finding that defendant must present a “legitimate nondiscrimina *367 tory reason” for its adverse employment decision
How later courts described this case
- finding that defendant must present a “legitimate nondiscrimina *367 tory reason” for its adverse employment decision
- “We do not require that an official demonstrate that he did not violate clearly established federal rights; our precedent places that burden upon plaintiffs.”
Written by the judges who cited it.
The opinion
BATCHELDER, Circuit Judge,
concurring in the judgment.
I agree with Judge Krupansky that the opinion of the District Court should be affirmed. I reach this result, however, by a somewhat different avenue.
First, I disagree that any Price Water-house analysis is warranted, given Wex-ler’s failure to produce any direct evidence of age discrimination. The isolated remarks made by Schiffinan and Lively, sim *870 ply do not indicate any age based animus on the part of White’s.
This case is more appropriately analyzed according to the framework constructed by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 , 93 S.Ct. 1817 , 36 L.Ed.2d 668 (1973). To make a prima facie case under McDonnell Douglas, the plaintiff must demonstrate that 1) he is a member of a protected class, 2) that he was subject to an adverse employment decision, 3) that he was qualified for the position, and 4) that he was replaced by a person outside of the protected class. McDonnell Douglas, 411 U.S. at 802 , 93 S.Ct. 1817 . A defendant may rebut the prima facie case by articulating that a legitimate, non-discriminatory reason existed for the adverse employment action. White’s responded that it demoted Wexler because of his poor performance as manager, particularly noting the sharp drop-off in sales.
White’s makes a compelling argument that Wexler failed to make a prima facie case because he was not “qualified” to hold the position of manager, and that this lack of qualification is evidenced by his inability to meet the employer’s “reasonable expectations” regarding sales. The more compelling argument, however, is that even assuming that Wexler is qualified, he has failed .to present evidence to rebut the employer’s legitimate non-discriminatory reason for his demotion.
The lead opinion frequently uses terms such as “overwhelming uncontroverted evidence,” and relies upon Reeves v. Sander-son Plumbing Products, Inc., 530 U.S. 133 , 120 S.Ct. 2097 , 147 L.Ed.2d 105 (2000), for the proposition that the plaintiff is required to “disprove” the employer’s proffered reason for demotion Supra, p. 868. I am concerned that the use of Reeves in this context invites misreading of that opinion, and of the burdens shouldered by parties in a summary judgment proceeding. At issue in Reeves was whether the defendant was entitled to judgment as a matter of law after a jury found in favor of the plaintiff in an ADEA action. After reviewing the significant quantum of evidence produced by the plaintiff at trial, the Court held that the defendant was not entitled to judgment. Although the analysis required to decide a Rule 50 motion mirrors that used in a Rule 56 motion, the real world difference in the amount of evidence available to the court in the two procedural settings requires that we clarify the inquiry in which we are engaging.
The question presented on summary judgment is merely whether Wexler produced evidence to rebut White’s articulated non-discriminatory reason for demotion. A plaintiff does not need to prove anything on summary judgment. He need merely demonstrate that a material question of fact exists for trial. Fed.R.Civ.P. 56(c); see Anderson v. Liberty Lobby, 477 U.S. 242, 255 , 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986). Borrowing language from Reeves blurs the distinction between the burden of production imposed on the plaintiff in this case, and the ultimate burden of persuasion at issue in Reeves .
Further, in its conclusion, the lead opinion characterizes White’s legitimate nondiscriminatory reason as “evidenced beyond refutation.” Supra, pp. 868-69. This statement implicitly calls for a weighing of evidence inappropriate to a Rule 56 proceeding. The question is not whether or not the evidence presented by the defendant could be refuted, but rather .whether or not the plaintiff has produced more than a scintilla of evidence tending to refute it. The fact that one individual chooses not to climb Mt. Everest, or fails in the attempt, does not render the mountain “unclimbable.”
*871 In this case, Wexler failed to present more than a scintilla of evidence to rebut White’s proffered reason. We need not inquire into the merits of that defense, or the quantum of evidence presented.
Accordingly, I concur in the Judgment affirming the District Court.