Fourth Circuit Reverses Summary Judgment in Discrimination Case

Burgess v. Bowen, No. 10-2081 (4th Cir. Feb. 17, 2012) (unpublished).

The Fourth Circuit, in an unpublished decision, reached a favorable result in reversing the judgment entered by Judge Cacheris (E.D. Va.). The Washington Lawyers Committee, together with attorneys from Steptoe & Johnson (Linda Bailey, Michael Baratz and others), represented the plaintiff, who brought race discrimination and retaliation claims arising out of her termination and the employer's refusal to offer her an alternate position. Judge Cacheris entered summary judgment; plaintiff successfully argued on appeal that he improperly made credibility decisions and decided inferences against her; and he misapplied the rule of St. Mary's Honor Center v. Hicks (1993), by essentially applying a "pretext plus" standard, contrary to Reeves.

MWELA filed an amicus brief, which focused on the correct standard for summary judgment, explained why "pretext plus" was improper, and discussed some of the secondary literature on summary judgment in employment law cases. It is online at: Some excerpts follow:

DIAZ, Circuit Judge:

Denise Burgess, an African American female, was terminated from her executive-level position at a federal agency, purportedly due to a reorganization necessitated by budgetary pressures. The district court granted summary judgment to the agency on Burgess's claims alleging discrimination and retaliation based on her termination and the denial of a transfer to another position within the agency. Viewing the record evidence in the light most favorable to Burgess, we conclude that granting summary judgment to the agency was inappropriate. Accordingly, we vacate the district court's judgment and remand for further proceedings.

[Factual background - plaintiff was the only person terminated in a "reorganization" of the office, but her job duties were taken over by a less-qualified white woman].

. . . . It is not the district court's role to "weigh the evidence and determine the truth of the matter" but instead to determine whether there are "genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson, 477 U.S. at 250. A district court considering a motion for summary judgment must view the evidence in the light most favorable to the nonmoving party, Unus v. Kane, 565 F.3d 103, 115 (4th Cir. 2009), and draw all inferences in favor of the nonmovant, Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991).


A three-step framework applies to the resolution of discrimination and retaliation claims where, as here, there is only circumstantial evidence. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973) (discrimination); Lamb v. Boeing, 213 F. App'x 175, 179 (4th Cir. 2007) ("Retaliation claims function in parallel.") (citing Beall v. Abbott Labs., 130 F.3d 614, 619 (4th Cir. 1997)). . . .

. . . . The parties dispute whether the district court applied an incorrect standard in evaluating Burgess's discrimination claims. Following the Supreme Court's opinion in St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993), many district courts required plaintiffs to provide additional evidence to demonstrate racial discrimination, once the burden shifted back to the plaintiff after an employer's proffer of a legitimate nondiscriminatory reason for its action. This "pretext plus" standard stemmed from the Court's pronouncement that, after the employer's proffer, "[t]he plaintiff then has 'the full and fair opportunity to demonstrate,' through presentation of his own case and through crossexamination of the defendant's witnesses, 'that the proffered reason was not the true reason for the18 MWELA MONTHLY Jan./February 2012 employment decision,' and that race was." Id. at 507- 08 (quoting Burdine, 450 U.S. at 256).

In Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133 (2000), the Supreme Court clarified that a prima facie case of discrimination, combined with evidence from which a jury could conclude that an employer's proffered justification was false, supported an inference of discrimination sufficient to defeat summary judgment. In other words, a plaintiff is not required to provide additional evidence that race was the true reason for the employment decision. . . .

Applying the McDonnell Douglas framework, the district court found with respect to all four claims that Burgess either failed to establish a prima facie case of discrimination or retaliation, or failed to demonstrate pretext after SIIR provided legimate nondiscriminatory reasons. The district court thus granted summary judgment to SIGIR on all four of Burgess's claims. Burgess contests the district court's ruling on each claim, asserting that the district court (1) held her discrimination claims to the "pretextplus" standard the Supreme Court rejected in Reeves and (2) erred in concluding that there was no evidence to support a causal connection between Burgess's protected activity and the agency's decision to both terminate Burgess and deny her a transfer. . . .


In sum, the record in this case reveals an abundance of genuine factual disputes on material issues. While we have viewed and recounted the facts in the light most favorable to Burgess, we acknowledge that SIGIR's contentions also find support in the record. Be that as it may, the evidence in this case was not "so one-sided" as to warrant granting SIGIR's motion for summary judgment on Burgess's claims. Accordingly, we vacate the district court's judgment and remand for further proceedings.


The decision is available online at: 0110214-Burgess-Bowen.pdf.

– submitted by Alan R. Kabat

Newsletter Volume: 
Newsletter - January/February 2012