How Much Evidence of Pretext Do You Need to Prevent Dismissal before Trial?
Pretext “Plus” evidence of gender discrimination [or the applicable protected attribute] is not required.
This was squarely addressed in Jones v. Okla. City Public Schools, 617 F.3d 1273, 1280 (10th Cir. 2010):
Reeves [v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148 (2000)] expressly held that ‘a
plaintiff’s prima facie case [of discrimination], combined with sufficient evidence to find that the
employer’s asserted justification is false, may permit the trier of fact to conclude that the
employer unlawfully discriminated.’ Id. at 148. No additional evidence is necessary to show
discrimination because ‘[p]roof that the defendant’s explanation is unworthy of credence is
simply one form of circumstantial evidence that is probative of intentional discrimination.’ Id. at
Consistent with Reeves, our Tenth Circuit Court of Appeals has ‘definitively rejected a ‘pretext
plus’ standard.’ Swackhammer v. Sprint/United Mgmt. Co., 493 F.3d 1160, 1168 (10th
Cir.2007). Consequently, ‘once a plaintiff presents evidence sufficient to create a genuine
factual dispute regarding the veracity of a defendant’s nondiscriminatory reason, we presume
the jury could infer that the employer acted for a discriminatory reason and must deny summary
judgment.’ Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1125 (10th Cir. 2005).
As the Supreme Court has reaffirmed, [p]roof that the defendant’s explanation is unworthy of credence
is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may
be quite persuasive…. In appropriate circumstances, the trier of fact can reasonably infer from the
falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose.
Reeves, 530 U.S. at 147….” Plotke v. White, 405 F.3d 1092, 1104 (10 th Cir. 2005).
As applied, a plaintiff’s prima facie case of discriminatory discharge, plus evidence of pretext (e.g., as
noted above), permits a trier of fact to infer that an employer intentionally discriminated (by
terminating the employee or causing other tangible injury to the employee).