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The Fifth Circuit Defines the Employer's Burden to Rebut an Inference of Discrimination

As I've written here before, in most discrimination cases, there is no smoking gun evidence of discrimination; and most cases, therefore, must be proven through circumstantial evidence. As I've also written, the law has imposed a burden-shifting framework in assessing these circumstantial evidence cases.

Over the years, proving cases through circumstantial evidence has become more or less difficult with the natural ebbs, flows, and accretions of the ever-developing common law. In the last several weeks, however, there have been some fairly remarkable opinions from two different federal courts of appeal. In my view, these opinions are quite favorable to the many, many workers who have been the victim of employment discrimination. I discuss one of those cases here.

This is a case from the Fifth Circuit Court of Appeals, which decides cases and interprets the law for the citizens of Texas, Louisiana, and Mississippi. In Heinsohn v. Carabin & Shaw, P.C., decided on July 26, 2016, the Fifth Circuit reversed a summary judgment that the trial court had granted against the plaintiff. That just means that the trial judge had dismissed the plaintiff's case before she could have a trial by jury; and the plaintiff appealed the case to the Fifth Circuit.

On appeal, the Fifth Circuit breathed life back into her case, told the trial court that it got it wrong, and allowed Ms. Heinsohn to have a jury decide if the employer unlawfully fired her because of her pregnancy. (State and federal law makes it illegal to fire someone because of pregnancy).

In the past, I have written a little about the first, or prima facie case, stage of the burden-shifting framework for circumstantial evidence cases. In Heinsohn, the Fifth Circuit has a useful discussion of the second stage of the inquiry. At the second stage, the employer has the opportunity to rebut the inference of unlawful discrimination that the plaintiff must establish at the first stage through the prima facie case. The employer does so simply by pointing to some evidence of a legitimate, non-discriminatory reason.

The employer's obligation to come forward with evidence at that stage is minimal, but, as the Heinsohn Court's discussion makes clear, it is not non-existent. Judge Jacques Weiner writing for a unanimous three-judge panel makes this latter point crystal clear. In Heinsohn, the employer introduced evidence in the form of deposition testimony of two alleged infractions that the employer claims were the reasons for the employee's termination, and not her pregnancy.

The Court observed that the employer, Carabin & Shaw, had produced only "scant evidence" of an alleged legitimate, non-discriminatory reason. It further made clear that the employer must produce evidence that legitimate, non-discriminatory reason actually motivated the employer to fire the plaintiff; and an alleged reason that could not have been the real reason cannot satisfy the employer's burden at the second stage. For example, some event that occurred after the termination could not have caused the employer to terminate the employee.

With this discussion, Judge Weiner has strongly reinforced this common sense notion about which he had written some dozen years prior in Patrick v. Ridge. That is, an alleged reason at the second stage must be a reason that could have actually motivated the employer at the moment it made the decision to fire the plaintiff.

Judge Weiner further noted that "[a]n employer generally will satisfy its burden of production 'with contemporaneous written documentation.'" The Court here is apparently referring to write-ups, reprimands, letters, memos, or the like that were created at the time of the termination decision. But, says the Court, those documents must contain more than a vague and general allegation that the employer fired the employee for some unspecified rules violation. There must be more, it holds; and if there isn't, or if the employer relies on evidence taken or created after the termination, then the employee will have a much easier time of refuting the reason and having her case heard by a jury. After undertaking a detailed analysis of the evidence in the record, the Fifth Circuit found in favor of the plaintiff-employee, and ordered that the trial court allow her to try her case to a jury.

The Heinsohn case provides a very helpful discussion and some useful guidance on some of the more minute details involved in the burden-shifting framework to examine circumstantial evidence. Specifically, it specifically requires that trial courts seriously consider not only the evidence, but the logic behind the employer's rationale. In some cases, employers offer alleged reasons that are not just false, but simply nonsensical. In those cases, according to the Heinsohn Court, the plaintiff should be entitled to judgment.

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