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Replacement No Longer Element of Employment Discrimination Prima Facie Case

By Samuel Cordes

For The Lawyers Journal
November 3, 2000

Emily, 50 years old, was fired from her long-term job as a vice president of human resources. Her employer has given inconsistent reasons for the discharge. When her employer fired her it told her she was let go simply because the company was experiencing a downturn in sales. When she filed a charge of discrimination, the reason became her lack of paper work skills. When she finally sued, the employer claimed she was fired because she was insubordinate. Further during discovery, evidence arose showing her boss had repeatedly claimed he does not like older women in higher level positions, although he did not say this when he fired Emily. However, shortly after she was fired, Emily was replaced by a 47-year-old woman.

Does Emily get to the jury with her claim she was fired because of her age and/or sex? Until recently the answer was an easy no. Because she was replaced by another woman, who was only three years younger, Emily would not survive summary judgment. Today, at least in the Third Circuit, Emily would get to the jury.

Litigating discriminatory discharge actions involves a minuet of burden shifts that often complicate this otherwise complicated area of the law. In McDonnell Douglas v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1825 (1973), the U.S. Supreme Court set forth the basic allocation of burdens and order of presentation of proof in a Title VII case alleging discriminatory treatment. First, the plaintiff has the burden of proving, by a preponderance of evidence, a prima facie case of discrimination.

Under McDonnell Douglas, a prima facie case is established by showing (i) the plaintiff belongs to a protected category; (ii) she applied and was qualified for a job for which the employer was seeking applicants; (iii) despite her qualifications she was rejected; and (iv) after her rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications. Id., 411 U.S. at 802, 93 S.Ct. at 1824.

The inquiry is not etched in stone, but is merely a sensible, orderly way to evaluate evidence in light of common experience as it bears on the question of discrimination. Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949 (1978). A McDonnell Douglas prima facie case raises an inference of discrimination because the courts presume the employer’s acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors. Id.; citing International Bhd. of Teamsters v. United States, 431 U.S. 324, 358 n. 44, 97 S.Ct. 1843, 1866, n. 44. (1977).

By proving the elements of a prima facie case, a plaintiff eliminates the most common non-discriminatory reasons for that action. Burdine, 450 U.S. at 254,101 S.Ct. at 1094. Teamsters, 431 U.S. at 358, n. 44,97 S.Ct. at 1866, n. 44; Waters, 438 U.S. at 577, 98 S.Ct. at 2949-50. For example, by showing she is qualified, a plaintiff eliminates what the courts have found to be a predominate reason. Likewise, by showing the position remained open, and the employer continued to seek applicants, the plaintiff eliminates the possibility the employer merely decided not to fill the position, or, in the case of a discharge, that the position was eliminated because the employer no longer needed to have the work performed. That is, she must show she was in fact denied an available position. Patterson v. McLean Credit Union, 491 U.S. 164, 187 & n. 7,109 S.Ct. 2363, 2378 & n. 7 (1989).

McDonnell Douglas itself did not require, as the fourth phase of a prima facie race-based refusal to hire case, that the plaintiff establish the hiring of a non-minority person to fill the job the plaintiff sought; rather, the Court required the more limited showing that “the position remained open, and the employer continued to seek applicants from persons of complainant’s qualification.” Id., 411 U.S. at 802, 93 S.Ct. at 1824. Subsequently, in Burdine, the Court phrased the final element of a prima facie case, as “reject[ion] under circumstances which give rise to an inference of unlawful discrimination.” Id., 450 U.S. at 253, 101 S.Ct. at 1094.

However, over the years, the courts repeatedly have restated the fourth element of a discharge prima facie case as requiring replacement by someone outside the protected category occupied by the plaintiff, in cases where the classification of plaintiffs and their replacement were largely categorical (men/women), and not continuous (as with age). In age discrimination cases, the courts have required replacement by a person “sufficiently outside the protected class to create an inference of discrimination.”

In a series of decisions during the past year, the U.S. Court of Appeals for the Third Circuit, and the U.S. Court for the Western District of Pennsylvania have simplified the fourth element of a prima facie case of employment discrimination. Those courts have moved away from a rigid and wooden procedure that requires certain kinds of discrimination evidence and toward a totality of the circumstances standard that better recognizes the ultimate and often difficult task facing triers of fact. In the process, those courts have correctly and wisely recognized the real question at issue.

