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On June 12, the U.S. Supreme Court issued its opinion in Reeves v. Sanderson Plumbing Products Inc.In this Age Discrimination Employment Act (ADEA) case, which will also impact every other discrimination case, the Supreme Court potentially made it more difficult for employers to obtain a summary judgment dismissal or reverse an adverse jury verdict. Some commentators are recommending employers settle such cases or expect your case to go to the jury for consideration. According to the opinion, in October 1995, Reeves was 57 years old and had spent 40 years working for Sanderson Plumbing. Reeves was responsible for recording the attendance and hours of those employees he supervised. Reeves’ manager reported to the director of manufacturing that production was down in the department because of absenteeism and tardiness problems. Because the reports Reeves reviewed did not indicate a problem, an audit was performed. The investigation found numerous timekeeping errors on the part of Reeves and two other managers, the opinion said. Reeves and one other manager were discharged. As noted in the opinion, at trial, Sanderson Plumbing argued that it had fired Reeves due to his failure to maintain accurate records. Reeves argued that the explanation was a pretext for age discrimination and presented evidence that he had accurately recorded the attendance and hours of his employees. The jury found for Reeves and awarded him $35,000 for compensatory damages. The jury also found that the discharge was willful and the trial court doubled the award to $70,000. The trial court also awarded Reeves two years of “front pay.” Sanderson Plumbing appealed the decision to the 5th U.S. Circuit Court of Appeals. The 5th Circuit acknowledged that Reeves “very well may have offered sufficient evidence for a reasonable jury to have found that [the employer's] explanation for its decision was pretextual.” The 5th Circuit explained, however, that this was not dispositive of the ultimate issue — namely whether Reeves presented sufficient evidence that age motivated the employer’s employment decision. Reviewing the facts the 5th Circuit determined that certain age-based comments made by Reeves’ supervisor were not made in the context of Reeves’ termination, that two of the decision makers were over the age of 50 and that several of Reeves’ duties were filled by persons over age 50. The U.S. Supreme Court accepted this case for review to resolve a conflict among the courts of appeals as to whether a prima facie case of discrimination combined with sufficient evidence to reject the employer’s nondiscriminatory explanation is adequate to sustain a finding of intentional discrimination. Several courts of appeal determined that a prima facie case combined with sufficient evidence to disbelieve the employer’s explanation always creates a jury issue regarding whether the employer discriminated. The 5th Circuit and others previously determined that a plaintiff must introduce sufficient evidence for a jury to find that both the employer’s reason was false and the real reason was discrimination. This standard is also known as “pretext plus.” Looking back to its decision in St. Mary’s Honor Center v. Hicks, the Supreme Court stated that a plaintiff must first establish a prima facie case of discrimination. Thereafter the burden shifts to the employer to produce evidence that the personnel action taken was for a legitimate, nondiscriminatory reason. Once the employer produces sufficient evidence to support a nondiscriminatory explanation for its personnel action, the plaintiff must prove by a preponderance of the evidence that the legitimate nondiscriminatory reasons offered by the employer were not its true reasons, but were a pretext for discrimination. The Supreme Court held that it is permissible for a jury to infer discrimination from the falsity of the employer’s explanation. “In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose . . . . Moreover, once the employer’s justification has been eliminated, discrimination may well be the most likely alternative explanation . . . . “ The Supreme Court, however, also concluded that a jury’s rejection of the employer’s nondiscriminatory reason does not compel judgment for the plaintiff. “In other words, it is not enough . . . to disbelieve the employer; the fact finder must believe the plaintiff’s explanation of intentional discrimination.” An employer may still be entitled to summary judgment or 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 uncontroverted independent evidence that no discrimination had occurred.” THE SAME MURKINESS The 5th Circuit in Vadie v. Mississippi State Universityhas recently had the opportunity to consider the Reevesdecision in a Title VII national origin discrimination case. Reviewing a jury verdict in favor of plaintiff Ahmad Vadie, the 5th Circuit found “nothing probative anywhere in the record of the ultimate question of national origin discrimination.” Vadie alleged that the successful applicant for the position he sought had no previous teaching experience and failed to match his own record of success in research and teaching. Vadie also alleged that when the university first posted the position, no doctorate in chemical engineering was required, but that such a requirement was later added when the university became aware he would apply. The 5th Circuit found that this information only proves that the decision makers “had some unidentifiable reason for not wanting to hire Vadie. The evidence has no probative value with respect to the ultimate question before the jury of whether there was discrimination based on national origin. (citing Rhodes v. Guiberson Oil Tools).” In a decision issued just a day after Vadie, the 5th Circuit in Rubinstein v. Administration of the Tulane Educational Fundagain considered Reevesand affirmed summary judgment as to a plaintiff’s Title VII denial of promotion and pay raise claims (“discrimination suits still require evidence of discrimination”). The 5th Circuit in Rubinsteindid, however, affirm a jury verdict of retaliation finding sufficient evidence. Has the Supreme Court made dismissal of discrimination suits more difficult? Most commentators believe this to be the case. At least to date, the 5th Circuit does not think so. In many respects we are left with the same murkiness that surrounds evaluation of sexual harassment cases after the Supreme Court’s decisions in Faragher v. City of Boca Ratonand Burlington Indus. v. Ellerth. Considering that there is no bright-line rule, employers should consider implementing the following in an effort to avoid a discrimination suit in the first place: 1. Write and publish an anti-discrimination and harassment policy; 2. Train all employees and managers regarding the policy and anti-discrimination laws; 3. Train managers to complete correctly any counseling or evaluation forms (as highlighted in the Reevesdecision indicating an incorrect reason for discharge can be problematic); 4. Investigate all complaints of discrimination in a prompt and thorough manner; 5. Implement an objective system for hiring, promotion and discipline; and 6. Ensure that a higher level manager reviews all evaluations, demotions and firings for consistency, adherence to company policy, and to ensure those decisions are supported by specific facts. Xavier Rodriguez is a partner in the San Antonio office of Fulbright & Jaworski. He is board certified in labor and employment law and chairman of the State Bar of Texas Labor & Employment Law Section.

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