It’s Not Just What You Say, It’s How You Say It: When an Employer’s Reasons Sound Fishy


The truth is simple, direct, and easy to explain. Lies take more work. Lies are convoluted, shifting, and suspicious.

In a discrimination case, a lot comes down to whether an employer’s explanation for its actions is true or credible. So a lot of scrutiny is given to that explanation. Is it supported by documentation? Has the explanation stayed the same?

If the explanation turns out to be false or just not believable in some way, that is a sign that discrimination is at play. After all, there is no need to lie or mislead if you are telling the truth, and people often lie to cover up illegal things like discrimination.

The recent Fifth Circuit decision in Burton v Freescale, asked those questions about the company’s explanation for firing Ms. Burton. (There were actually two companies, Freescale and a staffing company called Manpower, that employed Burton together as a “temp.” But because the Fifth Circuit found both companies could be held responsible, and to make for easier reading, we will refer to them both as Freescale in this post).

Freescale designs and manufactures microchips. Burton worked there a couple of years with generally positive-to-neutral performance. But things took a turn for the worse after she suffered an on-the-job injury when she was exposed to some chemical fumes. Over the course of a couple months, she started to experience shortness of breath and heart palpitations while working. That led her to officially notify Freescale about her health problems.

Within two weeks of that report, Freescale decided to fire Burton. But it didn’t share that decision with her because it wanted to hire her replacement and have Burton train the replacement. About a month passed, Freescale emailed Burton’s supervisors and asked for warnings, disciplinary actions, or other proof that would support the decision to fire Burton. Then several managers worked with HR to decide what to tell Burton about why she was fired. Ultimately, they decide to tell her she was fired for four incidents, at least two of which happened after the decision to fire her had already been made.

But when you start to look closely at Freescale’s explanation, it doesn’t quite add up. Amongst other things, the Fifth Circuit found that it remains unclear how Freescale reached its decision, when it reached its decision, and the basis for the decision.

Hmm. Smells fishy right?

By Bobak Ha'Eri (Own work) [CC BY 3.0 (], via Wikimedia Commons

The Fifth Circuit Court of Appeals: John Minor Wisdom United States Court of Appeals Building

Here are the things the Fifth Circuit found so suspicious about Freescale’s explanation.


Freescale decided to fire Burton just two weeks after she reported her health problems. Isn’t it strange that everything was basically fine with Burton’s work until she started having health problems?

Suspicious timing like this is not enough to prove discrimination by itself, but that was not the only evidence. There are plenty of other reasons to doubt Freescale’s story.

Changing Stories:

Freescale had a hard time keeping its story straight about why Burton was fired and who made the decision to fire her. One person said she did not know who made the recommendation to terminate, and that she did not have any conversations about firing Burton. But then that employee changed her testimony and said she did recommend that Burton be fired. That’s quite a shift.

Furthermore, Freescale actively mislead the EEOC about why it fired Burton. The EEOC is the federal agency that investigates complaints of discrimination. Freescale told the EEOC that it decided to fire Burton because of things that happened in July. But it was not until later, as the lawsuit progressed, that Burton discovered proof that the termination decision was made in June. Then Freescale tried to emphasize things that happened before July, including some old performance reviews described below. The Fifth Circuit found that shift in emphasis suspect.

No Proof of Misconduct:

Usually when an employee does something wrong, it generates some kind of paperwork: a written warning, a bad performance review, or some kind of disciplinary action. The Fifth Circuit notes that documenting problems right when they occur helps both employers and employees. It helps the employer prove that a problem occurred, and it helps the employee give her side of the story and learn from the mistake.

But Freescale did not have any proof like that to show Burton was a bad worker. It claimed she got a bad rating in two performance reviews. But the reviews were old. They were given 1 and 2 years before Burton was fired. And it turns out that if you read the reviews, they are actually pretty positive! The only truly bad review Burton got was created after Freescale had already decided to fire her!

And then there is that month-long gap between the decision to fire Burton. When it came time for Freescale to explain why it fired Burton, it brought up events that happened during that gap. In fact, it waited until close to the termination date to tell supervisors to gather up documentation on Burton and start “meticulously cataloging [her] every shortcoming.” That is when the new performance review sprouted up.

The Fifth Circuit found this very suspicious. How can you fire someone for something that hasn’t happened yet? And why would a company wait to document problems with an employee? Company policy required performance problems to be documented, and Burton supposedly had longstanding performance problems, but Freescale only started documenting problems after it had already decided to fire her! If she truly was doing a bad job for so long, there would be documents to prove it before the termination decision was made.

A Jury Needs to Sort This Out

The Fifth Circuit concluded that Freescale’s explanations were questionable enough for a jury to decide whether the termination was lawful. So it sent the case back to the lower court for trial.

This decision boils down the common sense idea that, if you are having a hard time sticking to your story, or if your story does not add up, those are often signs that you are not being honest, and it may be a sign you are trying to hide something. When something smells fishy, that often means it is rotten.

A jury will have to sniff out the truth.

(photo of the John Wisdom Building by Bobak Ha’Eri (Own work) [CC BY 3.0 (], via Wikimedia Commons)