The recent reversal of a case, which we previously discussed, is a good reminder that many of the cases discussed are not final determinations on the merits. In a recent article, we discussed the fact that for purposes of finding race discrimination, temporary employees could be treated differently than long term employees in regards to their tardiness. The 8th Circuit looked more closely at this case, and at whether the reason given for discharge was a pretext, as it was not only a question of tardiness, but whether or not the employee was available for work. At this juncture in the proceeding, a plaintiff may show pretext, among other ways, by showing that an employer (1) failed to follow its own policies, (2) treated similarly situated employees in a disparate manner or (3) changed its explanation of their reason for its decision adverse to an employee. In this case, other non-tardy white employees were not available for work, and the employer’s own statements of certain polices makes no distinction between tardiness and availability for work. Indeed, the employer violated its own policies. It further mischaracterized the employee’s attendance record, which in and of itself will lend support to an improper motive or pretext. Lake v. Yellow Transportation, Inc. (8th Cir. 2010)