Marina Cooper-Houston v. Southern Railway Company

CLARK, Senior Circuit Judge,

dissenting:

Respectfully, I disagree with the majority’s view that this case should be remanded for the Magistrate Judge to analyze the evidence in this case as a circumstantial evidence case as permitted by the McDonnell Douglas case.

I agree with the majority’s statement on page 605 that the plaintiff made out a prima facie circumstantial case under McDonnell Douglas. The panel then holds: “The burden of production then shifted to Southern Railway to articulate a non-discriminatory reason for Cooper-Houston’s termination, (citing cases) Southern Railway satisfied this burden by stating that Cooper-Houston was fired because she violated the company’s confidentiality policy by leaking information regarding an on going investigation.”

The panel errs by suggesting that plaintiff rested her ease immediately after making out a prima facie case under McDonnell Douglas. Instead, without interrupting her case, plaintiff proceeded with her offer of evidence by direct evidence that her superior had an animus against members of the black race as demonstrated by remarks he made and how she was treated differently than whites in the office where she worked. The transcript indicates that plaintiffs ease consisted of 231 pages with five witnesses, after which she rested her case. The defendant offered no evidence until plaintiff rested. Defendant’s case consisted of two witnesses and 50 pages. The plaintiff, before resting her ease, proved both a prima facie ease and a direct evidence case.

The Supreme Court in Texas Dept. of Community Affairs v. Burdine, said the following with respect to shifting burdens of proof:

Establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee. If the trier of fact believes the plaintiffs evidence, and if the employer is silent in the face of the presumption, the court must enter judgment for the plaintiff because no issue of fact remains in the case.

The burden that shifts to the defendant, therefore, is to rebut the presumption of discrimination by producing evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason. The defendant need not persuade the court that it was actually motivated by the proffered reasons. See [Board of Trustees of Keene State College v.] Sweeney, supra, [ 439 U.S. 24 ] at 25, 99 S.Ct. [295] at 296 [ 58 L.Ed.2d 216 (1978)]. It is sufficient if the defendant’s evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff. To accomplish this, the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiffs rejection. The explanation provided must be legally sufficient to justify a judgment for the defendant. If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity. Placing this burden of production on the defendant thus serves simultaneously to meet the plaintiffs prima facie case by presenting a legitimate reason for the action and to frame the factual issue with sufficient clarity so that the plaintiff will have a full and fair opportunity to demonstrate pretext. The sufficiency of the defendant’s evidence should be evaluated by the extent to which it fulfills these functions.

The plaintiff retains the burden of persuasion. She now must have the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision. This burden now merges with the ultimate burden of persuading the court that she has been the victim of intentional discrimination. She may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.

450 U.S. 248, 256 , 101 S.Ct. 1089, 1094-95 (emphasis added) (footnotes omitted).

*607 The confusion with respect to the different burdens of proof stems from whether one is addressing the burden of producing evidence or one is addressing the burden of persuasion. Many of us in writing about these subjects use the phrase “burden of proof’ to encompass both subjects. In an ordinary lawsuit the plaintiff must produce sufficient evidence to obtain a judgment if the defendant fails to offer any evidence. If she has, she has produced the facts and persuaded the judge that she should prevail. Instead, if the defendant produces evidence in opposition to plaintiffs, the plaintiff has to persuade by a preponderance of the evidence that her evidence is more truthful.

In some cases, a rule of law creates a presumption that a plaintiff has “made out her case” by the proof of certain facts which, if uncontested by defendant, will result in a judgment for plaintiff. This is called a “pri-ma facie” case and the McDonnell Douglas case authorizes a plaintiff to recover by proving a limited set of facts and temporarily shifting the burden to the defendant of proving that there was no discrimination in the hiring or discharging of the plaintiff.

The case under review was not tried as a prima facie case. Instead, plaintiff made out both a prima facie case and a case containing sufficient facts. In discussing the two ways of proving discrimination in Smith v. Horner, 839 F.2d 1530 (11th Cir.1988), Judge Tuttle had the following to say in Note 11 on page 1537 of his opinion:

Of course, the method which a plaintiff chooses to establish a prima facie case affects only the internal structure of the legal analysis. The external structure, representing the question of whether the defendant has intentionally discriminated against the plaintiff, remains the same under both Lee [v. Russell County Board of Education, 684 F.2d 769 (11th Cir.1982)] and McDonnell Douglas. Thus, Smith’s use of her testimony as evidence of pretext rather than direct evidence of discrimination should not change the overall result.

As earlier stated, the case being reviewed was fully tried as an ordinary lawsuit and there was no shifting of burdens except from the plaintiff when she rested.

In U.S. Postal Service Bd. of Governors v. Aikens, the Court indicated that attention to burdens of proof is not warranted after the case has been fully tried.

Because this case was fully tried on the merits, it is surprising to find the parties and the Court of Appeals still addressing the question whether Aikens made out a prima facie case. We think that by framing the issue in these terms, they have unnecessarily evaded the ultimate question of discrimination vel non.

460 U.S. 711, 713-14 , 103 S.Ct. 1478, 1481 , 75 L.Ed.2d 403 (1983).

It is my view that there is absolutely no reason for remanding this case to the magistrate judge “to resolve the contrary explanations for Cooper-Houstoris termination.” 1 I would direct the district court to enter judgment for Cooper-Houston as recommended by the magistrate judge.

. Page 605 of majority opinion.