[Evidence Research] Tex. Dept. of Cmty. Affairs v. Burdine

[강석근]

Tex. Dept. of Cmty. Affairs v. Burdine

9 Analyses of this case by attorneys

1.     Seventh Circuit to Plaintiffs: Here's Your Burden of Proof

LittlerAmy Ryder WentzSeptember 1, 2016

This case focused on discrimination cases under Title VII of the Civil Rights Act of 1964, but has since been expanded to discrimination and retaliation cases asserted under a host of federal and state discrimination statutes.3McDonnell Douglas, 411 U.S. at 805.4Postal Service v. Aikens, 460 U.S. 711, 715 (1983); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).5Aikens, 460 U.S. at 715; Burdine, 450 U.S. at 256.6Ortiz v. Werner Enterprises, Inc.,2015 U.S. Dist. LEXIS 82952, *4 (N.D. Ill. June 25, 2015).7Ortiz, 2015 U.S. Dist. LEXIS 82952, at *15-16.

McDonnell 과 Burdine 은 원래Title 7 케이스 였으나 지금은 모든 차별이나 보복성 사건에 적용 되고 있습니다. (burden of proof 에서 Burden 이 Burdine 이랑 비슷한 것은 우연 이겠죠?)

Most employees who file employment discrimination claims hope for one of two things – a really sympathetic jury or an employer that is willing to generously settle the lawsuit to avoid the risks and uncertainties of trial. Before either is a possibility in federal (and many state) courts, the employee must first clear the hurdle of surviving summary judgment. That is, when the employer files its motion for summary judgment requesting that the court dismiss the employee’s discrimination claims on the merits, the employee must instead prove to the court that the employee has enough evidence from which a jury could render a verdict in his or her favor. The Seventh Circuit in Ortiz v. Werner Enterprises, Inc.1may have simplified – but not eased – the determination of whether the employee satisfies their burden of proof at the summary judgment stage.

원고는 먼저 약식판결을 피하기 위해 차별대우의prima facie 를 입증 해야 합니다.

A Primer on the Employee’s Burden of Proof

McDonnell Douglas Corp. v. Green established an evidentiary framework for plaintiffs alleging employment discrimination.2The U.S. Supreme Court reasoned that federal discrimination laws were not intended “to guarantee a job to every person regardless of qualifications.” For that reason, it held that for a plaintiff to survive a summary judgment motion, the plaintiff must first demonstrate a rebuttable presumption of discrimination with evidence that shows the following: (1) the employee belonged to a protected class; (2) the employee was qualified for the position; (3) although qualified, the employee suffered an adverse employment action; and (4) the employer treated more favorably similarly-situated employees outside the protected class (or replaced the employee with an individual outside the protected class). If the plaintiff can satisfy this prima facie case, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse action. The burden then shifts back to the employee to come forward with evidence that this stated reason is a pretext for an unlawful discriminatory motive. Ultimately, the burden of proof always rests with the employee to “demonstrate by competent evidence that the presumptively valid reasons for [the adverse employment action] were in fact a coverup for [an unlawful] discriminatory decision.”3 Notably, McDonnell Douglasdoes not specify the type of evidence (direct or circumstantial) with which an employee must satisfy these burdens of proof.

If a judge determines that an employee satisfied these burdens of proof, the matter can advance to trial. At that time, the parties present evidence to the fact-finder (generally a jury), and the fact-finder determines the ultimate question – whether an employee’s protected class (e.g., race, age, disability, etc.) caused an adverse action (e.g., termination, failure to hire, etc.).4 But the jury does not look at evidence through the McDonnell Douglas burden-shifting framework – that role is reserved for the judge at the summary judgment stage only.5

원고가 이런 입증 책임을 완료 했다고 판단이 되면 판사님은 사실심을 시작 할 수 있습니다. 양 당사자가 제시한 증거들은 배심원단에게 공개되고 배심원은 원고가 불리한 계층(인종, 나이, 장애)에 있는지 부당한 대우를 받았는지(해고, 비고용 등...)에 대한 결정적인 질문에 대한 답을 하게 됩니다

Ortiz v. Werner – The Evidence

The plaintiff in Ortiz was employed as a freight broker from November 28, 2005 until his termination on June 19, 2012.6The company terminated his employment for falsifying business records. Specifically, in order to improve his profit and increase his commission, the plaintiff removed his name as the broker from certain freight loads that were operating at a loss. When the plaintiff's branch manager – who also hired him – learned what he had done, the manager terminated his employment at the recommendation of the vice president of the division. The plaintiff filed a lawsuit alleging race discrimination (he is Hispanic) and a hostile work environment.

