DEFENDING FLORIDA EMPLOYERS: EMPLOYEE’S BURDEN TO DEMONSTRATE PRETEXT IN CLAIMS OF DISCRIMINATION

A prima facie case of discrimination raises the presumption or inference that the employer unlawfully discriminated against the employee. This is because the Court presumes the employer’s “acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981). In such a case, the employer must articulate some legitimate, nondiscriminatory reason for the adverse employment action. McDonnell Douglas, Corp. v. Green, 411 U.S. 792 (1973). When the employer can do so, it will defeat the employee’s claim of discrimination so long as the employee cannot establish that the employer’s proffered reason is merely pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000). Peter Mavrick is a Fort Lauderdale employment attorney, who defends businesses and their owners against employment law claims, and represents clients in business litigation in Miami, Boca Raton, and Palm Beach. Such claims include alleged employment discrimination and retaliation as well as claims for overtime wages and other related claims.

The employee bears the ultimate burden of demonstrating that the employer intentionally discriminated against him or her. City of Miami v. Hervis, 65 So. 3d 1110 (Fla. 3d DCA 2011). As such, where the employer meets its burden of presenting legitimate, nondiscriminatory reasons for the adverse employment action, the employee “must prove that the reasons articled were false and that discrimination was the real reason for the [employer’s] actions.” City of Miami v. Hervis, 65 So. 3d 1110 (Fla. 3d DCA 2011). Provided that the legitimate, nondiscriminatory reason proffered by the employer “is one that might motivate a reasonable employer, an employee must meet that reason head on and rebut it. Chapman v. Al Transport, 229 F.3d 1012 (11th Cir. 2000). The Court is “not in the business of adjudging whether employment decisions are prudent or fair. Instead, [its] sole concern is whether unlawful discriminatory animus motivates a challenged employment decision.” Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1361 (11th Cir. 1999).

In demonstrating pretext, the employee must create more than “a weak issue of fact” and, instead, has the “ultimate burden” of presenting “significantly probative evidence that the proffered reason is a pretext for discrimination.” Carter v. City of Miami, 870 F.2d 578 (11th Cir. 1989). In other words, the employee must present “significantly probative evidence” establishing that each and every reason proffered by the employer is “a lie” and that the adverse employment decision was actually motivated by discrimination. St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). The employee “must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its actions that a reasonable factfinder could find them unworthy of credence.” Goodman v. Georgia Southwestern, 147 Fed. Appx. 888 (11th Cir. 2005). The employee must make this showing by a preponderance of the evidence. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981).

For example, where the employee alleges age discrimination, the employee must show that her age “actually played a role in [the employer’s decision-making] process and had a determinative influence on the outcome.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000). This may be accomplished by showing directly that “a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981). When the employer’s reasons are shown to be false, this provides circumstantial evidence probative of intentional discrimination. City of Hollywood v. Hogan, 986 So. 2d 634 (Fla. 4th DCA 2008). On the other hand, the employee also will not establish pretext by merely questioning the wisdom of the adverse employment decision at issue. Pennington v. City of Huntsville, 261 F.3d 1262 (11th Cir. 2001).

The employee must establish that each and every reason proffered by the employer for the adverse employment action is pretext for discrimination. Chapman v. Al Transport, 229 F.3d 1012 (11th Cir. 2000). Where the employee fails to proffer sufficient evidence to create a genuine issue of material fact as to whether each and every one of the employer’s proffered reasons for the adverse employment action is pretextual, the employer is entitled to summary judgment on the employee’s claim of discrimination. Chapman v. Al Transport, 229 F.3d 1012 (11th Cir. 2000).

Peter Mavrick is a Fort Lauderdale employment lawyer, and represents clients in Miami, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.