All sorts of pretext revive age discrimination case

Without a smoking gun, you are going to need circumstantial evidence to win an employment discrimination case. That's accomplished by casting doubt about the employer's reason for terminating the plaintiff. We call it pretext. And sometimes it's nice to have the various methods of pretext in one case, for easy reference.

The case is Weiss v. JP Morgan, decided on June 5. Weiss claimed age discrimination. The district court granted summary judgment, and the Court of Appeals (Pooler, Hall and Sweet) reversed in an unpublished ruling.

After noting that evidence of pretext is often enough for the plaintiff to win at trial (see, Reeves v. Sanderson Plumbing, 530 U.S. 133, 149 (2000)), the Court of Appeals puts JP Morgan's reason for terminating Weiss on the table before it dissects that reason: after Weiss's sales team complained about his leadership, management decided that the team had lost confidence in Weiss. On its face, this reason is legal. But that's not how the pretext inquiry works. The question really is whether a jury could find that this reason was advanced in bad faith.

Citing DeMarco v. Holy Cross High Sch., 4 F.3d 166, 171 (2d Cir. 1993), the Court notes that "The pretext inquiry may also involve 'factual questions such as whether the asserted reason for the challenged action comports with the defendant’s policies and rules, whether the rule applied to the plaintiff has been applied uniformly, and whether the putative non-discriminatory purpose was stated only after the allegation of discrimination.'” The Court also reminds us that we should carefully scrutinize management's subjective reasons for terminating an older employee. Under Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 104-06 (2d Cir. 2001), without that skepticism, "(1) any defendant can respond to a discrimination charge with a claim of some subjective preference or prerogative and, if such assertions are accepted, prevail in virtually every case and (2) a discriminatory consideration such as age could play into the formation of subjective impressions.”

So, while Weiss's team complained about their compensation, management had reason to know that these people often complained about bonuses, and that Weiss was not responsible for the payouts in any event. One witness testified, "in our business everybody always believes that they don't get paid fairly because that's the ... nature of investment banking."

Another way to prove pretext is through evidence that the plaintiff's alleged performance deficiencies were not brought to his attention. This omission suggests that the problem was not that serious and it may even have been a red herring. That's what happened here. Management said that Weiss was fired because he did not cover accounts. But Weiss was not confronted about this problem. He also said that he could have covered accounts if management asked him to, and that he had done it before.

Weiss has even more pretext. Citing Byrnie v. Town of Cromwell, the Court of Appeals says that Weiss was fired "under the abrupt and unusual circumstances suggesting discrimination." First, Weiss was far more qualified for his position than his younger successor, McCann. A high ranking JP Morgan official once announced that Weiss was "the best in the world at what he does." McCann, however, had no prior supervisory experience in the industry, and his job interview did not cover his qualifications. Citing Ash v. Tyson Foods, 546 U.S. 454 (2006), the Court of Appeals notes that "a disparity in qualifications may point to discrimination."

Yet another reason why JP Morgan has offered pretextual reasons for Weiss's termination is that it offered "shifting explanations" for this decision. The Court of Appeals from time to time relies on this theory in holding for employment discrimination plaintiffs, see, Carlton v. Mystic Transportation, 202 F.3d 129, 137 (2d Cir. 2000) and EEOC v. Ethan Allen, 44 F.3d 116, 120 (2d Cir. 1994). Shifting explanations are present in this case as management at one point relied on the justification that Weiss's team needed "change" and his job was eliminated. Not only were these explanations false, but they were quite different from the reason invoked on the motion for summary judgment.

We're not done, though. The Court of Appeals further relies on the "deviation" theory of pretext, which means that if management's decision to terminate the employee deviates from its usual practice or procedures, the jury could find that it cut corners to reach that decision in order to push the employee out the door. That's the rule in Stern v. Columbia College, 131 F.3d 305, 313-14 (2d Cir. 1997). Evidence that management did not give Weiss a chance to improve his performance prior to termination cannot be explained away on a motion for summary judgment; the jury has to decide if departing from that practice in firing Weiss is additional evidence of discrimination.

Finally, there actually was some direct evidence in this case, though it's not really direct evidence of discrimination, but a "stray remark" which by itself is not enough to win. Someone in human resources said that Weiss was not the "positive energized leader" that his department "needs at this time." The Court of Appeals deems this an "oblique" comment. But in the context of all the pretext, this statement takes on a different light and it could be regarded as "a euphemism for youthful."