In discovery, the plaintiff admitted to changing the business records, but claimed that other brokers – whom he could not identify – did the same. The company produced records reflecting all of the loads brokered out of the plaintiff's branch for the relevant time period; of the 16,391 loads, brokers improperly removed their names from loads on six occasions. The plaintiff was responsible for four of those incidents. There was also testimony from “[s]everal brokers” that they and others sometimes removed their names from unprofitable loads (although it is unclear whether the company knew this occurred).

The company's Employee Handbook and Code of Conduct prohibited falsifying company records. In July 2012, another freight broker – who is not Hispanic – was terminated for falsifying records that resulted in a higher bonus potential. In that case, the broker cut the mileage due to a carrier.

In support of his claims, the plaintiff testified that his branch manager and an assistant manager used racial slurs towards him. The plaintiff maintained that he encountered these insults throughout his seven years of employment, but that the comments increased in frequency and intensity in the months preceding his termination.

Both of the plaintiff's claims were dismissed by the district court on summary judgment. The court looked at the evidentiary record through two lenses – direct evidence and indirect evidence, explaining that the two had different “methods of proof.” The district court first determined that the plaintiff could not prove his discrimination claim through the direct method of proof because he did not have the required “convincing mosaic” of evidence. In reaching this conclusion, the court disregarded the alleged racial slurs because the comments did not relate to the plaintiff's termination. Next, following the McDonnell Douglas framework, the district court determined that the plaintiff did not satisfy his prima facie or pretext burdens and, therefore, could not prove his claims through the indirect method of proof. Specifically, the district court found that the plaintiff did not meet the company's legitimate expectations, and there was no evidence that similarly-situated employees outside his protected class were treated more favorably.7

화물 중계인 원고는 자신의 해고에 대하여 히스패닉에게 적대적인 고용 환경을 제공한 것에 대한 소송을 제기 했습니다. 회사의 직원 핸드북 및 행동 강령은 회사 기록 위조를 금지했습니다. 그는 사업문서를 변경한 사실을 인정했으나 다른 직원들도 그렇게 하고 있다고 주장 했습니다. (하지만 회사가 이 사실을 알고 있었는 지는 확실 하지 않습니다.) 몇 년 전 다른 직원이 회사문서 조작으로 해고 당한 사실이 있습니다.

또한 원고는 지점장과 관리자가 자신에게 인종적 비방을 사용 했다고 증언 했습니다. (하지만 법원은 해고와 관련 없다고 판단했습니다.)

하지만 결국 법원은 두가지 주장을 약식판결로 기각 했습니다. 원고는 직접적인 방법으로 convincing mosaic” of evidence 를 입증 하지 못했고 간접적인 방법으로 McDonnell Douglas framework 으 frima facie 를 입증 하지도 못했기 때문 입니다.

The Seventh Circuit Simplifies – But Does Not Ease – the Plaintiff’s Burden of Proof

In reversing the lower court, the Seventh Circuit stated that evidence should not be eval‎uated through dueling direct and indirect legal standards:

7th circuit 은 직접 간접적인 기준을 통해 증거를 평가해서는 안 된다고 판시 했습니다.

