Massachusetts Court Relies on Indirect Evidence to Allow Employee to Prove Claim of Wrongful Termination
Wrongful termination claims are easiest to prove when an employer provides some sort of direct evidence that the termination was unlawful. Usually that’s in the form of a comment, something like “it’s time get rid of [employee], he just complains too much.” Direct evidence, however, is rare as most employers know to avoid these types of comments. Instead, employers who want to terminate someone for an unlawful reason typically find some other reason to terminate them, something like “you’re not a good fit,” or “we are restructuring the team,” or “your performance has slipped.” In those situations, employees have to prove their case with indirect evidence, sometimes referred to as circumstantial evidence, as shown recently in the case of Durepo, Jr. v. Eastman Chemical Company, Case No. 3:20-cv-30195-KAR (D. Mass. Jan. 23, 2023).
Richard Durepo sued his former employer for age discrimination, claiming that he was terminated due to his age. The employer responded with evidence showing that it terminated Mr. Durepo because he instructed other employees to falsify their time records. Mr. Durepo did not have direct evidence to call this reason into question. Instead, he was forced to rely on indirect evidence to call that assertion into question. Ultimately, the Court found that the following indirect evidence was sufficient to allow Mr. Durepo to proceed with his claim:
Evidence of persistent efforts by his supervisors to persuade him to retire;
A plan to strip him of supervisory responsibilities and allocate those responsibilities to a younger, less experienced manager;
A discharge process that did not comply with the employers policies and procedures and in which the outcome was foreordained; and
Termination of employment when a similar, far costlier supervisory lapse resulted in no more than a written warning.
This case provides a good example of where an employee can proceed to trial even when an employer (a) provides no direct evidence of discriminatory intent and (b) provides a non-discriminatory reason for the termination.