Many times an employer’s stated reasons for an unlawful discharge will change over time.  The first occasion an employer offers its reasons is when it fires the employee.  But, often, a supervisor will not provide any reasons at the termination.  Or, there may not be an actual face-to-face meeting when the employee is terminated. The next time an employer would have to explain its reasons for the termination is the "position statement" to the EEOC.  When a complainant files a charge of discrimination, the EEOC requires the employer to explain the circumstances of the termination.  This explanation is known as the "position statement."  

In a large corporation, the position statement is typically prepared by a Human Resources representative or the general counsel.  It is important to get the facts straight, because that position statement is part of the file forever.  It can be used to impeach the employer.  That is what occurred in Miller v. Raytheon, No. 11-10586 (5th Cir. 5/2/13).  In this case, Mr. Miller worked for Raytheon or a predecessor company for almost 30 years.  Under a new boss, he received a poor evaluation in 2007.  Mr. Miller was included in a RIF in 2008 under questionable circumstances.  He was then reviewed for other positions at Raytheon.  He was offered no other positions, even though he was qualified for several.  At a meeting with HR, he was told Raytheon could not offer him any position due to the one poor job evaluation. 

On his own, Mr. Miller applied for four positions at Raytheon but was not selected.  Mr. Miller filed a charge of discrimination with the EEOC based on age.  The employer provided a position statement to the EEOC which claimed Raytheon had a policy in which it would "search every corner of the earth" and "exhaust all opportunities to place" an individual before releasing him in a RIF.  The letter erroneously said Mr. Miller had not applied for any positions at Raytheon after he was laid off.  

Even though the position statement was sent after the layoff, the employee was allowed to use this letter at trial.  The jury found in favor of Mr. Miller and awarded him some $17 million. 

The employer moved for judgment as a matter of law seeking to overturn the jury verdict.  But, in the opinion, the Fifth Circuit said the letter presented circumstantial evidence of pretext and cited caselaw finding that evidence of dissembling alone can show discrimination.  The court noted the discrepancies in the letter.  At trial, the employee also provided evidence that two younger employees were eligible for the RIF but were not laid off.  "In totality," said the Court, this was sufficient evidence on which the jury could choose not to believe the employer’s explanation.  

The Court agreed with the employer that each piece of evidence in isolation might not support the jury verdict.  But based on the accumulation of evidence and the credibility determinations of the jury, this was sufficient evidence.  See decision here

It is rare enough that the Fifth Circuit affirms a jury verdict.  It is even more rare when the evidence is largely circumstantial.  The Court made the right call for the right reasons.  The court should indeed look at the "totality" of the evidence.  In fact, in most cases, the employer tries very hard to look at each piece of evidence in isolation.  But, terminations do not happen in a vacuum.  At least this time, the Fifth Circuit agrees.