Summary judgment has been used increasingly in recent years to defeat federal employment discrimination claims. 1 However, that trend should be reversed by the recent decision of the United States Supreme Court in Reeves v. Sanderson Plumbing Products, Inc. 2 In Reeves, the Court clarified that cases should not be summarily decided if the plaintiff produces evidence of a prima facie case of discrimination and evidence that the employer’s reason for the adverse employment action is not true. 3
Reports by the Administrative Offices for the Federal Courts for the last four years show that employment discrimination cases are growing less likely to reach trial. 4 Some practitioners have attributed the courts’ increasing willingness to use summary judgment in employment discrimination cases to the so-called "trilogy" of summary judgment decisions issued by the United States Supreme Court in 1986: Matsushita Electric Industrial Co. v. Zenith, 5 Anderson v. Liberty Lobby, 6 and Celotex v. Catrett. 7 These decisions encouraged the lower courts to use summary judgment to resolve more cases. 8 Not long after the trilogy was decided, Congress enacted the Civil Rights Act of 1991, which provided for jury trials for employment discrimination cases. With this change, both employers and courts had greater incentive to resolve more cases before trial.
At least as influential, I believe, in terms of the recent trend, was the Supreme Court’s 1993 decision in St. Mary’s Honor Center v. Hicks. 9 The Court’s decision in that case resolved a split in the circuits regarding how a court should evaluate a case using the indirect method of proof. The indirect method was established by McDonnell Douglas Corp. v. Green, 10 and elaborated on in Texas Department of Community Affairs v. Burdine. 11 In the summary judgment context, the plaintiff must first demonstrate a prima facie case of discrimination by providing evidence: (1) that he or she is a member of a class protected by Title VII of the Civil Rights Act of 1964; (2) that the employer took an adverse employment action against him or her; (3) that he or she was qualified for the job or performing adequately; and (4) that similarly situated people outside the protected class were treated differently. 12 The employer must then provide admissible evidence that its adverse employment action was motivated by a legitimate nondiscriminatory reason. 13 Once the employer has produced this evidence, the plaintiff must provide evidence that the reason articulated is only a pretext for discrimination. 14
A split developed among the circuits about how courts were to treat a case in which, after trial, the fact-finder had concluded that the employer’s proffered reason for its action was not true. Some circuits held that trial courts were required to enter judgment in favor of the plaintiff, reasoning that offering a lie should put the employer in no better position than if it had offered no evidence at all. 15 Other circuits held that it was not enough for a plaintiff to prove the employer’s reason was a lie; plaintiffs still had to provide specific additional evidence that the employer’s motive was improper. 16
In St. Mary’s Honor Center, the Court struck a middle ground, holding that the trier of fact was not required to enter judgment for the plaintiff if it disbelieved the employer, but that it was permitted to do so based on the permissible inferences raised by the prima facie case and its disbelief of the employer’s reason. 17 In rendering its decision, the Court emphasized that the trier of fact must both disbelieve the employer’s reason and believe that the real reason was discrimination. 18 Although there had been a trial in St. Mary’s Honor Center, many courts interpreted that language as encouraging the disposition of cases at the summary judgment stage. In fact, despite the Court’s rather plain language that no explicit proof of discrimination was required and that an inference of discrimination could be drawn from the fact that the employer lied, some courts continued to find that no inference could be drawn from the fact that an employer lied. 19
Faced with the persistent split that remained after the decision in St. Mary’s Honor Center, the Court issued Reeves, which should turn back the tide on the frequency of summary dispositions in employment discrimination cases. In Reeves, a unanimous Court rejected the view that no inference could be drawn from the fact that the employer lied and that explicit proof of invidious motive had to be produced. 20 By explaining that an inference of discrimination could be inferred from the fact of the lie, the Court limited the power of the district courts to dispose of cases in which there is evidence of pretext but no explicit evidence of invidious discrimination tied to the adverse employment action.
