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Click here for the full text of this decision FACTS:John Bryan, an African-American graduate of Stanford University with a business degree, was hired by McKinsey & Co., an international management consulting firm, in 1996. McKinsey has an “up or out” system where an employee is either promoted or terminated; most employees eventually are terminated. After a few layers of promotion, when an employee is promoted to the associate principal position, further advancement is based on election of the partners. Each AP is evaluated twice during the year and assigned a development leader who will report back to the partnership. Bryan was promoted to AP in July 2000. At his performance review five months later, his development leader gave him a generally positive review, but said his client-development performance was lacking. Instead of improving, however, Bryan’s client development work declined: one of his existing clients dropped him, and he did not bring in any new clients. Bryan was terminated in April 2001 because the partners said they had lost trust in him. Bryan filed a racial discrimination lawsuit against McKinsey. The district court granted summary judgment for McKinsey. HOLDING:Affirmed. To establish a prima facie case of employment discrimination, Bryan had to prove he: 1. is a member of a protected class; 2. was qualified for the position; 3. was subject to an adverse employment action; and 4. was replaced by someone outside the protected class, or, in the case of disparate treatment, shows that other similarly situated employees were treated more favorably. The court holds that Bryan cannot satisfy the fourth prong, as Bryan was not replaced by someone outside of his class. The court dismisses Bryan’s reliance on records and charts relating to 16 others who were promoted to AP at the same time Bryan was. Six of them have been terminated. The court points out that the record contains only six out of 16 evaluations, so it cannot compare the performance reviews of the others and whether they were similarly negative like Bryan’s. The court also notes, looking at the chart, that Bryan’s tenure was not the shortest of the employees who were terminated. A white peer was fired after a shorter time at the AP level than Bryan, two others had two more months than did Bryan and a third had five more months. All of these people were white, too. Even assuming that the white employees were given more time as an AP and given more evaluations before being terminated, the court rules that Bryan still does not establish disparate treatment as to the adverse employment action. The “stories” of each of the other 16 employees shows that they were all treated uniquely, and that their progress was based on their individual situations. Finally, the court finds that even if Bryan had established a prima facie case of employment discrimination, he did not submit any evidence of intentional discrimination or that McKinsey’s proffered explanation for his termination was false. Boyle’s argument is again that white employees were given a longer period of time before they were terminated, but the court finds that this is not evidence of falsity. At best, it is evidence that similarly situated employees were terminated for legitimate reasons at a different time than Bryan was terminated for legitimate reasons. OPINION:Garza, J.; Barksdale, Garza and Stewart, JJ. DISSENT:Stewart, Circuit Judge. “At the summary judgment stage, Bryan is not required to marshal evidence of a quality or quantity such as would convince a jury about the full merits of his claims. All that he is required to show is evidence that creates a genuine issue of material fact that disparate treatment did occur. I am persuaded that Bryan has done so here. When he was terminated, white APs who were promoted to AP at the same time as he were retained. White APs who were promoted at the same time as Bryan but, who were eventually terminated, had longer tenures before being terminated. In terms of feedback, Bryan has shown that white APs received more written feedback. He has also shown that, contrary to the general practice within McKinsey, Bryan received very limited involvement and feedback in his career development from [his development leader]. This perspective on the record, at a minimum, shows the existence of a genuine issue of fact that Bryan was treated differently than his white counterparts. For these reasons, I respectfully dissent.”

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