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SPLF Employment Blog

How Do You Cast Doubt on the Employer’s Reasons for Its Actions Against You?

To establish a successful discrimination case, a plaintiff must take several steps. Antidiscrimination law presents a number of issues that must be proven before a case is decided in the plaintiff’s favor. Case in point: a Texas’ woman’s Americans with Disabilities Act (ADA) case was recently resurrected by the U.S. Court of Appeals for the Fifth Circuit because the panel of appellate judges found Nicole Burton had cleared the hurdles well enough not to have her case dismissed on a motion for summary judgment (prior to a full trial on the case).

The Facts of Burton’s Case

Burton filed her case against Freescale Semiconductor Inc. and staffing company Manpower Inc.

  • She was a “temporary” worker, though she worked at Freescale from 2009 to 2011.
  • Burton worked in a production role. In 2011, she inhaled toxic chemicals at work and later suffered what she described as heart palpitations. Burton went to the emergency room at a local hospital and was cleared to return to work but later felt unwell and called out sick.
  • Freescale then decided she should no longer work there, supposedly because of performance problems.

The case claims that both companies discriminated against her because they perceived her as disabled and dismissed her in retaliation for a worker’s compensation claim (the retaliation claim was dismissed by the lower and appellate courts).

The parties went through discovery. They asked each other questions, sought information and documents, and asked witnesses from both sides questions under oath during depositions. The defendants then asked the trial judge to dismiss the case, claiming the plaintiff couldn’t succeed at trial. The trial judge agreed.

Burton appealed, and the appellate court agreed with Burton that her ADA claim should go to trial.

Burton Overcomes the Legal Challenges to Her Case

ladderThe number of issues a plaintiff needs to prove is like going up a ladder. If you make it to one step, you then must face another and another. If successful, you can eventually climb to the top. The first step Burton had to show was that the defendants were her employers, as defined by the ADA.

  • Burton found herself in the miraculous position where she was hired, had a job, and was fired, but both defendants denied they were her employer.
  • Freescale stated that she was employed by Manpower; it only decided that Burton could no longer work at its plant.
  • Manpower stated it was contractually obligated to fire Burton after Freescale’s decision. After learning of the decision, Manpower warned Freescale that the alleged performance issues were not documented and the situation was legally problematic.

­­­The appellate court found that both companies were co-employers.

The Prima Facie Case

The next steps Burton had to take were to establish a “prima facie” case of discrimination. That means she had to establish four things:

  1. that she was disabled, had a record of having a disability, or was regarded as being disabled;
  2. that she was qualified for her job;
  3. that she was subjected to an adverse employment action on account of her disability or the perception of her disability, and
  4. that she was replaced by or treated less favorably than nondisabled employees.

Of this list, Freescale only disputed whether Burton was disabled or regarded as disabled. The court found that Freescale regarded Burton as being disabled because Burton showed Freescale “perceived [her] as having an impairment” and that it discriminated against her on that basis. The company denied knowing Burton had a disability. The court didn’t buy it, asserting that it found “no shortage of contrary evidence.”

perfThe defendants next provided evidence that showed they had a legitimate reason for firing Burton. Her next and crucially important step up the ladder was to show enough evidence that the claimed reasons were “pretext” and not legitimate or true. Freescale offered the following particulars:

  • A 2009 performance review showed that Burton received critical work assessments with evidence of poor work performance.
  • A later performance review showed Burton had “snapped at” a trainer and “tend[ed] to wander out of the work area.”
  • In January 2011, Burton broke a wafer containing computer chips.
  • On June 28, 2011, Burton used the Internet while at work.
  • In her final performance review and e-mails dated in July 2011, Burton improperly leaned on workstations, failed to keep her nose covered, failed to escalate issues, and failed to proactively complete tasks absent direction between April and June 2011.

Again, the court was not buying what Freescale was selling.

  • The allegations in the final review and in the e-mails were based on alleged incidents that occurred after Freescale decided that Burton should be fired, so they couldn’t be used as a defense. Freescale decided Burton should be removed from the plant in late June 2011, but that wasn’t actually done until a month later.
  • cherrypickThe decision stated that Freescale’s reliance on the prior performance reviews was “facially dubious.” The company “cherry picked” criticisms in reviews that were positive overall. In the first review, Burton rated “Exceeds Expectations” in two categories and “Below Expectations” in one (attendance, unrelated to the firing). In the second, she scored “Meets Expectations” in every category.
  • The court didn’t find credible the claim that issues in 2009 and 2010 reviews played a role in a 2011 firing.
  • The wafer was broken six months prior to her firing, so it wasn’t seen as serious enough to justify her firing.
  • The Internet use is disputed, and Freescale’s witnesses were contradictory as to whether it was discussed before Burton was fired.
  • The court found the defendants’ response to Burton’s original complaint to the Equal Employment Opportunity Commission (EEOC) misleading because it included allegations of performance problems after the decision was made to remove her from the plant. “(A) purported reason for a decision that postdates the actual decision is necessarily illegitimate… This is true as a matter of law but also as a matter of common sense.”
  • The defendants’ explanations for their actions that they gave to the EEOC and that they introduced during litigation were inconsistent.

The court remanded the case back to the district court for a trial, where the biggest step for Burton is surmounting her burden of proving that it’s more likely than not that the defendants violated the ADA when they fired her.

Summing It Up

A successful discrimination lawsuit is like climbing a long ladder while defendants try to shake you off it. As this case shows, you should keep three facts in mind as a plaintiff:

  • even if your employer may have some legitimate criticism about your work, that doesn’t mean a lawsuit will fail;
  • your case has several elements to it, and you must prove each one; and
  • skilled legal representation can help poke holes in the defendant’s case and possibly lead to a positive outcome.

If you believe that you’ve been discriminated against at work and have questions about the law or how litigation works, contact our office so we can talk about what happened, review the applicable laws, and discuss how your legal rights can be protected.




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