622.4 Complainant’s proof of pretex

A Complainant must not only establish that a Respondent's asserted reasons for terminating a Complainant's employment were false, but also that discrimination was the real reason. Neal v. Independence First, (LIRC, 07/29/2022).

Where an employer's proffered non-discriminatory reason for its employment decision is that it selected the most qualified candidate, evidence of the applicant's competing qualifications does not constitute evidence of pretext unless those qualifications are so favorable to the Complainant that there can be no dispute among reasonable persons of impartial judgment that the Complainant was clearly better qualified for the position at issue. Delgadillo v. Kenosha Unified Sch. Dist. (LIRC, 11/30/2018), aff'd sub nom. Delgadillo v. LIRC (Milwaukee Co. Cir. Ct., 10/28/2019).

Where the Complainant was the only individual whose conduct was investigated, even though a member of the public complained about impolite treatment from several employees, the employer’s claim that the Complainant was disciplined because of genuine concerns about impolite conduct towards the public was rejected. Krueger v. County of Waupaca (LIRC, 08/22/18).

Proof that other individuals in the protected class were paid less than the Complainant is not evidence that the Complainant was discriminated against in pay. Instead, the Complainant must show that an employee or employees outside of the protected class earned more than he did for similar work. Lofton v. The Jor-Mac Company, Inc. (LIRC, 04/19/2018).

Once the Respondent has articulated a legitimate, nondiscriminatory reason for its actions the question of whether the Complainant has established a prima face case becomes moot. The burden of proof then reverts to the Complainant to show that the reason articulated by the Respondent is a pretext for discrimination. Wilks v. St. Joseph’s Rehab. (LIRC, 02/28/13).

Pretext means a dishonest explanation, a lie rather than an oddity or an error. The focus of a pretext inquiry is whether the Respondent’s stated reason for an action is honest, not whether it is accurate, wise, or well-considered. Thobaben v. Waupaca County Sheriff’s Dep’t (LIRC, 12/23/11).

A Complainant must show not only that the Respondent’s asserted reasons were false, but that discrimination was the real reason for its action. The Complainant may be able to prove pretext even in the absence of any direct evidence of discriminatory intent by showing that the Respondent’s explanation is unworthy of credence. If the Complainant offers specific evidence from which the finder of fact may reasonably infer that the Respondent’s proffered reasons do not represent the truth, the case then turns on the credibility of the witnesses. On the other hand, if the Respondent genuinely believed its asserted, non-discriminatory reason to be true, even if it was mistaken, the Respondent cannot be found to have had discriminatory intent. Thobaben v. Waupaca County Sheriff’s Dep’t (LIRC, 12/23/11).

The fact that a particular characteristic is not mentioned in a job announcement as being desirable does not necessarily mean that the employer’s subsequent reliance on that characteristic as being important was pre-textual. Wallis v. St. Paul’s Evangelical Lutheran Church & Sch. (LIRC, 08/25/10).

Pretext means a dishonest explanation, i.e., a lie rather than an oddity or an error. In this case, the Respondent mistakenly gave another employee a higher salary based upon experience which he did not have. This was done in error. This did not, however, constitute proof of pretext. Bialk v. Aurora Health Care (LIRC, 04/23/10).

The decision-maker in a discrimination case may not substitute its business judgment for that of the employer. The mere fact that the Respondent made a decision that may have been ill-advised is not evidence of pretext on its part. The focus of a pretext inquiry is whether the Respondent’s stated reason was honest, not whether it was accurate, wise or well-considered. The issue is whether the legitimate reason provided by the employer is in fact the true one. Ebner v. Dura Tech (LIRC, 04/23/09).

Since intent is a pertinent and necessary inquiry in a discrimination or retaliation case, the question of whether a Respondent’s asserted non-retaliatory reason is objectively correct can be considered irrelevant if it appears that the Respondent genuinely believed it to be true. Engen v. Harbor Campus, (LIRC, 02/22/08).

A Complainant may demonstrate that the employer’s asserted reason for an adverse action is pre-textual by showing that the reason: (1) had no basis in fact, (2) did not actually motivate the adverse employment action, or (3) was insufficient to motivate the adverse employment action. In this case, the Administrative Law Judge properly determined that the Respondent’s asserted reason for discharging the Complainant was insufficient to have motivated the decision, and that the actual motivation for the Respondent’s decision was the Complainant’s disability. Sult v. Jerry’s Enter. (LIRC, 02/08/08).

