Arguing for Summary Judgment Against Alternative Theories of Proving Discrimination

By Don Benson, Esq.

A new Eleventh Circuit case is being criticized for changing the standard for summary judgment in a discrimination case. Jefferson v. Sewon America, Inc., No. 17-11802 (June 1, 2018)

This is incorrect. Although it does not raise the bar for employers on summary judgment and does not change prior case law; it does emphasize an important point for Employers when addressing both Plaintiff/Employee’s direct evidence and circumstantial theories for proving discrimination in the Employer’s motion for summary judgment.

Despite the Jefferson ruling, it remains true that:

• Plaintiff/Employee can argue in the alternative that (a) there is direct evidence of discrimination and/or (b) there is also sufficient evidence under the four step analysis of McDonnell Douglas.
• Employer comments/actions can be argued to be direct evidence and
• The same comments/actions can be argued to be the prima facia showing or evidence of pretext under the four step analysis of McDonnel Douglas.
• If a Plaintiff presents direct evidence of discrimination, there is no need for the Court to consider the four step analysis of McDonnell Douglas.
• If a Plaintiff presents direct evidence of discrimination, summary judgment is not appropriate even if Plaintiff fails to show pretext that the articulated reason for the decision is a sham for discrimination under McDonnell Douglas.

The Eleventh Circuit states that:

[T]he district court may not grant summary judgment “[w]here the non-movant presents direct evidence that, if believed by the jury, would be sufficient to win at trial . . ., even where the movant presents conflicting evidence,” Merritt v. Dillard Paper Co., 120 F.3d 1181, 1189 (11th Cir. 1997) (quoting Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996)).

Learning Point for Summary Judgment Briefs:

Always point out that Plaintiff has not presented any direct evidence of discrimination and then proceed to the four step analysis of McDonnel Douglas.

Before leaving the direct evidence discussion, also explain why the proffered evidence is not direct evidence of discrimination. “[O]nly the most blatant remarks, whose intent could mean nothing other than to discriminate on the basis of’ some impermissible factor constitute direct evidence of discrimination.”

Even if Plaintiff focuses exclusively on a circumstantial analysis of the evidence to prove discrimination, the Court will apply the correct legal analysis to the facts:

Despite Jefferson’s failure to appreciate the difference between direct and circumstantial evidence, we must reverse this legal error. Although we ordinarily will not “second guess the litigants before us and grant them relief they did not request, pursuant to legal theories they did not outline, based on facts they did not relate,” United States v. Pielago, 135 F.3d 703, 709 (11th Cir. 1998) (quoting Adler v. Duval Cty. Sch. Bd., 112 F.3d 1475, 1481 n.12 (11th Cir. 1997)), parties cannot waive the application of the correct law or stipulate to an incorrect legal test