The plaintiff in Reeves was a fifty-seven year old man who supervised factory workers for a manufacturer of toilet seats and covers. 21 He was terminated after an investigation into timekeeping practices and was replaced by someone substantially younger. 22 Several months before Reeves’ discharge, his supervisor said that he "was so old that he ‘must have come over on the Mayflower,’" and that he was "‘too damn old to do the job.’" 23 The district court submitted the case to the jury, instructing it that "[i]f the plaintiff fails to prove age was a determinative or motivating factor in the decision to terminate him, then your verdict shall be for the defendant." 24 The jury returned a verdict in favor of Reeves. 25
The Court of Appeals for the Fifth Circuit reversed and ordered that a directed verdict should have been entered for the employer, finding that even though Reeves presented evidence that the employer’s reason for discharging him was not true, he had failed to introduce sufficient evidence to allow the jury to infer that the real reason for the discharge was age. 26 The court of appeals ignored the evidence that made up the prima facie case and relied only on the supervisor’s comments as evidence of discrimination, determining that no inference could link those comments to Reeves’ termination. 27 The court of appeals further held that the only inferences that could be drawn from the remaining evidence was that Reeves was treated like every other employee under investigation and that there was no widespread age-based animus in the employer’s practices. 28
The Supreme Court acknowledged that it had taken the case to resolve the split remaining after its decision in St. Mary’s
Honor Center, and framed the issue before it as: "whether a plaintiff’s prima facie case of discrimination . . . combined with sufficient evidence for a reasonable factfinder to reject the employer’s nondiscriminatory explanation for its decision, is adequate to sustain a finding of liability for intentional discrimination." 29 The Court unanimously answered in the affirmative. 30
The Court found that a plaintiff can show intentional discrimination by demonstrating that the employer’s explanation is unworthy of credence. 31 In most kinds of cases, a fact-finder would be allowed to infer a discriminatory motive from the fact that the employer lied. 32 Allowing this inference is consistent with the principle of evidence that the fact-finder may consider a party’s dishonesty about a material fact as "‘affirmative evidence of guilt.’" 33 The Court recognized that the employer is in the best position to explain the real reason for its action, supporting that notion with the language of Furnco Construction Corp. v. Waters, 34 which stated that when the legitimate reasons for the employer’s action are eliminated, it is more likely that an employer, who we assume has some reason, has based its decision on an impermissible consideration. 35 In addition to any inference that can be drawn from the fact that the employer was not truthful, the fact-finder may consider the evidence establishing the plaintiff’s prima facie case and any inferences properly drawn from that evidence. 36 Although the presumption of discrimination drops out of the picture once the employer meets its burden of production, the probative value of that evidence does not disappear. 37
The Court also emphasized the fact that the court of appeals had applied the incorrect standard to the case. Just as in summary judgment, when a defendant has moved for a directed verdict, a reviewing court should look at the record as a whole, drawing all inferences in favor of the plaintiff to determine whether any reasonable jury could find in the plaintiff’s favor. 38 The reviewing court may not weigh the evidence or make credibility determinations, and "it must disregard all evidence favorable to the moving party that the jury is not required to believe." 39 The Court noted that in this case, the court of appeals had weighed the evidence and had considered evidence the jury was not required to believe. 40
The Court’s clarification of the standards to be applied to these summary dispositions should reduce the number of employment discrimination cases summarily decided. The Court has made it clear that where a plaintiff has produced evidence of a prima facie case and evidence that discredits as false the employer’s reason for the adverse employment action, the case cannot be decided as a matter of law. Such a case belongs before a jury.
The Court left open the possibility that in a few 41 cases in which a plaintiff proves that the employer’s proffered reason is a lie, no rational fact-finder will be able to find that discrimination was the real reason. 42 For example, the evidence may conclusively show that some other nondiscriminatory reason, such as non-racially motivated personal animosity, was the real reason for the employer’s action. 43 Alternatively, the proof that the employer was lying might be very weak, while abundant and uncontroverted evidence showed no discrimination. 44 But other than in those few cases, the outlook for employment discrimination plaintiffs seems to have become much brighter following the decision in Reeves.
1 Paul W. Mollica, Employment Discrimination Cases in the Seventh Circuit, 1 Employee Rts. & Employment Pol’y J. 63, 75-77 (1997).
2 530 U.S. 133 (2000).
3 Reeves, 530 U.S. at 147-48, 150-53.
4 In 1997, 9.8% of all employment discrimination cases reached trial. www.uscourts.gov/judicial_business/c04sep97.pdf. In 1998, that number fell to 6.4%. www.uscourts.gov/dirrpt98/c04sep98.pdf. In 1999, the number fell further to 5.0%. www.uscourts.gov/judbus1999/c04sept99.pdf. It held steady in 2000 at 5.1%. www.uscourts.gov/judbus2000/appendices/c04sep00.pdf.
