A R T I C L E
'You Play the Ball Where It Lies'
Rule 56 Motions after Reeves
By William D. Evans Jr.
In reply to a reporter's inquiry, the esteemed golfer Bobby Jones once remarked: "You play the ball where it lies." As a result of the recent U.S. Supreme Court decision in Reeves v. Sanderson Plumbing Products Inc., 530 U.S. 133 (2000), counsel for employers may be playing from the "rough" in summary judgment proceedings in employment discrimination suits. Reeves has created confusion in the lower federal courts during the "ping-pong" match that occurs in Rule 56, Federal Rule of Civil Procedures, summary judgment proceedings.
Employment discrimination actions now comprise a significant portion of the civil dockets of federal courts.1 During 2000, 21,032 civil rights employment actions were filed in federal court, out of a total of 259,517 suits. Moreover, in the three federal court districts in Tennessee, employment discrimination suits comprise about 20 percent of the civil docket.
During a recent speech at Georgetown University, Federal District Judge James Robertson noted that approximately 25 percent of his civil docket was employment discrimination cases. Furthermore, he commented that he could try an employment discrimination suit in less time than it takes to review the voluminous summary judgment papers and write an opinion. Despite this, he urged parties, both plaintiffs and defendants, to utilize the Rule 56 process.2
The purpose of this article is to examine the conflicting responses to Reeves since the Supreme Court issued its decision on June 12, 2000. This article will first discuss the historical roots of Reeves and then turn to the circuit courts' application of the Reeves ruling, with special emphasis on Sixth Circuit decisions.
The historical roots of Reeves
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§2000e - 2000e-17, makes it an unlawful employment practice for employers to discriminate against any individual with respect to terms and conditions of employment because of such individual's race, age, gender, religion, or national origin. Two theories of Title VII discrimination are disparate treatment and disparate impact. Disparate treatment in employment discrimination involves intentional discrimination and occurs when an employer treats one individual differently from another because of that individual's protected status. On the other hand, disparate impact discrimination can result from apparently neutral employment practices that are applied consistently to all employees, but that have the effect of disproportionately excluding a protected class from employment opportunities.3
In order to prevail in a disparate treatment case, a claimant must prove that but for the employer's motive to discriminate against the employee because of the employee's protected status, the employee would not have suffered the adverse employment action. This type of case may be proven in one of two ways. First, she may rely on direct evidence of sufficient probative value to support an inference of discrimination. Second, she may prove his case of intentional discrimination by using the tripartite burden-shifting test originally formulated in McDonnell Douglas Corp. v. Green.4
In McDonnell Douglas, the Supreme Court articulated the general requirements for establishing a prima facie case of discrimination in disparate treatment cases. The plaintiff in a Title VII action must carry the initial burden by showing:
(1) That she belongs to a protected class; and
(2) That she applied and was qualified for a job for which the employer was seeking applicants; and
(3) That, despite her qualifications, she was rejected; and
(4) That, after her rejection, the position remained open and the employer continued to seek applicants for persons of plaintiff's qualifications.5
After a plaintiff establishes a prima facie case, the employer must state a non-discriminatory and legitimate reason for its employment decision. Thereafter, if the employer satisfies its rebuttal obligation, the plaintiff can prevail if she establishes that the asserted justification is pretextual and that the employer's action was actually motivated by discriminatory animus. If the defendant does not submit any rebuttal proof, a plaintiff should have judgment entered in his favor.6 As is usually the case, the focus becomes the third part of the test - whether the plaintiff met her burden of showing that the employer's explanation was merely a pretext for the actual reason for the employment decision - discrimination.7 The potency of McDonnell Douglas is evidenced by the fact that it has been cited in excess of 23,000 times since 1973.
