The Court Clarifies a Discrimination Plaintiff’s Evidentiary Burden in Order to Avoid Judgment as a
On Reeves v. Sanderson Plumbing Products, Inc., 2000 WL743663 (U.S. 2000), the Supreme Court resolved an issue which has stymied the labor and employment field for years, an issue the Court itself helped perpetuate in its 1993 decision St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). The issue: What quantum of evidence must an employment discrimination plaintiff proffer in order to survive judgment as a matter of law for the defendant-employer, once the employer produces evidence of a legitimate, nondiscriminatory reason for the challenged adverse employment action? In resolving this issue, the Court unanimously chose to ease the burden which various courts, including the 11th Circuit, previously had placed on discrimination plaintiffs.
Standards of Proof
The issue resolved in Reeves had its genesis over 30 years ago, when the Supreme Court, in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), introduced the now-ubiquitous burden shifting analysis for employment discrimination cases in which the plaintiff is relying on circumstantial evidence. The analysis has three parts: First a plaintiff must establish a prima facie case of discrimination.1 If a prima facie case is proven, it “creates a rebuttable ‘presumption that the employer unlawfully discriminated against’ [the plaintiff].”2 Next, in response to the prima facie case, the defendant-employer must articulate, but need not prove, a legitimate, nondiscriminatory reason for the challenged employment action.3 Once the defendant satisfies its burden of production, “the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity,” in which the plaintiff has “a full and fair opportunity to demonstrate pretext.”4 The question splitting the courts for years had been, “what exactly does a plaintiff need to do in order to demonstrate pretext?”
At the same time that courts have grappled with the “pretext” issue, they have also attempted to mold a wholly separate analysis for employment discrimination cases when the plaintiff is relying on “direct evidence.” The Supreme Court has described direct evidence, rather unhelpfully, as evidence “sufficient to show that an illegitimate criterion was a substantial factor in the particular employment decision such that a reasonable factfinder could draw an inference that the decision was made ‘because of’ the plaintiff’s protected status.”5 Unfortunately, the cases which have attempted more particularly to define and categorize “direct evidence” have produced even murkier results than those involving circumstantial evidence and “pretext.”6 However, regardless of how one describes “direct evidence,” it is clear that courts consider “direct evidence” and “circumstantial evidence” to be distinct standards of proof in the realm of employment discrimination.7 This is significant, since a plaintiff who proves his or her case through direct evidence shifts the burden of proof, and not just the burden of production, to the defendant, which must then prove that it would have taken the same action even in the absence of the unlawful discrimination.8
Hicks: More
Questions than Answers
In Hicks, the trial court found that the plaintiff had disproven the employer’s legitimate, nondiscriminatory reasons. Nevertheless, the trial court, in a bench trial setting, ultimately ruled in favor of the employer.9 The appellate court reversed, holding that “[o]nce [a plaintiff] prove[s] all of [a defendant-employer’s] proffered reasons for the adverse employment actions to be pretextual, [the plaintiff is] entitled to judgment as a matter of law.”10
Justice Scalia’s majority opinion in Hicks was clear in stating that the Court of Appeals was wrong in holding that rejection of the employer’s proffered non-discriminatory explanation mandates judgment as a matter of law for the plaintiff.11 However, in trying to explain what was the correct test to use, Justice Scalia’s opinion in fact engendered a fierce split among, and even within, the circuit courts of appeal. Indeed, within just a few pages of one another, Justice Scalia’s opinion seemingly gave both plaintiffs’ and employers’ counsel reason to celebrate:
[R]ejection of the defendant’s proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination.. . .12
* * *
It is not enough, in other words, to dis believe the employer; the factfinder must believe the plaintiff’s explanation of intentional discrimination.13
The former language seems to indicate that a jury is free to find intentional discrimination if, and only if, it rejects the employer’s legitimate, nondiscriminatory explanation. On the other hand, the latter language could be interpreted as requiring a plaintiff to submit some additional evidence, in addition to discrediting the employer’s explanation, in order to avoid judgment as a matter of law. Justice Scalia assured that “[p]anic will certainly not break out among the courts of appeals” as a result of the Hicks decision.14 Unfortunately, this seemingly innocuous prediction completely missed the mark; in fact, what resulted among the circuit courts of appeal was mass confusion.
