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What does pretext mean?

In the context of wrongful termination or employment discrimination, pretext refers to a situation where an employer provides a false or misleading reason for terminating an employee. This reason is presented as the official justification for the adverse employment action (such as firing an employee based on race or national origin, demoting a worker because of gender or sexual orientation, or reducing pay based on an employee’s religion), but the reason given does not reflect the true underlying motive behind the termination. Essentially, pretext is the fancy legal word for lie.

To prove pretext in a wrongful termination case, an employee must demonstrate that:

  1. The employer’s stated reason for termination lacks a factual basis.
  2. The stated reason did not actually motivate the employer to take the adverse action.
  3. The reason provided was insufficient to warrant the termination.

In essence, pretext serves as a cover-up for discriminatory or retaliatory actions by employers. When an employee believes they were fired illegally (due to factors like race, religion, gender, gender identity discrimination, etc.), evidence of their positive performance reviews and clean disciplinary record or inconsistent actions taken by the employer can help prove that the employer’s stated reason is merely a pretext for discrimination or retaliation for opposing or reporting discrimination.

Best Wrongful Termination Attorney Blogs on Point:

Why do employers lie?

For the most part, the answer is that employers lie because they think that they can get away with it. As our lawyers can best attest, employers tend to lie often. Sometimes the boss or manager will lie because they know that they are doing something wrong as they are doing it. Sometimes, the owner or supervisor will lie to cover unlawful discrimination once they’ve been caught. Sometimes these employers lie just because they think the story will sound better or present them in a better light. And sometimes companies will lie when they don’t even have to, which brings us to Cline v. Clinical Perfusion Sys., Inc., No. 22-5107, 2024 WL 501616 (10th Cir. Feb. 9, 2024), a case in which an alleged unnecessary lie caught up with the employer.

Charles Cline is a perfusionist, which means he’s a licensed medical professional who works as part of a team that does heart surgeries. His job involves operating a heart-lung machine during surgery to keep blood flowing properly to the patient’s tissues and to control oxygen and carbon dioxide levels in the blood.

Kevin Esau and Tyler McKeon own a company called Clinical Perfusion Systems. They hired Cline in 2017 because of his impressive twenty-five years of experience and his reputation as a hardworking and skilled perfusionist.

In March 2021, Cline lost consciousness while driving in Tulsa, Oklahoma, possibly because his blood pressure dropped too low. Emergency responders had to perform CPR on him for eighteen minutes, which resulted in some broken ribs and a cracked sternum. He was taken to Saint Francis Hospital, where he stayed in the intensive care unit (ICU) until May 3, 2021, and then went through inpatient rehabilitation until June 11. During this time, he needed a ventilator to help him breathe and a feeding tube to get nutrients. He was heavily sedated and unable to communicate or take care of himself. He also experienced kidney failure, which caused swelling and weight gain.

Esau and McKeon visited Cline in the hospital and spoke with his wife, Nicole Pardini. In late April, Pardini mentioned that she had been asked to sign a “Do Not Resuscitate” form but had refused. On May 3, 2021, the same day Cline was supposed to move to rehabilitation, Esau and McKeon called Pardini to tell her they were firing Cline, claiming it was because of financial issues with their company. Pardini asked if they would keep Cline’s job open until he recovered, but they refused. Cline was sixty-one years old at the time. Despite being cleared by his doctor to return to work without restrictions on July 28, 2021, which was almost three months after being fired and four months after his health issues began, Cline still suffers from pain when speaking or swallowing. He has since moved to California, where he works full-time as a perfusionist.

Cline sued for disability discrimination under the Americans with Disabilities Act (“ADA”) for failure to accommodate and for age discrimination under the Age Discrimination in Employment Act of 1967 (“ADEA”).

Best Employee’s Rights Lawyer Blogs on Point:

How do you prove a failure to accommodate under the ADA?

To prove a failure to accommodate under the ADA, the employee must demonstrate the following elements:

  1. The employee qualifies as an individual with a disability as defined in the ADA.
  2. The employer, who is covered by the statute, had notice of the disability.
  3. With reasonable accommodation, the employee is otherwise qualified to perform the essential functions of the job at issue.
  4. The employer refused to make such accommodations.

It’s important to note that what constitutes a “reasonable accommodation” can vary and may include things like job restructuring, modified work schedules, or even reassignment. If an employer fails to engage in an interactive process to determine appropriate accommodations, this could also be seen as a failure to accommodate.

Best Disability Discrimination At Work Law Firm Blogs on Point:

How do you prove that an employee is qualified to perform the job?

Under the ADA, there’s a two-step process to figure out if a person is “otherwise qualified” for a job. First, the employee must present evidence that they can do the primary functions of their job, even though they have a disability. If the employee can’t prove this, then the court has to decide if there’s any reasonable change the employer could make (a “reasonable accommodation”) that would let the employee do those tasks.

