Employers’ Minefield, Employees’ Opportunity3rd Circuit Slowly Expanding Scope Of Relevant Discrimination Evidence
By Samuel Cordes
Special to the Law Weekly
A significant amount of judicial ink has been spilled analyzing the formalized, shifting-burdens minuet that characterizes federal employment discrimination litigation. Most of this judicial effort has focused on the burdens assumed by the plaintiff when she cannot show discrimination through direct evidence.
However, in a series of recent decisions, the U.S. Court of Appeals for the 3rd Circuit, as well as district courts in this circuit, have begun to focus on the burdens carried by the employer-defendant. These decisions present a minefield for the employer, as well as an opportunity for the employee to avoid-or even obtain-summary judgment.
In McDonnell Douglas v. Green, 411 U.S. 792 (1973), the U.S. Supreme Court adopted a special procedure for structuring the order and allocations of proof when no direct evidence exists in an action challenging employment discrimination.
This well-settled procedure involves three steps. First, the plaintiff must carry the initial burden of establishing a prima facie case of unlawful discrimination. This may be accomplished by showing: (1) the employee belongs to a protected category, (2) he applied for and was rejected or was terminated from a position for which he was qualified; and (3) the employer hired or retained a person not in the protected class or some other evidence raising an inference of discrimination.
Once a plaintiff offers evidence of a prima facie case, the burden shifts to the defendant to offer evidence that is sufficient if believed to support a finding it had a legitimate nondiscriminatory reason for failing to hire or retain the plaintiff. While the employer’s burden is not heavy-it does not shoulder the burden of persuasion-“the explanation provided must be legally sufficient to justify a judgment for the defendant.” (McDonnell Douglas v. Green, 411 U.S. 792 (1973))
If the employer remains silent, in the face of a McDonnell Douglas prima facie case or if the reason it does offer is inadequate to meet its burden, then the court must enter judgment for the plaintiff.
Not any reason an employer offers to meet the plaintiff’s prima facie case will be sufficient to meet the employer’s burden. An employer cannot meet its burden with a hypothetical justification for its decision. Nor can the employer meet its burden by claiming only that it hired the “best qualified” person.
The reason offered likewise, must be more than just a mere authorization to decide but must outline why the employer made the decision in the face of an authorization to do so. For example, an employer would not meet its McDonnell Douglas burden merely by asserting the plaintiff was an employee at will who could be discharged for no reason at all – the employer must say why. Otherwise, “employment at will” would always be an absolute defense to an employment discrimination case – a proposition the 3rd Circuit, along with other courts, has soundly rejected.
An employer could contend it fired the plaintiff because he wore a red tie and still meet the employer’s light burden. However the reason must state why, not how or, I’m allowed.
A number of recent cases in this Circuit show what happens when the employer attempts to offer a how or I’m allowed or a broad policy reason to meet its burden.
Why is Necessary
In Bates v. U.S. Postal Service, slip op. No. 97-3090 (3d Cir. 1997), the employer, in the face of a prima facie case of discrimination, merely pointed to regulations giving the discretion to take the action it took. The 3rd Circuit held the employer’s evidence was insufficient to meet even its light burden of articulating a legitimate nondiscriminatory reason.
The court wrote, “The USPS merely offered an authorization to decide, rather than a nondiscriminatory reason for its decision. Even if the USPS has broad discretion in firing…the ADEA requires it to exercise that discretion in a nondiscriminatory manner. Because the USPS failed to assert a legitimate nondiscriminatory reason for refusing to transfer Bates, the district court erred by granting summary judgment in favor of the USPS.”
The court’s analysis in Bates should offer a wake up call to employers who attempt to meet their burden by claiming the employee was simply an at will employee who could be fired for any or no reason. Indeed, if an employer were to rely on such reasons throughout litigation, the employee would be entitled to judgment as a matter of law at trial or even on summary judgment if the prima facie case is undisputed.
Claiming the employer hired or retained the best person for the job does not meet its burden either.
In Iadimarco v. Runyon, 190 F.3d 151 (3d Cir. 1999), the employer, in the face of a prima facie case of discrimination merely stated that it failed to hire the plaintiff because it “did not believe that plaintiff was the right person for the job.”
