I am preparing for an upcoming trial. To prevail, I must establish that the defendant/employer took an illegal action against my client. I intend to do so by establishing that the defendant/employer has offered a false explanation for my client’s termination. In other words, I want to establish that the reason offered by the employer for my client’s termination was a pretext for an illegal motive.

According to one commentator, “pretext can be shown by such weaknesses, implausible points, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable fact-finder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons.”

For example, one way to demonstrate pretext, i.e., that the legitimate, non-discriminatory reason asserted by the employer did not actually motivate the employer when it took the adverse action, is to establish that the employer’s reason(s) have shifted over time. See Asmo v. Keane, Inc., 471 F.3d 588, 596 (6th Cir. 2006)(changing rationale for adverse employment action evidence of pretext); See Cicero v. Borg-Warner Automotive, Inc., 280 F.3d 579, 592 (6th Cir. 2002) (holding that by showing that defendants’ justification for firing changed over time, plaintiff had shown genuine issue of fact that defendants’ proffered reason was not only false, but that the falsity was a pretext for discrimination.); Thurman v. Yellow Freight Sys., 90 F.3d 1160, 1167 (6th Cir. 1996)(“An employer’s changing rationale for making an adverse employment decision can be evidence of pretext.”).

Another way to establish pretext is to establish that the decisionmaker is not credible. Tuttle v. Metropolitan Government of Nashville, 474 F.3d 307, 319 (6th Cir. 2007)(finding inconsistencies in supervisor’s sworn testimony established evidence of pretext).

An employer’s deviation from standard, normal procedures when taking an employment action may also be used to establish pretext. Skalka v. Fernald Environmental Restoration Management Corp., 178 F.3d 414, 422 (6th Cir. 1999)

I have a number of upcoming trials. Preparation for trial is critically important to the success of a case. One of the ways I like to prepare is to present my client’s case to a focus group. A local Memphis firm – Law Media Productions – assists attorneys in getting the focus group together. click here. A focus group is a great opportunity to present your case before real people; the kind that will sit as the jury in your case. Most importantly, you get a chance to see how your case presents so you can learn about the strengths and weaknesses of your case. The manner in which you view your case is never the same as how your case will be seen by the jury. This helps you to correctly focus your case and emphasize the points that must be made to win the case. Another benefit is that presenting before a focus group gives you an idea as to the value of the case. This is particularly true with respect to claims of non-economic damages. These damages compensate for the emotional harm sustained by your client, as opposed to the economic losses sustained such as back pay and benefits. In sum, focus groups give you an edge. And sometimes that edge makes all the difference in winning a case and obtaining a satisfactory resolution for your client.

I am currently involved in a sex discrimination case where one of the defenses is based on the claim that the defendant was just as hostile and demeaning to men as to women. (I disagree, but for purposes of this post, that’s not important). Put another way, the defendant is basically arguing that my client was not discriminated against on the basis of gender because men were treated as badly as women. What about this defense? Besides the obvious tactical question, (i.e., will a jury be receptive to this type of argument?), is this a legally viable defense? The answer is yes. To prevail on a gender discrimination claim under Title VII, a plaintiff must establish differential treatment based on sex. See, e.g., Holman v. Indiana, 211 F.3d 399 (7th Cir. 2000)(concluding that the plaintiffs could not claim discrimination because they had alleged that their supervisor had been sexually harassing both of them by soliciting sex from each of them). Therefore, were a male manager to genuinely treat both sexes equally badly the argument would be that no violation of the law has occurred because Title VII is designed to prohibit discrimination. Title VII is not, as it is often said, a general civility code. It will be interesting to see how this defense presents at trial. Stay tuned for further developments.

Late Thursday, after 6 hrs of deliberations, the jury came back with a verdict for our client on her pregnancy discrimination claim. Unfortunately, the trial judge did not allow us to speak to the jurors afterwards. Sometimes it’s scary what you hear from jurors when you talk to them after a trial, but what better way to learn and get feedback than from someone who has watched and listened to you put on your case for 4 days. I understand the hesitancy on the part of judges to allow attorneys to speak to jurors, but I wish some judges appreciated the learnign experience that it offers to attorneys. Any way, it’s always a thrill to get a jury verdict in your client’s favor.

Is there anything more nerve wracking than waiting for the jury to render its verdict? I say not. Most trial lawyers are control freaks. And when the jury retires to deliberate you’ve lost control of the process. Your client asks about how you feel about the case and even if you feel good you know that you could be dead wrong. In any event, this is where I am at after three days of trial. Closing arguments were conducted this afternoon and the jury deliberated for an hour before deciding to go home. The jury will return tomorrow morning. So I will wait for the clerk to call my cell phone to come to court for the verdict…or worse, to field/consider a question from the jury. By the way, I actually had a jury once ask if in addition to punitive damages they could order the defendant to send all its employees to Title VII sensitivity training. You might imagine that the look on defense counsel’s face was priceless.

With nervous anticipation, I begin a jury trial in federal court tomorrow. My client contends that her pregnancy was a motivating factor in the defendant’s decision to terminate her employment. She is asserting claims under Title VII, as amended by the Pregnancy Discrimination Act, and the Tennessee Human Rights Act. I have spent the weekend preparing for jury selection, my opening statement, and my examinations. I have also created video clips to be used in Sanction trial presentation software when it is my turn to cross examine the “bad guys”. I imagine the trial will last 2-3 days. It is not factually or legally complex. Instead, it is a classic case pitting the credibility of the plaintiff versus the defendant, which, of course, puts an emphasis on the skill of the lawyers. Hopefully, I will live up to my client’s expectations.