time. However, Where the employer advances a number of reasons for an adverse employment action, the Tenth Circuit has adopted a general rule that the employee must proffer evidence that shows each of the employer’s justifications is pretextual. Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1126 (10th Cir. 2005).

The “honest belief” rule provides that an employer’s proffered reason is considered honestly held where the employer can establish it reasonably relied on the particularized facts that were before it at the time the decision was made. Thereafter, the burden is on the plaintiff to demonstrate that the employer’s belief was not honestly held. An employee’s bare assertion that the employer’s proffered reason has no basis in fact in insufficient to call an employer’s honest belief into question, and fails to create a genuine issue of material fact.

Almost invariably proof of pretext is the single most important issue in an employment discrimination case. This is because, in most instances, an employer will offer some legitimate non-discriminatory reason to explain the adverse employment action it took. It is then up to the plaintiff to, at a minimum, show that the employer’s reason is false.

If you’ve been discriminated against, call Denver Employment Lawyer Gregory A. Hall to discuss your claim.

Gregory A. Hall
Denver Employment Lawyer
3570 E. 12 Avenue, Suite 200
Denver, CO 80206
Ph. 303-320-0584

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