Shifting Explanations, Pretext, and the Employer’s Stated Reason

Capture Each Version

Create a table with date, speaker or author, audience, exact language, supporting documents, and omissions. Preserve the original termination notice, meeting notes, unemployment submission, agency position statement, investigation summary, and later testimony.

Detail Is Not Always a Shift

A short termination notice may be expanded later by counsel. Different authors may use different wording. A legal brief may organize facts that were already known. The question is whether the core reason changed, a new reason appeared, a prior reason disappeared, or the evidence conflicts with the explanation.

Pretext Evidence

Potential indicators include:

• contradiction with contemporaneous records;

• false factual premise;

• changing decision-maker identity;

• selective policy use;

• unexplained deviation;

• comparator inconsistency;

• post hoc creation of standards;

• missing investigation steps;

• improbable timing; and

• admissions or hostility.

None is automatically decisive.

The Defense Case

The employer may show that multiple reasons existed, that one document was incomplete, that new evidence emerged, or that the ultimate decision would have occurred anyway. It may also show consistent treatment and independent review. A worker’s analysis should address those facts directly.

The Position Statement

An EEOC position statement is a particularly valuable source because it often sets out the employer’s formal account. Compare it with pre-charge records. Identify who supplied the facts, which documents are cited, what is omitted, and whether the response addresses the actual charge. Compare the position statement with the employer’s earlier records and explanations, and identify who supplied the facts used in the formal response.

Do Not Overwrite the Original Story

Keep a stable chronology of what was said when. Do not revise earlier notes to match later information. Add corrections with dates and explanation.

Pretext analysis is not “find any inconsistency.” It is a disciplined inquiry into whether the stated reason is credible and whether retaliation better explains the action.