Strong pretext will get you a discrimination trial

It's fair to say the Second Circuit is a pretext-plus court when it comes to employment discrimination. This means that if the plaintiff belongs to a protected class and the employer offers a false reason for her termination or demotion, she can't win the case without showing that the false reason is pretext for discrimination. A bad faith excuse for the adverse job action is usually not enough. There has to be some evidence pointing specifically to racial or gender discrimination. That's the rule in Fisher v. Vassar College, 114 F.3d 1332 (2d Cir. 1997). Fisher remains good law even after the Supreme Court appeared to reject "pretext plus" in Reeves v. Sanderson Plumbing, 530 U.S. 133 (2000). The Second Circuit said so in James v. New York Racing Association, 233 F.3d 139 (2d Cir. 2000).

Pretext-plus is not always the rule in the Second Circuit. Every now and then, the Court of Appeals vacates summary judgment in an employment discrimination case solely on pretext. The Court does not emphasize this deviation; it will just quietly issue a ruling as if Fisher v. Vassar never happened. This all brings us to DeMarco v. Stony Brook Clinical Practice Management Plan, a summary order issued on October 8.

DeMarco applied for a position at Stony Brook and, according to the opinion, she falsified her employment history. The trial court ruled that this meant she was not qualified for the position. The Court of Appeals says the falsification does not mean she is not qualified; she is qualified if she has the necessary skills for the position. The falsification is not irrelevant, however. It can win the case for Stony Brook if she was denied the position for that reason.

DeMarco claimed she was denied the job because of her pregnancy and also in retaliation for having brought a prior discrimination case against a different employer. The Second Circuit's brief opinion does not suggest that management cited her pregnancy or prior lawsuit or any other smoking gun (such as a sexist comment during the job interview) that would expressly support a discrimination claim. (That is the kind of evidence that would satisfy the "pretext plus" standard under Fisher v. Vassar). Instead, the Court of Appeals sends the case back for trial because the jury can find that management really didn't care about DeMarco's alleged dishonesty. Here is how the Court of Appeals puts it:

Drawing all reasonable inferences in DeMarco’s favor, the evidence could support a jury’s conclusion that CPMP decided not to hire her either because of her pregnancy or because of her lawsuit. Specifically, this conclusion could be based on the evidence (1) that Research Foundation’s Assistant Vice President for Human Resources suggested that CPMP could employ DeMarco as a data analyst briefly, despite knowing of her alleged dishonesty; (2) that Darren Mikalsen, one of the supervisors for the data analyst position, upon learning of DeMarco’s prior employment, told DeMarco that it would not be a problem; and (3) that CPMP back-dated documents indicating that DeMarco had poor references. Thus, summary judgment was not appropriate.

So there is nothing specifically pointing to pregnancy discrimination or retaliation for filing a past lawsuit. What we do have is three examples of pretext, that management was willing to overlook the dishonesty. Not pretext-plus, but a strong showing of pretext. The Court of Appeals does this from time to time. A strong showing of pretext will get you a trial on your discrimination claim.