In a rather straightforward application of employment law analysis, the United States First Circuit Court of Appeals decided that a former Walgreens manager had not presented sufficient evidence of age discrimination for his case to proceed to trial. Manager Adamson was written up for poor customer service on two occasions. For the prior three years on the job his record was clean. The first write-up resulted from a customer complaint that no one was available to take a product return. Adamson was in the stockroom, knew he was needed up front but decided to finish what he was doing in the back of the store. In response to the write-up he acknowledged that he used poor judgment. Moral of that short story, if you’re a manager and a customer needs you up front, go up front and take care of the customer. The customer always comes first. Adamson momentarily at least forgot that golden rule. He received a final written warning.

Not quite four months later, Adamson forgot that rule again. He was in the back office trying to contact an employee who did not show up for work. No one was up front just after the store opened. Another customer entered the store to make a return. Adamson appeared shortly after the disgruntled customer left the store. Video recordings confirmed the event. Adamson’s second lapse resulted in his termination. The district court (the first level trial court) granted Walgreens summary judgment.

The appeals court’s decision is a study in applying the proper legal framework to a discrimination claim. When a plaintiff lacks direct evidence of discrimination (e.g., a supervisor’s comment such as “We’re letting you go because you’re too old to do the job,” which is rare), courts use the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In an age discrimination case, the first stage of this framework requires the employee to establish a “prima facie” case by producing evidence that shows: (1) he was at least forty years old when he was fired; (2) his job performance met the employer’s legitimate expectations; (3) he suffered an adverse employment action such as a firing; and (4) the employer filled the position, thereby showing a continuing need for the services that he had been rendering.” [Note: The fourth step of the prima facie case differs among the federal circuit courts somewhat, as well in state courts. In Ohio’s state and federal courts, the replacement prong requires a showing that a substantially younger employee replaced the plaintiff, not just that the plaintiff was replaced.] Presenting evidence for all four steps gives rise to a rebuttable presumption of discrimination and shifts theburden of production — but not the burden of persuasion – to the employer to articulate a legitimate, non-discriminatory reason for its decision. If the employer meets this burden, the focus shifts back to the plaintiff, who must then show, by a preponderance of the evidence, that the employer’s articulated reason for the adverse employment action is pretextual and that the true reason for the adverse action is discriminatory.

Walgreens disputed the second element, arguing that Adamson failed to meet the company’s legitimate expectations. The courts of appeals assumed that Adamson had satisfied this element because the main dispute was whether Walgreens’ stated reason for its termination decision was the real reason or whether it was a pretext for discrimination. As is almost always the case, the court found that Walgreens had stated a legitimate basis for termination. The court then analyzed plaintiff’s evidence of pretext and rejected all of it. Adamson pointed a factual dispute about how long the second customer was kept waiting. The important point for the court was not the amount of time the customer waited, but that Adamson left the front of the store after the doors had opened with no coverage up front. Adamson presented no evidence that the length of time he was in the back of the store played a part in the termination decision. Sometimes the best evidence of pretext is that the employer did not uniformly apply its policies and procedures between members and non-members of the protected class. Adamson pointed to younger employees who had not been fired for poor customer service, but the evidence failed to show pretext because they had not had two occurrences whereas Adamson was fired for his second occurrence of poor customer service.

This case serves as a reminder that discrimination cases are often won or lost at the pretext stage. I have learned over the years that the critical junction of the case is when the decision-makers — the persons involved in the termination or other adverse employment action — are interrogated at deposition. This is the best and perhaps only opportunity to gather evidence to establish a question of fact regarding pretext. If such evidence is obtained and presented to the court in response to the employer’s motion for summary judgment, the court should deny the motion. And that’s when good things can happen, because the employer then knows that it will have to go to trial where it can actually lose the case. Case values rise after denial of summary judgment and settlement becomes a real possibility. This is not to say that trial should be avoided. Rather, it’s recognition that trials present lots of uncertainty and that yes, you as the plaintiff can lose too. Of course, I think I can win any case at trial, which is a trait to be valued in a lawyer. But I have learned over the course of four decades of litigation and trial work that a client needs to understand the realities of a courtroom foray. Sometimes settling for less than everything you want is the best course. In the end, though, the client makes the decision based on the advice of counsel.

You can read the full case decision here.