McDonnell Douglas was clarified in 1981 in Texas Department of Community Affairs v. Burdine.8 In Burdine, the court held that the employer's duty as to rebuttal proof is one of only production instead of final persuasion. After the defendant states a non-discriminatory reason for its action, the plaintiff must prove, by a preponderance of the evidence, that the averred justification is a pretext and that the employer's action was motivated by discriminatory animus. At all times, the burden of proof on the ultimate issue of discriminatory intent is with the employee.9
No discussion of Rule 56 would be complete without mentioning the Supreme Court's 1986 Summary Judgment Trilogy: Celotex v. Catrett, Anderson v. Liberty Lobby Inc., and Matsushita Electrical Industrial.Co. v. Zeinith Radio Corp.10 Prior to these cases, many courts held that summary judgment motions should be denied whenever there was the "slightest doubt" about the merits of such motions. An extreme example of this principle was evidenced by the federal district court in New Orleans that displayed a sign stating: "No Spitting, No Summary Judgments."11
In Celotex, the Supreme Court held that if a summary judgment motion is properly supported, the party with the burden of persuasion at trial, rather than the summary judgment movant, is obligated to produce evidence demonstrating a genuine issue.12 In Liberty Lobby, the court ruled that trial courts are obligated to determine not only whether there is a factual dispute, but whether the evidence identified in a summary judgment opposition would satisfy the plaintiff's burden of proof at the trial stage. This requires a trial court to evaluate the parties' evidence at the summary judgment stage and to make a determination as to its appropriate value. The mere identification of some supporting evidence will not satisfy the opposing party's burden of production if it will not sustain the burden of proof on the merits.13 As a result of these three decisions, a trend began to emerge in the early 1990s wherein employers were prevailing on Rule 56 motions with greater frequency.14
The court further elaborated upon the McDonnell Douglas standard in St. Mary's Honor Center v. Hicks.15 In that case, the court established the so-called "pretext plus" analysis. The basic premise of the pretext plus standard is that it is not enough for the plaintiff to show that the defendant's reason for the action was false. The plaintiff must also show that the real reason for the action was discrimination.16 Thus, even if the plaintiff can show that the defendant put forth a false reason to explain the action, the plaintiff cannot prevail unless he can also show that the action was actually motivated by intentional discrimination.17 Thus the plaintiff must present evidence beyond that required to establish a prima facie case. Hicks reinforced the court's earlier statements that a prima facie case does not establish discrimination.18
Following Hicks, the circuit courts followed one of two rules: pretext only and pretext plus. In the First, Second, Fourth, Fifth and D.C. Circuits, a plaintiff must not only present evidence that the employer's reason is untrue but also that the real reason is discrimination. This is the pretext plus standard. On the other hand, in the Third, Sixth, Seventh, Eighth, Ninth, Tenth and Eleventh Circuits, these courts follow the pretext only rule wherein the plaintiff only has to show that the company's reason was false.19
Hicks was re-examined in Reeves, wherein a former employee brought an action against his employer, alleging that employer violated the federal age discrimination statute in terminating his employment. The trial court submitted the case to the jury, which rendered judgment for the employee.
Upon appeal, the Fifth Circuit reversed, holding that although a reasonable jury could have found that company's explanation for the termination was pretextual, this showing, standing alone, was insufficient to sustain the jury's finding of liability.20 The Supreme Court reversed, holding that the appellate court erred in reversing the trial court because the former employee established a prima facie case of discrimination, introduced enough evidence for the jury to reject the employer's explanation, produced additional evidence of age-based animus, and presented sufficient evidence for the jury to find that the employer had intentionally discriminated against its former employee.21 Critical to the decision was the holding that the standard for ruling on a Rule 56 motion "mirrors" a Rule 50 motion.22
Writing for the majority, Justice O'Connor stated: "A plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated."23LFortunately for employers, Justice O'Connor did not find that proof of the prima facie case plus the falsity of the employer's reason for its negative action will always be adequate to sustain a jury's finding of liability. In fact, Justice O' Connor stated:
Certainly there will be instances where, although the plaintiff has established a prima facie case and sufficient evidence to reject the explanation, no rational factfinder could conclude that the action was discriminatory. 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.24
As one commentator observed, Reeves was another attempt by the court to herd the nomadic lower courts to a central view on this issue.25 As Professor Ann Hodges noted, "Employees were the victors in Reeves v. Sanderson Plumbing Products Inc. The decision rejected pretext-plus doctrine and limited the ability of federal judges to grant motions for summary judgment and motions for judgment as a matter of law in employment discrimination cases."26 Professor Hodges opined that more settlements and more cases going to the jury will be the predictable results of Reeves.27
As one practitioner noted in opposition, the Reeves Court steered a middle ground between the "pretext only" and the "pretext plus" standards.28 Reeves teaches only that in ruling upon a Rule 56 motion, a district court is to consider "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 and that properly may be considered on a motion for judgment as a matter of law [or summary judgment]."29
As Jonathan Mook observed, notwithstanding the interest that has been created by Reeves, the court's opinion, when read precisely, does not live up to its billing. Rather than coming out strongly in support of one pretext standard or the other, the court chartered a path that continues to give to trial judges considerable discretion in reviewing the evidence presented on summary judgment and in comparing the uncontradicted evidence submitted by the employer with the evidence a plaintiff musters to the contrary.30 For example, the court stated: "there will be instances, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational fact finder could conclude that the action was discriminatory."31
Post-Reeves developments
Circuit courts have had a difficult time coping with the meaning of Reeves. The "proximate cause" of this difficulty is the Reeves Court's utilization of seemingly contradictory statements, as noted above. While Reeves has been cited more than 800 times, the case authorities are still a "work in progress." It would be unwise to claim that all the circuit courts have each established a firm position on this issue, but several initial trends have emerged.
