Pretext and the shifting explanation

In order to win an employment discrimination case, you have to show the employer's stated reason for your termination or demotion was a pretext (or a cover-up) for discrimination. Pretext is sometimes enough to support an inference of discrimination. As the Supreme Court observed in St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993), "the factfinder's disbelief of the reasons put forward by defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination."

There are many ways to prove pretext. One method is by showing that the employer's stated reason for plaintiff's termination shifted over time. The logic of citing the shifting explanation seems obvious. If the first justification was truly the real reason, the employer would not have to change that justification after the lawsuit was filed. Evidence of shifting explanations can go a long way toward winning the case. In EEOC v. Ethan Allen, 44 F.3d 116 (2d Cir. 1994), the Second Circuit held that the plaintiff could win his age discrimination case solely on the basis of the employer's shifting reasons for plaintiff's termination.

For plaintiffs, there are limits to the shifting explanation theory of pretext. In Liebowitz v. Cornell University, decided on October 23, the Court of Appeals did reverse summary judgment on the plaintiff's gender and age discrimination claim on the basis of much pretext for Cornell's refusal to renew Liebowitz's contract as a professor at the School of Industrial Relations. My write-up on the Liebowitz ruling is here. But in a footnote, the Second Circuit reigns in the shifting explanations strategy in ruling that it only works when the employer's reasons are dramatically different over time. Footnote 6 reads:

Plaintiff argues that “Defendants’ proffered reasons for terminating Plaintiff’s employment have changed over time” and “[s]uch changes support the inference that Defendants’ explanations are pretextual.” (Plaintiff’s Brief on Appeal, at 57.) Specifically, plaintiff submits that defendants have argued, at various stages in the litigation, that they did not renew plaintiff’s contract because (1) it was a “good investment,” (2) budgetary exigencies required it, and (3) she asked for more travel compensation than they were willing to provide. Although these justifications are not identical, all relate to the alleged financial burden of renewing plaintiff’s contract; in contrast, in the cases where we have found that variations in the employers’ professed reasons gave rise to an inference of pretext, those reasons were radically different. See, e.g., Carlton v. Mystic Transportation, 202 F.3d 129, 137 (2d Cir. 2000) (employer first cited declining profit as the motivation for claimant’s dismissal, then in litigation relied upon claimant’s poor job performance); EEOC v. Ethan Allen, Inc., 44 F.3d 116, 120 (2d Cir. 1994) (employer stated during agency investigation that employee’s discharge was due to decrease of duties assigned to his position, but then stated at trial that employee’s qualifications were found lacking). Thus, pretext is not inferable from a shifting of rationales here.