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July 19, 2011

Evidence of pretext bars summary judgment of a Title VII complaint alleging unlawful discrimination because of race

Evidence of pretext bars summary judgment of a Title VII complaint alleging unlawful discrimination because of race
Curry v Menard, Inc., CA7, 00-4219, 270 F.3d. 473

Demonstrating that other employees of a different race were not subjected to the same disciplinary action for the same offense is sufficient to establish “pretext” for the purposes of Title VII.

Sylvia Curry, a black woman employed as a cashier at Menard's Sokie, Illinois store, complained that Menard Inc. had discharged her from her position because of her race.

Menard, on the other hand, said that Curry had been discharged in accordance with its “progressive discipline” policy after it found shortages in her cash receipts on three different occasions. The district court granted Menard's motion for summary judgment. The Court of Appeals overturned the lower court's ruling, noting that From January 1, 1997, to December 31, 1998, Curry was the only cashier to be suspended or terminated for violating the store's progressive discipline policy although the record shows that had the policy been strictly enforced sixteen other cashiers should have been suspended or terminated in that same time period.

The Circuit Court said that summary judgment is appropriate if there is no genuine issue as to any material fact. Under such circumstances the moving party is entitled to judgment as a matter of law. As Curry did not provide any direct evidence of discrimination because of her race, she had to prove a prima facie case of discrimination under the burden-shifting method. To establish a prima facie case of discrimination, Curry was required to show that:

1. She belongs to a protected class;

2. She performed her job according to Menard's legitimate expectations;

3. She suffered an adverse employment action; and

4. Similarly situated employees outside the protected class were treated more favorably.

A prima facie case creates a presumption of discrimination and shifts the burden to the employer to produce evidence of a legitimate, race-neutral reason for the adverse action taken against the employee. If the employer meets this burden, the plaintiff then has the burden of showing that the employer's stated “nondiscriminatory reason” is merely a pretext for discrimination.

Finding that Curry proved a prima facie case of unlawful discrimination, the court said that Menard contended that Curry was not meeting its legitimate performance expectations because she had accumulated three “cash drawer” violations. Arguing that it had dismissed Curry in accordance with its progressive discipline policy, Menard claimed it had shown that it had terminated Curry for nondiscriminatory reasons.

Curry, then, was required to show that Menard's explanation of its action was pretext for unlawful discrimination.

The Circuit Court decided that Curry had met this burden by establishing that two employees, Margaret Venetico and Anne Merurio, both non-black cashiers, had two or more cash discrepancies but were neither suspended nor terminated. The court decided that this was sufficient evidence of alleged pretext to survive Menard's motion for summary judgment.

The key element here was Curry's evidence that prior to, and after, the tenure of Michael Stanley as the manager of the store none of the cashiers who had discrepancies, including Curry, was disciplined under the company's “progressive discipline” policy. In contrast, while Stanley was the manager there were three employees who had cash shortages but only Curry was fired.

This, said the court, leaves a material question of fact of whether terminating Curry for breaching the policy was a pretext.