Evidence must be considered as a whole, rather than asking whether any particular piece of evidence proves the case by itself – or whether just the “direct” evidence does so, or the “indirect” evidence. Evidence is evidence. Relevant evidence must be considered and irrelevant evidence disregarded, but no evidence should be treated differently from other evidence because it can be labeled “direct” or “indirect.”8

To this point, the court overturned the precedent in its jurisdiction that (1) requires plaintiffs to come forward with a “convincing mosaic” of evidence, treating this as an additional legal standard; and/or (2) separates “direct” from “indirect” evidence and subjects the two to different legal standards.9

(1) 원고가 "설득력 있는 모자이크" 증거를 제시하도록 요구하고 이를 추가 기준으로 한다는 그리고 (2) 서로 다른 기준이 적용 되는"직접적" 증거와 "간접적인" 증거를 분리 한다는 판례를 뒤집었습니다.

Initial commentators on Ortiz speculate that the Seventh Circuit is attempting to abolish the McDonnell Douglas framework. But on this point, the appellate court explained:

The burden-shifting framework created by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), sometimes is referred to as an “indirect” means of proving employment discrimination. Today's decision does not concern McDonnell Douglas or any other burden-shifting framework, no matter what it is called as a shorthand. We are instead concerned about the proposition that evidence must be sorted into different piles, labeled “direct” and “indirect,” that are eval‎uated differently. Instead, all evidence belongs in a single pile and must be eval‎uated as a whole. That conclusion is consistent with McDonnell Douglas and its successors.10

This makes sense, as McDonnell Douglas did not create separate legal standards for “direct” and “indirect” evidence, or even address differences between direct and indirect evidence.

Despite this nod to McDonnell Douglas, the Seventh Circuit did not eval‎uate the Ortizev identiary record under the burden-shifting framework. There was no discussion of whether the plaintiff proffered sufficient evidence – direct or indirect – to satisfy his prima facie or pretext burdens. Rather, the court simply listed what it deemed were disputed issues of fact and remanded the case to the district court for a trial. Even so, Ortiz does not state – nor imply – an intention to undo the 30-year precedent of McDonnell Douglas or its progeny.

Does Ortiz Affect Employers?

Some members of the plaintiffs’ bar in the Seventh Circuit may erroneously champion Ortiz as the eradication of a plaintiff’s burden of proof under McDonnell Douglas – the hurdle between asserting claims in a complaint and presenting them at trial. To that end, employers might see references to this case in summary judgment motions, and should be prepared to refute any overstatement of its holding.

Moreover, Ortiz does not affect employment-related decisions – such as hiring, discipline, or terminations – as employees alleging discrimination still bear the burden of proving those claims. To better position themselves to defend against meritless claims, employers should continue to document employment-related decisions, including the decision-making process and investigations; be honest with employees about the reasons for the employment action; and enforce employment policies and practices fairly and consistently.

일부 변호사는 McDonnell Douglas에 따른 원고의 입증 책임을 회피하기 위해서Ortiz 를 옹호 할 수도 있습니다. 이를 위해 고용주는 과장된 진술을 반박할 준비가 되어 있어야 합니다. 하지만 차별을 주장하는 직원은 여전히 그러한 주장을 입증해야 할 책임이 있습니다.  방어를 위해 고용주는 고용 관련 결정을 계속 문서화 해야 합니다.

2.     Turner v. Kansas City Southern Ry. Co., No. 09-30558 (5th Cir. Mar. 23, 2012)

Outten & Golden LLPPaul MollicaMarch 25, 2012

A reminder from the Fifth Circuit that, as long as we have McDonnell Douglas and Burdine, the employer in a disparate treatment race discrimination case must - in response to employee's presentation of a prima facie case - produce admissible evidence of a legitimate, non-discriminatory reason for taking an adverse action (firing, demotion, etc.). An employer that defaults on this burden of production buys itself a trial, as the defendant discovers here (in an action brought by the employees, and EEOC as intervenor). Judge Owen dissents.

The plaintiffs, four African-American railway workers, and the EEOC brought claims that they were disciplined for alleged work-rule violations more harshly than white employees. The incidents were summarized as followed:

"Thomas Turner, a train engineer, was driving a train that was 'shoving' a damaged engine onto a spur track when the damaged engine derailed at a low rate of speed. Turner was operating the locomotive and Thomas Schmitt, the train's conductor, was providing Turner with instructions from the ground via radio about how much more room remained before the damaged engine reached the end of the track. Turner and Schmitt blamed each other for the accident. Turner was dismissed; Schmitt, who is white, was not disciplined.

