It only took the U.S. Ryder Cup team a few holes in the pouring rain Friday to realize that their rain suits were not as water-tight as they had hoped. Cold and wet, they had to resort to new gear bought off the rack from the merchandise tent. Thankfully for his team, Corey Pavin was able to take a do-over.
When you terminate an employee, though, you only get one shot. The reason you provide at the time of termination—whether communicated to the employee or merely internally documented—is the only reason that will matter in a subsequent discrimination lawsuit. If you try to change that reason down the road, you will open yourself up to a claim of pretext that could doom your defense.
For a textbook example of how shifting or changing rationales can sink your defense, I’ll leave you with Cicero v. Borg-Warner Automotive, Inc. (6th Cir. 2002). In that case, the employer provided three different reasons for the plaintiff’s termination—one at the time of firing, another in answering interrogatories, and yet another in responding to Cicero’s summary judgment motion. The court concluded that the changing explanations provided sufficient evidence of pretext from which a jury could infer discrimination:
An employer’s changing rationale for making an adverse employment decision can be evidence of pretext…. Shifting justifications over time calls the credibility of those justifications into question. By showing that the defendants’ justification for firing him changed over time, Cicero shows a genuine issue of fact that the defendants’ proffered reason was not only false, but that the falsity was a pretext for discrimination….
While the Court does not question business decisions, the Court does question a defendant’s proffered justification when it shifts over time. When the justification for an adverse employment action changes during litigation, that inconsistency raises an issue whether the proffered reason truly motivated the defendants’ decision.