Using Your Employer’s Implausible, Inconsistent, or Contradictory Statements to Strengthen Your Retaliation Case in New York

If you’ve been punished — such as being fired, demoted, suspended, or some other adverse employment action — for complaining about discrimination, you know that your employer will almost certainly not own up to the true reason for your punishment, but will put forth some seemingly reasonable and legitimate explanation. Succeeding in a retaliation case, then, means exposing the stated reason for the pretext it was, and showing the true reason motivating your employer. An experienced New York employment retaliation lawyer can help at every step in accomplishing these goals.

As a recent pregnancy discrimination and retaliation case from here in New York City demonstrates, one of the best ways to bolster your case is to create questions about your employer’s credibility by exposing inconsistent or contradictory statements.

The employee, S.K., was a board-certified clinical neuropsychologist who took a job with a medical center in New York City. In early 2012, the neuropsychologist became pregnant. She delivered her child in early October and began a twelve-week period of maternity leave. According to the doctor, she “had several conversations with colleagues and was told this was a ‘standard’ maternity leave.”

Nevertheless, when she returned in January, one of her supervisors commented that “you’ve been gone for so long, I forgot you were here.” The other supervisor allegedly referenced the neuropsychologist’s maternity leave as being excessively long “on many occasions.”

The doctor became pregnant with her second child in the latter half of 2014 and took early maternity leave in April 2015 due to an illness. In December of that year, the neuropsychologist sent an email to supervisors questioning why she was being punished for her two maternity leaves (and, implicitly, the result of pregnancy discrimination.)

By the following July, the employer terminated the neuropsychologist. Although patients “loved” S.K. and coworkers enjoyed working with her, the employer “could not afford to keep her,” her supervisor allegedly told her.

The neuropsychologist subsequently filed a lawsuit alleging discrimination and retaliation.

The Importance of Credibility (or a Lack Thereof) in Establishing Pretext

There are a variety of ways you can substantiate your retaliation claim. As the court in S.K.’s case pointed out, a worker can “prove that retaliation was a but-for cause of an adverse employment action by demonstrating weaknesses, implausibilities, inconsistencies, or contradictions in the employer’s proffered legitimate, nonretaliatory reasons for its action. From such discrepancies, a reasonable juror could conclude that the explanations were a pretext for a prohibited reason.”

The neuropsychologist presented a case where those sorts of flaws were present. She alleged that her supervisor told her that the employer terminated her because it could not “afford” her. Her supervisor, however, contended that he never made such an assertion about the reason for the neuropsychologist’s termination.

Additionally, a dean testified that he had no knowledge of S.K.’s concerns about being treated differently as a result of her maternity leaves, but that same dean had engaged in a lengthy email exchange with another dean where the deans discussed the neuropsychologist’s concerns about being penalized due to her maternity absences.

Furthermore, two other doctors testified that the neuropsychologist’s profit-and-loss deficit (which was something she alleged was the result of unfair treatment in relation to her maternity leaves) was not a factor in deciding to let S.K. go, but emails showed that the deficit was specifically listed as bullet point number three in a five-item list of reasons why the neuropsychologist should be fired.

So, what the neuropsychologist had succeeded in doing was establishing instances where individuals gave testimony indicating one thing, while their comments over email indicated something very different. When you, as a worker, manage to demonstrate these sorts of inconsistencies, then what you have done is create a legitimate issue of credibility and raise the implicit prospect that those individuals testifying for your employer have engaged in inconsistent or contradictory statements because the employer’s stated reason for your firing was really a mere pretext for the true discriminatory (or retaliatory) motive.

That’s extremely important because, in almost all situations, credibility issues are the sorts of things that should be decided by a jury, which means that your employer cannot get your case tossed out on a motion for summary judgment.

When you take the bold step of standing up for your rights, doing so shouldn’t come at the price of your job. For too many workers, though, that’s exactly what happens. Proving a retaliation claim can be highly challenging. The experienced New York employment retaliation attorneys at Phillips & Associates are here to help. Contact us online or at (866) 229-9441 today. Your confidential consultation is free and you owe nothing unless your case succeeds.

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