"Lester Thomas, a train conductor, was performing a training exercise when the train that he was operating along with Joshua Hall, the engineer who was driving the train, failed to timely stop at a 'dark signal' (a signal that did not show a green or red light). Thomas was dismissed; Hall, who is white, was dismissed but reinstated thirty days later.

"Jesse Frank, a train engineer, missed a shift in order to visit his uncle in the hospital. Frank was suspended for ninety days; Frank Mouney, a white engineer who missed a shift around the same time, was suspended for five days.

"Clarence Cargo, a train conductor, was operating a train that derailed after passing over an improperly locked switch. Cargo was dismissed; Scott Claiborne, the white engineer who was driving the train, was suspended."

5th circuit McDonnell Dougla and Burdine이 있는 한 원고가 prima facie 로 차별을 입증한 것에 대하여 피고 고용주는 합법적인 차별 이유를 충분한 증거로 제시하여야 합니다.

이번 사건은 4명의 흑인 철도 노동자가 백인직원들 보다 가혹하 대우를 받아 징계 받거나 해고 되었음을 주장 했습니다.

In addition, Turner and Thomas were able to establish that their disciplinary histories were comparable to their white counterparts. The panel majority then noted that under Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), the employer was required to produce admissible evidence of a valid, non-racially biased reason for the actions. But in the absence of testimony by the decisionmaker about the reasons for each decision, the employer came up short. The actual identity of the decisionmaker - Thornell or Sonnier - mattered in this analysis:"[T]here is extensive record evidence of race-based comments by Sonnier, which, if he were the actual decisionmaker, would be extremely probative of intentional discrimination.

...

Judge Owen, dissenting, rejects the premise that the employer's burden of production includes evidence of such precision: "The panel majority apparently would require Thornell to explain why he disciplined Turner by terminating him, instead of some lesser sanction, and to further explain why he did not terminate other employees who violated operational rules. KCSR is not required to come forward with such evidence at the second stage of the burden-shifting framework of McDonnell Douglas. As the Second Circuit has explained, the employer does not have the burden at the second stage of rebutting pretext. Such a "requirement would place on the employer at the second stage of the McDonnell Douglas process 'the burden of showing that the reason for the rejection was not a pretext, rather than requiring such proof from the employee as a part of the third step'" (quoting Lieberman v. Gant, 630 F.2d 60, 65 (2d Cir. 1980)).

고용주가 고용인에게 인종차별이나 보복 관련 소송을 당했을 때 먼저 대응 해야 할 일은 고용주가 취한 행동에 대한 타당하고 인종차별적 이지 않은 합법적인 이유를 제시 하는 것 입니다. 그러나 이번 케이스에서는 그렇게 하지 못했습니다.

디센팅 오웬 판사님은 입증 전가 방식에 대하여 동의 하지 못하시는 것 같습니다. 피고 고용주가 합법적인 차별적인 이유를 제시 하는 단계에 서 아주 명확한 근거를 제시 할 필요는 없다는 것이 그 이유입니다. 세번째 단계에 원고가 입증해야 할 부부문을 피고가 모두 입증 할 필요는 없다고 했습니다.

이처럼 고용차별 사건에서는 입증 책임의 이유가 가장 중요 한 것 같습니다.

3.     Westendorf v. West Coast Contractors, No. 11-16001 (9th Cir. Apr. 1, 2013)

Outten & Golden LLPPaul MollicaApril 3, 2013

We believe, moreover, that even if West Coast had proffered this as a reason for discharging Ms. Westendorf, her prima facie case and related inferences might well support a finding of pretext, especially since she had no record of insubordination until she complained about sexual harassment. SeeTexas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 n.10 (1981). "Dissenting, Judge Rawlinson would hold that the defendant did offer an explanation for the employee's discharge - insubordination:"If the evidence is to be interpreted in favor of Westendorf's assertion that she was terminated, that inference of termination remains throughout the analysis.