In Cline, the United States Court of Appeals for the Tenth Circuit held that he was not otherwise qualified: “at the time of Cline’s termination, he was unable to perform the functions of a perfusionist—he was an ICU patient and heavily sedated, on a feeding tube, and unable to speak, eat, or care for himself. Therefore, Cline’s disability discrimination claim turns on whether he plausibly alleged that he could perform the essential functions of his job with a ‘reasonable accommodation.’” Id. at *5. The Tenth Circuit Court of Appeals held that in this circumstance, the only reasonable accommodation could be a shorty leave of absence, but for a leave of absence to be considered a reasonable accommodation, the employee must provide the employer an estimated return date (normally, no more than six months off) and that upon return, the employee will be able to perform the essential functions of the job. Given his condition and estimated return of more than six months, the Tenth Circuit Court of Appeals held that there was no reasonable accommodation and this claim failed.

With this in mind, had Clinical Perfusion Systems simply said that it was firing Cline because of his injuries and inability to perform his job, it would have been free of any liability. But it didn’t, which brings us to…

Best Employee’s Rights Lawyer Blogs on Point:

How do you prove a wrongful termination claim based on age discrimination?

Under the ADEA, to state a case of age discrimination, the employee needs to demonstrate four elements:

  1. Over 40: The employee must be 40 years of age or older at the time of the wrongful act in question.
  2. Qualified the Position: This involves providing evidence of skills, experience, and past performance.
  3. Adverse Employment Action: The employee must show that they experienced an adverse employment action, such as termination, demotion, denial of promotion, or a significant change in the terms and conditions of their employment. This action must have occurred under circumstances suggesting age was a determining factor.
  4. Replacement By Or More Favorable Treatment Given To Younger Individual: The employee needs to provide evidence that they were replaced by substantially younger employees, or similarly situated substantially younger employees were treated more favorably.

Once these elements are established, the burden typically shifts to the employer to provide a legitimate, non-discriminatory reason for the adverse employment action. If the employer offers such a reason, the employee may then have to show that the reason provided is merely a pretext for age discrimination.

In Cline, the United States Court of Appeals for the Tenth Circuit reversed the District Court’s dismissal of the age discrimination claim (although it is not clear how Cline could show that he was qualified for the position at the time of termination) by focusing on the causal element. Essentially, the Tenth Circuit held that because the employer asserted that the reason for termination was financial issues, evidence of pretext could allow the jury to conclude that age was a determining factor in the firing of Cline, who was 61 years old when he was fired:

Cline alleged that around the time when appellee made the decision to terminate him, appellee was in the process of hiring two younger, less qualified perfusionists to replace Cline. … This factual allegation supports the inference that Clinical Perfusion Systems’ proffered reason for terminating Cline was false, and that Cline’s age was the actual reason for his termination. These allegations are sufficient to plausibly allege that Cline’s age was a but-for cause of his termination.

Id. at *7. Thus, the unnecessary lie to make itself look better caught up with the employer. While saying that it was firing Cline because he was hospitalized and facing serious medical problems may come off as callus and heartless, it would have been legally justified and saved the employer from potential liability.

Best Age Discrimination Attorney Blogs on Point:

What should I do if I was fired because of my age or disability?

Consulting an attorney for age or disability discrimination claims is crucial due to the complexity of these cases. Attorneys have a deep understanding of the laws that protect individuals from discrimination, such as the Americans with Disabilities Act (“ADA”) and the Age Discrimination in Employment Act (“ADEA”). They can help navigate the legal process, gather necessary evidence, and advocate on behalf of the individual. Choosing Spitz, The Employee’s Law Firm, can be beneficial for several reasons. Spitz specializes in employment law, including age and disability discrimination cases. Spitz’s vast resources and experience in this field can provide valuable insights and strategies for a case. Additionally, Spitz offers a no fee guarantee, which means clients do not pay unless they win their case. This can provide peace of mind and financial security for individuals seeking justice. It’s always important to research and consult with a law firm to ensure it’s the right fit for the individual’s specific needs and circumstances.


Even the best employment lawyer websites serve as an advertisement. The wrongful termination, age discrimination, disability discrimination, and failure to accommodate resources provided on this blog and within this employee’s rights platform are intended solely for informational purposes and do not constitute legal advice. If you find yourself wondering how to locate the best attorney in your area to pursue a case against your employer for race, gender, national origin, sexual orientation, or gender identity discrimination, or what actions to take if you’ve been wrongfully fired, it is advisable to seek guidance from experienced legal professionals regarding any specific employment law matters. Utilizing or accessing this employment law website or any links therein does not establish an attorney-client relationship. Any legal viewpoints expressed on or through this site represent the opinions of the individual attorney and may not necessarily align with those of The Spitz Law Firm, Brian Spitz, or any other individual attorney.Top of Form

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