In O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308,116 S.Ct. 1307 (1996), the Supreme Court rejected the notion that an age-discrimination plaintiff must prove, as part of his prima facie case, that he was replaced by someone outside of the protected class (i.e., persons under the age of 40). The court reasoned:

As the very name “prima facie case” suggests, there must be at least a logical connection between each element of the prima facie case and the illegal discrimination for which it establishes a “legally mandatory, rebuttable presumption,” Burdine, 450 U.S. at 254 n. 7, 101 S.Ct. 1089]. The element of replacement by someone under 40 fails this requirement…. The fact that one person in the protected class has lost out to another person in the protected class is thus irrelevant, so long as he has lost out because of his age.

As the Court pointed out, an employer appears more motivated by age when it replaces a 56 year-old with a 40 year-old (although both are within the protected class under the ADEA), than when it replaces a 40 year-old with a 39 year-old (though the replacement in this example is outside the plaintiff’s protected class).

The Court’s reasoning applies equally in the gender or race context: “The fact that one person in the protected class has lost out to another person in the protected class is thus irrelevant [to the prima facie case], so long [s]he has lost out because of [his age].” Id., at 312, 116 S.Ct. at 1310 (emphasis omitted).

As the Court concluded:

[T]he proper solution to the problem lies not in making an utterly irrelevant factor an element of the prima facie case, but rather in recognizing that the prima facie case requires “evidence adequate to create an inference that an employment decision was based a[n] [illegal] discriminatory criterion…” Teamsters v. United States, 431 U.S. 324, 358, 97 S.Ct. 1843, 1866 (1977).

Subsequently in Pivirotto v. Innovative Systems, Inc. 191 F.3d 344 (3d Cir. 1999), the Third Circuit eliminated the replacement requirement in the context of a categorical classification claim (race, sex, disability, national origin), and held the fourth element of a prima facie case of discrimination may be show by evidence “adequate to create an inference” of discrimination. While replacement by someone outside the plaintiff’s protected class is sufficient to meet this requirement, it is not the only way to do so.

In Pivirotto, a sex discrimination case tried in the U.S. Distinct Court for the Western District of Pennsylvania, the court charged that the plaintiff was required to show she was replaced by a man. Absent such a showing, the jury was instructed to find for the defendant. Pivirotto objected, and following a jury verdict for the defendant, appealed.

The Third Circuit held a plaintiff alleging discriminatory firing need not to prove, to make out a prima facie case, that she was replaced by someone outside the relevant class. Rather, the prima facie case “clearly require[s] only ‘evidence adequate to create an inference that an employment decision was based on illegal discriminatory criterion'” and is not limited to showing that the position was filled by a person not of the protected class.

More significantly, the court held a plaintiff is not even required to show other similarly situated employees outside the relevant class were treated more favorable. Id., 191 F.3d at 355. We can find no justification of limiting the proof necessary to create this inference to the potentially irrelevant and only marginally probative fact that she was (or was not) replaced by a man. Id..

The Third Circuit explained that the major purpose of the prima facie case is to “eliminate the most obvious lawful reasons for the defendant’s actions (i.e. the position that an applicant sought was not filled for economic reasons, the applicant was not qualified, no adverse action such as failure to hire or firing was actually taken, etc.)” Id., 191 F.3d at 350. The Court reasoned that requiring a plaintiff to prove she was replaced by someone outside her class does not eliminate a common lawful reason for the discharge. For instance, if a plaintiff cannot prove she was qualified or that the employer took an adverse employment action against her, it is clear why the claim of discrimination should fail.

In contrast, the inability to prove a plaintiff was replaced by someone outside of his or her class is not necessarily inconsistent with demonstrating that the employer treated him or her “less favorably than others because of [his or her] race, color, religion, sex, or national origin.” Pivirotto, 191 F.3d at 352.

An employer’s failure to hire someone of a different class from the plaintiff, after the plaintiff’s discharge, could be explained in many ways. For example, an employer may treat women less favorably than men, but still be willing to hire a woman to fill a position left vacant by the firing of a discriminated-against woman. Or an employer may act on gender-based stereotypes, firing women it perceives as not feminine enough (as too feminine), or discharging women who are too aggressive while not doing the same to male employees. See, e.g. Price Waterhouse v. Hopkins, 490 U.S. 228, 250, 109 S.Ct. 1775 (1989). Such an employer would not necessarily replace a discriminated against female employee with a man. Indeed, some employers, anticipating litigation, may hire a woman solely in an attempt to defeat a sex discrimination claim. Id. 191 F.3d at 355.

While the fact someone in a protected class claiming discrimination was replaced by another person from the same class might have some evidentiary force, it does not, as a matter of law or logic, foreclose the plaintiff from proving the employer was motivated by her gender (or other protected characteristic) when it discharged her.” Id. 191 F.3d at 353. Thus the court of Appeals reasoned, “[e]ven if the plaintiff was replaced by someone within her own class, this simply demonstrates that the employer is willing to hire people from this class-and does not establish that the employer did not fire the plaintiff on the basis of her protected status.” Id.