피고가 원고를 해고한 이유가 불복종이라 제시 하더라도 그것은 성추행 이후였으므로 원고가 제시한 이유는 근거 없는 구실이라는 점을 보여줍니다. 하지만 디센팅 판사님은 원고를 해고한 불복종의 이유가 부적절 했는지는 알 수 없다고 했습니다. (즉 성추행을 인정 하지 않으신 것으로 보입니다.)

4.     A Primer on Employment Discrimination Motion Practice

Goldberg SegallaMarch 7, 2013

On January 4, 2013, Judge Michael A. Telesca of the Western District of New York filed a concise primer on employment discrimination motion practice. In Somerville v. Romulus Central School District, 2013 U.S. Dist. LEXIS 1509 (WDNY 2013) the plaintiff, an African-American female candidate for school superintendant, brought an action alleging she was not selected as a school superintendent on the basis of unlawful discrimination on the basis of race and gender. She was one of six finalists, three female and three male, interviewed for the position by three distinct groups: the Board of Education, a community group, and a district employee group. Three finalists were honed from the group of six to three finalists, two males and a female. A white male was eventually selected as the new school superintendent.

The district court, in dismissing the plaintiff’s claim, carefully travelled the road to dismissal. The court first noted the summary judgment standard:

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” When considering a motion for summary judgment, all genuinely disputed facts must be resolved in favor of the party against whom summary judgment is sought. Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007). If, after considering the evidence in the light most favorable to the nonmoving party, the court finds that no rational jury could find in favor of that party, a grant of summary judgment is appropriate. Scott, 550 U.S. at 380 (citing Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)).

Then the court found the plaintiff had met her burden of establishing a prima facie case under circumstances giving rise to discrimination.

To establish a prima facie case of discriminatory failure to hire, the plaintiff must show that (1) she belongs to a protected class; (2) she applied for an available position for which she was qualified; and (3) she was rejected under circumstances giving rise to an inference of discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981).  The burden of stating a prima facie case sufficient to overcome a motion for summary judgment is de minimis, Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988).

교육감 후보로 출마한 아프리카계 미국인 여성 후보자인 원고는 인종과 성별에 근거한 불법적인 차별을 이유로 교육감으로 선출되지 않았다고 주장하는 소송을 제기했습니다.

법원은 철저한 절차를 거친 후 원고의 청구를 기각하였다. 재판부는 약식재판 기준을 언급 했습니다.

연방 미소법 섹션 56(c)

summary judgment “should be rendered if ... any affidavits show that there is no genuine issue as to any material fact ...”

When considering a motion for summary judgment, all genuinely disputed facts must be resolved in favor of the party against whom summary judgment is sought.

If, after considering the evidence in the light most favorable to the nonmoving party, the court finds that no rational jury could find in favor of that party, a grant of summary judgment is appropriate.

그런 다음 법원은 원고가 차별을 야기하는 상황에서 원고가 Prima facie case를 부담을 다했다고 판결했습니다.

불평등한 고용의Prima facie case 는

(1) 그녀는 보호받는 집단 이어야 합니다.

(2)그녀는 그녀가 맡을 수 있는 직책에 지원 하여야 합니다.

(3) 그녀가 거절 받은 상황에서 불평등한 차별을 추정 할 수 있어야 합니다.

Prima facie case 는 까다롭지 않아 보입니다. 하지만 Prima facie case를 입증 하는 것은 피고의 약식판결 요청을 기각 할 수 있게 되므로 중요합니다.   

5.     Second Circuit Makes Key Holdings Involving Proof Requirements in Individual Discrimination Cases and Litigation Hold Requirements

Littler Mendelson, P.C.July 27, 2012

at 773.7Chin, 2012 U.S. App. LEXIS 14088, at *29 (quoting Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).8Chin, 2012 U.S. App. LEXIS 14088, at *29.9Id.

