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Mar 24, 2015

Eighth Circuit Court of Appeals Reaffirms Requirement of Substantial Evidence of Pretext in Employment Retaliation Claims

ABSTRACT: Eighth Circuit affirms summary judgment for Employer on a retaliation claim, absent evidence of pretext.

The Eighth Circuit Court of Appeals recently upheld a Western District of Missouri Court’s grant of summary judgment on an employee’s retaliatory termination claim against the Internal Revenue Service. The plaintiff employee was hired as a full-time season tax examiner in Kansas City, Missouri, and his employment with the IRS was subject to the completion of a one-year probationary period. During his probationary period, the plaintiff was observed having claimed other employees’ work as his own, and putting forth work product in which more than 50% of the tax documents were processed incorrectly. The plaintiff was advised that he would be removed from his position unless he chose to resign.   The plaintiff then delivered a letter to his local union representative alleging that his first-level supervisor would constantly tell him how good she looked because she worked out at the gym and would put down other women at the IRS for being overweight. The letter was entitled “Sexual Harassment, Retaliation, Harassment, and Creating a Hostile Environment.” A follow-up investigation of the plaintiff’s claims by the IRS concluded that the claims were unfounded. The IRS then terminated the plaintiff for the singly stated reason that he failed to attain a fully successful level of performance during his probationary period. The plaintiff subsequently sued in federal district court alleging, among other things, race and sex discrimination, and retaliation with regard to his termination. The district court granted summary judgment on all claims, and the plaintiff appealed the ruling on his retaliatory termination claim.

In order to survive a motion for summary judgment, even after a plaintiff in a retaliatory termination claim establishes a prima facie case, once the employer articulates a legitimate reason for its actions, the employee must further show that the proffered non-retaliatory reasons for his termination were pretextual. As stated by the Eighth Circuit, proof of pretext “requires more substantial evidence” than a prima facie case “because unlike evidence establishing a prima facie case, evidence of pretext. . . [and retaliation] is viewed in light of the employer’s justification. Logan v. Liberty Healthcare Corp., 416 F.3d 877, 881 (8th Cir. 2005). To demonstrate the presence of a material question of fact, a plaintiff may succeed indirectly by showing the proffered explanation has no basis in fact; or, second, a plaintiff can directly persuade the court that a prohibited reason more likely motivated the employer. As noted above, the IRS offered poor job performance as the reason for termination. In response, the plaintiff argued that the IRS did not actually have concerns about his performance, in that the allegations of claiming credit for others’ work were removed from his personnel file. Accordingly, the plaintiff argued, the allegations against him should be taken as pretext because they changed over time. The Eighth Circuit recognized that although such “shifting justifications” can be used to show pretext, the plaintiff failed to show the justification actually shifted. Indeed, the court recognized that merely knowing the IRS had two concerns and only listed one in the termination letter was not enough to find pretext based on shifting explanation.

The plaintiff further argued that the proximity of time between when he made his allegations of harassment and when he was terminated was sufficient to establish pretext. The Eighth Circuit rejected this argument, noting that the timing of the discharge should be evaluated in light of other evidence, or lack of other evidence in the record. Because the plaintiff failed to put forth any other evidence to support pretext the Eighth Circuit upheld the grant of summary judgment in favor of the IRS.

Unfortunately, it is not all that uncommon for an employee to make unsupported allegations of discrimination and harassment immediately, after being advised of his termination for poor performance.  The Eighth Circuit’s ruling properly concludes that employee claims must have proper evidentiary support, if the plaintiff is to avoid summary judgment.

[Case citation: Gibson v. Geithner, 776 F.3d 536 (8th Cir. 2015).]