Chapter 4 - Proving Disparate Treatment Discrimination
4.700 McDonnell Douglas Evidence of Pretext / Jury Question
4.743 Circumstances of adverse action
are suspicious
4.743.40 Failure to follow company rules or policies
1st Circuit
In Shorette v. Rite Aid of Maine, Inc., 155 F.3d 8, 17 n. 8 (1st Cir. 1998), the court noted:
case law suggests that an employer's failure to follow internal procedures, standing alone, normally is not evidence of discriminatory animus under the ADEA. See Randle v. City of Aurora, 69 F.3d 441, 454 (10th Cir. 1995); Moore v. Eli Lilly & Co., 990 F.2d 812, 819 (5th Cir. 1993).
However, in Brennan v. GTE Government Systems Corp., 150 F.3d 21, 29 (1st Cir. 1998), the court explained: "[d]eviation from established policy or practice may be evidence of pretext. See Lattimore v. Polaroid Corp., 99 F.3d 456, 466-67 (1st Cir. 1996)."
2d Circuit
In Weinstock v. Columbia University, 224 F.3d 33, 45 (2d Cir. 2000), the court held:
It is true that "'[d]epartures from procedural regularity . . . can raise a question as to the good faith of the process where the departure may reasonably affect the decision.'" Stern v. Trustees of Columbia Univ., 131 F.3d 305, 313 (2d Cir. 1997) (emphasis added) (quoting Zahorik v. Cornell Univ., 729 F.2d 85, 93 (2d Cir. 1984)). In this case, however, whatever irregularities existed did not affect the final decision to deny Weinstock tenure.
5th Circuit
In Laxton v. Gap Inc., 333 F.3d 572, 581 n. 3 (5th Cir. 2003), the court stated:
The district court noted, correctly, that an employer's disregard of its policies "does not of itself conclusively establish that. . . a nondiscriminatory explanation for an action is pretextual." EEOC v. Texas Instruments Inc., 100 F.3d 1173, 1182 (5th Cir. 1996).
However, in Tyler v. Union Oil Co. of California, 304 F.3d 379, 396 (5th Cir. 2002), the court explained:
An employer's conscious, unexplained departure from its usual polices and procedures when conducting a RIF may in appropriate circumstances support an inference of age discrimination if the plaintiff establishes some nexus between employment actions and the plaintiff's age. See EEOC v. Texas Instruments, 100 F.3d 1173, 1182 (5th Cir. 1996); Moore v. Eli Lilly Co., 990 F.2d 812, 819 (5th Cir.), cert. denied, 114 S.Ct. 467 (1993).
6th Circuit
In White v. Columbus Metropolitan Housing Authority, 429 F.3d 232, 246 (6th Cir. 2005), the court explained:
an employer's failure to follow self-imposed regulations or procedures is generally insufficient to support a finding of pretext. See Fischbach v. D.C. Dep't of Corr., 86 F.3d 1180, 1183 (D.C. Cir. 1996); Randle v. City of Aurora, 69 F.3d 441, 454 (10th Cir. 1995).
7th Circuit
In Walker v. Abbott Laboratories, 416 F.3d 641, 644 (7th Cir. 2005), the Seventh Circuit held:
When the better-qualified white worker is selected, and there is no evidence indicating racial discrimination, the employer is entitled to summary judgment. Malacara v. City of Madison, 224 F.3d 727, 730-31 (7th Cir. 2000); Mason v. Continental Illinois National Bank, 704 F.2d 361, 364 (7th Cir. 1983) ("no rational enterprise that has several qualified candidates for a position selects among them by lot; it picks the best qualified"). A plaintiff cannot be permitted to manufacture a case merely by showing that the employer does not follow its employment rules with Prussian rigidity. Parker v. Baltimore & Ohio R.R. Co., 641 F.Supp. 1227, 1234-35 (D.D.C. 1986); see Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 287, 290 (2d Cir.1999); Briggs v. Anderson, 796 F.2d 1009, 1024 (8th Cir. 1986); Dennis v. Columbia Colleton Medical Center, Inc., 290 F.3d 639, 659-60 (4th Cir. 2002) (dissenting opinion). For there is nothing to suggest discrimination in an employer's bending the rules to give the better job or the higher salary to the more qualified applicant. That is just good management.
8th Circuit
In Floyd v. State of Missouri Dept. of Social Services, Div. of Family Services, 188 F.3d 932, 937 (8th Cir. 1999), the court explained:
An employer's failure to follow its own policies may support an inference of pretext. See Young v. Warner-Jenkinson Co., 152 F.3d 1018, 1024 & n.6 (8th Cir. 1998). In this case, however, the record indicates that the departures in policy affected all candidates, not only Floyd. Thus, they do not support an inference of pretext. See Chock v. Northwest Airlines, Inc., 113 F.3d 861, 864-65 (8th Cir 1997) (affirming summary judgment for employer when evidence indicated deviation in policy was applied to plaintiff as well as other employees). . . See Brousard-Norcross v. Augustana College Ass'n, 935 F.2d 974, 976-77 (8th Cir. 1991) (stating that departure from policy did not support inference of pretext when departure was driven by student complaint).
10th Circuit
In Doebele v. Sprint/United Management Co., 342 F.3d 1117 (10th Cir. 2003), the court explained:
This court recognizes that "disturbing procedural irregularities," including "deviations from normal company procedure," provide support for a plaintiff's assertion of pretext. Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1219-20 (10th Cir. 2002) (quoting Mohammed v. Callaway, 698 F.2d 395, 401 (10th Cir. 1983)).
Doebele, 342 F.3d at 1139 n. 11.