The Trump Administration justified its firing of FBI Director James Comey yesterday with Comey’s handling of the Hillary Clinton email investigation. The basis of the argument was that Comey shouldn’t have stated that Clinton’s use of a private server was “extremely careless” when he first ended the FBI’s investigation of the matter. This justification appears laughable for many reasons, the most significant of which is that Trump praised Comey before and after taking office, and kept him on board for months.
As a result, the word “pretext” has been mentioned in numerous news articles about the administration’s justification for the firing. The dictionary definition of “pretext” is “a reason given in justification of a course of action that is not the real reason.” If you read the practice area pages on my site relating to employment discrimination, you will notice that the basis for most wrongful termination cases is “pretext.” In other words, the employer makes up a reason to justify terminating an employee, when the real (hidden) reason is something illegal – like discrimination based on race, ethnicity, age, or gender, or in retaliation for making certain types of complaints.
In Trump’s case, the real reason for firing Comey appears to be to circumvent the Russia investigation. Let’s pretend that this was all taking place in California, and that Trump was Comey’s employer. Would Comey have an employment case? Probably not. While it does appear that Comey could establish “pretext,” i.e., that his handling of the Clinton investigation wasn’t the real reason for his firing, he’d be unable to show that the real reason was because of discrimination or in retaliation for making a complaint. This is the case because the alleged real reason is to avoid the Russia investigation, and that isn’t one of the illegal reasons for a termination established by California’s Fair Employment and Housing Act.
You can use this same process in evaluating your employment case. First ask, is the reason my employer gave me for my termination the real reason? If the answer is no, that’s only half the battle. You next need evidence that the real reason was one of the reasons (discussed above) that are defined as illegal by California law.