Aftermath of Hicks
After Hicks, and based on the seemingly conflicting language contained therein, courts took two general approaches to the third part of the McDonnell Douglas test. On the one side was the “pretext” camp. These courts held that a plaintiff could satisfy his or her ultimate burden of proof by demonstrating, by a preponderance of the evidence, that the employer’s legitimate, nondiscriminatory reason was merely a “pretext” for discrimination and not worthy of belief.15 On the other side were the “pretext-plus” courts, which required an employment discrimination plaintiff to provide some additional evidence of discrimination in addition to essentially disproving the employer’s proffered nondiscriminatory reason.16 In the 11th Circuit, opinions landed on both sides of the issue.17
Reeves: Supreme Court Rejects Pretext-Plus
Roger Reeves had worked for Sanderson Plumbing Products, Inc., for 40 years.18 In 1995, Reeves was 57 years old serving as a supervisor for Sanderson when he was terminated.19 Sanderson filed suit, claiming that he had been unlawfully terminated because of his age in violation of the Age Discrimination in Employment Act (ADEA).20 A jury returned a verdict in favor of Reeves,21 and the Court of Appeals for the Fifth Circuit reversed.22
Since Reeves’ case was “based principally on circumstantial evidence,” the Supreme Court, without expressly ruling on the issue, assumed that the McDonnell Douglas evidentiary approach applies to ADEA claims.23 There was no dispute that Reeves established a prima facie case of discrimination.24 Sanderson Plumbing’s rebuttal asserted that Reeves had been terminated “due to his failure to maintain accurate attendance records”25 and his “failure to discipline absent and late employees.”26 In attempting to satisfy his ultimate burden of discrimination, Reeves “[m]ade a substantial showing that [Sanderson Plumbing]’s explanation was false.”27 Indeed, even the Fifth Circuit, in reversing a jury verdict, conceded that Reeves “very well may” have offered sufficient evidence for a “reasonable jury [to] have found that Sanderson’s explanation for its employment decision was pretextual.”28 Moreover, Reeves submitted additional evidence that a substantially younger, similarly situated employee was treated much better than he had been.29
In addition to relying on the McDonnell Douglas circumstantial evidence framework, Reeves also introduced more direct-style evidence. There was testimony at trial that a key player in the decision to terminate Reeves had stated that Reeves “was so old [he] must have come over on the Mayflower” and that he “was too damn told to do [his] job.”30 Moreover, Reeves introduced evidence tending to prove that the “key player” was, in fact, the “actual decisionmaker.”31 Nevertheless, the Fifth Circuit concluded that “there was insufficient evidence for a jury to find that Sanderson discharged Reeves because of his age.”32
The Supreme Court noted that the Fifth Circuit had relied on the pretext-plus approach, inasmuch as it “proceeded from the assumption that a prima facie case of discrimination, combined with sufficient evidence for the trier of fact to disbelieve the defendant’s legitimate, nondiscriminatory reason for its decision, is insufficient as a matter of law to sustain a jury’s finding of intentional discrimination.”33 The Supreme Court clearly refuted this assumption and plainly held that “a plaintiff’s prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.”34 Thus, the Court ruled that the Fifth Circuit “erred in proceeding from the premise that a plaintiff must always introduce additional, independent evidence of discrimination.”35
The Court quoted Hicks and repeated that “[i]t is not enough. . . to disbelieve the employer; the factfinder must believe the plaintiff’s explanation of intentional discrimination.”36 At the same time, rejection of an employer’s legitimate explanation “may be quite persuasive” circumstantial evidence of intentional discrimination.37 In ultimately rejecting pretext-plus, the Court also quoted the following paragraph from Hicks:
The factfinder’s disbelief of the reasons put forward by the defendant (especially if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant’s proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination.38
It thus appears as if the Court has settled the principal conflict which emerged from Hicks. Not surprisingly, Reeves has now raised new issues. However, unlike in Hicks, this time the Court has provided some guidance, while at the same time trying to explain the seemingly incongruous language in Hicks which ignited the “pretext” versus “pretext-plus” debate in the first place.