A broad application of Reeves is best illustrated by the Fifth Circuit's April 19, 2001, decision in Pratt v. City of Houston,32 wherein a grant of summary judgment to the employer was reversed.33 In applying Reeves, the Fifth Circuit noted that a prima facie case and sufficient evidence to reject the employer's explanation may permit a trier of fact to hold an employer to have unlawfully discriminated, thus preventing summary judgment. Summary judgment is appropriate for an employer only if the plaintiff created a weak issue of fact as to whether the employer's reason was not true and there was considerable and uncontroverted independenT evidence that no discrimination occurred. On the other hand, summary judgment is inappropriate if the evidence considered as a whole (1) creates a factual issue as to whether the employer's stated reason was what actually motivated the decision, and (2) creates a reasonable inference that race was a determining factor in the employment action.34
It appears that the First, Third, Ninth, Tenth and Eleventh Circuits have roughly followed this broad view.35 In Gossby v. Johnson & Johnson Medical Inc.,36 the Third Circuit additionally warned that a trial court must be cautious in granting summary judgment to an employer where intent is at issue.37
A narrow interpretation of Reeves is reflected in Clay v. Holy Cross Hospital.38 In that June 14, 2001, decision, the employee was hired to operate a neighborhood medical office with the intent that the office would mature into a profitable enterprise. When she was subsequently terminated, the employee claimed that she was discharged because of her pregnancy. The employer asserted that the termination as part of a reduction in force was based on her lack of effort in attempting to make the office profitable.39
In upholding the trial court's granting of summary judgment to the employer, the Seventh Circuit discussed whether the plaintiff had made a showing of pretext. Citing Kulumani v. Blue Cross Blue Shield Association,40 Circuit Judge Manion indicated that pretext means a dishonest explanation or a lie rather than an error or an oddity. A discriminatory pretext means more than an unusual act; it means something worse than a business or judgment error. Pretext means deceit used to cover the employer's tracks. In examining this issue, a court's only concern is the honesty of the management's explanation. Even if the employer's reasons for the termination were ill considered, foolish, or mistaken, so long as the employer honestly believed those reasons, pretext will not have been shown.41 In the July 19, 2001, decision in Grube v. Lau Industries Inc.,42 the Seventh Circuit again ruled that in considering whether an employer's reason for the adverse employment action was pretextual, the overall correctness or desirability of the reasons proffered is not relevant. Instead, the employee is required to establish that: (1) the submitted reason is factually baseless; (2) the proffered reason was not the actual motivation for the decision; or (3) the submitted reason was insufficient to motivate the employer's decision.43 In short, these Seventh Circuit decisions are mandatory cites for management counsel.
Between these two differing views, three circuits have articulated tests that are "middle of the road" approaches to Reeves. An example of a "quasi pretext only" framework is the Fourth Circuit's May 31, 2001, decision in Cleary v. Nationwide Mutual Insurance Co.44 Citing Rowe v. Marley Co.,45 the Fourth Circuit held that while it is permissible for the trier of fact to infer the fact of discrimination from the falsity of the employer's reason, the employee's claim should not be submitted to a jury if there is evidence that precludes a discriminatory finding, that is if no rational factfinder could conclude that the action was discriminatory.46
It would seem that the Second Circuit has adopted a "modified pretext plus" standard in Zimmermann v. Associates First Capital Corporation,47 that was decided on May 31, 2001. As the Second Circuit noted, the case law post-Reeves has been developing as to what sort of a record will permit a plaintiff who presents evidence of a prima facie case and evidence of a pretext to have a jury consider the ultimate issue of discrimination.48
The Zimmerman court did not read Reeves quite so favorably to Title VII plaintiffs, as does the Fourth and Fifth Circuits. The Second Circuit has previously ruled in several cases that a record that included evidence of a prima facie case and evidence permitting a finding of pretext did not suffice to permit a finding of discrimination. The task is to examine the entire record and, in accordance with Reeves, make the case-specific assessment as to whether a finding of discrimination may reasonably be made.49 "The Supreme Court has indicated that only occasionally will a prima facie case plus pretext fall short of the burden a plaintiff carries to reach a jury on the ultimate question of discrimination" but that "such occasions do exist."50 "Such occasions" can unfold in two situations, even after a "de minimis" prima facie showing and proof of pretext. First, a defendant may win if it establishes another nondiscriminatory reason for the company's action. The second is where the plaintiff presents only a weak case as to pretext and there is sufficient independent evidence of a lack of discrimination. Thus, the factfinder must look to the evidence, taken as a whole, to determine if such proof is sufficient to survive summary judgment.51