When an employer offers such a reason, summary judgment is not appropriate. A minority or female applicant may never be the right person for the job in the eyes of one who feels the job can only be filled by a white male. The biased decision-maker may sincerely believe the white male who was offered the job was the right person or that rejected minority and female candidate were simply wrong for the job.
However, the mere fact that one who discriminates harbors a sincere belief that he hired the right person cannot masquerade as a race-neutral explanation for a challenged hiring decision. Allowing such a belief to suffice to rebut a prima facie case of discrimination is tantamount to a judicial repeal of the very protection Congress intended under Title VII.
In the same vein, a subjective reason for discharge or failure to hire does not meet the McDonnell Douglas burden unless it provides a reason beyond a general opinion.
Claiming an employee was fired merely because of a reduction in force does not meet the employer’s burden.
Then There’s More
Even if the employer offers a why reason for its adverse employment action, it still must meet the McDonnell Douglas “clear and reasonably specific” requirements. Two recent cases again show what happens when the reasons offered do not satisfy this mandate.
In Johnson v. Women’s Christian Alliance 76 F. Supp. 2d 582 (E.D. Pa. 1999), the employer claimed it reassigned the plaintiff simply because of “a desire to reorganize and restructure its personnel.” The employer offered no details or explanation concerning the need or rationale for the reorganization, details of its implementation or its effect on other employees.
The court first observed that an inquiry into the adequacy of the defendant’s reason is very much a part of the McDonnell Douglas framework. The 3rd Circuit has held that the defendant-employer’s reasons must be presented with sufficient clarity and detail to afford the plaintiff a fair opportunity to pierce the proffered reasons with facts of record.
Because the Johnson employer offered merely a broad reorganization reason, it precluded the plaintiff from pointing to “weakness, implausibilities, inconsistencies, incoherences, or contradictions” in the employer proffered legitimate reasons, which would render them “unworthy of belief.” Therefore, the court held the reason was not sufficiently clear and reasonably specific, and it failed to meet the employer’s burden under McDonnell Douglas. The court concluded summary judgment was improper.
Claiming an employee was fired merely because of a policy violation does not meet the employer’s burden; the employer must identify specifically what the employee did to warrant termination or rejection.
In Smith v. Davis, 248 F.3d 249 (3d Cir. 2001), a race and disability discrimination action, the 3rd Circuit reversed a grant of summary judgment against Smith, an alcoholic probation officer, because the employer failed to sufficiently explain the reason for his discharge. Although Smith was informed he was discharged for violating the employer’s drug-and-alcohol policy, there was no indication of what aspect of the policy he had violated.
The employer contended, and the district court agreed, Smith was fired for absenteeism, but the supervisor’s explanation to Smith did not mention absenteeism, and the drug-and-alcohol policy contained no provision about absenteeism or sick leave. The 3rd Circuit held, “because the explanation provided by the defendants did not tell Smith what he did to bring about his termination, it is not legally sufficient.
The defendant’s burden in an indirect-evidence employment discrimination action often has been glossed over partly because of a misconception that any old reason will suffice. While any old reason may suffice, to avoid judgment as a matter of law, the employer’s any old reason must at least be a reason.
An employer must explain why it took the action it did; the explanation must be legitimate and nondiscriminatory, and it must be clear and reasonably specific.
Failing to do so now has consequences in the 3rd Circuit. At a minimum, an employer who attempts to short-circuit its burden with a how answer or a subjective, standardless and broad reason will not obtain summary judgment, regardless of any other evidence the plaintiff presents. And in a proper case, an employer’s failure to present a sufficient reason will entitle the plaintiff to judgment as a matter of law.
When it established the shifting burden of proof in employment discrimination cases, the Supreme Court intended to make employers explain their decisions and then allow the employee to test the credibility of that articulated reason. Often the lower courts have done little more than assume anything the employer says was a legitimate non-discriminatory reason sufficient to meet the employer’s burden.
During the past few years courts in the 3rd Circuit have come to recognize the analysis of whether an employer meets its admittedly light burden under McDonnell Douglas must be anchored to the policy and evidentiary reasons giving rise to that minuet.
For plaintiff-employees the recent cases offer an opportunity to use the McDonnell Douglas minuet to obtain an unexpected summary judgment or judgment as a matter of law at trial. And, at a minimum it should help to better smoke out the employer’s reasons and to set up arguments showing those reasons are pretexts for unlawful discrimination.