It is now clear that rejection of the employer’s asserted explanation may permit the finder of fact to conclude unlawful discrimination.39 However, Justice O’Connor’s opinion carefully cautions that, “[t]his is not to say that such a showing by the plaintiff will always be adequate to sustain a jury’s finding of liability.”40 Illustrating how such a showing would not be adequate, Justice O’Connor continues: “[A]n employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer’s decision, or if the plaintiff created only a weak issue of fact as to whether the employer’s reason was untrue and there was abundant and controverted independent evidence that no discrimination had occurred.”41 The use of “conclusively” and “abundant” appear to impose a heavy burden upon defendant-employers when moving for judgment as a matter of law. Indeed, in a brief concurring opinion, Justice Ginsburg opines that it will be an “uncommon” and “atypical” case when a plaintiff will be required to submit some additional evidence in addition to 1) the prima facie case and 2) a showing that the employer’s legitimate explanation is false.42 Justice O’Connor’s opinion for the Court states that a court should consider a number of factors in determining whether judgment as a matter of law is appropriate, including “the strength of the plaintiff’s prima facie case, the probative value of the proof that the employer’s explanation is false, and any other evidence that supports the employer’s case and that properly may be considered on a motion for judgment as a matter of law.”43
Justice O’Connor’s illustrations of when a plaintiff may be required to submit some additional evidence tend to explain the “contradictory” language found in Hicks. When the Court says that “[i]t is not enough. . . to disbelieve the employer; the factfinder must believe the plaintiff’s explanation of intentional discrimination,” the Court does not mean, and apparently did not mean in Hicks, that additional evidence is necessary. Rather, it means that the finder of fact must believe that the employer’s legitimate, nondiscriminatory reason is not just a pretext, but a pretext for unlawful discrimination. For example, if a plaintiff proved to the satisfaction of the jury that his or her former employer’s proffered explanation was false, the plaintiff would still lose if the jury believed that the employer’s false explanation was designed to mask something other than unlawful discrimination.
In applying its legal holding to the facts of the case, the Supreme Court reinstated the jury’s verdict in favor of Reeves.44 At the same time, the Court addressed the standard by which a court should rule upon a motion for judgment as a matter of law pursuant to Fed. R. Civ. P. 50.45 Noting that the standard for summary judgment under Fed. R. Civ. P. 56 “mirrors” the standard for Rule 50 motions, the Court advised that all of the evidence in the record should be reviewed by a court when entertaining either a Rule 50 or Rule 56 motion.46 On the other hand, a court must “draw all reasonable inferences in favor of the nonmoving party, and it may not may not make credibility determinations or weigh the evidence.”47 Thus, a court “should give credence to the evidence favoring the nonmovant as well as that ‘evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses.’”48
jury’s verdict, and that it was clear that Sanderson Plumbing was not entitled to judgment as a matter of law.49 The Court explained that Reeves had established a prima facie case and had created a jury issue as to his former employer’s proffered explanations for termination.50 Moreover, Reeves had introduced statements tending to show an age-based animus, and had shown that a similarly situated younger employee had been treated better than he had been.51
Impact of Reeves
squarely rejecting the “pretext plus” approach, the Supreme Court has eased the evidentiary burden which numerous courts had previously imposed upon discrimination plaintiffs when faced with a motion for judgment as a matter of law, either pre-trial or post-trial. However, the Court declined the opportunity to provide further direction on the issue of “direct evidence,” even though the phrase was specifically mentioned in the substantive question presented by Roger Reeves and accepted for review by the Court.52 Indeed, a careful review reveals that the term “direct evidence” is not even found in the Reeves opinion, even though Roger Reeves relied on age-related comments attributable to a key decisionmaker, evidence generally thought to fall within the rubric of “direct evidence.” Reeves appeared to have been a perfect opportunity for the Court to reexamine the entire evidentiary scheme utilized in employment discrimination cases. Given the confusion within, and the dissonance between, the nation’s courts with respect to circumstantial and direct evidence, such a review looks to be in order, and it is disappointing that the Court apparently chose to avoid the broader issue.
