The United States Supreme Court long ago realized that discrimination in the workplace occurs beneath the surface, as subtle as it is pernicious.

How does a victim of discrimination prove the discrimination occurred when there is no smoking gun email or admission by an employer?

The Supreme Court’s decision in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) lays out a three step “burden shifting” framework by which an employee can prove intentional discrimination solely through “circumstantial evidence.” Once the employee makes a preliminary showing of basic elements present in virtually any discrimination case, the employer must come forth with a “legitimate non-discriminatory reason” for the termination, which is also routinely met. The rubber meets the road in the third phase of the burden shifting process when the employee must show that the employer’s asserted reason for termination is “pretextual.”

How Can An Employee Show Pretext?

There are many ways an employee can show pretext, but it is most typically done by poking holes in the Company’s asserted reason for termination in such a way that a judge or jury can (1) disbelieve the employer’s articulated legitimate reasons, or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s action. Importantly, once the employee has established sufficient pretext evidence, a judge or jury can infer a discriminatory motive, even without additional evidence of bias.

A good example of how to prove pretext with varying statements and inconsistent evidence is illustrated in the Third Circuit Court of Appeals’ recent decision in Cullen v. Select Medical Corp., No. 18-2912 (3rd Cir. August 22, 2019). The plaintiff in that case, Frederick Cullen, was fired by his employer, Select Medical Corporation, in early 2016 following his use of an extended medical leave to recover from heart surgery. Mr. Cullen filed suit under the Americans with Disabilities Act and Family Medical Leave Act alleging he was fired in retaliation for taking that medical leave. The Court held that “although the evidence shows that Select Medical considered firing Cullen before it (or even Cullen) knew that he had any medical issues, its explanation for his firing shifted over time.”

Select Medical's Shifting, Inconsistent Explanations

• In its interrogatory responses, Select Medical said his performance was a factor. Yet in deposition, the Company’s witnesses testified performance was not a factor.
• Select Medical’s interrogatory responses shifted its story on who decided to fire Mr. Cullen. The interrogatory responses claimed two managers decided to fire Mr. Cullen with approval from an executive and HR. However, in their depositions, all but one manager disavowed having deciding to fire him.
• Select Medical also offered inconsistent explanations of when the decision to fire Cullen was made. Its interrogatory response claimed the decision was made before the medical leave, but the actual witnesses claimed the decision was made after.

Accordingly, the court held, “Select Medical’s explanations for Cullen’s firing were varied enough to undermine its legitimate, non-discriminatory reason for his termination.” The Circuit Court then reversed the district court’s dismissal of Mr. Cullen’s case on summary judgment, and sent his case to a jury trial.