A recent Kentucky Court of Appeals decision is a reminder of a litigation truism –  there is no such thing as a “motion to change the facts.” Admittedly, I have handled numerous cases over the years wherein I wished, hoped and even prayed that I could file such a motion.  Much to my chagrin, a “motion to change the facts” is not available.  However, don’t despair because plaintiffs also find themselves wishing they could change the facts.  As the Kentucky Court of Appeals recently found, the “cold hard facts” are what they are, and a plaintiff’s subjective beliefs about the reason for her termination won’t carry the day.

In Conley v. Mountain Comprehensive Care Center, Inc., 2017 WL 3129215 (Ky. App., July 21, 2017), a licensed clinical social worker was terminated and sued her employer claiming age discrimination.  This case stems from Ms. Conley’s preparation and submission of a therapeutic treatment plan for a foster child directly to the Perry County Family Court, rather than to the Department for Community Based Services (“DCBS”).  It should be noted that Ms. Conley’s therapeutic treatment plan was apparently in conflict with the recommendations made by DCBS related to the child.  Ultimately, the employer terminated Ms. Conley, for cause, based upon the employer’s determination that she violated client confidentiality and failed to work with community partners, specifically DCBS.

While Ms. Conley met her burden of establishing a prima facie case for age discrimination (older than forty years of age, discharged by her employer, qualified for the job and replaced by a younger person), the employer adequately established a legitimate, nondiscriminatory reason for her termination – the disclosure of a confidential treatment recommendation.  Employers may recognize this analysis as “burden-shifting.”  Once a plaintiff has proven a prima facie case of discrimination, the employer can potentially still avoid liability by proffering a legitimate, nondiscriminatory reason for the adverse employment action.  After the employer offers a legitimate, nondiscriminatory reason for the termination, a plaintiff then has the burden of submitting evidence that such reason is nothing more than pretext.  If the plaintiff successfully proves pretext, then the case will proceed forward.

The question then becomes, what must the plaintiff show in order to establish pretext?  In Conley, the Court of Appeals reaffirmed its prior case law requiring such a plaintiff to submit “proof of cold hard facts creating an inference showing [discriminatory motive] was a determining factor in the [adverse employment action].”  A plaintiff cannot rely upon “subjective beliefs and theories,” but rather must come forward with “specific evidence of pretext.”

In this case, Ms. Conley could not come forward with “cold hard facts” showing that the employer’s stated legitimate, nondiscriminatory reason for firing her was pretext.  Her laundry list of “subjective beliefs and theories” were simply not enough to prove pretext.  Thus, summary judgment in favor of the employer was appropriate.

The Court of Appeals got this one right, in my opinion.  One noteworthy item is that it appears that the employer was consistent in its reasoning for Ms. Conley’s termination.  From her termination notice and throughout the litigation, the legitimate, nondiscriminatory reason was the same – the disclosure of confidential information.  In my practice, I have seen numerous cases wherein the reason given for a termination changed several times.  While not always a death knell for the employer, it certainly makes the case more difficult.  Employers should strive to receive input from all individuals involved in the decision making process to ensure that the reason given for terminating an employee is truthful, consistent and well documented.  That consistency certainly proved useful for the employer in this case.

Lastly, if you are aware of anyone ever successfully filing a “motion to change the facts,” please let me know.  I want a copy.