A common and repeated error made by trial court judges in employment discrimination cases is undue fixation on the elements of the plaintiff employee's prima facie case where the court is employing a burden-shifting analysis under the McDonnell Douglas framework established by the Supreme Court's decision.
The elements are flexible and context-specific, the burden-shifting analysis a mere analytical tool and the determinative question is whether the plaintiff-employee can prove discrimination. Both the Fourth and Sixth Circuit Courts of Appeals have been called upon recently to emphasize this oft-repeated point:
Notwithstanding the intricacies of proof schemes, the core of every Title VII case remains the same, necessitating resolution of "the ultimate question of discrimination vel non." As the Supreme Court has explained, "the ultimate question in every employment discrimination case involving a claim of disparate treatment is whether the plaintiff was a victim of intentional discrimination." Thus, "courts must ... resist the temptation to become so into wine in the intricacies of the [McDonnell Douglas] scheme that they forget that the scheme exists solely to facilitate determination of 'the ultimate question of discrimination vel non.'" Merritt v Old Dominion Freight Line, No 09-1498 (4th Circuit, April 9, 2010).
The Sixth Circuit in a "failure to transfer" case was moved to observe in reversing a summary judgment erroneously granted by the district court:
Thompson's claim need not fit perfectly within one of our enumerated tests in order to survive summary judgment. The requirements for establishing a prima facie case of discrimination are always context-dependent, and "the key question is always whether, under the particular facts and context of the case at hand, the plaintiff has presented sufficient evidence that he or she suffered an adverse employment action under circumstances which give rise to an inference of unlawful discrimination." Thompson v Richmond Heights Hospital, No 08-4435 (6th Circuit, April 12, 2010).
Robert L. Abell
www.RobertAbellLaw.com
