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The Devil is in the Pretext: No Successful Discrimination Claim If Employee Does Not Carry Burden to Prove Ulterior Explanation for Employer’s Actions


By Rachel A. Duboff and Erin Dougherty Foley

Seyfarth Synopsis: Employers can take precaution against discrimination claims by ensuring they have legitimate, nondiscriminatory reasoning for their decision-making. An honest explanation of their behavior makes it credible.

The Eighth Circuit’s recent opinion in Banford v. Board of Regents of UM affirms the steps required to prove a discrimination claim. Plaintiff Jen Banford, a gay woman, was the women’s head softball coach and part-time Director of Operations for the women’s hockey team at the University of Minnesota Duluth (“UMD”). By the 2014-2015 season, all of the women’s hockey team staff were likewise gay women. That season, UMD’s new Athletic Director fired the women’s hockey head coach, and Banford’s contract, along with two assistant coaches, were also not renewed. While Banford was offered the opportunity to continue as the softball head coach, she instead left UMD altogether. She sued UMD alleging discrimination under Title VII, claiming that she was fired because of her sexual orientation.

The Eighth Circuit affirmed the district court’s grant of summary judgment to UMD, finding that Banford failed to meet the required test to prove discrimination, as well as failed to create an inference of pretext on behalf of UMD’s explanation for its behavior. In so doing, the court emphasized the key points required to prove a discrimination claim:

To survive summary judgment for discrimination under Title VII, an employee must show direct evidence of discrimination or an inference of unlawful discrimination, including sufficient evidence of pretext.

To show an inference of discrimination, the McDonnell Douglas burden-shifting framework must be met:

  • The employee must first establish a prima facie case of discrimination
  • The burden then shifts to the employer to show a legitimate, nondiscriminatory reason for their behavior. This showing is a low burden.
  • The employee next must offer evidence that the employer’s explanation is mere pretext (the legal term for “a lie”) for intentional discrimination.

An Employer’s Legitimate, Nondiscriminatory Reason Must be Credible

The legitimate, nondiscriminatory reason for the employer’s actions must be a credible, honest explanation as to their behavior. Here, UMD said it let Banford go from her position on the women’s hockey team staff because it is typical to fire other staff members when firing a head Division I coach. The position of Director of Operations works closely with the head coach, and therefore that position should be open for a new coach to hire as part of their own staff. Because the burden for offering a legitimate, nondiscriminatory reason is low, UMD carried their burden.

For an employer to prevail, the rationale or reason only needs to be credible. Courts do not examine an employer’s business decisions; they only examine if the employer offered an honest explanation of their behavior. The Eighth Circuit found UMD’s explanation — that they wanted a new coach to choose their own Director of Operations — to be credible, and thus the burden shifted.

Pretext Can be Shown If Similarly Situated Employees are Treated Differently Based on a Protected Class

The Eighth Circuit held that Banford did not meet her burden of showing UMD’s reason for firing here was pretextual because there was no varying treatment of similarly situated employees based on a protected status. The term “similarly situated” refers to fellow employees who hold the same duties or roles but are outside of that employee’s protected class.  For example, in a gender discrimination case brought by a female clerk, courts would look at the treatment toward a male clerk.

Banford failed to show pretext because the employees not fired were also gay, and therefore in the same protected class. Even more, the staffers not fired did not share the same roles: they reported to different people, had different duties, and different domains. Therefore, no pretext existed because the staffers UMD did not fire were not similarly situated as to Banford.

Ultimate Burden Must be Met for a Discrimination Claim to Succeed

An employee has the ultimate burden of proving they have been discriminated against, which Banford failed to prove here because two staffers who had their contracts renewed were also gay. In order to succeed on a discrimination claim, the differentiating factor must go to the protected class. Absent that, as occurred here, the employer will, generally, win on summary judgment.

Key Take-Aways when Making Termination Decisions:

  • Employers must have an honest explanation for their termination decision that is not based on any protected status.
  • Employees of different protected classes who hold the same duties or roles should not be treated differently based on that difference.
  • Employers should thoroughly document their reasoning for terminating an employee that way, if memories fade, those documents can be used to refresh what happened.

If you have questions regarding this article, please contact the authors or your Seyfarth attorney.


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