In a non-precedential opinion that may nevertheless be important to litigators, a Fifth Circuit panel splits three ways on whether an employee must continue to defend her Title VII prima facie case under the McDonnell Douglas rubric after the employer presents a legitimate, non-discriminatory reason for an employee’s termination. The courts continue to disagree on this issue even decades after the Supreme Court first framed-out this method of proof.
Hague v. Univ of Texas Health Sci. Ctr., No. 13-50102 (5th Cir. Mar. 28, 2014): Over thirty years ago, in a decision refining the McDonnell Douglas burden-shifting rule, the Supreme Court in U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-15 (1983), held that the employee’s prima facie case (that the employee suffered an adverse action, was otherwise qualified for employment, and was treated less favorably than a comparable employee outside of the protected status) becomes immaterial once the employer offers an explanation for its action: “[W]hen the defendant fails to persuade the district court to dismiss the action for lack of a prima facie case, and responds to the plaintiff’s proof by offering evidence of the reason for the plaintiff’s rejection, the fact finder must then decide whether the rejection was discriminatory within the meaning of Title VII.”
The U.S. Courts of Appeals have taken differing approaches to the significance of Aikens on review of a summary judgment decision. The D.C. Circuit gives Aikens the strictest reading, holding that an employer that offers a legitimate, non-discriminatory reason for the employee’s adverse action waives any further objections to the employee’s prima facie showing (Jones v. Bernanke, 557 F.3d 670, 678 (D.C. Cir. 2009)). There courts, though, have permitted employers to preserve challenges to the prima facie case, even when they’ve proffered the reason for the adverse action. Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1202 n.12 (10th Cir. 2008).
The panel in this non-precedential opinion (that was nevertheless, oddly, published on the court website) issues three opinions on this very issue.
All three panelists concurred that the district court erred in granting summary judgment to the employee on a Title VII retaliation claim. Hague, a registered nurse, filed two complaints with hospital administration alleging sex harassment against two doctors (Drs. Manifold and Villers). These were investigated, and corrective action taken. Then, “[o]n June 20, 2011, UTHSC provided Hague a letter advising that her contract would not be renewed and her employment with UTHSC would not continue beyond August 31, 2011.”
Hague, in support of her retaliation claim, pointed to Dr. Villers’s testimony in which he conceded that he declined to renew Hague’s contract, in part, because of “issues of trust.” She also cited the termination of two There female employees who had supported Hague’s complaint, and UTHSC’s lack of contemporaneous explanation of the reasons for Hague’s non-renewal of her contract.
While summarily affirming summary judgment on the plaintiff’s Title VII discrimination and harassment claims, the panel agrees that the plaintiff presented sufficient evidence that the non-renewal of the contract might have been motivated by retaliation (for filing opposing and complaining about harassment) in violation of Title VII. The panel also agreed that the district court never clearly rejected the employee’s prima facie case, i.e., that There was a causal connection between the protected activity (complaining about harassment) and her non-renewal.
From this point, the three panelists issued opinions on whether the prima facie continued to be legally material. Judge Benavides, writing for the court, holds that the employers preserves all challenges to the prima facie case on remand, finding that Aikens only applies to the post-trial stage. The panel majority reserved the prima facie issue because the district court never ruled on it, skipping it in favor of deciding whether the employer’s proffered explanation was pretextual: “we leave for the district court to determine in the first instance whether Hague’s evidence demonstrates a causal connection between her filing a grievance and UTHSC’s decision not to renew her employment contract.”
Judge Benavides also defends the court’s application of Aikens as governed by settled circuit precedent: “under McDonnell Douglas, at the summary judgment stage the burden of producing a legitimate, nondiscriminatory reason only shifts to the employer after the plaintiff has established a prima facie case. There is no authority in this Circuit that would allow the employee’s burden of establishing a prima facie case to be extinguished simply because an employer exercises its right to challenge the prima facie case and also proffers a legitimate, nondiscriminatory reason for its decision.”
Judge King, concurring in part and in the judgment, observes tersely that “I further agree that, whether correctly or not, this circuit’s precedent requires the district court to determine, at the summary judgment stage, whether the plaintiff has established a prima facie case under McDonnell Douglas.”
Judge Dennis, concurring and dissenting, would hold that the employee had no duty on remand to reargue the prima facie case on summary judgment, on the ground that the employer had already responded and thus mooted further review of this legal question. “I would instead conclude that under [Aikens], once a defendant-employer produces legitimate, non-retaliatory justifications for its actions, the plaintiff’s prima facie case is rendered immaterial, and a court’s inquiry should focus on the plaintiff’s ultimate burden of proving that the employer’s purportedly legitimate justifications for its employment actions were a pretext for retaliation.” Judge Dennis disagrees with the court’s conclusion that the Aikens rule applies only after a trial, observing that sister circuits extend the same rule to the summary judgment stage.
I suppose that until a case comes along where this issue is outcome-determinative, the Supreme Court will have no occasion to review this question (despite a clear circuit split). It is funny, though, how this issue has persisted unresolved for decades.