Employers, like anyone else, want to get things right. When issues arise it can be tempting for an employer to change course, or if an explanation for something happening is not received well it may be tempting to advance a new story. However, in the context of employment is is increasingly apparant that employers expose themselves to potential liability where their actions or representations are inconsistent among employees or over time.
One decision by the United States Court of Appeals for the Tenth Circuit (which has jurisdiction over claims arising in Utah federal court), reminds employers of the risks they face when they present shifting explanations for their employment decisions. In Juarez v. ACS Gov't. Solutions Group, Inc., the plaintiff-employee alleged he was terminated because of his race, color and national origin in violation of Title VII.
The plaintiff established that the employer prepared two different spreadsheet rankings of the employees to be terminated as part of a reduction in force. The first ranking sheet, which the employer argued was not used in the actual decision, contained two additional categories, tenure and recent performance review score, which were omitted from the second ranking sheet. Both categories omitted from the second ranking list favored the plaintiff over other employees who were not terminated. Also, contrary to the employer's assertion that one manager made the decision based solely on the second ranking sheet, the plaintiff introduced evidence that a committee made the final decision, relying in part upon a category (longevity) that was not included on the second ranking.
Affirming a verdict and punitive damages for the employee, the Tenth Circuit stated "the jury could determine that the shifting reasons given by [the employer] for [the plaintiff's] discharge were pretextual and that [the employer's] self-proclaimed merit spreadsheet, devised by its line management and human resources department, was fraudulent and merely a sham used to justify [the employee's] termination." The court noted that the company retained other non-Hispanic workers with lower recent performance evaluations, less experience, and less tenure than the plaintiff, Mr. Juarez.
This case provides a stark reminder of how important it is for employers to document accurately and completely the reasons for their employment decisions the very first time they put those reasons down on paper. Employers should not create additional or alternative methods of evaluation since this may appear to be an intentional effort to tailor criteria to a particular desired outcome.
Properly establishing and documenting employment decisions require making sure relevant management personnel know the selection criteria and the process for using them before the employer documents the final reasons for the decision. Management personnel should be applying the same principals using the smae methods uniformly across the company. Subsequent revisions to the reasons, whether pre- or post-litigation, provide easy ammunition for plaintiff's counsel, even if the employer has an innocent or good faith explanation.
However, it should be noted that both the lower and appeals court was able to find that the defendant company acted intentionally in its discrimination and that evidence presented included a site manager's derogatory remarks about Mexican employees prior to the layoff.