Shifting Reasons Builds a Case with Sandy Foundations

A federal district court recently reinforced how an employer's shifting reasons for its actions may affect a discrimination case, basically, precluding summary judgment. The plaintiff, an employee, sued her employer for discrimination and retaliation in violation of Title VII and associated state law claims. The plaintiff claimed that she was transferred to a lateral position in a different division because of her gender and because she actively supported the gender discrimination claims of other employees. The County filed a motion for summary judgment. The parties conceded that the plaintiff had engaged in protected activity. One of the issues involved the shifting rationale for the action.

Because the plaintiff met her burden of proving a prima facie case of retaliation, the burden shifted to the County to offer a legitimate nondiscriminatory reason. The County offered more than one legitimate non-discriminatory reason for the transfer. The plaintiff, however, offered evidence that the County's reason for the transfer shifted over time from one reason to another. The court concluded that the shift from one reason to another was sufficient to create an issue of fact for a jury whether the non-discriminatory reasons offered by the County were pretexts for unlawful discrimination and retaliation. Accordingly, the court denied the County's motion for summary judgment.

This case is a cautionary tale for employers to give the honest, or at least consistent, reason for an employment action at the beginning, and not profer differing and conflicting reasons over time.

Coyne v. County of San Diego, No. 08-CV-639 JLS (CAB) Dec. 21, 2009

Seventh Circuit applies Gross

The Seventh Circuit overturned its precedent and held that a plaintiff in an ADA case alleging that she was discriminated against by an employer who regarded her as disabled had to demonstrate that the perceived disability was the but-for cause of the adverse employment action taken against her.

The court reasoned that the Supreme Court in Gross v. FBL Fin. Servs., had essentially held that the importance that the court attached to the express incorporation of the mixed-motive framework into Title VII suggests that when another anti-discrimination statute lacks comparable language, a mixed-motive claim will not be viable under that statute. The upshot is that unless a statute provides otherwise, demonstrating but-for causation is part of the plaintiff’s burden in all suits under federal law.

While the ADA explicitly incorporates the remedies in Title VII available for disparate impact cases, it did not expressly incorporate the codification of mixed motives liability in 42 U.S.C. § 2000e-2(m). Because the plaintiff did not demonstrate that the plaintiff's perceived disability was the but-for cause of her termination, the district court's decision that the defendant was liable for discrimination had to be reversed.

Stay tuned: we'll see how ADA amendments may alter this result in the future.

Serwatka v. Rockwell Automation Inc., No. 08-4010 (2010)