“Pretext Plus” Nothing

by John Gause, Esq.
Published: Maine LAWYERS REVIEW, August 16, 2000

One of my earlier articles asked the question: “Pretext Plus: Plus What?” InReeves v. Sanderson Plumbing Products, Inc., the United States Supreme Court gave part of the answer: Usually nothing. Decided in this June, Reeves will make it easier for plaintiffs to understand what they must do to prove illegal employment discrimination, although some uncertainty remains.

Nearly every employment discrimination case involves a fight over whether plaintiff has presented enough evidence of discriminatory animus to get to the jury. Obviously, we would like to know how much is enough before investing the time and resources necessary to bring these claims. This has proved difficult under the various permutations of the McDonnell Douglas framework.

Absent direct evidence of discrimination, plaintiff generally must first establish a prima facie case of discrimination. She does so by proving that she was a member of a protected class, that she was qualified for the position, and that she suffered an adverse employment action. This creates a presumption of illegal discrimination in plaintiff’s favor, and she wins if defendant does nothing.

In reality, defendant never does nothing. After plaintiff has made out a prima facie case, defendant rebuts the presumption by articulating a nondiscriminatory reason for its employment decision. Defendant bears only the burden of production, and the burden of persuasion rests with plaintiff at all times. Defendant meets its burden by simply identifying a reason, good, bad, supported or unsupported.

Once defendant identifies its reason, the original presumption drops from the case. Plaintiff now retains the overall burden of proving illegal discrimination. To reach the jury, plaintiff must at least produce evidence proving that defendant’s reason is false. The confusion arises when trying to figure out what else, if anything, plaintiff must do. To survive a motion for judgment as a matter of law, does plaintiff need to prove more than her prima facie case and that defendant’s explanation is false?

Prior to Reeves, the Circuit Courts of Appeals were split on this issue. Some held that plaintiff will usually get past summary judgment or directed verdict as long as plaintiff can point to evidence that defendant’s reason is false. Others, including the First Circuit, required more. These courts emphasized plaintiff’s burden of showing defendant’s reason was a “pretext for unlawful discrimination,” and they allowed plaintiffs to reach the jury on a showing of pretext alone only in exceptional cases. Usually, plaintiffs were required to point to additional evidence of discriminatory animus.

The Supreme Court’s decision in Reeves addressed this conflict. The Court stated that it granted certiorari “to resolve a conflict among the Courts of Appeals as to whether a plaintiff’s prima facie case of discrimination . . . combined with sufficient evidence for a reasonable fact finder to reject the employer’s nondiscriminatory explanation for its decision, is adequate to sustain a finding of liability for intentional discrimination.”

Roger Reeves was 57 years old. A part of his supervisory responsibilities was to keep track of the attendance and hours of the workers who reported to him. Two other supervisors had similar responsibilities, one 30 years old and the other 45 years old. When the company discovered that people were coming in late and leaving early, and they ordered an audit. The audit revealed numerous timekeeping errors by all three supervisors. Reeves and the 45-year old supervisor were terminated.

Reeves filed suit under the Age Discrimination in Employment Act. The company defended by claiming that Reeves was terminated for his failure to keep accurate attendance records. To show pretext, Reeves introduced evidence that he accurately recorded the hours and attendance. He also testified that his supervisor made comments demonstrating an age prejudice against Reeves. At the close of the evidence, the trial court denied Sanderson Plumbing’s motion for judgment as a matter of law, and the jury returned a $37,000 verdict for Reeves.

The Fifth Circuit Court of Appeals reversed. It held that, although Reeves had shown that Sanderson’s reason for terminating him was pretextual, Reeves had not proven that he was fired because of his age. The court dismissed Reeves testimony about his supervisor’s age-based comments because they were not made in the context of Reeves’ termination, and there was no evidence that the other managers involved in the termination decision held any age prejudice. The court also noted that many of Sanderson’s management positions were filled by people over age 50.

The Supreme Court reversed, and it reinstated the jury verdict. The Court held that the Fifth Circuit placed too high a burden on Reeves by requiring that he show more than his prima facie case and pretext. In fact, the Fifth Circuit ignored these two factors altogether in deciding that Reeves had not shown age discrimination. The Supreme Court held that the prima facie case and a showing of pretext are both relevant to whether plaintiff was terminated because of his age, and they alone can be enough to satisfy his overall burden of proof. The Court cited its prior holding that, “it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer’s explanation.”

The Court stopped short, however, of holding that plaintiffs will always reach the jury with a prima facie case and a showing of pretext: “This is not to say that such a showing by the plaintiff will always be adequate to sustain a jury’s finding of liability.” The Court used language such as, “in appropriate circumstances,” the trier of fact can infer illegal discrimination from the falsity of the employer’s articulated reason, and the Court stated that a showing of pretext “may” permit the trier of fact to find unlawful discrimination. The Court recognized its prior holdings that a showing of pretext, together with a prima facie case, does not compel judgment in plaintiff’s favor.

Nevertheless, the Court made clear that defendant’s motion for judgment as a matter of law should usually be denied when plaintiff makes out a prima facie case and pretext. In explaining what it meant by stating that there will be circumstances where a showing of pretext is not enough, the court gave the following examples: “For instance, an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer’s decision, or if the plaintiff created only a weak issue of fact as to whether the employer’s reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred.”

Without stating it directly, the Court appears to be opening the door for a permissible inference of discrimination that always results from a showing of a prima facie case and pretext. In her concurrence, Justice Ginsburg asked the Court to be more definitive in the future: “I write separately to note that it may be incumbent on the Court, in an appropriate case, to define more precisely the circumstances in which plaintiffs will be required to submit evidence beyond these two categories in order to survive a motion for judgement as a matter of law.” Ginsberg advocated a rule that an inference arises in every case, and that summary judgment should only be awarded if defendant can conclusively show that discrimination could not have been its true motivation.

Justice Ginsburg’s position is consistent with the majority opinion in Reeves. The Court’s examples of when summary judgment will be appropriate appear to place the burden on defendant to overcome an inference in plaintiff’s favor. Defendants have to point to a record that “conclusively” reveals some other reason for the adverse employment action or “abundant and uncontroverted independent evidence” that there was no discrimination. The Court stated that the factors to be considered in determining whether judgment as a matter of law is appropriate include, “the strength of the plaintiff’s prima facie case, the probative value of the proof that the employer’s explanation is false, and any other evidence that supports the employer’s case.”

That an inference arises in plaintiff’s favor in each case is supported by the general principal of the law of evidence that a lie can be used as affirmative evidence of guilt. Faced with an accusation of unlawful employment discrimination, the fact that an employer would give a false reason for its employment action raises an inference that the employer is covering up its illegal motives. This principal was cited by the majority in Reeves, and Justice Ginsburg pointed to it as justification the proposition that plaintiff should reach the jury in all cases where plaintiff shows pretext.

Thanks to this decision, plaintiffs will have a better sense of what they must do to reach the jury. While uncertainty still clouds some aspects of this issue, Reeves undoubtedly makes it easier for plaintiffs to have their day in court. Because illegal motives rarely come out in the open, plaintiffs should be allowed to prove discrimination by showing that their employers are attempting to cover up the truth. As the Court stated in Reeves: “Once the employer’s justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision.”