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July 08, 2005

Same-actor inference

Logic dictates that if the individual who discharges an employee is the same person who did the hiring, then the decisionmaker probably is not biased against the employee. That's the "same-actor inference." The question then is whether that inference is to be applied (1) by a court on motion for summary judgment or (2) by the jury.

The 9th Circuit says the inference is for the court to apply at the summary judgment stage. Coughlan v. American Seafoods (9th Cir 07/07/2005). In some other circuits, this inference is just one more thing for the jury to work with.

My view:

  • The 9th Circuit, reputed to be "liberal" in such matters, really has taken a great deal of work away from the jury. I think that is wrong because I believe we are all better off if we let juries do their work. It is also wrong because the judges in the 9th Circuit are now in the business of weighing the evidence at the summary judgment stage.
  • The court still makes a big deal out of the difference between "direct" and "circumstantial" evidence. If the plaintiff relies on circumstantial evidence, the 9th Circuit requires that evidence to be "specific and substantial." I see no support for this in Title VII, the Federal Rules, or the decisions of the Supreme Court.
  • Add in the same-actor inference. The court says this is a strong inference that creates a "heightened burden" for the plaintiff in proving pretext. The court says the burden is "especially steep." I think this is something the lawyers ought to be addressing to the jurors - the ones who should be deciding what the facts are.

Posted July 08, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.

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