In Preston v. Texas Department of Family and Protective Services, an African-American employee claimed race discrimination and retaliation. The ensuing case shed light on the importance of employers carefully supporting their reasons for dismissing an employee.
RACIAL DISCRIMINATION ALLEGED
After 11 years on the job, an African-American social-services caseworker was assigned to a white supervisor who gave her positive evaluations for two years. But the caseworker claimed that the supervisor began to treat her differently and gave her her first “unsuccessful” evaluation after she relayed other employees’ complaints that a manager was discriminating against them because they were African-Americans.
The caseworker filed an internal administrative complaint against the supervisor, alleging racial discrimination. The department’s investigation found no evidence of discrimination.
Then three incidents occurred: While the caseworker was the “on-call” caseworker for child-death cases, she failed to initiate a timely investigation and spoke disrespectfully about the supervisor and the risk director. The same day, her supervisor removed her from another case because she had left an unprofessional, discourteous message on a client’s answering machine. And six days later, the caseworker lied about having assigned a high-priority case to another supervisor.
POLICY VIOLATIONS
A week later, after discussing violations of department policy with her supervisor, the caseworker filed a second administrative complaint, alleging retaliation for having filed the earlier complaint. A month later, the department dismissed her.
The caseworker appealed her dismissal internally, but it was upheld on grounds she had violated department policy. She then sued the department. The trial court ruled for the department without a trial, finding that the facts were undisputed and the department was entitled to judgment as a matter of law.
FIFTH CIRCUIT WEIGHS IN
To establish a discrimination case, plaintiffs must show that they’re members of a protected class, are qualified for their positions, were subjected to an adverse employment action, and were replaced by someone outside the protected class. Or, in the case of disparate treatment, they must show that others similarly situated were treated more favorably.
The Fifth Circuit found that the employee’s claim that the department had discriminated against her by giving her two written admonishments couldn’t survive the test’s third prong, because Title VII was designed to address ultimate employment decisions, not every decision that might arguably tangentially affect those ultimate decisions. The court held that written admonishments don’t rise to the level of ultimate employment actions.
Next, the Fifth Circuit found that the employee failed the test’s fourth prong. Because she wasn’t replaced, she had to establish that the misconduct for which she was dismissed was nearly identical to that engaged in by a retained employee of another race. She failed to present any such evidence.
BURDEN-SHIFTING ANALYSIS
But even if the caseworker had established a prima-facie discrimination case, she would still lose on her retaliation claim, because the burden then shifts to the employer to articulate a legitimate nonretaliatory reason for the action. If the employer does this, the burden then shifts back to the employee to show that the employer’s stated reason was pretextual.
The department articulated several legitimate nondiscriminatory reasons for the written admonishments, for dismissing her and for those decisions’ timing. She had to rebut each articulated legitimate reason. The court found that she had shown some evidence of pretext for only two of the four articulated reasons. So the Fifth Circuit upheld dismissal of the case.
CAUTION IS THE WATCHWORD
This case turned out well for this employer, but all employers should be careful that their dismissal reasons can withstand scrutiny. If a reason is found to be pretextual, a jury or court may infer that the real reason for dismissal was unlawful discrimination.