Recent Fifth Circuit Opinion Emphasizes the Need for Employers to Provide Consistent Reasons for Employment Decisions.
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* The M3Law Labor & Employment Update focuses only on significant developments in labor and employment law, and therefore it is unusual for the Update to be issued twice in one month. However, a recent important decision by the U.S. Fifth Circuit Court of Appeals prompts us to issue this alert on the heels of our last alert regarding a significant ADA decision. (See “Recent Case Reminds Employers of the Need to Make ‘Reasonable’ Medical Judgments in ADA Cases.”).

During the course of an employment dispute, there will be multiple occasions in which the employer or its witnesses must discuss the employer’s legitimate, nondiscriminatory reason for the employment decision. As highlighted by a recent opinion from the U.S. Fifth Circuit Court of Appeals, variations in an employer’s explanation can sometimes suggest pretext. Such a finding will preclude summary judgment of an employment lawsuit and lead to a jury trial, even if the employee presents no evidence of discriminatory animus. Burrell v. Dr. Pepper/Seven Up Bottling Group, Inc., Case No. 06-10267 (5th Cir. Mar. 20, 2007).

The Burrell case involved a claim by an African-American Purchasing Manager that he was not promoted to Vice President of Purchasing because of his race. The employer responded that the employee had not received the promotion for a legitimate, nondiscriminatory reason, although the employer’s phrasing of the reason changed over time. When the employee filed his charge with the EEOC, the employer responded that he had not received the promotion because he had less “purchasing experience” than the person ultimately hired. When the employee subsequently filed a lawsuit, the employer filed a motion for summary judgment in which it successfully argued that the employee had not received the promotion because he had less “bottling experience.” Then, when the employee appealed, the employer argued that the promotion was denied because the employee had less “purchasing experience in the bottling industry.”

In response, the employee argued that in fact he had more “purchasing experience in the bottling industry” than the person ultimately selected for the job. The court of appeals agreed with the employee and held that the employee’s proof of his greater “purchasing experience in the bottling industry,” coupled with the employer’s inconsistent explanations, could allow a jury to find that the employer was lying and that discrimination was the real reason the employee did not receive the promotion. Thus, the court reversed the grant of summary judgment and sent the case back to the trial court.


The Bottom Line for Employers
This case demonstrates the scrutiny to which employers’ explanations can be subjected by the courts. Employers must take care to provide a consistent, defensible explanation for an employment decision at every turn, including, for example, at the time of the decision, in the employee’s personnel file, in a grievance proceeding, in an unemployment compensation appeal, in a position statement to the EEOC, or in subsequent litigation. This means that employers should carefully consider the reason for an employment decision—including consulting with legal counsel when appropriate—before a decision is made or communicated to the employee, and then be prepared to defend that reason throughout the dispute.   
 

*  Muskat, Martinez & Mahony, LLP represents employers in labor and employment law matters.  For more information, visit our website at www.m3law.com, or contact any of our partners:
 
Mike Muskat, (713) 987-7851, mmuskat@m3law.com
Samantha Martinez, (713) 987-7852, smartinez@m3law.com
Michelle Mahony, (713) 987-7849, mmahony@m3law.com