The question of whether an interested witness’s testimony is “honest” is a credibility determination reserved to the jury. This proposition is not controversial. Yet the district court below granted summary judgment to the employer based on the court’s – not the jury’s – determination that an interested witness’s testimony as to his own state of mind was honest. This violates Rule 56, Fed. R. Civ. P., and a long line of Supreme Court cases.
This case presents an issue of first impression in the Fourth Circuit. Appellee invites the Fourth Circuit to create an entirely new defense to discrimination and retaliation cases, effectively facilitating the granting of summary judgment in cases that otherwise have sufficient evidence of pretext to go to the jury. The appellee’s invitation should be rejected. This Circuit has never recognized an “honest belief rule” because there is no such rule; the only “rule” that governs proof at the summary judgment stage is Rule 56, Fed. R. Civ. P., and that rule prohibits resolving credibility or drawing inferences in favor of the moving party. Determining whether an employer’s belief in a discredited explanation was honestly held violates these strictures. As the Supreme Court has explained, even when all other material facts are undisputed, the question of motivation is itself a fact which requires deciding which inference to draw from those facts. Hunt v. Cromartie, 526 U.S. 541, 549 (1999) (“The District Court nevertheless was only partially correct in stating that the material facts before it were uncontroverted. The legislature’s motivation is itself a factual question.”).
The “honest belief” defense urged by the employer here contradicts not only Rule 56, but also the Supreme Court’s repeated explanation of the significance of pretext. The familiar McDonnell Douglas indirect proof scheme consists of three steps: (1) the employee demonstrates a prima facie case of discrimination or retaliation, (2) the employer proffers a legitimate, non-discriminatory explanation, and (3) an opportunity for the employee to show that the employer’s proffered explanation is not worthy of belief, i.e., that it is a pretext. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) The Supreme Court has held, consistently and repeatedly, that evidence sufficient for a jury to find the employer’s explanation to be unworthy of belief is sufficient, by itself, to permit the jury to infer that the employer’s actions were unlawful.
The district court moved the goalposts. The employee satisfied all three prongs of McDonnell Douglas, including adducing sufficient evidence for a jury to reject United’s proffered explanation as false. That was enough to survive summary judgment and leave the ultimate issue to the factfinder at trial. Appellee now urges this Court to add a fourth step to the McDonnell Douglas proof scheme, requiring not only evidence that the employer’s explanation is unworthy of belief, but also establishing the absence of mistake. There is no basis for such a change in the law. The Supreme Court clarified that no additional evidence is required in Hicks and then more emphatically repeated that in Reeves.
An employer is always free to argue to a jury at trial that it made a mistake, so the “honest belief” defense is at play in every trial. But United does not want the right to argue “mistake” to a jury; it asks this Court to create a new defense that provides, in essence, a “get out of jail free” card by somehow divining from a paper record that the employer’s pretextual reason was proffered honestly and not as a cover-up for discrimination. The problem is this new defense runs afoul of the prohibitions on determining credibility or drawing inferences.
Finally, where an employer has fired an employee for the manner in which he engaged in protected activity (such as using FMLA leave, seeking an accommodation for religious beliefs or disability, filing discrimination complaint, etc.), the employer’s belief about those actions is irrelevant. An employee who meets the legal requirements for FMLA leave is entitled to that leave whether the employer honestly believes otherwise or not. If an employer chooses to fire its employee on the assertion that the employee fraudulently obtained the benefit, the employer must be correct or it will be strictly liable. There is no room for employee to be deprived of a legally mandated right when she did all that was legally required simply because the employer got the facts wrong, sincerely or otherwise.
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Welcome to the Web site of MWELA — the Metropolitan Washington Employment Lawyers Association. We are about 300 lawyers who represent people in the District of Columbia, Maryland and Virginia.
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