Consistently Inconsistent: An Example of Shifting Reasons for Employment Termination Precluding Summary Judgment
The U.S. District Court for the Western District of Texas recently denied an employer’s motion for summary judgment when its alleged shifting reasons for terminating the plaintiff’s employment contract raised genuine issues of material fact as to whether those reasons were a pretext for discrimination and/or retaliation. The case is Olan v. Uvalde Consolidated ISD, No. 20-cv-00487-ESC (September 13, 2021).
Joseph Olan worked as the academic dean at Uvalde High School, first pursuant to a probationary contract for the 2017–2018 school year and then pursuant to a one-year contract for the 2018–2019 school year. In November 2018, Olan was hospitalized for severe back pain attributable to a preexisting injury for which he had previously undergone two surgeries. The Uvalde Consolidated Independent School District (UCISD) approved Olan for intermittent leave under the Family and Medical Leave Act (FMLA), which Olan utilized over the course of several months. Olan then requested continuous FMLA leave for back surgery on March 28, 2019, and recovery thereafter, for which his healthcare provider estimated he would need three months. His last day of work before taking FMLA leave was March 20, 2019.
About three weeks later, on the recommendation of UCISD’s superintendent, the school district’s board of trustees voted to terminate Olan’s employment contract at the end of his one-year term, which ended on June 30, 2019. Initially, the superintendent stated the decision was based upon Olan’s “inability to work with co-workers and supervisors.” But soon after Olan was discharged, he received a performance review for the 2018–2019 school year that identified a performance rating of “clearly outstanding” or “exceeds expectations” in all areas, including areas related to Olan’s interactions with management and peers. Then, in response to Olan’s charge of discrimination, which Olan filed on August 7, 2019, the school district “provided a new explanation for Olan’s termination—making false statements at a faculty meeting and failing to hold an emergency meeting to remedy his misrepresentations.”
On April 20, 2020, Olan filed a lawsuit in the U.S. District Court for the Western District of Texas alleging that UCISD had unlawfully discriminated and retaliated against him in violation of the Americans with Disabilities Act (ADA), the FMLA, and state law. On June 30, 2021, UCISD moved for summary judgment.
The Court’s Analysis
In first evaluating Olan’s FMLA retaliation claim, the court found the “close timing” between Olan’s FMLA use and his dismissal was “sufficient to raise a fact issue on causation, particularly because Olan was terminated while on approved FMLA leave.” Then, with regard to pretext, the court concluded that Olan had raised a genuine issue of material fact as to whether the school district’s proffered explanation for the termination of his contract was worthy of credence.
The court reasoned that “[a] factfinder could find, based on the summary judgment record in [the] case, that [the superintendent’s] inconsistent reasons for his recommendation of Olan’s termination [were] not worthy of credence and thereby infer a discriminatory motive, especially against the backdrop of Plaintiff’s laudatory performance reviews.” This, coupled with Olan’s prima facie case, was sufficient for the court to preclude summary judgment without further evidence of the school district’s “true motive.” For the same reasons, the court also found material fact issues as to Olan’s claims of disability discrimination and retaliation under the ADA, FMLA, and state law.
The facts of the Olan case serve as a reminder to human resources professionals and managers that performance reviews matter and are often crucial to the defense of employment law claims. Too often, managers evaluate marginal or even subpar employees as meeting or exceeding expectations because it is quicker and easier than the difficult conversations that often accompany constructive or even critical feedback. Yet taking such an approach may ultimately do a disservice to the manager, the employee, and the company. Performance reviews are an opportunity to be candid with employees as to their performance and explicit as to expectations going forward. When done properly, performance reviews can bolster a company’s defense, not impede it. Additionally, the Olan case highlights the importance of accurate, consistent messaging regarding employment decisions at issue, as even unintended misstatements may be interpreted as evidence of discriminatory and/or retaliatory animus.