The demonstrated falsity of an employer’s asserted reason for an employment action may, in itself, be viewed as some evidence that an improper motivation was behind the decision. Cole v. Greyhound Bus Lines (LIRC, 09/16/05).

Where the Complainant established that the entries in the Respondent’s logs (which were offered by the Respondent as evidence of its complaints about the Complainant’s performance) were probably not prepared contemporaneously with the dates associated with them, called into question the veracity of the complaints about the Complainant’s performance. “The fact-finder’s disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination. . . .” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993). Kurtzweil v. GPI Corp. (LIRC, 08/27/04).

If an employer articulates a legitimate non-discriminatory reason for a discharge or other employment action, the issue of whether the Complainant has established a prima facie case becomes moot. Once an employer has articulated such a reason, the burden of proof reverts to the Complainant to show that this reason is a pretext for discrimination. Stern v. RF Technologies (LIRC, 02/06/04).

Proof that the Respondent’s explanation for the employment action taken against the Complainant is unworthy of credence is one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive. Rodriguez v. Flash, Inc. (LIRC, 01/28/03).

The Respondent’s argument that it honestly believed its reason for discharging the Complainant was rejected. In Gordon v. United Airlines, 246 F.3d 878 (7th Cir. 2002), the court indicated that when determining whether an employer’s belief is honest, “we need not abandon good reason and common sense in assessing an employer’s actions.” The court further found that if an employee offers specific evidence from which the trier of fact may reasonably infer that the Respondent’s asserted non-discriminatory reasons do not represent the truth, the case then turns on the credibility of the witnesses. The court stated, “[w]hen the sincerity of an employer’s asserted reasons for discharging an employee is cast into doubt, a fact finder may reasonably infer that unlawful discrimination was the true motivation.” In this case, the Complainant offered specific evidence regarding the Respondent’s failure to discharge white employees who engaged in the same type of conduct that led to the Complainant’s discharge. Furthermore, the Administrative Law Judge determined that the Respondent’s witnesses were not credible. These facts allowed the ALJ to reasonably infer that unlawful race discrimination was the true motivation for the Respondent’s termination of the Complainant’s employment. Rodriguez v. Flash, Inc. (LIRC, 01/28/03).

Where the Respondent’s explanation for its actions in treating the Complainant differently from a similarly situated employee was not credible, the question to decide was whether the Respondent’s explanation was a pretext for discrimination. The Complainant has the ultimate burden of persuasion on this point. Showing that an employer’s reason is a pretext permits, but does not compel, a finding of discrimination. While disbelief of an employer’s proffered non-discriminatory reason for an employment decision does not compel a conclusion of discrimination, it does permit the trier-of-fact to infer the ultimate fact of intentional discrimination without additional proof. Where there was nothing to set the Complainant and the similarly situated employee apart other than race, and where there was no evidence to suggest that the Respondent was motivated by a consideration of the sort that would be unfair but not discriminatory, the Department properly concluded that the Respondent’s explanation for its actions was a pretext for discrimination. Thompson v. Century Cable (LIRC, 06/07/99).

If an employer articulates a legitimate non-discriminatory reason for a discharge, the issue of whether the employee has established a prima facie case becomes moot. Once such a reason is articulated, the burden of proof reverts to the Complainant to show that this reason is a pretext for discrimination. If the articulated, non-discriminatory reason is not credible or is unworthy of belief, this may simply prove a pretext (which by itself would not satisfy the Complainant’s burden), or it may serve double duty and prove a pretext for discrimination. In other words, a fact finder’s disbelief of an employer’s proffered non-discriminatory reason for an employment action permits the trier-of-fact to infer the ultimate fact of intentional discrimination without additional proof. Naill v. Western Wis. Tech. College (LIRC, 02/12/99).

For purposes of the Wisconsin Fair Employment Act, a “pretext” refers to a neutral sounding reason offered for a discharge or other adverse employment decision in order to conceal discrimination of a type specifically prohibited by the Act. Newton v. St. Gregory Educ. & Christian Formation Comm. (LIRC, 12/10/97).

In some cases, the question of whether an employer’s asserted non-discriminatory reason is objectively correct can be considered irrelevant, if it appears that the employer genuinely believed it to be true. The trier of fact need only determine that the employer in good faith believed in that reason and that the asserted reason was not a mere pretext for discrimination. The reasonableness of an employer’s reasons for its decisions may be probative of whether they are pre-textual. Atkins v. Pepsi Cola Gen. Bottlers (LIRC, 12/18/96).

