One of the ways to establish “pretext” in the employment discrimination/retaliation analysis is to point to “inconsistent employer explanations” for the employee’s termination.
That is what happened in Encarnacion v. Isabella Geriatric Center, decided by the Southern District of New York on December 12, 2014.
There, plaintiff, a nurse, alleged (among other things) that she was sexually harassed by another employee, after which she was fired.
In denying defendants’ motion for summary judgment on her retaliation claim under Title VII of the Civil Rights Act of 1964, the court reasoned:
Here, plaintiff testified that she knew of other nurses who were not fired for leaving the premises without counting narcotics or turning in their keys to the narcotics cabinet. She also offered testimony from two former Isabella CNAs, Patricia Saulas and Royston Thomas, who said that they had personally witnessed nurses leave with their narcotics keys many times. This testimony, along with plaintiff’s other evidence, shows inconsistencies and contradictions sufficient to raise genuine questions about defendants’ proffered reasons for plaintiff’s termination. Therefore, the Court denies defendants’ motion for summary judgment on plaintiff’s claim of retaliatory discharge under Title VII.
The court also denied defendants’ motion for summary judgment on her Title VII hostile work environment claim, reasoning:
[P]laintiff received a warning notice from Isabella in 2009 for lifting a patient by herself, rather than with two people, as was required for that patient. Plaintiff testified that she did not know the patient was designated a “two-people transfer” because Ms. Paul was constantly changing plaintiff’s assigned floor and the nurses of Indian descent would not properly explain plaintiff’s assignments to her. In another 2009 incident, plaintiff testified that Ms. Paul showed plaintiff her passing LPN exam, crossed out plaintiff’s passing score, wrote in a failing score, then changed it to the minimum score needed to pass, scaring plaintiff and threatening to demote her back to a CNA if she caused any trouble. The Court finds that these incidents, among others, raise questions sufficient to defeat summary judgment on plaintiff’s Title VII hostile work environment claim.