Under the Second Circuit's approach, once the employer presents a non-discriminatory reason, the presumption of illegal discrimination evaporates; thereafter, the claimant must demonstrate that the evidence, considered in its entirety, supports a reasonable inference of unlawful discrimination.52 It appears that the Eighth Circuit recently adopted the Second Circuit's method.53 As a result of this confusion, one commentator suggested a standard that attempts to harmonize Hicks and Reeves.54 Relying upon Aka v. Washington Hospital Center,55 a trial court's focus at summary judgment should be whether the jury could infer discrimination from the combination of the following: (1) the plaintiff's prima facie case; (2) any evidence that the plaintiff submits to attack the employer's submitted explanation for its employment action; (3) any further evidence of discrimination submitted by the plaintiff, such as independent evidence of discriminatory attitudes or statements on the part of the employer; and (4) any contrary evidence that may be offered by the employer, such as evidence of a strong record providing equal employment opportunities.56
Sixth Circuit jurisprudence
Before reviewing the Sixth Circuit's cases interpreting Reeves, it might be useful to review the Sixth Circuit's view of Rule 56 motions in general. The 1986 Supreme Court Trilogy ushered in a "new era" in the standards of review for a summary judgment motion.57 These cases, in the aggregate, lowered the movant's burden on a summary judgment motion. The Sixth Circuit has established a series of principles to be applied to motions for summary judgment.58 They are summarized as follows:
Prior to Reeves, the Sixth Circuit adopted specific criteria that a plaintiff had to meet before pretext could be said to have been shown. As stated in Manzer v. Diamond Shamrock Chems. Co.,60 a plaintiff may show pretext using one of three criteria: (1) that the proffered reason had no basis in fact, (2) that the submitted reason did not actually motivate the employment action or (3) that the offered reason was insufficient to motivate the employer's action. The Sixth Circuit has taken the view that Reeves did not effect any significant change in this standard for summary judgment. Rather, as stated by the Sixth Circuit in Ross v. Campbell Soup Co.,61 the Reeves decision simply serves to reiterate the principle that "the probative value of pretext in a discrimination case has been reaffirmed and [thus] we are reminded that when the elements of a prima facie case have been met, a plaintiff need not show both pretext and discriminatory intent."62
In Smith v. Leggett Wire Co.,63 the Sixth Circuit, in reversing the district court's denial of a Rule 50 motion, emphasized that the "stray comment" doctrine still lives after Reeves. The court concluded, inter alia, that "stray comments" made by a person not involved in the decision to terminate the plaintiff's employment and made "long before" the termination decision were insufficient to support a finding of pretext.64
The post-Reeves cases in the Sixth Circuit have focused on the issue of whether the employee has established pretext. Several decisions are worthy of note. In Norbuta v. Loctite Corp.,65 Circuit Judge Cleland observed that Rule 56 relief is appropriate when the proof shows some other nondiscriminatory reason for the company's action or if the employee introduced only a weak issue of fact as to pretext and abundant and independent evidence showed a lack of discrimination.66
In Braithwaite v. The Timken Co.,67 the employer terminated the employee after he violated two work rules; he threatened and struck another employee during a fight at work. In resisting the termination, the employee claimed that he was terminated because of his race, that he was treated differently than white employees, and that his fellow employees, who gave statements concerning the fight, defamed him.68
In affirming the district court's grant of Rule 56 relief to the employer, the Sixth Circuit initially noted that the final burden of persuading the trier of fact that the employer intentionally discriminated against the claimant remains at all times on the employee. In order to do so, the plaintiff must produce sufficient evidence from which the trier of fact could reasonably reject the employer's rendition and infer that the employer intentionally discriminated against him. Accordingly, the employee, as Circuit Judge Jones noted, must have more than a dispute over the facts upon which the employment action was based. He must set forth evidence that demonstrates that the employer did not honestly believe in the submitted non-discriminatory reason for the adverse employment action. Stated differently, if the employer made a faux pas too obvious to be unthinking, perhaps the employer had an unlawful motive for doing so.69
How does a reviewing court determine whether the employer had an "honest belief" in the submitted basis for the adverse employment action? A court must look to whether the employer can establish its "reasonable reliance" on the facts that were before it at the time the decision was made. A court does not require that the decisional process used by management be optimal or that it leaves no stone unturned. Rather, the critical inquiry is whether management made a reasonably considered decision before taking the adverse employment action. If there is no material dispute that management made a reasonably informed decision that demonstrates an "honest belief" in the proffered explanation, the case should be dismissed because no reasonable trier or fact could find that the employer's employment action was pretextual.70
Summary judgments considerations
As conceded by the District of Columbia Court of Appeals in Sparrow v. United Air Lines Inc.,71 appellate courts understand why district courts want to reduce their congested dockets by disposing quickly of cases that they believe cannot survive in the long run. Toward that end, trial judges and litigants must rely on summary judgments and control of discovery to weed out bogus claims, sooner rather than later.72 Considering the fact that the Civil Rights Act of 1991 allows plaintiffs to receive a jury trial and to be awarded compensatory, pain and suffering, and punitive damages, counsel for employers should continue to utilize Rule 56, despite the apparent constriction of summary judgments in Reeves.