There are three factors which bear on the question of pretext: (1) the employer’s treatment of the employee during employment, (2) the employer’s treatment of the protected class of which the employee is a member, and (3) the absence of minorities on the employment decision-making body. Bates v. Thomson Newspapers (LIRC, 12/04/96).

A pretext determination is concerned with whether the employer honestly believes in the reasons it offers, not whether it made a bad decision, a mistake or a bad business judgment. In this case, the Respondent’s manager reasonably believed that the Complainant was fabricating an illness in order to get off work. Even assuming that the Complainant had in fact been sick, the fact that the manager mistakenly believed that she was lying about being sick and recommended her discharge for that reason, does not constitute unlawful discrimination. Murphy v. Roundy’s (LIRC, 04/25/96).

When the Respondent has produced evidence which would allow the trier of fact to rationally conclude that its employment decision had not been motivated by discriminatory animus, the presumption raised by the Complainant's prima facie case falls away and the Complainant must then proceed to establish that the reasons offered by the employer were not its true reasons, but merely a pretext for discrimination. Essentially, the burden is on the Complainant to establish a causal link between the employer’s pretext and a discriminatory motive. The Complainant’s burden at the pretext stage is to prove that the Respondent’s reasons are false and that the Respondent intentionally discriminated against the Complainant. The ultimate burden of persuading the trier of fact that the Respondent intentionally discriminated against the Complainant remains at all times with the Complainant. The Complainant may be well advised to present additional evidence of discrimination because the fact finder is not required to find in the Complainant’s favor simply because she establishes a prima facie case and shows that the employer’s proffered reasons are false. Spearman v. Beloit Convalescent Ctr. (LIRC, 09/19/95).

While a Respondent’s failure to rebut a prima facie case of discrimination will permit the trier of fact to infer that prohibited discrimination occurred, the Complainant is not entitled to a judgment as a matter of law simply because she proves a prima facie and shows that the Respondent’s proffered reasons for its actions are false. Where this is evidence that the Respondent’s actions were taken for a non-discriminatory reason, and where it was not demonstrated that it is more likely that a discriminatory reason motivated the Respondent, the Complainant has failed to prove discrimination. Even where a Respondent's articulated reason is disbelieved, the trier of fact cannot ignore other evidence which shows that the Respondent’s real reason was nonetheless one that did not violate the Act. Currie v. Garrow Oil Corp. (LIRC, 06/16/95).

The Complainant failed to show that an employer’s reasons for failing to hire him were a pretext for age discrimination where (1) the employer notified the job applicant that the position available was for both a custodial and a maintenance person, and (2) the employer allowed all of the candidates an unrestricted opportunity to discuss their qualifications during the interview. An employer is not required to list all of its hiring criteria in a one-paragraph job announcement. Kurtz v. Sch. Dist. of St. Croix Falls (LIRC, 06/10/93).

To prevail on a claim of discrimination, a Complainant must prove not only that an asserted reason for an employment action was a pretext, but that the asserted reason was a pretext for discrimination. Rangel v. City of Elkhorn (LIRC, 09/30/92).

Where the employer had previously warned the Complainant about taking finished product home and had told the Complainant previously to return finished product, the Respondent's subsequent failure to follow progressive disciplinary methods when the Complainant was discharged for taking product was not sufficient to show that its articulated reason was pre-textual. Molinar v. Larsen Co. (LIRC, 02/04/92).

The Complainant must show that the Respondent’s articulated reason is a pretext for discrimination, not merely that it is a pretext for some other reason which the employer wishes to hide or will not acknowledge. Kovalic v. DEC Int’l, 161 Wis. 2d 863, 469 N.W.2d 224 (Ct. App. 1991), motion for relief from final judgment denied, 186 Wis. 2d 162, 519 N.W.2d 351 (Ct. App. 1994).

The Complainant failed to establish that he stopped making derogatory remarks about the Respondent and its president after being warned that continuing to make such comments would result in his discharge, or that his subsequent discharge for continuing to make such comments was pretext for age discrimination. Binder v. Nercon Eng’g & Mfg. (LIRC, 12/18/90).

The fact that the Respondent did not indicate in its announcement for the position that an educational background in agronomy was desired does not establish that the Respondent subsequently altered its specifications for the position. Nothing requires an employer to list all of its hiring criteria in a one-paragraph job announcement. Walstrom v. Wisconsin Dairy Herd Improvement Coop. (LIRC, 11/29/90).