In Roach v. American Radio Systems Corp., 80 F.Supp.2d 530 (W.D. Pa. 1999), the court extended Pivirotto’s reasoning to cases in which the classification of the plaintiffs and their replacements are continuous (such as age). The court held a plaintiff in an ADEA action need not show he or she was replaced by a sufficiently younger person to prove a prima facie case. Rather, as in a categorical discriminatory discharge case, to meet the fourth prong in an ADEA action, a plaintiff can point to evidence creating an inference of discrimination.

Significantly, Roach held evidence the plaintiff offers to meet his final burden of showing the employer’s reasons are pretext for illegal discrimination also is probative of the fourth prong of a prima facie case. In short, an ADEA plaintiff with evidence of discrimination need not also provide other evidence of replacement or different treatment of others. Nor will his evidence be kept in a lockbox.

In Roach, the employer moved for summary judgment arguing the plaintiff, an on-air radio announcer, could not state a prima facie case of age discrimination because the employer first replaced him with a person two years and ten months younger than the plaintiff and, six weeks later, the plaintiff’s job was taken over by a person who was three years and four months older than him. Id., 80 F.Supp. 2d at 531.

Judge Ambrose held that to state a prima facie case, the plaintiff need not present proof that he was replaced by a sufficiently younger person, because he presented other evidence raising a suspicion of age discrimination.

In Roach, the plaintiffs offered evidence that immediately upon purchasing radio station WDSY-FM, ARS lowered the station’s target audience median age from 42 to 38-40; that a former sales manager of the station testified on two separate occasions that the station manager and general manager said Roach, and another on-air announcer “are old sounding,” “don’t reflect (the] hip image of country” and are “old and hill-billy sounding.” However, a 31-year old on-air announcer at the time of plaintiffs’ discharge told the station manager he was not interested in an assistant programmer position. He was not fired, but rather was transferred to another time slot. Id., 80 F Supp.2d at 533.

This evidence met the fourth element of a prima facie case of age discrimination, and also was evidence that the reasons offered by the employer were pretexts for illegal age discrimination. Id., 80 F. Supp.2d at 532, 533.

Because a prima facie case only requires evidence adequate to create an inference that an employment decision was based on an illegal criterion, replacement is neither legally nor logically required. Id., citing O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312., 116 S.Ct. 1307, 1310 (1996) Pivirotto, 191 F.3d at 344. Thus the Roach evidence was sufficient to create an inference that the plaintiff was discharged because of his age, for purposes of showing the fourth element of an ADEA prima facie case. Id.

Finally, earlier this year the Third Circuit came full circle and conflated the test for the fourth element of the prima. facie case with the test for whether the employer’s reasons are pretext for illegal discrimination.

In Farrell v. Planters Lifesavers Co., 206 F.3d 2.1 (3d Cir. 2000), the Third Circuit held the entire record, including evidence of pretext should be reviewed in determining whether a plaintiff has met the causation (or fourth) element of prima facie case. In Farrell, the Third Circuit expressly held that evidence of inconsistencies in the employer’s proffered reason for discharge, for example, can be probative of one element of a prima facie case, just as evidence of a prima facie case can be probative at the pretext stage. Id;, 206 F.3d at 286 & n. 11. In short, the fourth, or causation element of a prima facie case of discrimination is not limited to a certain kind of evidence. An ADEA adverse job discrimination claim need only point to evidence creating an inference of unlawful discrimination to meet the fourth element of a prima facie case.

Farrell held that evidence of inconsistencies in the employer’s explanation for why it fired the plaintiff, as well as timing that was arguably not suggestive enough to be dispositive, sufficed to meet the fourth or causation element of an adverse job discrimination action. Id., 206 F.3d at 286.

The court acknowledged its method may seem to differ from the traditional approach that kept prima facie case evidence apart from pretext evidence. However, no reason in law or logic compels such a segregation of evidence. Evidence supporting the prima facie case is often helpful in the pretext stage, and nothing about the McDonnell Douglas formula requires a court to ration the evidence between one stage or another. Id.; see also Reeves, 120 S.Ct. at 2106 (trier of fact may consider evidence establishing the employee’s prima facie case, and inferences properly drawn there from on the issue of whether the defendant’s explanation is pretextual). The court does not limit the kinds of evidence that can be probative of a prima facie case, any more than the courts have limited the type of evidence that can be used to demonstrate pretext.