The Importance of Discovery in Proving Workplace Discrimination Based on Circumstantial Evidence

Employment discrimination claims are usually proven on circumstantial evidence as opposed to direct evidence. The latter is also known as the “smoking gun,” which very often does not exist. Below are two examples to illustrate the difference between these two types of evidence using, as I’ve been known to do, characters from the TV sitcom, The Office:

(1) Michael Scott falls under the misguided impression that the surest way to increase profits is to fire all employees above 40 years old. He promptly terminates Phyllis Lapin and provides her with a letter stating that he has enjoyed working with her and regrets having to terminate her because of her age. This is clearly direct evidence of discrimination. Dunder Mifflin is embarrassed and promptly settles out of court.

(2) Michael Scott falls under the same misguided impression. However, after discussing his scheme with Dunder Mifflin’s Human Resources guru, Toby Flenderson, Michael is flabbergasted to discover that such a termination would be illegal. Rather than discharge Phyllis, Michael enlists his trusty sidekick, Dwight Schrute, to convince Phyllis to retire. Together, Michael and Dwight engage in a series of age-based comments directed toward Phyllis. In one instance, Michael asks Phyllis about her plans to retire and tells her, “There’s not much time left.” In another instance, Dwight starts an office pool and awards the proceeds to the employee who comes closest to guessing Phyllis’ age. Unperturbed, Phyllis keeps working. Michael eventually gives in and terminates Phyllis under the auspices of poor performance. Toby is shocked and reminds Michael that he gave Phyllis an excellent performance review the month before. Michael laughs Toby off, tells him he worries too much, and assigns Phyllis’ sales accounts to the receptionist, Pam Beesly, who has no prior sales experience. There is clearly circumstantial evidence of discrimination. The case against Dunder Mifflin is not air tight, but Phyllis will likely prevail.

Cases based on circumstantial evidence follow a three-step analysis. First, the employee alleging workplace discrimination must establish what is called a prima facie case. In the second example, Phyllis satisfies this burden because: (a) she falls into a protected category being 40 years old or older, (b) she suffered an adverse employment action by way of her termination, and (c) she was replaced by Pam, who happens to be at least five years younger. Having established her prima facie case, the burden now shifts to Dunder Mifflin to supply a legitimate, non-discriminatory reason for the termination. Based on Phyllis’ superb performance, the company realizes that it cannot credibly claim that Phyllis was terminated based on performance. Accordingly, Dunder Mifflin claims that her position was eliminated through a re-organization. The burden then shifts back to Phyllis to show that the company’s alleged rationale is pretextual.

A showing of a pretext can be accomplished in many different ways. First, the age-based comments to which Phyllis was subjected certainly raises a specter of impropriety. Furthermore, the fact that Michael terminated Phyllis based on performance, despite a very recent glowing evaluation, shows inconsistency on Dunder Mifflin’s part. In addition, the changing rationale for Phyllis’ termination — from performance to re-organization — is yet another factor commonly used to show pretext. Finally, that Phyllis’ responsibilities were actually assigned to another employee, with far less experience, rings pretext.

The biggest part of any case is discovery, in which either party can request documents from the either side to prove their case or mount their defense. For example, perhaps there were e-mails between Toby and Michael in which Michael shared his ideas to increase profits by firing all employees above 40 years old. Perhaps there were also e-mails between Michael and Dwight detailing the plot to force Phyllis to resign. Such documents would be discoverable. If asked to do so, Dunder Mifflin would be forced to produce such e-mails to Phyllis and her attorney.

One might wonder: what if Dunder Mifflin claimed that such e-mails did not exist, even though they did? This is exactly what is at issue in a case against the law firm of Foley & Lardner. According to an article in entitled, Age Discrimination Suit Against Foley & Lardner Sparks Discovery Tiff, Hideko Shiroyama, who worked as a legal secretary at Foley & Lardner, is suing for age discrimination. Prior to her exit, Ms. Shiroyama took more than 800 pages documents to support her claims. Based on these documents, her attorney believes he has a road map to discover other documents in Foley & Lardner’s possession to substantiate the claim that Ms. Shiroyama’s termination was due to age discrimination. The law firm, however, refuses to produce those documents in discovery.

Discovery if the heart of any case. It will be interesting to see whether the court rules that Foley & Lardner’s decision to withhold information is lawful or whether it amounts to an abuse of process.