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To politely correct the Third Circuit August 17, 2015

Marble courthouse building facade in black and white.The plaintiff in Jones v. Southeastern Pennsylvania Transp. Authority, — F.3d — , 2015 WL 4746391 (August 12, 2015) brought a retaliatory discharge claim. The employer asserted that it fired the plaintiff for falsifying time sheets. The plaintiff argued that she was fired for prior protected activities. One of the plaintiff’s arguments was that she had not falsified her time sheets. In other words, she directly challenged the employer’s termination reason and argued that it was objectively false. In a regrettable misstatement of the law, the Third Circuit wrote that “showing that an employer incorrectly found an employee guilty of misconduct is insufficient to prove retaliation….” In fact, however, proof that an employer’s reasons are false is strong circumstantial evidence of retaliation.

The Third Circuit has long held that summary judgment is improper when the plaintiff contradicts the core facts underlying an employer’s termination decision.  Tomasso v. Boeing Co., 445 F.3d 702, 707 (3rd Cir. 2006); Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 331 (3rd Cir. 1995) (reversing summary judgment for employer where employee cited specific examples where employer’s criticisms were erroneous and misplaced).

In Tomasso, the plaintiff pointed to specific falsities, errors and misplaced criticisms in the employer’s articulated reason for the plaintiff’s lay-off. The decisionmaker claimed that the plaintiff lacked interest in performing PVA inspections, but the plaintiff testified that was false. Tomasso, 445 F.3d at 707. The decisionmaker faulted the plaintiff for not attending a training session, but the plaintiff testified that attendance was not mandatory, and that he was having health problems at the time. Id. at 707-708.  The decisionmaker testified that the plaintiff did not engage in PVA transition activities, yet the plaintiff testified he was one of only a few employees who participated in such activities. Id. at 708.

The Third Circuit concluded that the decisionmaker and the plaintiff were telling “radically different” stories and that “[a] fact finder who credited [the plaintiff’s] testimony could conclude that [the decisionmaker] gave him acceptable evaluations for his PVA work and never told him that he needed to improve or increase his PVA work, that [the plaintiff] began to transition his primary supplier to PVAs, and that [the plaintiff] was selected to participate in an important PVA project soon before he was laid off. The fact finder could further conclude that [the plaintiff] never expressed disinterest in PVAs, and that he missed a PVA transition meeting solely for health reasons.” Tomasso, 445 F.3d at 708. The Court determined that the plaintiff’s evidence contradicted the “core facts” underlying the employer’s termination decision, Tomasso, 445 F.3d at 709 and held that summary judgment was improper because “[the plaintiff’s] evidence, if believed, does not merely suggest that the … [decisionmaker] was “wrong or mistaken,” or that [he] innocently misperceived [the plaintiff’s] interest in PVAs.  Rather, one who believed [the plaintiff’s] affidavit could find such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in [the defendant’s] explanation as to deem it unworthy of credence.” Id. at 708-709.

What is most unsettling about Jones is that the Court made a mistake on a fundamentally settled point of law. The falsity of an employer’s explanation always supports an inference of pretext, particularly when combined with proof of mendacity. Hicks, 509 U.S. at 511 (1993).  See also, Reeves, 530 U.S. at 144 (reversing judgment for employer where clerical employee proved he properly maintained attendance records despite employer’s claim he did not);  Fasold, 409 F.3d at 185-86 (reversing judgment for employer where police employee proved he generated a sufficient number of arrests despite employer’s claim he did not);  Sheridan, 72 FEP Cases at 529 (reversing judgment for employer where employee proved she was on jury duty at time employer claimed she had dispensed free drinks);  Brewer, 72 F.3d at 331 (reversing judgment for employer where employee cited specific examples where employer’s criticisms were erroneous or misplaced).

Judges are human beings and humans make mistakes. But let’s hope we don’t see anymore like this one.

Pittsburgh employment lawyer Charles A. Lamberton. Representing employees in discrimination, retaliation, sexual harassment and wrongful termination cases for more than 15 years. High end representation for high end cases and clients. Contact us today.

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