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When Can a Jury Infer Discriminatory Intent from a Company’s Actions?

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The United States Court of Appeals for the Tenth Circuit determined the answer in Barrington v. United Airlines, Inc., No. 16-1292 (10th Cir. 2017).

Jaymee Barrington (“Barrington”) had worked at United Airlines, Inc., (“United”) for approximately 25 years. In 2011, she became an Airport Operations Ramp Supervisor in Denver. In her 2011 performance review, Barrington received satisfactory or positive evaluations in all categories. But in roughly mid-2012, Barrington said she thought United was engaging in gender discrimination. After she complained, Barrington’s 2012 evaluation contained poor ratings in nearly every category. Barrington believed that this poor review made her ineligible for promotions. So, Barrington decided to sue United for gender discrimination and retaliation.

Pretext involves the falsity of the employer’s explanation. The Court has to examine Barrington’s evidence challenging the truthfulness of United’s explanation as to why she got a poor evaluation in 2012. The 2012 evaluation was administered by Ken Brown (“Brown”), United’s Director of Airport Operations, Policies, and Procedures. Brown stated that Barrington had failed to consistently meet expectations in nearly every category. United said Barrington had sent inappropriate emails to supervisors. Barrington claimed United’s explanation was pretext.

Barrington presented this evidence to show United’s falsity:  Other supervisors believed that Barrington was a satisfactory employee. Barrington’s direct supervisor was supposed to administer her performance evaluation. This supervisor thought Barrington had met all expectations in 2012. But contrary to United’s regular policy, Brown—who did not directly supervise Barrington—administered Barrington’s 2012 performance review. Barrington had not been told, prior to the evaluation, that she had done anything wrong. Brown had a motive to give a negative evaluation because he had been the subject of Barrington’s complaint to United.  In the past, United had given poor ratings to employees complaining of gender discrimination.

United presented evidence that Brown had sincerely believed Barrington’s emails were inappropriate. United’s evidence was not enough. The Court said Brown’s sincerity did not Trump Barrington’s claim that Brown had a motive for a negative evaluation. Brown had not followed policy, when he stepped in to do the evaluation, and Barrington’s direct supervisor voiced disagreement with Brown’s assessment. For all these reasons, the Court believes the lower court erred, and reverses and remands this case.

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