Employer's Burden of Production Under McDonnell Douglas May Be Light, But Is Still Real
by Michael Fox
As the INS finds out as it suffers the reversal of a summary judgment because it failed to meet its burden of production under McDonnell Douglas. The Court started by reiterating what is well established law:
To rebut the presumption of discrimination created by the employee’s prima facie case, the employer must articulate a legitimate, nondiscriminatory reason for its decision. As this is a burden of production, the employer need not prove that it was actually motivated by its proffered reason. Successfully doing so, removes the prima facie case and places the burden on the plaintiff of showing that there is a triable issue of fact on his or her claim. Patrick v. Ridge (5th Cir. 12/16/04) [pdf].The parties did not dispute that the plaintiff made a prima facie case that she did not receive a promotion either because of her age or in retaliation for filing an earlier claim of discrimination.
Instead, the focus was on the two reasons that the INS gave for not selecting her for the position. Its first reason was that she "was not sufficiently suited for the job." Unfortunately, the Agency did not express why she was not suited. Other than saying all candidates were evaluated not only for their work credentials and experience but how they would fit into the work group, the INS offered no further explanation. That failed to meet the burden of production because it failed to provide a reason "with 'sufficient clarity' to afford the employee a realistic opportunity to show that the reason is pretextual." Making the first of two, "as a matter of law" rulings the Court held:
We hold as a matter of law that justifying an adverse employment decision by offering a content-less and nonspecific statement, such as that a candidate is not “sufficiently suited” for the position, is not specific enough to meet a defendant employer’s burden of production under McDonnell Douglas. It is, at bottom, a non-reason.
The INS' second articulated legitimate reason fared no better. It claimed that it hired the best qualified person. Unfortunately, it did not even seek the candidate that it ultimately hired until it had eliminated a whole panel of applicants, including the plaintiff, as unacceptable. Using a "snapshot" view, the appeals court made its second matter of law holding:
We hold as a matter of law that an employer who offers the relative qualifications of the applicants as its legitimate, nondiscriminatory reason must show that, at the time it made the decision adverse to the complaining applicant, it already knew that the ultimately selected individual’s qualifications were superior.
To quote the Court again, "at bottom", the INS failed to meet what seems to be the minimal standard of articulating a legitimate reason for its action. Failing to meet that burden of production means the prima facie case remains intact at this stage and the case is remanded to the trial court for further action.
A good reminder not to overlook the simple things, some times they do mean a lot.