Pretext-only is enough for trial in age discrimination case

The shorthand analysis for determining whether an employment discrimination plaintiff can survive a motion for summary judgment is that he must first prove a prima facie case of discrimination and that the employer's articulated reason for his termination (or demotion) is a pretext for discrimination. Sounds simple, but it isn't. In 2000, the Supreme Court ruled that "proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive." Reeves v. Sanderson Plumbing, 520 U.S. 133, 147 (2000). But in its first case interpreting Reeves, the Second Circuit ruled that "the Supreme Court's decision in Reeves clearly mandates a case-by-case approach, with a court examining the entire record to determine whether the plaintiff could satisfy his 'ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff.'" That case was Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir. 2000).

The Schnabel case has haunted plaintiffs' attorneys ever since as courts in this Circuit have dismissed cases even where the plaintiff proves that the employer's reason is pretext. The Second Circuit still applies its en banc ruling in Fisher v. Vassar College, 114 F.3d 1332 (2d Cir. 1997) for the proposition that pretext, by itself, is not always enough for trial. There has to be enough evidence to show that the adverse employment decision was motivated by discrimination. Over the years, the Circuit has dismissed cases despite a showing of pretext, as in Schnabel, leaving litigants to wonder exactly what evidence is needed to bring about a trial. The general view has been that pretext plus some affirmative evidence of discrimination (like stereotyping, statistical evidence, racist comments) can repel summary judgment.

In a decision handed down on April 4, the Second Circuit (Pooler, McLaughlin and Straub) finds that evidence of pretext was enough for a case alleging age discrimination, but the Court does not explain the discrepancy between this case and other cases where pretext was not enough for trial. The fact that this case is an unpublished summary order makes it all the more confusing.

The case is Medeiros v. Pratt & Whitney Power Systems. The plaintiff was fired after receiving a negative performance review. He claimed age discrimination. The decision does not highlight any ageist animus on the part of plaintiff's employer, but the Court instead notes that he received a subjective performance evaluation by a supervisor who was not sufficiently familiar with the employees he evaluated, in violation of company guidelines. Also, there was evidence that this supervisor lied in stating that he consulted with another supervisor in drafting the negative evaluation. Cryptically and without explanation, the Second Circuit notes that the district court referred to "aggregate evidence of pretext."

The district court granted summary judgment, ruling that the it was "possible" but not "obvious" that the jury could find that the employer gave a pretextual, or false, reason for the bad performance review. The district court further held that the plaintiff's evidence of pretext was "fairly weak." The Second Circuit admonishes the district court for substituting its own judgment as to the persuasive nature of the pretext evidence, and remands the case for a jury trial on this issue. The Court of Appeals also deemed it relevant that someone else who had previously supervised plaintiff would have more favorably rated his performance.

Although the Supreme Court's ruling in Reeves arguably compels a trial in most discrimination cases if the plaintiff can show that the employer's reasons for the adverse employment action are pretextual, any plaintiffs' lawyer will tell you that the Second Circuit has narrowly applied that analysis ever since. Today's case, and another case cited in today's opinion, D'Cunha v. Genovest/Eckerd Corp., 479 F.3d 193 (2d Cir. 2007), moves away from that restrictive interpretation of Reeves. We don't know what evidence, if any, directly ties the employer's false reasons to age discrimination. Did a manager make an ageist statement or fire other older workers? The decision does not tell us. My sense is that if this evidence existed, the Court of Appeals would have told us about it. Since today's case is an unpublished summary order that generally cannot be cited as precedent in other cases, its broad interpretation of Reeves may simply be an aberration.