As Reeves filters through the system, employers will likely begin to find it more difficult to take a case out of a jury’s hands. Unless the case is one of the “uncommon” and “atypical” instances discussed by Justices O’Connor and Ginsburg, a plaintiff will be able to avoid judgment as a matter of law, as well as summary judgment, by establishing a prima facie case and submitting sufficient evidence for a reasonable factfinder to reject the employer’s legitimate explanation for the challenged employment action and find that the explanation is a ruse to conceal unlawful discrimination. Accordingly, employment discrimination defendants will strive to fit their particular cases into the set of cases when a plaintiff must submit some additional evidence in order to survive a motion for judgment as a matter of law.
A final word about jury instructions: In Reeves, the Supreme Court tacitly approved of the district court’s instruction to the jury with respect to whether the employer’s explanation was a pretextfor unlawful discrimination: “1, that the stated reasons were not the real reasons for [the plaintiff’s] discharge; and 2, that age discrimination was the real reason for [the plaintiff’s] discharge.”53 Rephrased, this instruction shows that, in order to infer intentional discrimination, a jury must find that the employer’s explanation is false and that the false explanation has been advanced in order to conceal the employer’s unlawful, discriminatory actions.54 However, despite the Supreme Court’s seeming approval of the jury instruction in Reeves, the bench and bar should keep in mind the 11th Circuit’s admonition that “juries should not be instructed on the McDonnell Douglas framework.”55 q
1 The original prima facie paradigm announced in McDonnell Douglas was geared towards a case alleging discriminatory failure-to-hire on the basis of race, and comprised the following elements: 1) the plaintiff belongs to a racial minority; 2) the plaintiff applied and was qualified for a job for which the employer was seeking applicants; 3) despite the plaintiff’s qualifications, he or she was rejected; and 4) after the plaintiff’s rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications. McDonnell Douglas, 411 U.S. at 802. However, “the requisite showings that make up a prima facie case are not meant to be rigid or inflexible.” Schoenfeld v. Babbitt, 168 F.3d 1257, 1268 (11th Cir. 1999). Thus, since McDonnell Douglas, the prima facie case has been modified and applied in all types of disparate treatment cases (ie. retaliation, termination, promotion, demotion, pay disparity).
2 U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 714 (1983), quoting Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981).
3 The employer’s burden was clarified in Burdine, 450 U.S. 248, 255 (1981): The employer “must clearly set forth, through the introduction of admissible evidence, the reasons for the [challenged employment action].”
4 Burdine, 450 U.S. 255-256.
5 Price Waterhouse v. Hopkins, 490 U.S. 228, 278 (1989) (O’Connor, J., concurring in the judgment).
6 According to the 11th Circuit, certain comments attributable to key decisionmakers in connection with an adverse employment action can constitute direct evidence. See, e.g., E.E.O.C. v. Alton Packaging Corp., 902 F.2d 920, 924 (11th Cir. 1990) (“if it was his company he wouldn’t hire any black people”). For a recent and estimable analysis of the 11th Circuit’s own shifting concept of “direct evidence,” see Robyn S. Hankins’ article in the March, 2000, edition of The Florida Bar Journal, Whose Burden Is it, Anyway? The Eleventh Circuit’s Evolving Standard for “Burden-Shifting” in Employment Discrimination Cases.
7 See, e.g., Wright v. Southland Corp., 187 F.3d 1287, 1301 (11th Cir. 1999) (“there are now two means of proving employment discrimination: (1) McDonnell Douglas [circumstantial evidence], or (2) direct evidence”).
8 Price Waterhouse, 490 U.S. at 251-52 (plurality opinion) and 490 U.S. at 272 (O’Connor, J., concurring in judgment).
9 756 F. Supp. 1244, 1250-52 (E.D. Mo. 1991).
10 970 F.2d 487, 492 (8th Cir. 1992).
11 509 U.S. at 509. Hicks was a 5-4 decision. The four dissenting Justices would have affirmed the appellate court’s approach and held that rejection of the employer’s reasons does not merely permit but compels a finding of discrimination. Hicks, 509 U.S. at 525-43 (Souter, J., dissenting).
