2nd Circuit Clarifies “Pretext” Analysis; Sex-Based Termination Claim Survives Summary Judgment

In Bart v. Golub Corporation, No. 23-238, 2024 WL 1281069 (2d Cir. March 26, 2024), the court clarified and reaffirmed “foundational principles governing pretext and causation in Title VII disparate treatment claims.”

In sum, plaintiff, a female manager at Price Chopper (a supermarket chain operated by defendant Golub Corp.), was fired two days after she was disciplined for falsifying food logs that are maintained for health and safety purposes. Golub’s stated reason for firing Bart was her violation of store policy. While plaintiff admits that she violated defendant’s food log policy, but contends that she was fired because of her gender.

With respect to the black-letter law, the court explained:

We take this opportunity to demystify the third-stage burden under McDonnell Douglas, which has admittedly not always been articulated in our case law with the utmost clarity, as demonstrated above. This understandable confusion is only compounded by the consistency with which courts continue to refer to this step for convenience simply as the “pretext” stage, even in mixed-motives cases. Indeed, as we have previously recognized, courts often speak of the obligation on the plaintiff to prove that the employer’s explanation is a “pretext for discrimination.” We believe this is a shorthand for the more complex concept that, regardless of whether the employer’s explanation also furnished part of the reason for the adverse action, the adverse action was motivated in part by discrimination.

It becomes clear through analysis of our case law that referring to this third step as the “pretext” stage in mixed-motives cases is only a partial description of the proper inquiry, as a Title VII plaintiff need not prove that the employer’s stated reason was false. A plaintiff instead need only show that the employer’s stated reason—even if true or factually accurate—was not the “real reason,” in the sense that it was not the entire reason due to a coexisting impermissible consideration. See id. at 157 (observing that “inaccuracy or incompleteness resulting from the [employer’s] failure to include the fact of the discriminatory motivation” in its stated reason is “pretext”). While we use “pretext” as shorthand, we have explained that a more complete characterization of a plaintiff’s third-stage burden in mixed-motives cases is to produce “admissible evidence … show[ing] circumstances that would be sufficient to permit a rational finder of fact to infer that the defendant’s employment decision was more likely than not based in whole or in part on discrimination.”

Relatedly, we have recognized that though the plaintiff’s ultimate burden may be carried by the presentation of additional evidence showing that the employer’s proffered explanation is unworthy of credence, it may often be carried by reliance on the evidence comprising the prima facie case, without more, if that evidence is independently sufficient under step three of McDonnell Douglas. In such cases, the conflict between the plaintiff’s evidence establishing a prima facie case and the employer’s evidence of a nondiscriminatory reason reflects a question of fact to be resolved by the factfinder after trial, precluding summary judgment.

In sum, we reaffirm: To satisfy the third-stage burden under McDonnell Douglas and survive summary judgment in a Title VII disparate treatment case, a plaintiff may, but need not, show that the employer’s stated reason was false, and merely a pretext for discrimination; a plaintiff may also satisfy this burden by producing other evidence indicating that the employer’s adverse action was motivated at least in part by the plaintiff’s membership in a protected class.

[Cleaned up.]

Applying the law, the court explained:

Here, Bart has adduced competent evidence, drawing reasonable inferences in her favor, that Pappas—the actor most involved with [her] termination—harbored gender-based bias against her. Bart testified that Pappas made several remarks to her, including close in time to the firing, insinuating that he believed that a man would perform better in Bart’s role than a woman would. Pappas’s comments are therefore not “stray remarks” insufficiently tied to the adverse action as to lack probative value. Instead, the comments alleged were (1) made repeatedly, (2) drew a direct link between gender stereotypes and the conclusion that [Bart is ill-suited for her position as a manager], and (3) were made by [a] supervisor who played a substantial role in the decision to terminate [Bart]. As such, they are sufficient to support a finding of discriminatory motive.

Further, situations such as this where there was more than one decision-maker involved in the adverse action are often particularly suited for a motivating-factor analysis at the third stage of McDonnell Douglas. The alleged discriminatory intent harbored by Pappas, who the parties agree was involved in the decision to terminate Bart, might have infected the decision to terminate Bart even if Golub’s stated reasons were accurate and sincerely held by others involved in the decision-making process.

[Cleaned up.]

Based on this, the court held that plaintiff met her burden, at the summary judgment stage, of producing competent evidence that defendant (through Pappas’s involvement) terminated her employment, in part, based on her gender, and vacated the district court’s summary judgment dismissing plaintiff’s case.

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