This issue raises two conflicting judicial tensions. First, busy federal judges seek to clear their congested dockets with the use of Rule 56 proceedings. Second, the Reeves holding would suggest that Rule 56 relief should not be gingerly awarded. Given this state of affairs, this places upon advocates the necessity of submitting Rule 56 papers that appear "at first, as well as second, blush" to paint their clients in the most attractive light. Employee's counsel should develop a record of management harshness. On the other hand, counsel for the employer should show the implementation and enforcement of fair and uniform personnel policies. An examination for the facts of Braithwaite and Obi will demonstrate this principle. In considering whether to file a Rule 56 motion, counsel should ponder four legal principles.
First, federal courts do not generally sit to second-guess the business judgments of employers.73 Because federal judges are not free to second-guess an employer's business decisions, a plaintiff's speculation as to discrimination is insignificant to create a genuine issue of fact.74 Stated differently, the material inquiry is not whether the employer's proffered reason was unwise, correct, or fair, but whether the employer honestly believed that reason and acted in good faith upon those beliefs.75
Second, language not amounting to direct evidence, but showing some racial animus, may be critical evidence of pretext once the plaintiff has set out a prima facie case.76 Furthermore, Reeves acknowledges that the person harboring unlawful animus need not be the actual decision-maker provided that the hostile individual is primarily responsible for the employer's action.77 Thus, an employer may be held liable if the supervisor who took the employment action merely acted as a "cat's paw" or "rubber stamp" for a subordinate employee's prejudice, even if the manager lacked discriminatory intent.78
Third, in the absence of evidence that subjective hiring or promotion criteria were used as a disguise for discrimination, the fact that an employer based a promotion or hiring decision on purely subjective criteria will rarely, if ever, prove unlawful pretext.79 For higher level executive and managerial promotions and hirings, subjective factors may play a substantial role, especially in our increasingly service-oriented economy. Personal traits such as good judgment, common sense, originality, loyalty, ambition, and tact are essential to an employee's success in a professional or managerial position.80 "To phrase it differently, subjective reasons are not the red-headed stepchildren of proffered nondiscriminatory explanations for employment decisions."81
Fourth, case authorities require a strong showing of disparity in qualifications in order for discrimination to arise. In a failure to hire or promote case, a claimant cannot prove pretext by simply showing that he was better qualified than the individual who received the position. "Disparities in qualifications are not enough in and of themselves to demonstrate discriminatory intent unless those disparities are so apparent as to virtually jump off the page and slap you in the face."82
Conclusion
Similar to sausage-making, judging can be untidy. To assert that Hicks and Reeves have "muddied the waters" is an understatement. Given the varying views, the Supreme Court should clarify this situation, providing a workable framework so the litigants can ascertain their burdens. As Justice Ginsburg conceded, "the court's opinion leaves room for further elaboration in an appropriate case ..."83 In the meantime, counsel should focus on the issue of pretext.
Notes
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William D. Evans Jr. is a senior assistant county attorney, Anne Arundel County Office of Law in Annapolis, Md. He focuses on labor and employment litigation and counseling. He received his bachelor's degree from Vanderbilt University, his law degree from the University of Tennessee, and his labor law degree from Georgetown University. Evans won the Tennessee Bar Association's Joe Henry Award for Outstanding Legal Writing for 1988. This article is dedicated to his sons, William D. Evans III, Carter M. Evans and Alexander B. Evans. The excellent editorial assistance of Lorie Lample and Virginia Mayer is appreciated.
Tennessee Bar Journal
March 2002 - Vol. 38, No. 3
© Copyright 2002 Tennessee Bar Association