12 Id. at 511 (emphasis in original).
13 Id. at 519 (emphasis in original).
14 Id. at 512.
15 The Third, Sixth, Seventh, Ninth, 10th, 11th, and D.C. circuits had held that a discrimination plaintiff can prevail if, together with the prima facie case, he or she shows that the employer’s proffered legitimate, nondiscriminatory reason for its adverse employment action was simply pretextual. According to these courts, a plaintiff can establish pretext, and thus permit the jury to infer discrimination without additional proof, directly by persuading the trier of fact that a discriminatory reason more likely motivated the employer, or indirectly by showing that the employer’s proffered explanation is simply unworthy of belief. Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061 (3d Cir. 1996) (en banc), cert. denied, U.S. , 117 S.C. 2532 (1997) (plaintiff may succeed in proving pretext and have jury decide ultimate question of liability by persuading jury directly that discriminatory reason more likely motivated employer or indirectly by showing that employer’s proffered explanation is unworthy of belief); Barnett v. Dept. of Veterans Affairs, 153 F.3d 338, 341-342 and 342 n.4 (6th Cir. 1998) (citing Hicks) (rejection of employer’s proffered legitimate reason will permit factfinder to infer ultimate fact of intentional discrimination without requirement of additional proof of discrimination); Essex v. United Parcel Service, Inc., 111 F.3d 1304, 1310 (7th Cir. 1997) (plaintiff can prove pretext either by presenting direct evidence that discriminatory reason motivated employer’s decision or by presenting indirect evidence that employer’s proffered reason is unworthy of credence, raising inference that real reason is discriminatory); Edwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1222 (9th Cir. 1998) (plaintiff may prove pretext with circumstantial evidence tending to show that employer’s proffered motives were not actual motives because they are inconsistent or otherwise not believable); Randle v. City of Aurora, 69 F.3d 441, 452-53 n.17 (10th Cir. 1995) (“the en banc court has unanimously adopted this panel’s holding that a civil rights plaintiff may withstand a motion for summary judgment. . . if [he] establishes a prima facie case and presents evidence that the defendant’s proffered nondiscriminatory reason is pretextual – i.e., unworthy of belief”); Aka v. Washington Hospital Center, 156 F.3d 1284 (D.C. Cir. 1999) (en banc) (rejecting any reading of Hicks under which employment discrimination plaintiff would be routinely required to submit evidence over and above rebutting employer’s stated explanation in order to get to a jury, as such would be inconsistent with Hicks, which makes clear that “no additional proof of discrimination is required” as a matter of course once a plaintiff has shown that a jury could reject employer’s proffered explanation; factfinder’s disbelief of reasons put forward by defendant will allow it to infer intentional discrimination).
16 The First, Second, Fourth, and Eighth circuits had affirmatively required an employment discrimination plaintiff to present both evidence of pretext (whether direct or indirect) plus additional specific evidence that the employer’s true motive was discriminatory. This “pretext plus” approach does not permit a trier of fact to infer discrimination from indirect evidence of pretext, such as disbelief of the employer’s proffered legitimate business reason, but rather, requires a plaintiff to not only discredit the employer’s proffered reason or show that the real reason was more likely discriminatory (plain pretext), but, in addition, affirmatively to produce specific evidence to prove discriminatory animus. Hidalgo v. Condado Insurance Agencies, Inc., 120 F.3d 328, 337 (1st Cir. 1997) (following pure “pretext plus” position, requiring both evidence of pretext and other “significantly probative” evidence of discrimination); Fisher v. Vassar College, 114 F.3d 1332, 1343 (2d Cir. 1997) (en banc) (“a prima facie case plus a finding of pretext is [not] necessarily sufficient to sustain a plaintiff’s burden”), cert. denied, 522 U.S. 1075 (1998); Vaughan v. Metrahealth Companies, Inc., 145 F.3d 197, 202 (4th Cir. 1998) (expressly adopting “pretext plus” approach); Ryther v. KARE 11, 108 F.3d 832, 837 (8th Cir. 1997) (en banc) (plaintiff’s proof of prima facie case accompanied by evidence of pretext and disbelief of defendant’s proffered explanation may permit jury to find for plaintiff provided that plaintiff still persuades jury from all facts and circumstances that an employment decision was based upon intentional discrimination).
