Summary Judgment In Title VII Retaliation Cases – The Fifth Circuit Provides A Primer On Pretext

In Berry v. Sheriff’s Office Ouachita Parish, et al., a panel of the Fifth Circuit reversed a grant of summary judgment in favor of the Ouachita Parish Sheriff’s office, giving a Black former deputy sheriff another chance to prove that he was actually discharged in retaliation for filing an EEOC charge. The former deputy filed a charge of discrimination complaining that his salary was unlawfully reduced when he was transferred to another position. He claims that he was discharged two months after his employer learned about the charge for a pretextual reason. The deputy sued the Sheriff’s office for retaliation.

Between the time the deputy filed a charge and his discharge, the deputy had run for and been elected to a city council position. Four days after the election but several months before he was to be sworn in, the Sheriff’s office terminated the deputy stating that he could not hold office while working as a deputy sheriff under Louisiana law. The district court accepted this explanation for the termination, found insufficient evidence of pretext, and granted summary judgment in favor of the Sheriff’s office.

On appeal, the Fifth Circuit interpreted the summary judgment evidence differently and concluded that there was enough evidence to create a fact issue on the question of pretext based on the following:

  • Timing. A two-month gap between the protected activity and an adverse action is close enough to serve as evidence of pretext – opining that “indeed, ‘a time lapse of up to four months’ may be sufficiently close to provide such evidence.
  • Shifting Explanations. The deputy’s termination form stated that he was discharged for “Violation of Louisiana Law.”  When the deputy pointed out that it was not a violation of Louisiana law to continue employment prior to being sworn in to elected office, the Sheriff’s office tweaked its explanation for the termination to state that the deputy was actually terminated for violating department policy which requires employees to seek permission before attaining outside employment.
  • Failure to Follow Written Policies. The deputy pointed out that other White employees had run for office without complying to the letter with department policy on outside employment. In particular, the Sheriff testified that an employee is required to submit a written letter requesting permission before attaining outside employment. However, when asked in discovery for all documents related to four other employees who ran for office while employed by the Sheriff’s office, the Sheriff was unable to produce any written documentation, stating instead that verbal permission was given. The Fifth Circuit concluded that even if the other employees were not similarly situated to the deputy, this still provided evidence that the Sheriff’s office was not consistently adhering to the policy it claimed the deputy violated.

The Bottom Line for Employers:  This case serves as a reminder of the types of evidence that may be important in defending against a retaliation or discriminatory discharge claim. First, while timing may not be enough on its own, it is still important to the courts. Second, in the age of COVID where employers are constantly being asked to document the reasons for termination both internally and externally to various agencies for things like unemployment and continuation of benefits, it is important to make sure the reason for discharge is consistently stated. Lastly, many employers have enacted new policies to deal with COVID or updated existing policies in response to the pandemic. Employers should make sure managers are trained on new policies and that they are being consistently administered particularly if they may be a basis for an adverse employment decision. So, while this is not a groundbreaking case, it serves as a good reminder of how to properly conduct and document a discharge or other adverse action without creating legal risk.