Friday, March 1, 2013

This is how pretext works under Title VII

Pretext remains the backbone of nearly every Title VII case. The plaintiff has to show that the employer's reason for mistreating her was false, permitting the inference of discrimination or retaliation. For the judge, this is not a legal question, but a factual one. Each judge brings her own views into this puzzle.

The case is Summa v. Hofstra University, decided on February 21. There are many ways to attack the employer's justifications as pretextual. Very often these efforts don't work. The plaintiff is either nitpicking or the employer genuinely had good reason to terminate or demote the plaintiff. In this case, the Court of Appeals (Raggi, Pooler and Lynch) takes the pretext analysis as far as I've seen it lately, concluding that a jury may find that a Hofstra University graduate student who also worked for the University was denied certain positions in retaliation for complaining about sexual harassment. There were three positions at issue.

1. After complaining about harassment, Summa was denied the position of team manager of the school's football team, a position she had previously held. The college argued that it was unaware that Summa wanted the position for the spring 2007 football season. However, "Summa presented evidence that she had repeatedly discussed the spring season with the football coaching staff and, more tellingly, presented an e-mail that listed her stipend for the year as 'Fall: $700 Spring: $300.'” And, the fact that Summa waited until just before the spring season to request the team schedule "corroborates her account that she had been told she had the position already lined up, thus obviating any need to contact the department at an earlier time." This is what we call drawing all inferences favorable to the plaintiff on a motion for summary judgment.

2. Summa was also denied a graduate assistantship position. The human resources director (who knew about plaintiff's sexual harassment complaint) encouraged the hiring official, Connolly, to re-interview plaintiff for the position after she had already been offered the job. HR also encouraged Connolly to then deny plaintiff the position. And, when plaintiff was told to meet with Connelly, she was not informed that the job offer was in danger of being revoked if the interview did not go well; plaintiff was simply told to "meet" with Connolly. Plaintiff was the only potential graduate assistant who had an interview with Connolly and she was the only one whose references were contacted. Contrary to its usual practice, HR also involved itself in this hiring process more substantially than usual. This kind of disparate treatment is evidence of pretext.

3. In addition, Summa was denied student employment privileges because she had double-booked some hours, contrary to the rules. But HR admitted that she had never looked into the billing practices of any other student, and student employment privileges had never been previously terminated for this practice. When double-billing had happened in the past, it was not the student but the supervisor who was terminated. So why was Summa terminated in this instance? The jury may infer retaliatory pretext.

Pretext is a funny thing. In straight disparate treatment cases, the Second Circuit remains a pretext-plus court, which means that pretext alone usually will not get you a trial, though there are some exceptions. There has to pretext plus, i.e., sexist comments or a racially-biased reduction in force. Pretext plus does not usually apply in retaliation cases like Summa v. Hofstra University, though. If the plaintiff makes out a prima facie case of retaliation, and she is able to cast doubt on the employer's justification for the adverse action, the case will probably go to trial.

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