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Employment Law No. 02-40406, 6/6/2003. Click here for the full text of this decision FACTS: The plaintiff-appellant, Joanna Laxton, appeals from the district court’s order granting the defendant-appellee, Gap Inc., judgment as a matter of law in this case brought under the Pregnancy Discrimination Act. HOLDING: Reversed and remanded. A claim brought under the PDA is analyzed like any other Title VII discrimination claim. Urbano v. Continental Airlines, Inc., 138 F.3d 204 (5th Cir. 1998). Title VII discrimination can be established through either direct or circumstantial evidence. Wallace v. Methodist Hospital System, 271 F.3d 212 (5th Cir. 2001). Laxton’s case is built on the latter, which means that it is analyzed under the McDonnell-Douglasframework. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this framework, the plaintiff must first create a presumption of discrimination by making out a prima facie case of discrimination. The burden then shifts to the employer to produce a legitimate, nondiscriminatory reason for her termination. This causes the presumption of discrimination to dissipate. The plaintiff then bears the ultimate burden of persuading the trier of fact by a preponderance of the evidence that the employer intentionally discriminated against her because of her protected status. To carry this burden, the plaintiff must produce substantial evidence indicating that the proffered legitimate nondiscriminatory reason is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133 (2000). The plaintiff must rebut each nondiscriminatory reason articulated by the employer. A plaintiff may establish pretext either through evidence of disparate treatment or by showing that the employer’s proffered explanation is false or “unworthy of credence.” An explanation is false or unworthy of credence if it is not the real reason for the adverse employment action. Evidence demonstrating that the employer’s explanation is false or unworthy of credence, taken together with the plaintiff’s prima facie case, is likely to support an inference of discrimination even without further evidence of defendant’s true motive. Under Reeves, no further evidence of discriminatory animus is required because “once the employer’s justification has been eliminated, discrimination may well be the most likely alternative explanation. . . .” The “rare” instances in which a showing of pretext is insufficient to establish discrimination are 1. when the record conclusively reveals some other, nondiscriminatory reason for the employer’s decision; or 2. when the plaintiff creates only a weak issue of fact as to whether the employer’s reason was untrue, and there was abundant and uncontroverted evidence that no discrimination occurred. A decision as to whether judgment as a matter of law is appropriate ultimately turns on ” ‘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.’ ” Wallace, quoting Reeves. Laxton rebuts Gap’s proffered justification for her discharge with evidence that it is false or unworthy of credence. She concedes that certain violations of store policy took place. She admits to closing the store early (although she testified that doing so was justified) and to exiting out the back door (although she testified that when she did so she did not know this violated store policy). Gap, however, did not terminate her for these violations. It proffers that it terminated Laxton for the “cumulative effect” of many violations, and Laxton casts doubt on this proffered justification in two ways. First, she brings evidence challenging the substance of violations, i.e., evidence demonstrating their falsity. Second, she brings other evidence that undermines the overall credibility of Gap’s proffered justification. Despite Laxton’s qualifications as a general manager and despite her success in making the new Old Navy store profitable, Gap proffers that it terminated her for a laundry list of questionable violations, virtually none of which Gap bothered to discuss with her. Conveniently, Gap left itself just enough time to permit a new general manager to settle into the job before the busy holiday season. Based on the evidence presented, the jury could have reasonably concluded that Gap’s proffered reason for discharge was not its real reason. OPINION: Vance, J.; King, C.J., Vance and Davis, JJ.

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