Seyfarth Synopsis: In a recent decision, the Eighth Circuit held that Title VII does not require an employer to provide an employee a reason for termination at the time of termination, and that an employer is not strictly bound in litigation to whatever reasons may have been provided at the time of termination. Rooney v. Rock Tenn Converting Company, et. al., No,. 16-3631 (8th Cir. Jan. 9, 2018).
In Rooney v. Rock Tenn Converting Company, et. al., the Eighth Circuit affirmed judgment against a former sales executive who alleged he was terminated for not being Jewish and not being female. Rock-Tenn, which makes packaging and merchandise displays for retailers, hired Rooney in March 2010 to sell its products in the Bentonville, Arkansas market. Rooney was terminated in 2015 after Rock-Tenn received multiple internal complaints, and multiple complaints from the main client whose account he serviced. Rooney was told that the reason for his termination was "difficulties with interacting with coworkers and failure to support" the client.
Rooney filed suit under Title VII, claiming that he was really terminated for not being Jewish, and that his former supervisor was "building a Jewish empire," that included his most recent supervisor and the employee who allegedly replaced him. He also claimed he was terminated for not being a woman, that he was replaced on other accounts by women, and that his supervisor made statements that she "couldn't wait until there's more ladies in the office."
Rock-Tenn moved for summary judgment and identified a number of reasons why Rooney was terminated. The district court granted Rock-Tenn's motion for summary judgment, and found that although Rooney had established a prima facie case of discrimination based on religion and sex, Rock-Tenn had articulated legitimate, non-discriminatory reasons for firing him, and that Rooney was unable to show that the reasons for Rooney's termination proffered by Rock-Tenn were pretext for discrimination.
The Eight Circuit noted that Rooney made two arguments on appeal: that the district court erred by allowing Rock-Tenn to provide new reasons for his termination in court; and that the new reasons were not credible.
Rooney argued that the district court impermissibly permitted Rock-Tenn to expand upon the reasons for his termination in the summary judgment motion. Rooney claimed that the additional legitimate, nondiscriminatory reasons proffered by Rock-Tenn increased his burden of defending against the motion for summary judgment. The Court noted, however, that Rooney's interpretation of the familiar burden-shifting framework created by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) was not as narrow as Rooney argued. Rather, the Court noted that the employer's burden under McDonnell Douglas to articulate legitimate, non-discriminatory reasons for an adverse employment action, such as termination, "does not arise when the adverse employment action is taken—rather, it is triggered during litigation, when an employee meets his burden of establishing a prima facie case of discrimination. Title VII does not impose a legal obligation to provide an employee an articulated basis for dismissal at the time of firing, and an employer is certainly not bound as a matter of law to whatever reasons might have been provided."
Importantly, the Eight Circuit noted that "it is well-established that [an] employer may elaborate on its explanation for an employment decision," and that such an elaboration–without a "substantial shift" in the employer's explanation for a termination decision–is not evidence of pretext. The key factor, according to the Court, was that there was no contradiction between the reasons provided to Rooney at the time of termination and the non-discriminatory reasons articulated by Rock-Tenn during litigation. The "additional examples of Rooney's poor performance" were not evidence of a substantial shift in Rock-Tenn's reasons for termination, and instead provided "additional justification . . . consistent with [Rock-Tenn's] proffered belief" that Rooney interacted poorly with his co-workers and failed to adequately support the client's account. This, the Eight Circuit held, is not evidence of pretext.
Finally, the Court noted that Rooney failed to offer evidence that Rock-Tenn's reasons for terminating him were pretext. Rock-Tenn provided multiple examples of Rooney's mistakes and failures, and the Court held that "nothing in Rooney's argument rebuts, or even mitigates, Rock–Tenn's evidence of repeated errors and omissions on the [client's] account, and there is nothing in Rooney's argument to suggest that Rooney was not responsible for the mismanagement."
Employers are not required to provide employees with an articulated basis for termination at the time of their termination, nor is the employer bound by the reasons that may have been provided. Nevertheless, to prepare for possible litigation, employers should decide why the employee is being terminated, keep it short, and stick to it. Managers and Human Resources personnel must remain consistent in how they describe and document termination decisions. Although employers will be able to elaborate upon the reasons for an adverse employment action in litigation, inconsistent explanations will strengthen an employee's claim of discrimination or retaliation.
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