Recently, in Chin v. Port Authority of New York & New Jersey, 2012 U.S. App. LEXIS 14088 (2d Cir. July 10, 2012), the United States Court of Appeals for the Second Circuit made two key holdings involving proof requirements in individual discrimination cases and litigation hold requirements.

First, the Second Circuit held that private plaintiffs may not use the pattern or practice method of proving discrimination outside the class action context. Unlike most discrimination cases where the ultimate burden of proof is always with the plaintiff and the plaintiff must present a prima facie case of discrimination, under a pattern or practice method of proof the plaintiff is only required to prove the existence of an employer's discriminatory policy and then the burden of proof shifts to the employer to demonstrate that it did not discriminate against the plaintiff pursuant to that policy.

Second, the court addressed the consequences of an employer's failure to issue a litigation hold to preserve evidence once it was on notice of potential litigation. Rejecting a high-profile New York federal district court decision (which held that a party's failure to issue a written litigation hold constituted gross negligence per se), the Second Circuit held that a "case by case" approach to the failure to produce evidence must be applied and affirmed the trial court's refusal to issue an adverse inference instruction – despite an admitted loss of evidence.

Factual Background

In Chin, 11 Asian-American police officers who worked for the Port Authority of New York and New Jersey claimed that the Port Authority violated Title VII by failing to promote them due to their race. They did not bring their case as a class action. The plaintiffs asserted three theories of liability for discrimination: individual disparate treatment, pattern-or-practice disparate treatment, and disparate impact. After a nine-day trial, the jury unanimously found the Port Authority liable for discrimination against seven of the plaintiffs under all three theories.

뉴욕과 뉴저지 항만청에서11명의 아시아계 미국인 경찰관은 인종 차별로 승진하지 못해 Title VII를 위반했다고 주장했습니다. 그들은 집단 소송으로 사건을 제기하지 않았습니다. 원고는 차별에 대한 책임에 대한 세 가지 이론 즉 개인 차별, 관행의 차별, 차별효과 를 주장했습니다.을 주장했습니다.  

배심원단은 만장일치로 항만청이 원고 중 7명에 대한 차별에 책임이 있다고 판결했습니다.

At trial, 22 fact witnesses testified, including all 11 of the plaintiffs who testified about their personal backgrounds, education, experiences as police officers, attendance and disciplinary records, awards and commendations, and performance eval‎uations. Six chiefs, one former superintendent, the superintendent at the time of trial, and three other Port Authority managers testified regarding the Port Authority's promotional procedure. Each side also presented a statistical expert and a damages expert.

The plaintiffs presented a statistical expert who testified about two analyses that, in his view, demonstrated a high probability that Asian Americans had been discriminated against in the Port Authority's promotion process:

• In his first study, plaintiffs' statistical expert compared the percentage of white police officers who held a supervisory position (out of all white police officers) with the percentage of Asian Americans who held a supervisory position (out of all Asian-American police officers), using an industry-standard test known as the "Fisher Exact Test" to opine whether disparities were due to chance; and
• In his second study, plaintiffs' statistical expert compared the promotion rate for whites who were on the eligible lists to the promotion rate for Asian Americans who were on the eligible lists, again using the Fisher Exact Test to opine whether disparities were due to chance.

On appeal, the Port Authority argued, among other things,1 that the pattern-or-practice disparate treatment theory should not have been submitted to the jury in this private, non-class action.

One of the plaintiffs who did not prevail at trial, Howard Chin, alleged on appeal, among other things,2 that he was entitled to a new trial because the trial court denied plaintiffs' request for an adverse inference instruction even though the Port Authority destroyed certain promotional records and failed to institute a litigation hold upon receiving notice of the plaintiffs' EEOC charge.

The Second Circuit held that the district court should not have permitted non-class action, private plaintiffs to use a pattern or practice method of proof to establish their claims of discriminatory denial of promotion. Yet, the court affirmed the jury's verdict that the Port Authority was liable to the seven plaintiffs who prevailed at trial under both individual disparate treatment and disparate impact theories.3 The Second Circuit explained that it was permissible for the district court to allow the plaintiffs to use statistical evidence of a policy of discrimination to demonstrate the Port Authority's liability in their individual disparate treatment and disparate impact claims; however, the court emphasized that the prevailing plaintiffs had to, and did, demonstrate each required element of their disparate treatment and disparate impact claims.4

원고는 아시아계 미국인이 차별을 받았을 가능성이 높다는 증언을 한 통계 전문가를 출석 시켰습니다.

