The Truth and Nothing But...

In employment litigation, management witnesses are sometimes reluctant to be forthcoming about business decisions if they perceive that the reasons for a decision might not look good to others.  This kind of thinking often misses the point in employment litigation.  As long as a reason is not based on discriminatory or retaliatory animus, it is defensible.  Obviously, a completely neutral business based decision is ideal but in the real world you often have to work with what you have.  If you have a manager who fired a Yankees fan because he likes the Red Sox, you could do much worse.

This point is made in the Sixth Circuit’s recent decision in Viergutz v. Lucent Techs. Inc., 6th Cir., No. 08-3626, unpublished opinion 4/23/10.  In Viergutz, it was undisputed that the plaintiff had established a prima facie case of age discrimination.  Thus, the burden shifted to Lucent to provide a non-discriminatory reason for the decision to include Viergutz in a reduction in force.  Lucent’s reason was that Viergutz had a “poor reputation” in that he did not work well with others and needed constant supervision.  The Court noted that there was a basis in fact for this view, pointing to evidence of numerous disputes with co-workers.  Also, there was simply no evidence to support a conclusion that the stated reason was a pretext for discrimination and the Sixth Circuit affirmed summary judgment for Lucent. 

Pointing to a subjective factor like an employee’s reputation as a basis for termination is risky.  However,  if there is a factual basis for the reputation, it may be defensible.  If it is the real reason for the decision, it’s like your parents told you – honesty is the best policy. 



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