Jottings By An Employer's Lawyer

Tuesday, March 06, 2007

The Case of A Different Decision Maker — A Lesson Reinforced

Even after a court adopts a new standard it takes awhile for the nuances to play out. Late in 2005, the 4th Circuit found that there were certain times when a discrimination plaintiff would be excused from meeting the standard 4th element of a prima facie case, that he or she was replaced by someone outside the protected category. This "exception" exists when there are different decision makers. See 4th Circuit Alters 4th Prong of Prima Facie Case . There, even though a female plaintiff was replaced by a female, the exception came into play because it was a different management team.

18 months later, the 4th Circuit had a different variation. Female plaintiff was replaced by a male, however the replacement choice was made by a new management team. The court noted the district judge, who had granted summary judgment because of the plaintiff's failure to establish a prima facie case, was correct in finding in its earlier decision the

"implicit understanding that the sex (here, male) of the person chosen by a second decisionmaker to fill the female plaintiff’s vacant position does not assist in creating a presumption of gender bias on the part of the first decisionmaker, who fired the plaintiff."

But, and here it was a decisive but, the district court erred in not recognizing that the different decision maker completely relieved the plaintiff from the obligation of meeting the 4th element of the prima facie case. Lettieri v. Equant, Inc. (4th Cir. 3/5/07)[pdf].


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