항소심에서 항만청은 원고가 차별을 입증하기 위해 관행차별을 비 집단적인 소송에 제출되어서는 안 된다고 주장했습니다. 그러나 법원은 항만청이 7명의 원고에게 책임이 판결을 인정 하였습니다.

재판에서 승소하지 못한 원고 하워드 친(Howard Chin)은 항소심에서 항만청이 특정 원심 법원이 원고의 불리한 추론 배심원지침 요청을 거부했기 때문에 새로운 재판을 받을 자격이 있다고 주장했습니다.

6.     Fifth Circuit

Outten & Golden LLPPaul MollicaApril 5, 2011

Plaintiffs were able to establish that their disciplinary histories were comparable to their white counterparts. Under Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), employer was required to produce admissible evidence of a valid, non-racially biased reason for the actions. But in the absence of testimony by the decisionmaker about the reasons for each decision, there was no such evidence. Avowed decisionmaker's declaration did not meet the Burdine burden of production.

원고는 자신의 징계 이력이 다른 백인 직원과 비슷하다는 것을 입증 했습니다.

Burdine rule에 의해 피고 고용주는 자신의 행동에 대해 타당하고 합법적인 이유를 제시 해야만 했습니다. 그러나 이유에 대한 의사결정자의 증언이 없으면 입증은 인정 되지 못합니다. 따라서 Burdine rule 를 충족 시키지 못했습니다.

7.     It's time to revise your jury instructions

Bergstein & Ullrich, LLPAugust 9, 2010

The Second Circuit also says that we may be throwing around the word "pretext" through a misunderstanding of dicta in Supreme Court opinions, including St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993), in which Justice Scalia stated that "a reason cannot be proved to be a 'pretext for discrimination' unless it is shown both that the reason was false, and that discrimination was the real reason." Similar language appears in Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). So what does this language really mean?

Second Circuit은 또한 대법원 판결에 대한 잘못된 이해 때문에 판결이 핑계에 관한 잘못된 이야기로 보일 수 있다고 말합니다. St. Mary's Honor Center v. Hicks 에서
스캘리아 판사에 따르면, 어떤 이유가 "차별의 핑계"임을 증명하려면 그 이유가 사실이 아니며 차별이 실제 동기였다는 것을 입증해야 합니다. Burdine에서도 유사한 언어가 나타납니다.  이것이 실제로 무엇을 의미할까요?

It seems clear from the discussion that what the Court meant by its reference to the falsity of the employer’s asserted justification was not intent to deceive, but inaccuracy or incompleteness resulting from the failure to include the fact of the discriminatory motivation. In context, it is amply clear that the import of the statements in both Burdine and St. Mary’s was not that plaintiff was required to prove the employer’s stated justification was asserted with intent to deceive or in bad faith. It was rather that no plaintiff could prevail without establishing, by a preponderance of the evidence, that discrimination played a role in an adverse employment decision.

In order for a plaintiff to win a case involving an adverse employment decision, they needed to prove that discrimination was a contributing factor, supported by a many of evidence.

법원이 고용주의 정당화가 거짓이라고 언급한 것은 속일 의도가 있었다는 의미는 아닐 것입니다. 차별적 동기가 포함되지 않아 정당화가 부정확하거나 불완전하다는 점을 지적한 것입니다. 원고는 차별이 부정적인 고용 결정에 영향을 미쳤음을 by “a preponderance of the evidence”로 입증하는 것이 필요합니다.

