In 2005, the Fourth Circuit Court of Appeals (which includes North and South Carolina) decided in the Miles v Dell, Inc. case that terminated plaintiffs can in some limited circumstances allege sex discrimination under Title VII even if they were not replaced by someone of the opposite gender. If a different decision maker hired a replacement worker of the same gender, the plaintiff can still contend that the termination decision was motivated by gender. Last week, the Fourth Circuit expanded its reasoning in Miles to allow a sex discrimination claim by a female employee. In this case, after the employee was terminated, her division’s management team, including the persons who made the decision to fire her was replaced. The new management team hired a male to assume her job duties. The employer argued that under Miles, the replacement decision by the subsequent management team was irrelevant to the plaintiff’s claims of discrimination.
The Fourth Circuit agreed, but still reversed a grant of summary judgment for the employer. While the court agreed that the hiring decision by the new managers was not evidence of sex discrimination on the part of the employer, it concluded that the lower court erred by dismissing the plaintiff’s case for this reason. Under Miles, the plaintiff could claim discrimination without having to show that she had been replaced by a male. She was able to make out a prima facie case of gender discrimination through evidence of discrimination involved in the termination decision without reference to any replacement employee issue.
In making this decision, the Fourth Circuit heavily relied upon an e-mail sent by the division head making the termination decision to his superior. In this e-mail, the division head said that he had made the decision to lay the plaintiff off for economic reasons. He then asked permission to immediately hire a male employee to replace her. In response, his superior advised that because the justification for the termination was economic redundancy, he could not hire any replacement for the position for at least six months. The Fourth Circuit viewed this communication as sufficient evidence of pretext in the termination decision to allow the claim to go to a jury. Managers must understand that if they base a termination decision on non-performance economic reasons, evidence that the employee is or should be replaced will raise serious questions over the actual motivation for the termination decision.