Eighth Circuit Reaffirms Shifting Reasons Are Proof of Pretext

In a published opinion released earlier this week, the Eighth Circuit has confirmed that a plaintiff can prove pretext by showing that an employer provided reasons for its action that shifted significantly over time. In Jones v. National American University, the plaintiff alleged that she was not promoted to admissions director for one of the university's campus because of her age. A jury agreed.

Jones was in her mid-fifties when she applied for the promotion, had been working in the admissions office for six years, and was one of three finalists for the position. The other two finalists were offered the job and both declined. Rather than offer her the job, however, the university began an expanded search, but had Jones act as the interim director. During that expanded search, Jones had a conversation with one of the decisionmakers about an applicant who was in his mid-fifties. The decisionmaker said that he wasn't sure that "we want a grandpa working with our high school students." Ultimately a 34-year old former hospital administrator was given the position, and Jones resigned in protest. When he accepted her resignation, the same decisionmaker who had made the previous comment told her that she would have been a better choice for the short term but the woman given the position would be better for the long term.

Jones filed a charge with the EEOC, and the university told that agency that Jones wasn't promoted because of poor performance. The EEOC found no cause and issued Jones a right to sue letter. Jones sued, and the university changed its tactics. At trial it contended that Jones was not promoted because she lacked management experience. 

This was where things began to unravel for the university. The jury was allowed to infer that this reason was a pretext because it differed substantially from the reason given to the EEOC. Additionally, there was no evidence submitted to substantiate the prior reason--everybody testified that Jones' performance was good. Moreover, none of the job postings had listed management experience as a requirement. Finally, Jones presented evidence that she was more qualified than the person who received the job and at least one of the prior finalists offered the job. The two comments that could be interpreted to show that age was on the mind of at least one of the decisionmakers didn't hurt.

This case provides several important points. First, it's interesting that the EEOC found no probable cause to believe that discrimination occurred. It makes me wonder how its file differed from the evidence presented at trial. Second, the case reiterates the important principle that if an employee can cast doubt on the reason given by the employer, that should be proof sufficient for a jury to find that the plaintiff's protected class was the real reason. And finally, the case demonstrates, that while the second point may technically be true, it helps to be able to point to additional things that highlight both the plaintiff's protected class (the comments) and the lack of overall rationality of the employer's actions (choosing an applicant without a preferred qualification that the plaintiff had).

MM