An Employee Claiming Retaliation Must Rebut All, Not Just Some, of the Reasons for Her Termination
The U.S. Court of Appeals for the Eighth Circuit rejected an employee’s argument that she need only show that some of the employer’s reasons for her termination were a pretext for retaliation under Title VII, where the reasons were not so intertwined such that rebutting some cast the rest in doubt.
In Kempf v. Hennepin County, the employee filed suit, alleging that her termination was in retaliation for an informal complaint of gender discrimination. The employer argued that the termination was supported by four incidents of misconduct. The employee argued that two of the incidents were pretextual, but because she failed to address the remaining two incidents, the trial court found those incidents justified dismissal of her claim. The employee appealed the dismissal arguing that she need not rebut all the employer’s reasons.
The general rule is that, in order to sustain a discrimination or retaliation claim, an employee must show that each of an employer’s reasons for an adverse action is pretextual. An exception to this rule, articulated by the Seventh Circuit and here adopted by the Eighth, is where “multiple grounds” are offered by the employer are “so intertwined, or the pretextual character of one of them so fishy and suspicious” that questions are raised about the other grounds. In order to make this showing, the Eighth Circuit noted that the employer’s reasons must be “so factually intertwined or dependent on one another that showing pretext on one raises a genuine question as to whether the other reasons are valid.” Here, the employee argued that the incidents were intertwined in that all occurred within a three-week period, but the Eighth Circuit found that more than temporal proximity was required where all the incidents were quite different in type and character.