Burden of Proof
Wednesday, April 23, 2008
In DeCaire v. Mukasey, 07-1539 (1st Cir. 2008), the U.S. First Circuit Court of Appeals reversed a district court’s decision which ruled against a plaintiff by, among other things, making various errors in law, and using the Judge’s own opinion as to management’s reasons for the adverse actions. This case provides an excellent review of the governing burden of proof in discrimination and retaliation cases.
DeCaire, a Deputy U.S. Marshal, brought suit alleging that the U.S. Marshal for Massachusetts discriminated against her on the basis of gender and also retaliated against her after she filed EEO complaints. The district court ruled against the plaintiff, holding that although the Marshal did discriminate against DeCaire, that she was treated adversely after she complained, that the government’s explanations of neutral reasons were not persuasive, the Marshal’s hostility was motivated by his perception that DeCaire was disloyal to him personally, and not by gender animus or retaliation.
Once the district court found that DeCaire had established a presumption of discrimination, it shifted the burden to the government to articulate a “legitimate, non-discriminatory reason for its adverse employment action.” The district court noted that the government articulated a number of reasons to justify the U.S. Marshal’s treatment of DeCaire, including the nature of the work to be performed, seniority, locality, and fairness. The district court then noted that the “burden to demonstrate discrimination rests on the plaintiff.” It also stated that it was insufficient that DeCaire offer evidence that the government’s explanations for her treatment were pretext, which it found she had done. She needed additional evidence beyond pretext to enable “a factfinder rationally to conclude that the stated reason behind the adverse employment decision is not only a sham, but a sham intended to cover up the proscribed type of discrimination.” In other words, DeCaire needed to provide direct or circumstantial evidence of a “discriminatory animus on the part of the employer.”
In analyzing DeCaire’s retaliation claim, the district court found that DeCaire filed a formal grievance and complaint with the EEO office, which was well-known by her supervisors, and she was disadvantaged by several employment actions. The district court stated that DeCaire could satisfy the third requirement — showing a causal connection between her EEO complaint and the adverse employment actions — by providing direct evidence of retaliation, which normally contemplates “those statements by a decision maker that directly reflect the alleged animus and bear squarely on the contested employment action.”
With respect to the plaintiff’s claims of retaliation, the district court concluded that this was “because he considered her disloyal and hostile to his management decision, and he could.” The defense had never posed any such theory of motivation, and neither the U.S. Marshal nor any witness testified to this motivation. The district court concluded that these later events “would have come out much the same had DeCaire been a male deputy.” Therefore, although the government had failed to persuade the district court that its actions were neutral, on-the-merits decisions, a verdict for DeCaire would not be appropriate.
With respect to her gender discrimination claim, the court found that to the extent the district court’s finding in a mixed motive discrimination case was that there was gender discrimination, such a finding required it to find liability on the part of the government on any timely claim; in such a case, it is plaintiff’s remedies, not the employer’s liability, that are limited. In such a case the court could, in its discretion, grant declaratory relief, injunctive relief, and attorneys’ fees and costs, but could not award damages or issue an order requiring a reinstatement, hiring, promotion, or payment. The district court was also incorrect in its determination that evidence relating to DeCaire’s initial transfer could be used only with respect to her retaliation claim. A discriminatory action for which a claim was not timely filed cannot be used as a basis to award relief but can be used as background in support of later claims of gender discrimination.
The court also found that the district court had enunciated principles at variance with retaliation law. The anti-retaliation provision seeks to prevent harm to individuals based on what they do, i.e., their conduct. It does not matter for retaliation purposes whether management would have treated a male deputy the same way it treated plaintiff. The court also found that the district court’s interpretation of the temporal proximity requirement was incorrect. The existence of allegedly discriminatory employment actions prior to the filing of a complaint does not immunize an employer from a retaliation claim following the complaint. The court also noted that to the extent the district court created a “disloyalty defense,” by discussing a “fine line” between showing a causal connection demonstrating retaliation and a requirement of loyalty to U.S. Marshal and the Marshals Service, the court held that as a matter of law, the filing of an EEO complaint cannot be an act of disloyalty which would justify taking adverse actions. Finally, the district court improperly imposed a heightened burden by requiring that plaintiff provide evidence in addition to evidence establishing that the government’s explanations were pretext.
Against this backdrop of legal error, the plaintiff made a final argument on appeal that the record did not support the district court’s factual conclusions. DeCaire objected to the district court’s “sua sponte finding” that disloyalty was the “principal driver” behind management’s decisions. The court noted its “great concern” over the district court’s utilization of a theory not advanced by either party to the case. Fairness alone requires that the parties have notice of the theories so that the parties can gear their evidence toward what is at stake. The court found that both sides to this litigation were prejudiced by the district court’s spontaneous introduction of a new theory of justification and remanded the case.