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Shifting Justification for Termination Creates Jury Question Over Alleged Discrimination

    Client Alerts
  • October 22, 2010

When terminating an employee, employers need to be able to clearly answer a key question: Why is this person being fired? The answer to this question may not always be straightforward. In many circumstances, termination decisions are based on a complicated mix of factors, some of which are subjective in nature.

Failure to clearly articulate and maintain accurate reasons for termination can cause major legal problems for employers called upon to defend their decisions. An unreported case issued last month by the Sixth Circuit Court of Appeals illustrates the dangers of changing or confusing reasons given for termination before and after the action is carried out.

In Eades v. Brookdale Senior Living, Inc., the plaintiff alleged that he had been terminated in retaliation for complaining about age discrimination. He appealed the district court's grant of summary judgment for the defendant. In his appeal, Eades claimed that the employer's shifting justification for the termination decision created a material question of fact as to whether the proffered reasons were pretext for covering up a retaliatory termination.

The Sixth Circuit agreed, remanding the case for jury trial. The court noted that at the termination conference, in its response to the plaintiff's EEOC charge, and in pleadings filed in conjunction with the lawsuit, the employer offered three different reasons for the termination:  performance problems, a request by the plaintiff for a severance package and allegations that the plaintiff had wrongfully retained severance payments made by a former employer. The Sixth Circuit stated that: "An employer's changing rationale for making an adverse employment decision can be evidence of pretext."

In this case, all of the offered reasons may have contributed to the termination decision. However, the employer's failure to maintain a consistent explanation of those reasons raised questions over its actual motivation. Even if those reasons are complex, or if the employer wants to spare the terminated employee from criticism regarding the basis for the decision, it needs to be prepared to explain and to document the complete justification for the decision and to stick to its initial explanation. Failure to do so can result in a jury making the final judgment as to whether these reasons are accepted as the real justification for the termination decision.