I guess you can still ask the trial court to explain how the plaintiff may prove discrimination, and pretext in the form of an intentional falsehood by the employer is one way to do it. The Second Circuit says that "we caution district courts to avoid charging juries to the effect that a plaintiff must show that the employer's stated reason for an adverse action was a 'pretext.'" (Emphasis mine). Throughout the opinion, the Court of Appeals frowns upon the notion that the plaintiff "must" always prove pretext in these cases. So the trial court is not required to charge on pretext. In some cases, the standard pretext instruction may not fit the case, as the Court of Appeals explains. But the Second Circuit's careful warning that that plaintiff is not required to establish pretext suggests that, in appropriate circumstances, the trial court could still charge that pretext is one way to prove discrimination.

원고가 차별을 입증하기 위해 고용주가 고의적인 허위 사실은 핑계에 불구 하다 라는 것을 알리는 것도 하나의 방법 이입니다. 하지만 항소법원은 항상 핑계임을 증명 해야 한다는 사실을 인정 하지 않습니다.

8.     Potter v. District of Columbia, No. 07-7163 (D.C. Cir. Mar. 6, 2009); Jones v. Bernanke, No. 08-5092 (D.C. Cir. Mar. 6, 2009)

Outten & Golden LLPMarch 7, 2009

Departures from passivity are almost always bound to give one side a net benefit, yet such departures are not ipso facto error."Jones v. Bernanke, No. 08-5092 (D.C. Cir. Mar. 6, 2009): This Title VII/ADEA discrimination and retaliation case is ordinary on its face, yet enlivened by the D.C. Circuit's adherence to a standard under Rule 56 that "the prima facie case irrelevant" once the employer produces a non-discriminatory explanation, at which point "the district court need not -- and should not -- decide whether the plaintiff actually made out a prima facie case under McDonnell Douglas." Though this rule is respectably founded on Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981), no other circuit presently observes it. Both sets of claims were before the court of appeals on summary judgment. The panel dispenses with the discrimination claim on timing grounds, i.e., that the employee did not file this claim within 90 days of receiving the agency's adverse determination (he added the claim by way of an amendment to the complaint more than 90 dyas later).

Once the employer provides a non-discriminatory explanation, the district court does not need to determine if the plaintiff made a prima facie case under McDonnell Douglas. Therefore, the prima facie case becomes irrelevant.

Potter V. District of Columbia; Jones v. Bernanke 이 Title VII/ADEA(Age Discrimination in Employment Act of 1967) 차별 및 보복 사건은 평범해 보이지만 DC 순회가 규칙 56을 준수함으로써 특별합니다. 고용주가 합법적인 이유를 제공하면 법원은 원고가 McDonnell Douglas에 따라 prima facie 성립 여부를 결정할 필요가 없습니다. 따라서 prima facie 사례는 무의미해지기 때문 입니다.이 규칙은 Burdine에 근거를 두고 있습니다. 두 청구 모두 약식 판결에 대해 항소 법원에 제기되었습니다. 법원은 시기상의 이유로 차별 주장을 기각합니다, 즉, 직원이 주장된 불리한 결정을 받은 후 90일 이내에 이 청구를 제기하지 않았다는 것입니다(그는 90일 후에 수정을 통해 청구를 추가했습니다).

9.     "Dude, you're gettin' a trial."

Bowles Rice LLPBrian PetersonNovember 23, 2005

The Supreme Court could not have been any clearer in Texas Department of Community Affairs v. Burdine: "The prima facie case serves an important function in the litigation: it eliminates the most common nondiscriminatory reasons for the plaintiff’s rejection." 450 U.S. 248, 253-54 (1981).So in other words, the prima facie case does not create an inference of discrimination, but instead, it "paves the way" for such an inference by dispelling negative inferences (i.e. inferences of non-discrimination). An established prima facie case will steal the defendant's thunder.

"원고의 가장일반적인비차별적이유를제거하는frima facie 입증은 소송에서중요한기능을합니다." 대법원은Burdine 에서명확하게 전달 했습니다.

다시 말해, prima facie case는 차별의 추론을 생성하는 것이 아니라 비차별적 이유를 제거 함으로서 차별 추론을 위한 "길을 닦습니다". 확립 된 prima facie 사건은 피고의 주장을 약화시키는 역할을 할 것 입니다.