The Respondent’s giving the Complainant untrue reasons for discharging the Complainant can constitute evidence that the reasons subsequently given by the Respondent as the true reason for the discharge were pre-textual. However, in this case it was not conclusive evidence of pretext because it appeared that the long relationship between the parties made it difficult for the Respondent to honestly confront the Complainant about his performance. Hanson v. Culver Elec. Supply Co. (LIRC, 11/19/90).

The Respondent’s stated reason for discharging the Complainant, excessive absences, was not pretext despite the fact that the Complainant’s absences did not exceed the ten days a year extended to her under her short-term disability allowance. Multiple absences are disruptive. The sick leave allowance was intended as a “bank” to prevent employees from loss of income in the event of serious illness or injury. Gehr v. Wausau Ins. (LIRC, 10/19/90).

An employer’s assertion of several alternative, independent, non- discriminatory reasons for an employee's discharge does not necessarily justify a finding of pretext if one reason is shown to be untrue, but that does not mean that the false justification cannot constitute evidence of the presence of an illegal motivation. Donovan v. Graebel Van Lines (LIRC, 05/23/90, amended 06/08/90).

The Respondent's proffered non-discriminatory explanation for discharging the Complainant was pretext because there was direct evidence that a discriminatory reason more likely motivated the Respondent, including evidence that there were other ways to accomplish the desired results without discharging the Complainant. La Crosse v. LIRC, (La Crosse Co. Cir. Ct., 05/04/90).

Where the Respondent did not call any witnesses with firsthand knowledge of the Complainant’s job performance, the statements of the reasons for the Complainant’s discharge in the letter of termination were not strong enough, standing alone, to avoid a finding of pretext. Davis v. Braun-Hobar Corp. (LIRC, 04/18/90).

The reasonableness of the employer’s reasons for its decisions may be probative of whether they are pretext. The more idiosyncratic or questionable the employer’s reason, the easier it would be to expose it as a pretext, if indeed it is one. Leick v. Menasha Corp. (LIRC, 08/17/89).

The Complainant's veiled references to an affirmative action plan and to a discrimination lawsuit against the Respondent were not enough to establish that the Respondent’s reasons for hiring a female rather than a male were pre-textual. Zurawski v. LIRC (Racine Co. Cir. Ct., 12/22/88).

A Complainant who made out a prima facie case of race discrimination in hire failed to prove that the Respondent's reason, that the hired candidate was most qualified, was pre-textual where the Complainant argued that the selection process utilized subjective criteria. Criteria of a subjective nature are sometimes necessary in hiring, especially in hiring supervisory personnel, and there is nothing discriminatory per se about the use of such criteria. However, the use of such criteria will be closely scrutinized where applied by a non-minority decision maker to a minority candidate. Howard v. City of Madison (LIRC, 02/24/87).

The fact that a particular characteristic was not mentioned in a job announcement as being desirable did not mean that the employer's subsequent reliance on that characteristic as being important was pre-textual. Nothing requires an employer to list all its hiring criteria in a one paragraph job announcement. Phillips v. Green County Sheriff’s Dep’t (LIRC, 01/16/87).

A Complainant may establish pretext either directly by showing that a discriminatory reason more likely motivated the employer, or indirectly by showing that the employer’s proffered explanation is unworthy of credence. That a reason is pre-textual does not mean it is false, as the facts asserted may in fact be true but not be the actual reason for the action. Puetz Motor Sales v. LIRC, 126 Wis. 2d 168, 376 N.W.2d 372 (Ct. App. 1985).

A female state trooper established sex discrimination by showing that she had been fired for conduct for which male troopers were only suspended, and this comparison was especially probative because at least some of the male troopers had the same district and local supervisors as the female and had been disciplined at approximately the same time. The employer's explanation was suspect because it was conceived long after the female was discharged. Krueger v. DOT(LIRC, 10/04/82).

Though the record raised a considerable question as to whether there was just cause for the Complainant's discharge, pretext was not established. Whether there is just cause is a different inquiry from whether the employer's asserted reasons are pre-textual. Miller v. Manawa Sch. Dist. (LIRC, 02/24/82).

Those reasons which are considered at the time an irrevocable decision is made to terminate an employee are the ones by which that decision will be judged. Pokrass v. LIRC (Applied Power) (Waukesha Co. Cir. Ct., 08/20/81).

Several factors may bear on a showing of pre-textuality: the treatment of the employee by the employer during the course of employment; the employer’s treatment of the protected class of which the employee is a member; and the absence of minorities on the decision-making body. Rubenstein v. LIRC (UW Bd. of Regents) (Dane Co. Cir. Ct., 02/06/81).