Employment Law Daily Offering speculative evidence based on undated memos not sufficient to show pretext
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Thursday, August 1, 2019

Offering speculative evidence based on undated memos not sufficient to show pretext

By Ronald Miller, J.D.

Mere speculation that the employer’s internal memos were not dated so that it was likely they were created in anticipation of litigation, thereby rendering them pretextual, was insufficient to defeat summary judgment.

Because an employee failed to meet her burden of presenting evidence that created a fact question as to whether her employer’s proffered reason for her termination was pretextual, a district court’s grant of summary judgment was appropriate, ruled the Eighth Circuit. The employer produced memos demonstrating that it had planned to reorganize its front office and lay off three employees prior to an incident in which the employee refused to sign an affidavit in support of the employer in a retaliation claim by another worker (Lacey v. Norac, Inc. dba Norac Additives, July 30, 2019, Erickson, R.).

Reorganization. The employee, an African-American woman, started working for the employer at its Helena, Arkansas, plant in April 2014. Her duties involved “Local Purchasing and HR stuff.” Her daughter also worked at the plant as a temporary receptionist. The employer contended that in September 2014, it initiated a reorganization of the front office at its Helena plant, transferring some job duties back to its California headquarters as part of a company-wide reorganization. The reorganization included a plan to lay off three employees (the employee, an African-American coworker, and a Caucasian employee), and end the temporary assignment of the employee’s daughter.

The employer terminated the three employees on December 2, 2014, prompting the African-American coworker to file a separate Title VII retaliation suit in which she alleged she was fired in retaliation for having previously filed a complaint against the employer with the EEOC.

The employer submitted several exhibits documenting its restructuring/layoff plans, including a memo from the company’s owner stating that most accounting activities would be moved to the California headquarters. A separate memo transferred on-site HR and purchasing support to the office manager. The employer also submitted an email dated September 21, 2014, allegedly contemplating the employee’s layoff. The employee objected to the email, claiming that the employer had not produced it during discovery.

Refusal to sign affidavit. In November 2014, the employer conducted interviews of employees who were potential witnesses in the African-American coworker’s Title VII case, including the employee, the Caucasian worker, and the office manager. Following the interviews, the employer drafted affidavits for the employees to review and sign. The employee and the office manager declined to sign. According to the employee, the employer’s lawyer was upset by her refusal to sign the affidavit. On December 2, 2014, the employer laid off the employee and her two coworkers and ended the daughter’s temporary assignment.

The employee and her daughter each filed EEOC charges—the employee claiming she was fired for refusing to sign the affidavit, and her daughter claiming she had been released because she was the employee’s daughter.

Motion to strike. Before the district court, the employee and her daughter moved to strike the September 21 email because it was not disclosed in discovery but was only attached to the employer’s motion for summary judgment. The employer asserted that it presented the email in response to the employees’ claim that its other documents were falsified, and that any late disclosure was harmless. The district court denied the employees’ motion to strike, finding that the email presented no new substantive information and did not prejudice the employees. The district court granted summary judgment in favor of the employer against both employees.

Affidavit incident. The employee satisfied her burden of presenting a prima facie case by claiming that she had been terminated for not signing the affidavit supporting the employer in the coworker’s case. The burden then shifted to the employer to provide a valid, nonretaliatory reason for terminating her employment. Here, the employer produced memos prepared prior to the affidavit incident demonstrating that it had planned to lay off the employee and her two coworkers, while keeping certain other employees. It followed through with its plan to lay off the Caucasian employee, even though she signed the affidavit.

The employee failed to meet her burden to present evidence that created a question of fact as to whether the employer’s proffered reason was pretextual and created a reasonable inference that the employer acted in retaliation. The court found that she merely speculated that because some of the employer’s internal memos were not dated they were likely created in anticipation of litigation thereby rendering them pretextual. She also speculated that one memo was postdated, but offered no proof to support her claim.

Accordingly, the district court did not err in granting summary judgment to the employer and did not abuse its discretion by denying the employee’s motion to strike.

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