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In most of the cases our firm’s employment attorneys handle, the issue of pretext plays a central role.  Employees and regular people don’t use the word pretext.  It is one of those legal jargon words.  What does pretext mean?  First, in plain English: “My boss lied about why I was fired;” or even, “my employer made up some bullsh!t reason for demoting me.”

Pretext is legally defined to basically be a reason for an action which is false, and offered to cover up true motives or intentions.  One way in which the plaintiff-employee may establish pre-text is to demonstrate that the defendant-employer’s stated reason for terminating him or her has changed over time. According to one U.S. Sixth Circuit (Ohio) Court of Appeals case, Thurman v. Yellow Freight Systems, Inc.: “An employer’s changing rationale for making an adverse employment decision can be evidence of pretext.”   How do you show pretext.  At trial, employment discrimination lawyers can show pretext based on (1) statistics, (2) comparators similarly situated, (3) witness statements showing bias or falsity, or (3) just simply pointing out that the stated reason makes no sense.

In another Sixth Circuit case, Asmo v. Keane, Inc., a manager gave an employee five different reasons for why she was being terminated at the time of her dismissal. The employee subsequently filed a charge with the Equal Employment Opportunity Commission (EEOC). In responding to the charge of discrimination, and later during the manager’s deposition, the company and the manager provided different reasons for why the employee had been terminated. The Sixth Circuit held that the employer’s ever-changing reasons required sending the case to a jury:

It is unclear how Santoro [the manager] initially came up with these [five] 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 … to include only those that were either circumstantially true or could not be as easily penetrated as false.

So what’s the big take-away from these two cases? Changing the reason for why an employee was terminated during the course of litigation will only hurt the employer and make it easier for the employee to establish pre-text. As an employee, however, be on the lookout an employer’s changing reason for terminating you, and be quick to jump on those changing reasons. If the employer’s reason shifts over time, it is conceivable that a jury will find pretext and conclude that discrimination, and not one of the employer’s changing reasons, motivated the decision to terminate you.

The fact that an employer lied about the reason an employee was fired, terminated or otherwise retaliated against does not create a claim, but it should give you reason to ask an employment lawyer, what the heck is going on?

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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