It is a strange ruling in Alkhwaldeh v. Dow Chemical Company, 851 F.3d 422 (5th Cir. 2017). The three judge panel consistently refers to Mr. Alkhwaldeh by his first name, Ammar, not by his last name. The opinion also recognizes  that the employer provided inconsistent explanations for the termination, but disregards those inconsistencies. Dow Chemical claimed it fired Mr. Alkhwaldeh because of poor performance in 2009 and because he failed to complete a Performance Improvement Plan in 2010. But, as Dow employees pointed out, Mr. Alkhwaldeh would not still be employed if he did not successfully complete his PIP. The court disregarded that inconsistency by pointing to “numerous” other factors, such as the strength of his prima facie case, the probative value of the proof that the employer’s claim was false and “any other” evidence that supports the employer’s case.

The court then explains that the ultimate question is not about pretext but whether a reasonable fact-finder could conclude that the employer would have fired the employee “but for” his opposition to discrimination. Mr. Alkhwaldeh had expressed that he believed he was the victim of discrimination back in November, 2009. The plaintiff is Moslem, so doubtless he was subject to many anti-Moslem jokes.

But, the decision is simply wrong. Pretext alone is sufficient basis upon which a jury can conclude that an improper motive played a role. We have known that since the decision in Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 (2000) (Even if a plaintiff offers only indirect evidence, that may be sufficient basis on which a jury may infer discriminatory motive. Proof that the employer’s explanation is unworthy of credence is one form of of circumstantial evidence that is probative of intentional discrimination, and it is one form that can be quite persuasive). It is also unfortunate that the court essentially engaged in fact-finding when it concluded that the plaintiff’s evidence of pretext was not sufficient to overcome the alleged “other evidence” in the employer’s case. Weighing evidence is not appropriate for summary judgment.

But, it appears the employee received his low performance rating in October, 2009, just a month before he was subjected to overt comments about his religion. So, his complaint about discrimination came after the poor rating. That timing issue may have affected the rest of the court’s analysis. This decision reminds us that some courts are reticent about relying too heavily on inconsistent explanations for a firing. Ito seems to me that some courts sympathize with HR departments in responding to EEOC charges. Perhaps, some judges see those departments as over-worked. I think any such sympathy would be discounted if those judges had met with terrified victims of those HR departments and managers who acted with illicit motives. And, one has to wonder how careful the panel was if the court did not understand which name was the employee’s last name. This was also one of those very rare cases in which the EEOC found in favor of the employee. Such a finding is almost as rare as snow in July. One would think such a case would be impervious to a motion for summary judgment. See the decision here.

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