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Employer Need Not Follow Its Policies Precisely to Overcome Discrimination Claim

DIRTT Environmental Solutions, Inc. (DIRTT) employed Patricia Gill as a government sales director beginning in 2005. In 2014, Toni Pahl was hired to co-direct the government sales; she was ten years younger than Gill. After Gill was fired in 2015, she sued for discrimination under the Age Discrimination in Employment Act (ADEA). DIRTT stated at the time of her termination that it fired Gill because of numerous complaints from her co-workers. These co-workers complained that Gill “disseminated false information to DIRTT representatives and clients, attempted to take over her coworker’s responsibilities, excluded necessary coworkers from contract discussions and improperly marked education contracts as government contracts to increase her commission.” Many of the complaints were shared with Gill and a meeting was requested to discuss them.
The Fifth Circuit Court of Appeals reviewed Gill’s appeal from the dismissal of her case on summary judgment. Gill needed to show the appellate court that the asserted reasons for her termination were pretextual. Pretext could be established “through evidence of disparate treatment or by showing that the employer’s proffered explanation is false or ‘unworthy of credence.’”
According to the court’s opinion, Gill did not provide any evidence of disparate treatment. Rather, she attempted to show that the reasons given were false or unworthy. First, she argued that DIRTT failed to investigate the complaints against her as required by its own policies. The court noted that while failure to follow policies may be evidence of discrimination, there must also be a showing that Gill was treated differently. Here, Gill did not provide any information to connect DIRTT’s failure to investigate in accordance with its policy and her age. Next, Gill argued that DIRTT told the EEOC that it had investigated. The court noted while misrepresenting to the EEOC may be “circumstantial evidence” of discrimination, such a misrepresentation had not occurred in this case. Gill’s proffered evidence did show that DIRTT had conducted at least some investigation. Lastly, Gill argued that DIRTT did not rely on the complaints made about her in good faith because it did not notify her of them or investigate them. The court disagreed, finding that DIRTT received many complaints about her, the company notified her about many of the complaints and requested meetings to discuss them. Even if DIRTT did not notify her of every complaint, the appellate court concluded that it made a “reasonably informed and considered decision to terminate Gill based on her unprofessional behavior.” Summary judgment was affirmed.