Friday, June 13, 2014

D.C. Bolsters Its Employee-Friendly Approach to Direct Evidence

Victims of employment discrimination in D.C. have a better chance of getting their day in court thanks to a decision issued recently by the U.S. Court of Appeals for the D.C. Circuit, Wilson v. Cox, 2014 WL 2457632 (D.C. Cir. June 3, 2014), in which the court reinforced its permissive interpretation of direct evidence. Designating evidence as “direct” is important, because introducing direct evidence generally entitles a plaintiff to a jury trial and requires the defendant to do more than “articulate a legitimate non-discriminatory reason” for its actions. Id. at 5 (citing Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 576 (D.C. Cir. 2013) (per curiam)).

In Wilson, the D.C. Circuit reversed a trial court’s summary judgment in favor of the employer. The Court reasoned that the employee had presented “direct evidence” of discrimination, which entitled the employee to a jury trial.

The plaintiff had obtained a job as a security guard at a retirement home when he was 69. Later, the plaintiff moved into the home, in part because he could continue working as a guard while enjoying the benefits of residency. Soon after, the home’s new CEO eliminated the resident work program; as a result, the plaintiff’s position was eliminated.

During a meeting with residents (including the plaintiff), the CEO allegedly said, “You didn’t come here to work, you came here to retire.” Further, the CEO was concerned that the older workers were falling asleep on the job. According to a witness, the CEO further believed that the older security guards were underperforming. The CEO allegedly said the issue “was that they were not doing their jobs properly, as from time to time they would be found asleep, which was not safe for a government agency in DC, what with all the threats since 9/11.”

The trial court determined that no reasonable factfinder could reach a judgment for the employee and ruled in the employer’s favor.

The court of appeals reversed and held that the CEO’s statements were direct evidence of discrimination that could sufficiently support a finding for the employee. The court reasoned that “[a] reasonable factfinder could conclude from those statements that a discriminatory intent motivated the decision to abolish the resident employee program and terminate [the plaintiff’s] employment.” (emphasis supplied). Critical to its analysis, the court found that the statements constituted direct evidence because, when viewed in the light most favorable to the plaintiff (the standard on summary judgment), it could be “interpreted” as “indicative of an inaccurate and discriminatory assumption . . . .”

The defendants argued that the statement did not directly exhibit age-based discrimination because it focused on retirement not age. Id. But the court responded that while the defendants could raise that argument at trial, “at the summary judgment stage, an alternative interpretation of that kind cannot overcome the need to draw inferences in the non-moving party’s favor.”

The court’s emphasis on inference and interpretation is important because other circuits have held that evidence is “direct” only if it would prove a material fact without resort to inference. See, e.g., Brown v. East Mississippi Elec. Power Ass'n, 989 F.2d 858, 861 (5th Cir. 1993). But this is a myth: reaching a conclusion about the “truth” always – without exception – relies on inference and assumption to some extent. See Richard K. Greenstein, Determining Facts: The Myth of Direct Evidence, 45 House. L. Rev. 1801 (2009).

In summary, Wilson has clarified and reaffirmed the law in the D.C. Circuit as it pertains to direct evidence in employment discrimination cases. To qualify as direct evidence, the evidence must meet only two criteria: 1) it must permit an inference of discriminatory bias, and 2) it must pertain specifically to the challenged employment action. At some point, the U.S. Supreme Court may have to decide which interpretation is correct.

Written by Dallas Hammer

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