It may be that a “[c]ontradiction is not a sign of falsity, nor the lack of contradiction a sign of truth.” BLAISE PASCAL, PASCAL’S PENSÉES 104 (E.P. Dutton & Co., Inc. 1958) (1670). But under the Age Discrimination in Employment Act … a contradiction of the employer’s proffered reason for the termination of an employee is sometimes enough, when combined with other evidence, to allow a jury to find that the firing was the result of unlawful discrimination.
So began a recent decision by the Eleventh Circuit of Appeals, Kragor v. Takeda Pharmaceuticals America, Inc. (11th Cir., December 20, 2012) in which the appellate court reversed the trial court’s decision granting summary judgment to the employer. The employee presented evidence that the supervisor who had terminated her for an alleged violation of company policy later admitted that she had done nothing wrong. Although the supervisor denied making this admission, the Eleventh Circuit ruled this is a factual issue that will have to be decided by a jury. More likely, the parties will reach a six-figure settlement before it reaches a jury.
The basic facts of the Kragor case are not uncommon. An employer fires an employee, telling him the reason is X. The employee sues the employer for discrimination, produces evidence that X is not accurate, or that other employees guilty of X have not been terminated. There is evidence that the employee was terminated for Y and Z as well. But the employer cannot get the case dismissed on a motion for summary judgment because its reason for terminating the employee has been called into doubt. A jury will decide whether the real reason for the termination was discrimination.
Why does this happen so frequently? In my experience, it is because employers are often reluctant to tell employees the full, unvarnished truth about why they are being terminated. Usually the reasons are lawful, but there are often multiple reasons, and often they are unpleasant to deliver. Maybe the employee is not well-liked by his co-workers. Maybe he is thought to be incompetent. Perhaps he is viewed as abrasive by upper management. Maybe his customers have dropped hints they no longer want him on their account. Perhaps he had one too many drinks at the Christmas party and was overly friendly toward the CEO’s college-age daughter. These are all legitimate, nondiscriminatory reasons for terminating an employee. But it so much easier to tell the employee that he is being terminated for flagging sales numbers, or because his position is being eliminated. Easier, that is, until the employee sues for discrimination, proves that his sales numbers were actually better than two of his co-workers, and that he was actually replaced by someone 10 years younger. Now you have a problem.
Telling an employee the true reasons for his termination (provided those reasons are lawful) will avoid this problem. Sure, the termination meeting may be unpleasant. The truth is uncomfortable for both the deliverer of the message and the recipient. But you owe it your company to deliver the true, unvarnished reasons for terminating an employee. In an employment discrimination case, the truth really will set you free.