The June 8, 2000 Whistleblower Newsletter reports an ARB decision in Masek v. The Cadle Co., ARB No.97-069, ALJ No. 1995-WPC-1 @ n.15 (ARB Apr. 25, 2000), in which the ARB stated that pretext cannot be shown simply by proof that the employer's stated reason for its action is shown to be false, relying on St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)

On June 12, 2000, however, the U.S. Supreme Court issued a decision in a case arising under the ADEA, Reeves v. Sanderson Plumbing Products, Inc., No. 99-536 (2000 WL 743663 (U.S 2000)), holding that a plaintiff may win an employment discrimination case by presenting a prima facie case of discrimination and discrediting the employer's explanation for its actions.

While the Court stated that to find discrimination "the factfinder must believe the plaintiff's explanation of intentional discrimination [as well as disbelieving the employer's version]," Slip op. at 11; 2000 WL 743663 * 9, the Court (slip op. at 11- 12; 2000 WL 743663 * 9) quoted from St. Mary's Honor Center, 509 U.S at 511, as follows:

    "The factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accomplished by a suspicion of mendacity) may together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination."

The Court in Reeves went on to say: "Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive....In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. Such an inference is consistent with the general principle of evidence law that the factfinder is entitled to consider a party's dishonesty about a material fact as 'affirmative evidence of guilt.'" (Slip op. at 12; ; 2000 WL 743663 * 9) citations omitted. The Court's explanation continues, and should be read.

Thus, the ARB's decision on this issue in Masek may no longer represent an accurate statement of applicable law, given the Supreme Court's holding in Reeves.