Title VII of the Civil Rights Act of 1964 prohibits discrimination.  Evidence of discrimination typically includes direct evidence of discriminatiuon (e.g. use of the n- word) or circumstantial proof.  Circumstantial proof can include proof that the employer lied or mis-lead regarding its reason for termination.  Does the mere act of lying equal proof of discrimination?

For some years, courts of appeals, especially the Fifth Circuit in New Orleans applied a "pretext plus" standard.  These courts required something more than evidence of pretext.  They required some additional evidence that the employer was motivated by improper motive.  But, the United States Supreme Court overruled the Fifth Circuit and other courts who adhere to "pretext plus" in Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. (2000).  

In the Reeves decision, the Supreme Court held that mere evidence of pretext will suffice as evidence upon which the jury can infer discrimination.  See Reeves decision here.  The court found that the falsity of the employer’s explanation alone can support a finding that the employer is attempting  to cover up a discriminatory purpose.  Plaintiff Reeves had shown, said the Supreme Court, that he had maintained complete records of his attendance – even though he had been fired for allegedly failing to keep accurate attendance records. 

In Swenson v. Schwan’s Consumer Brands North America, No. SA-10-CA-00602 (W.D. Tex. 4/24/12), a San Antonio federal court court was presented with such evidence of the falsity of the employer’s explanation.   Yet, the court applied a "pretext plus" analysis and faulted the employee for not also providing evidence that the employer was motivated by discrimination.  The court should have ruled that evidence indicating the employer’s explanation was false requires that a jury determine the key factual issues.  So, the district court granted summary judgment. 

The Swenson court correctly found that the issue is not whether the employer is correct in perceiving the employee is in violation of a rule.  The key issue is whether the employer truly believes the reason is true.  Schwan’s claimed that they fired Swenson because one of his employee violated the vacation policy.  Mr. Swenson responded that the alleged policy was not a true policy, that the payroll department would implement any such policy and they did not dispute the vacation pay.  The  Plaintiff also presented evidence that the employer’s explanation for Swenson’s termination had changed several times.  This should have been enough evidence to show sufficient question regarding whether the employer’s explanation was false.  The judge should have allowed the jury to determine the truth of the matter. 

But, instead, the court disregarded this evidence and found that the employer sincerely believed the employee violated the policy.  The court required the employee to put on evidence that the employer did not truly believe its explanation.  A changing explanation ought to satisfy that sort of burden.  But, more fundamentally,  once the employee shows an explanation is false or is possibly false, then a jury should decide the truth.  Summary judgment is not appropriate when factual issues exist.  In requiring something more than mere pretext, the court is applying the discredited "pretext plus" analysis. 

The employer was accused of making several age related remarks about Mr. Swenson.  Comments referred to the Plaintiff as "my disabled dad" or requesting a "senior citizen’s menu" for the 48 year old worker.  But, the court also applied the largely discredited "stray remarks" doctrine – which requires the ageist remark to be made by the decision-maker close in time to the termination.  

The plaintiff also provided evidence that the employer did not follow its own disciplinary policies and that younger workers were treated better than the plaintiff in similar situations.  The court disregarded this evidence, essentially finding that those facts alone did not require a denial of summary judgment. 

So, even though Plaintiff Swenson provided ample evidence to justify denial of summary judgment, the court found against him.  And, jury trials become more and more rare.