Friday, July 6, 2012

Mixed Motives

Lamay v. State of Vermont, 2012 VT 49 (mem.).

Once again, today’s case brings us to the well of employment law, and the procedural and factual tangle that this area encompasses.

Today’s case is a discrimination claim, which follows one of two formats.  When an employee is terminated and claims that she was terminated for an inappropriate, discriminatory reason, the case follows one of two formats.

If plaintiff claims that she suffered a negative employment action for a discriminatory reason, then the court follows this format:

Step 1  plaintiff must show that she is a member of a protected class (woman, racial minorities, parents, and the elderly are examples of such classes; alcoholics, pet owners, and smokers are not); that she suffered a negative employment action (fired, demoted, refused promotion); and that there is a reasonable basis to understand that membership in this class was the reason for the negative employment action.

Step 2  employer must show that there was a legitimate reason for the employment action separate and apart from plaintiff’s membership in a protected class (she yelled at clients; she did nothing but read SCOV Law all day).

Step 3  plaintiff must show that this alleged legitimate reason was nothing but pretext for the illegitimate purpose.

If plaintiff claims that she suffered a negative employment action for both legitimate and illegitimate reasons concerning her protected class status, then the court follows this format:

Step 1  plaintiff must show that she is a member of a protected class; that she suffered a negative employment action; and that the negative action was motivated by a mixture of legitimate and illegitimate reasons.

Step 2  employer must show that it would have taken the same action even if the illegitimate reason had not been considered.

In each format, the party with the burden (she or it who “must show”) can do this in one of two ways.  They can either present direct evidence (think: smoking gun) or through circumstantial proof (indirect but broad evidence to make a conclusion likely). 

Here is where the employment litigators earn their bread and butter.  Proving that an employer acted in a particular way can be difficult.  Unless they are rubes, most employers mind their manners and never mention protected class.  Even if they are firing you for being old, they are not going to say it.  In such cases, circumstantial evidence is essential to show that the illegal purpose is there—even if no one is saying it.

Today’s case is no exception.  Plaintiff in this case is claiming the second type of discrimination, the so-called mixed-motive claim. 

Plaintiff was a state trooper and is a single mother.  As a result, her work schedule was not as flexible or susceptible to change as some of her male co-workers.  Plaintiff asserts that at least partially because of this status, she was terminated from her position. 

The State disagrees. 

As the facts show, Plaintiff was reprimanded in 2004 when an internal investigation showed that she filed a report on a high-speed chase with factual errors and inaccuracies.  Shortly, thereafter, she became subject to a second internal investigation when the State’s Attorney’ office brought to her supervisor’s attention discrepancies between her testimony about a drug seizure and the videotape of the incident. 

While this investigation was pending, Plaintiff was suspended with pay.  She called a co-worker and asked him to dispose of some marijuana in her desk, which she claimed was a “loose end” from a previous case.  The co-worker reported it to the supervisors who started a third internal investigation.

In the end, the State terminated Plaintiff’s employment for misuse of evidence and providing false and inaccurate statements.

Plaintiff in her complaint suggests that the reason she received the additional scrutiny was because of her status as a woman and a single mother.  She cites the inflexibility of her schedule as a reason why her supervisor had it in for her.  She also notes that others committed the same errors as her without losing their job.  Finally, she cites to allegedly hostile statements made by her supervising officer.

Upon closer scrutiny by the SCOV, none of these allegations amount to the type of circumstantial evidence necessary to conclude that discrimination was part of Plaintiff’s termination.  The allegations are simply too scattered, and the facts do not pan out to support Plaintiff’s conclusions. 

For example, the alleged comments are not actually discriminatory.  They are descriptive statements accurately reflecting Plaintiff’s status as a woman and mother.  They did not show discriminatory animus.  Furthermore, they were essentially stray remarks that do not constitute discrimination.

This is Plaintiff’s problem in a nutshell.  She is unable to connect her allegations of gender discrimination to either a factual pattern that supports it or a chain of behaviors that shows a discriminatory purpose behind her termination to the level of proof required. 

In the end, the SCOV concludes that the evidence only shows that Plaintiff’s employment was terminated for violating procedure and obligations—and not because she was a woman.

Plaintiff’s final argument is that the trial court failed to consider the allegations she made in her initial complaint to the Vermont Human Right’s Commission to support her claim of a pattern of disparate treatment and gender stereotyping, which in turn supports her claim of an improper employment decision.

The SCOV addresses this final point by noting that they agree with Plaintiff.  A factual pattern of disparate treatment and gender stereotyping can provide circumstantial evidence to support an inference that a negative employment action had an improper motivation.  But this is cold comfort to Plaintiff because just as quickly the SCOV discounts Plaintiff’s complaint as insufficient.  The complaint is not evidence, per se, of this pattern but is a collection of hearsay and conclusory statements that are insufficient as a matter of law.

The point that SCOV makes here is important.  You can prove a mixed motive discrimination claim by showing a pattern of disparate treatment and stereotyping in the workplace over a period of time.  This is a bit of a leap since it is not direct proof that the employer was acting in a discriminatory manner.  Rather it is proof that the workplace was so filed with discrimination that it is difficult, if not impossible, to conclude that discrimination was not a part of the decision process. 

But the SCOV is saying that is as far as we will take it.  Plaintiffs cannot rely on additional inferences or circumstantial proof to establish that the workplace was discriminatory in nature.  The evidence of this must be direct.  It either was or it was not.  The SCOV will not allow the inferences to stack up. 

Here the evidence falls short, and so Plaintiff is ineligible to infer the discriminatory workplace, and the game is over.  Case is dismissed.  

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