Just How Hard is it to Prove Pretext? SDTX Holds that EEOC “Cause” Finding and Allegations of Falsified Evidence are Not Enough
On August 30, 2022, the Southern District of Texas issued its opinion in Love v. University of St. Thomas, a case that highlights the significant burden that employees must overcome in the burden shifting analysis used by courts in employment discrimination and retaliation claims. In the absence of direct evidence of discrimination or retaliation, courts follow the United States Supreme Court’s McDonnell-Douglas framework to determine whether an employer engaged in illegal conduct. Under this framework, an employee challenging an adverse employment action must first establish a prima facie case of discrimination or retaliation before the burden shifts to the employer to provide a legitimate, non-discriminatory reason for the action taken. Once the employer proffers such a reason, the burden shifts back to the employee to show that the stated reason is a pretext for discrimination or retaliation.
Love involved the nonrenewal of a faculty member’s employment contract after documented job performance issues led to the implementation of a performance improvement plan (PIP). After two months on the PIP, the University acknowledged improvement in some areas but noted continuing issues in others. Love complained to administrators that the PIP was false and racially discriminatory. The University investigated Love’s allegations but found no evidence of racial discrimination. Shortly after the investigation, the University informed Love that her employment contract would not be renewed for the following academic year.
Love filed an EEOC charge that resulted in a determination that there was “reasonable cause to believe” that the University retaliated against Love. After receiving a right to sue letter from the EEOC, Love filed a lawsuit against the University alleging discrimination and retaliation. The University sought summary judgment dismissal of Love’s claims. The court analyzed Love’s Title VII discrimination and retaliation claims under the McDonnell-Douglas framework and held that the first two steps in the framework survived summary judgment. For her claims to continue, Love needed to meet the burden imposed by the final step of the framework and demonstrate that the University’s stated reason for her nonrenewal was a pretext for discrimination and retaliation.
Pretext for Discrimination – Inference of Discrimination
Love attempted to prove that the University’s reason was pretext for discrimination by demonstrating (1) that the University’s reason was false, and (2) that she was subject to disparate treatment, alleging that other employees outside of her protected class received more favorable treatment.
The court was not persuaded by either argument. The court noted that simply proving that the University’s proffered reason was false was insufficient to establish pretext unless it was accompanied by sufficient evidence to permit “an inference of discrimination,” and held that it could not make such an inference because Love’s evidence, at most, challenged the date on which the University made its nonrenewal decision—not the reasons for the nonrenewal decision. With respect to Love’s disparate treatment claim, the court held that Love must “demonstrate that the employment actions at issue were taken under nearly identical circumstances.” The court found, however, that the comparators Love identified held different ranks, had difference background and experience, and had no record of similar conduct. Ultimately, the court held that neither of Love’s arguments raised a genuine dispute regarding the underlying reason for the adverse employment action – the continuing job performance issues.
Pretext for Retaliation – “But-For Causation”
Similarly, the court held that Love failed to provide sufficient evidence to demonstrate that the University’s reason was pretext for retaliation. The court held that Love was required to show that the protected activity—her discrimination complaint—was the “but-for” cause of the University’s employment action, meaning the University would not have taken made the decision to nonrenew her contract if Love had not complained of discriminatory treatment.
To establish pretext for retaliation, Love argued that: (1) the temporal proximity of her discrimination complaint and the decision not to renew her contract provided that the action was retaliatory, and (2) the University’s attempt to misrepresent the date on which it made the decision not to renew her contract proved that the University’s stated reason was false. The Court held that Love’s evidence was insufficient to demonstrate that the University would not have taken the adverse employment action if she had not complained of discriminatory treatment.
Takeaways for Employers
Love, and the Fifth Circuit precedent on which it relies, illustrate the significant obstacles employees face in demonstrating that an employer’s offered reason for an adverse employment action is pretextual. Love also provides guidance to employers in defending against such claims. Documentation and deposition testimony supporting the employer’s position and efforts to address job performance issues were key to the University’s success in Love, emphasizing the importance of documentation, meaningful employee evaluations, and processes to address job performance issues.