5 475 U.S. 574 (1986).
6 477 U.S. 242 (1986).
7 477 U.S. 317 (1986).
8 Leland Ware, Inferring Intent from Proof of Pretext: Resolving the Summary Judgement Confusion in Employment Discrimination Cases Alleging Disparate Treatment, 4 Empl. Rts. & Employ. Pol’y J. 37, 49 (2000).
9 509 U.S. 502 (1993).
10 411 U.S. 792, 802 (1973).
11 450 U.S. 248, 252-53 (1981).
12 Burdine, 450 U.S. at 252-53; McDonnell Douglas Corp., 411 U.S. at 802.
13 Burdine, 450 U.S. at 252-53; McDonnell Douglas Corp., 411 U.S. at 802.
14 Burdine, 450 U.S. at 252-53; McDonnell Douglas Corp., 411 U.S. at 802.
15 See, e.g., Drake v. City of Fort Collins, 927 F.2d 1156, 1160 (10th Cir. 1991); MacDissi v. Valmont Indus., 856 F.2d 1054, 1059 (8th Cir. 1988); Dister v. Continental Group, Inc., 859 F.2d 1108, 1113 (2d Cir. 1988); Sparks v. Pilot Freight Carriers, 830 F.2d 1554, 1563-64 (11th Cir. 1987); Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 899 (3d Cir. 1987) (en banc); Tye v. Board of Educ., 811 F.2d 315, 318 (6th Cir. 1987); Bishopp v. District of Columbia, 788 F.2d 781, 789 (D.C. Cir. 1986); Lowe v. City of Monrovia, 775 F.2d 998 (9th Cir. 1985), modified, 784 F.2d 1407 (1986).
16 See, e.g., Bienkowski v. American Airlines, 851 F.2d 1503, 1508 (5th Cir. 1988); Goldberg v. B. Green & Co., 836 F.2d 845, 849 (4th Cir. 1988); White v. Vathally, 732 F.2d 1037, 1042-43 (1st Cir. 1984).
17 St. Mary’s Honor Center, 509 U.S. at 511.
18 Id. at 510-11.
19 Thomas v. Eastman Kodak Co., 183 F.3d 38, 56-57, 64-65 (1st Cir. 1999); Gillins v. Berkely Elec. Coop., Inc., 148 F.3d 413, 416-17 (4th Cir. 1998); Fisher v. Vassar College, 114 F.3d 1332, 1344-46 (2d Cir. 1997) (en banc).
20 Reeves, 530 U.S. at 148.
21 Id. at 137.
22 Reeves was replaced successively by three people in their thirties. Id. at 142.
23 Id. at 149-50.
24 Id. at 138 (internal quotation marks and citations omitted).
26 Reeves v. Sanderson Plumbing Prods., Inc., 197 F.3d 688, 694 (5th Cir. 1999).
27 Id. at 693.
28 Id. at 693-94.
29 Reeves, 530 U.S. at 140.
30 Id. at 147-48.
31 Id. at 142 (citing Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981)).
32 Id. at 146.
33 Id. at 147 (quoting Wright v. West, 505 U.S. 277, 296 (1992)).
34 438 U.S. 567, 577 (1978).
35 Reeves, 530 U.S. at 147-48.
36 Id. at 143 (citing Burdine, 450 U.S. at 255 n.10).
38 Id. at 149-51.
39 Id. at 151 (citing Wright & Miller 299).
40 Id. at 151-53.
41 Justice Ginsburg’s concurrence emphasized that these cases will be very rare. Id. at 153 (Ginsburg, J., concurring).
42 Id. at 148.
44 This statement is particularly cryptic in this case. The court of appeals found that Reeves’ evidence that the employer lied was very weak, Reeves, 197 F.3d at 692-93, while the Supreme Court found that evidence adequate, Reeves, 530 U.S. at 144.
Marcia L. McCormick graduated from Grinnell College in 1989 with a B.A. and received a J.D. with distinction from the University of Iowa in 1993. She is a Visiting Assistant Professor at Chicago-Kent College of Law.