Let’s start our scenario with the fact that the employee has been fired – it does not matter if it is based on race discrimination, gender discrimination, national origin discrimination, religious discrimination, disability discrimination, or retaliation for taking family medical leave or filing a Worker’s compensation claim. Fired is fired. Our employment law lawyers understand this.
Next fact, the “brilliant” boss for the employer lists as many reasons as possible for the termination, thinking that at least one of these will stand up to scrutiny.
Maybe the employee will go quietly into the night of unemployment, overwhelmed by the accusations instead of doing what they should: Call The Right Attorney.tm But, for our facts, the employee calls the right attorney for the free initial consultation. The our employment discrimination attorneys see all the different excuses by the “brilliant” boss and smile.
It gives us more targets to hit to show pretext. If we can call one or two reasons into question (not disprove – just create a question of fact), then the other reasons are also tainted. Also, our employment attorneys know that employers have a difficult time staying consistent. Employers list a different set of reasons in challenging unemployment, or to the EEOC or in response to our lawsuit. Moreover, the larger the list, the harder it is for various management members to be consistent at deposition.
In Asmo v. Kean, Inc., the Sixth Circuit Court of Appeals explained the real idiocy by the “brilliant” boss:
“An employer’s changing rationale for making an adverse employment decision can be evidence of pretext.” Thurman v. Yellow Freight Sys., Inc., 90 F.3d 1160, 1167 (6th Cir.1996), amended on other grounds, 97 F.3d 833 (6th Cir.1996) (order). Here, the inconsistencies in Keane’s stated reasons for terminating Asmo’s employment after she initiated this lawsuit and the reasons Santoro gave her over the phone are probative of pretext. The two reasons that Santoro initially offered Asmo that were then eliminated at the commencement of this lawsuit, that Asmo’s salary was higher than the other SGA recruiters and that her expenses were higher than the other SGA recruiters, are false. The other SGA recruiter with the least seniority who started working the same day as Asmo, Jennifer Bowman, was paid about $5000 more than Asmo. Additionally, SGA recruiters’ expenses were not tracked, and thus the expenses of the various recruiters were unknown. It is unclear how Santoro initially came up with these reasons for termination, but the fact that they were later eliminated, and they happen to be the two reasons that Santoro gave that are false, is very suspicious. It appears that Santoro offered any and all reasons he could think of to justify his decision to Asmo, whether or not they were true. Once a lawsuit was filed and Keane knew the reasons would be subject to scrutiny, it changed the justifications offered for Asmo’s termination to include only those that were either circumstantially true or could not be as easily penetrated as false. This change in rationale is suspicious and is evidence of pretext.
Does this mean that the discriminated employee wins case? No. It means that the case moves past summary judgment (dismissal by the judge on the law) and can go to a jury. But, this is a win. At this point, everyone knows that juries hate employers and especially those that lie and change their story. This means that the settlement value of the case just went up or the “brilliant” boss gets to sweat while explaining his tactics to a jury.
American with Disabilities Act (“ADA”)
Family Medical Leave Act (“FMLA”)
Ohio’s Workers’ Compensation – R.C. § 4123.90
If you even think that your employment rights have been violated or that you might need an employment lawyer, then call the right attorney to schedule a free and confidential consultation at 866-797-6040. Spitz, The Employee’s Law Firm is dedicated to protecting employees’ rights and solving employment disputes.
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