17 Compare Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997) (holding that defendant who puts forward only reasons that are subject to reasonable disbelief in light of evidence faces having its true motive determined by jury, whose factfinding role should not be preempted by court in determining whether to draw inference of intentional discrimination from plaintiff’s prima facie case taken together with its rejection of employer’s proffered explanation for its action) with Isenbergh v. Knight-Ridder Newspaper Sales, Inc., 94 F.3d 436, 444 (11th Cir. 1996) (some cases will require plaintiff to present evidence in addition to prima facie case and “disbelievability” of employer’s proffered reason for employment discrimination). Combs specifically disavowed the prior holding in Isenbergh, and the 11th Circuit’s post-Combs decisions followed the Combs analysis. See, e.g., Bogle v. Orange County Board of County Commissioners, 162 F.3d 653 (11th Cir. 1998); Walker v. Mortham, 158 F.3d 1177 (11th Cir. 1998); Arrington v. Cobb County, 139 F.3d 865 (11th Cir. 1998). Interestingly, though, in Buzzi v. Gomez, 62 F. Supp.2d 1344, 1356 (S.D. Fla. 1999), decided after Combs, the court chose to rely on Isenbergh, requiring the plaintiff to “establish both that the proffered reason for the employment decision was false and that the real reason for the action was discrimination.” Id. at 1356 (emphasis in original).
18 2000 WL 743663 at *3.
19 Id.
20 29 U.S.C. §621 et seq.
21 2000 WL 743663 at *4.
22 Reeves v. Sanderson Plumbing Products, Inc., 197 F.3d 688 (5th Cir. 1999).
23 Courts of appeal, including the 11th Circuit, have consistently applied McDonnell Douglas to ADEA cases. See, e.g., Chapman v. AI Transport, 180 F.3d 1244, 1245 (11th Cir. 1999) (noting adoption of McDonnell Douglas analysis in ADEA actions); Jones v. Unisys Corp., 54 F.3d 624, 630 (10th Cir.1995) (same); Bellaver v. Quanex Corp., 200 F.3d 485, 493-94 (7th Cir. 2000) (proper to utilize McDonnell Douglas in ADEA cases).
24 2000 WL 743663 at *5.
25 Id. at *3.
26 Id. at *6.
27 Id. at *7.
28 197 F.3d 688, 693.
29 2000 WL 743663 at *12.
30 Id.
31 Id.
32 197 F.3d at 693.
33 2000 WL 743663 at *8.
34 Id. at *9.
35 Id. at *10.
36 Id. at *8, quoting Hicks, 509 U.S. at 519.
37 Id. at *9. The Court commented that evidence discrediting the employer’s nondiscriminatory explanation is “simply one form of circumstantial evidence.” Id.
38 Id., quoting 509 U.S. at 511.
39 Id.
40 Id.
41 Id.
42 Id. at *14.
43 Id. at *10.
44 Id at *13.
45 In addition to the substantive legal issue decided in Reeves, the Court also accepted for review two additional questions relating to matters of civil procedure: 1) “In determining whether to grant judgment as a matter of law under Fed. R. Civ. P. 50, should a District Judge weigh all of the evidence or consider only the evidence favoring the non-movant?”; and 2) “Whether the standard for granting judgment as a matter of law under Fed. R. Civ. P. 56 is the same as the standard for granting judgment as a matter of law under Fed. R. Civ. P. 50?” See Brief of Petitioner, 2000 WL 14426.
46 2000 WL 743663 at *10.
47 Id. at *11.
48 Id., quoting 9 A.C. Wright & A. Miller, Federal Practice and Procedure §2529, p. 300 (2d ed. 1995).
49 Id.
50 Id.
51 Id.
52 “Under the Age Discrimination in Employment Act, is direct evidence of discriminatory intent required to avoid judgment as a matter of law for the employer?” See Brief of Petitioner, 2000 WL 14426.
53 2000 WL 743663 at *13.
54 Even rephrased, the jury instruction used in Reeves may be problematic, inasmuch as it fails to clearly explain that rejection of the employer’s proffered, legitimate reason may permit the jury to infer discrimination. Id. at *10.
55 Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1333 (11th Cir. 1999) (emphasis in original).
Adam S. Chotiner practices labor and employment law in Hollywood with Muchnick, Wasserman, Dolin & Levine, LLP. He received his B.A. in political science from the University of Florida, and his J.D., cum laude, from the University of Miami School of Law.
This column is submitted on behalf of the Labor and Employment Law Section, Richard C. McCrea, Jr., chair, and F. Damon Kitchen, editor.
