stating that defendant’s asserted 'legitimate nondiscriminatory reason "must be based on admissible evidence and not merely ... argument of counsel”
How later courts described this case
- stating that defendant’s asserted 'legitimate nondiscriminatory reason "must be based on admissible evidence and not merely ... argument of counsel”
- stating that defendant’s asserted legitimate non-discriminatory reason "must be based on admissible evidence"
- reversing in part orders in discrimination case that involved shifting burdens of proof
Written by the judges who cited it.
The opinion
ESCHBACH, Circuit Judge,
concurring in part and dissenting in part:
I concur in that part of the court’s opinion which affirms the district court’s allocation of the burdens of proof and production. I write separately only to express my view that, in light of this court’s decision not to review the merits of the Order of Reference, any discussion of what we might have done in the first instance, or what we might have considered had we reviewed the Order, is unwise and might serve as the impetus to protract further these already protracted proceedings.
I also concur in the court’s resolution of eight of the nine individual claims before us. However, because I cannot find that the Special Master’s resolution of the Over-ton claim is clearly erroneous, I dissent from that part of the opinion which directs that the Overton claim be remanded.
*1092 Ms. Overton testified that she delayed marriage until it was almost certain that her fiance, who had enlisted in the service, would be sent to Vietnam. When it became clear that her fiance would see combat, Ms. Overton resigned from her stewardess job, married, and moved to Anni-ston, Alabama, where she remained with her husband until he was sent overseas five months later. The Special Master found that Ms. Overton and her fiance “decided to get married as soon as possible, decided that Claimant would resign her position ... and that she would travel to Anniston ...” and based on her testimony and demeanor, determined that she had resigned in order to spend the remaining months with her new husband.
At her hearing, Ms. Overton testified that, had there been no discriminatory rule, she would have applied for a leave of absence or traded trips with other stewardesses in order to spend some time with her husband. On cross-examination, Ms. Over-ton admitted that she did not know what United’s policy was with respect to personal leaves, and that she thought they were available for only 90 days. Moreover, she admitted that she had been unable to trade trips very often during the period before she married. The majority believes that the Special Master unfairly required Ms. Overton to demonstrate that she would have been able to obtain a personal leave had she requested one. I believe, however, that the Special Master viewed Ms. Over-ton’s inability to reconstruct how she could have reconciled both her responsibilities to her job and her desire to spend the remaining few months with her husband as bearing adversely on her credibility. My view is consistent with the Special Master’s finding that Ms. Overton and her husband decided that she should resign and move. Unlike the majority, I do not believe that there is any requirement that the Special Masters make express credibility determinations when it is clear that the facts as found by the Master cannot be reconciled with the claimant’s testimony about what she would have done absent the rule.