Employment discrimination, retaliation and wrongful termination cases often come down to the issue of pretext -- is the employer's explanation for doing whatever adverse was done not more than a lie, a lie offered to try and coverup something unlawful? Being caught in a lie creates all sorts of problems for employers and parties in all sorts of cases.
The Sixth Circuit recently examined the question of pretext in Kirilenko-Ison v. Bd. of Ed. of Danville, Ky. The plaintiffs were two school nurses who voiced their concerns about the medical assistance that was being offered to two students. For their efforts, they claimed, one was suspended and the other was not hired when later a full-time opening came open. The district court, Hon. Danny C. Reeves of the Eastern District of Kentucky, granted the school board a summary judgment on all claims. The Sixth Circuit reversed.
The court found that both the plaintiffs had presented triable issues of fact on the issue of pretext. The court's discussion and examples are helpful. First, "[a]ll that a plaintiff must show in order to overcome a defendant's motion for summary judgment at this stage is that a reasonable juror could find that the defendant's reasons were pretextual. The plaintiff does not need to prove pretext, she only needs to show that the question of pretext is a genuine factual dispute." So the proof at the summary judgment stage need not knock down the Great Wall of China, and the following was sufficient:
- the school principal screamed at them and told them to do what the parent of a child with serious health problems wanted, notwithstanding the negative impacts on the child and on their nursing licenses
- a threat that one's continued advocacy could cost her her job
- allegations in a third party's resignation letter that the school board was pressuring the nurses to go along and shut up
- one's long work history for the school board and the absence of prior disciplinary measures
- the temporal proximity between one's most strenuous advocacy and her suspension.
Here, as in all things, context is important. Consider first the supposed sins of the plaintiffs: advocating for proper and necessary medical care for students, not refusing, advocating, which would seem exactly what they were hired to do and what the Kentucky Board of Nursing requires them to do. Second, there is bullying and threatening followed by action that is at best disproportionate. That doesn't make sense; reasonable jurors could easily view this type of scenario as retaliatory and the school board's explanations unworthy of credence.
This case is the topic of an earlier post: Causation and Lapse of Time In Retaliation Cases.
Robert L. Abell
www.RobertAbellLaw.com
