Litigation often ends when one party files a motion for summary judgment, asking the court to determine that there is no issue of material fact for the jury, and asserting that a decision can be made in its favor based solely on the legal issues. In reviewing a motion for summary judgment, a court must view the record in the light most favorable to the non-moving party. Recently, the 2d U.S. Circuit Court of Appeals reversed summary judgment for an employer in an age discrimination case, holding that the lower court “failed to construe the evidence in the light most favorable to [the employee] and to draw all permissible inferences in [his] favor.” Weiss v. JPMorgan Chase & Company, 2d Circ., No. 08-0801, June 5, 2009.
David Weiss alleged that he was terminated from his position at JPMorgan Chase & Company in violation of the Age Discrimination in Employment Act (ADEA) after he was replaced, at age 56, by an individual 16 years his junior. The parties agreed that Weiss presented a prima facie case of discrimination, and that JPMorgan introduced evidence that it had a legitimate non-discriminatory reason for firing Weiss. At the final stage of the now-familiar McDonnell-Douglas analysis, Weiss was required to satisfy the ultimate burden of proving that JPMorgan’s proffered reasons actually were a pretext for age discrimination. The district court reviewed the evidence, and found in favor of JPMorgan. On appeal, the Second Circuit reversed that decision, and held that based upon the available facts – when viewed in a light most favorable to Weiss – a jury may have been able to infer pretext regarding JPMorgan’s reasons for Weiss’ termination. The Second Circuit addressed each of the arguments asserted by Weiss in response to the reasons proffered by JPMorgan, and found each to have created such an inference.
JPMorgan’s asserted reasons for Weiss’ termination centered around complaints by Weiss’ sales team regarding his leadership style, and included the subjective determination (made by a supervisor who only had known Weiss for four months) that “the team had lost confidence in Weiss.” Weiss argued that his team was dissatisfied with their bonuses, over which he had little or no control; that the defection of his top sales person was not due to any action on Weiss’ part, but on JPMorgan’s refusal to match an offer to that individual made by a competitor; and that Weiss never had been put on notice regarding his failure to “cover” certain accounts, which ultimately led to his firing.
Importantly, the Court went into detail about the company’s “shifting explanations” for Weiss’ termination, stating specifically that “[i]nconsistent or even post-hoc explanations for a termination decision may suggest discriminatory motive.” After characterizing JPMorgan’s explanations as “vaguely formulated and technically inaccurate,” the Court pointed out that a jury can infer pretext from the company’s failure to present those termination reasons to Weiss initially, especially in light of an HR employee’s testimony that the company advocated “giving true reasons” to employees who are fired. Further, the Court pointed out that JPMorgan acted outside of its normal termination procedures by failing to allow Weiss an opportunity to correct his filings prior to the termination decision. While the company asserted that urgent business circumstances justified the deviations from its customary procedure, the Court stated that “Whether Weiss’ superiors were persuaded by a sense of business urgency or [by] age discrimination to contravene normal procedures to terminate Weiss is a question for the jury.”
This case is a strong reminder to employers to: (1) act consistently with company policies and procedures; (2) train supervisors and managers to effectively conduct termination meetings; (3) base employee discharge decisions on business-related, fully-documented reasons. To do otherwise may be to create a circumstance in which the company is forced to rely on subjective assessments and incomplete rationales, which can, as in this case, lead a court to find sufficient issues of material fact to allow the matter to be decided by a jury.