Spring 2008	 Employment & Labor Relations LawSince 1991, employers have beenable to defend individual disparatetreatment s...
Employment & Labor Relations Law	 Spring 2008numerous courts have applied thedoctrine where the alleged discrimina-tor eng...
Spring 2008	 Employment & Labor Relations Lawtivated the employer’s conduct.[A] prima facie case plus evidencepermitting d...
Employment & Labor Relations Law	 Spring 200826. Id. at 573–74 (Citing Buhrmaster,61 F.3d at 464).27. Williams v. Vitro Se...
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"The Same-Actor Inference: A Look at Proud v. Stone and its Progeny" Employment & Labor Relations Law (American Bar Association, Section of Litigation), Spring 2008

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"The Same-Actor Inference: A Look at Proud v. Stone and its Progeny" Employment & Labor Relations Law (American Bar Association, Section of Litigation), Spring 2008

  1. 1. Spring 2008 Employment & Labor Relations LawSince 1991, employers have beenable to defend individual disparatetreatment suits under Title VII ofthe Civil Rights Act of 19641and the AgeDiscrimination in Employment Act2byinvoking a doctrine known as the same-actor inference.3Simply put, the doctrinestates that an inference or presumption ofnondiscrimination is invoked when theindividual terminating the employee isthe same person who hired the employee,and the hiring and firing occur withina relatively short time span. The logicbehind the doctrine is best summarized bythe Fifth Circuit, which explained that“[c]laims that employer animus exists intermination but not in hiring seem irratio-nal. From the standpoint of the putativediscriminator, [i]t hardly makes sense to hireworkers from a group one dislikes . . . onlyto fire them once they are on the job.”4The same-actor inference originated inProud v. Stone, where the Fourth Circuitheld that “in cases where the hirer and thefirer are the same individual and the ter-mination of employment occurs within arelatively short time span following the hir-ing, a strong inference exists that discrimi-nation was not a determining factor for theadverse action taken by the employer.”5In Proud, an age discrimination case,a 68-year-old plaintiff had been fired sixmonths after having been hired. Proud washired on the basis of his written applica-tion, which included his date of birth.Proud was selected for the position of chiefaccountant over six younger applicants.Several months later, Proud was terminatedand replaced by a 32-year-old employeewho was promoted to his position. Thesame individual that hired Proud made thedecision to terminate him, with the statedreason for termination being dissatisfactionwith Proud’s performance of the his duties.At trial, the district court granted thedefendant-employer’s Rule 41(b) mo-tion for dismissal at the close of plaintiff’sevidence. The plaintiff’s evidence at trialrevealed no direct evidence of discrimina-tion and established that the person whofired Proud was the same person who hadhired him just a few months earlier. TheFourth Circuit affirmed the dismissal, rea-soning that the inference generally makesdiscrimination cases “amenable to resolu-tion at an early stage,” as “employers whoknowingly hire workers within a protectedgroup seldom will be credible targets forcharges of pretextual firing.”6Although the same-actor inferenceemerged from an age discrimination case,the inference applies equally to discrimi-nation claims arising under Title VII andthe Americans with Disabilities Act.7Generally, and as common sensewould suggest, the shorter the time spanbetween the employee’s hiring and firing,the stronger is the inference. As put bythe Second Circuit,Such an inference is strong wherethe time elapsed between the eventsof hiring and firing is brief . . . [a]nd,the enthusiasm with which the ac-tor hired the employee years beforemay have waned with the passageof time because the relationshipbetween an employer and anemployee, characterized by recipro-cal obligations and duties, is, likethem, subject to time’s “wrackfulsiege of battering days.”8As there is no bright-line rule as towhat constitutes a “relatively short timespan,” the temporal separation betweenhiring and firing has varied widely in casesapplying the inference, with cases rangingfrom between eight days and up to fouryears.9However, at least one circuit hasleft the door open to applying the infer-ence even where there is a longer timespan between the hiring and firing. InBuhrmaster v. Overnite Transportation Co.,the Sixth Circuit opined that a “shortperiod of time is not an essential elementof the same actor inference, at least incases where the plaintiff’s class does notchange.” The court further noted,[T]o say that time weakens thesame actor inference is not to saythat time destroys it. In discrimina-tion cases where the employee’sclass does not change, it remainspossible that an employer who hasnothing against women per se whenit hires a certain female will havenothing against women per se whenit fires that female, regardless of thenumber of years that pass.10Although the doctrine originallyapplied in situations where the sameindividual had done both the hiring andfiring, it has since been extended to applyto multiple decision makers where thehirer and firer was not a single individualacting unilaterally on each occasion.11Forexample, in Campbell v. Alliance NationalInc., the plaintiff argued against the ap-plication of the doctrine because numer-ous individuals had participated in thedecision to terminate her in addition tothe person who had hired her. The courtreasoned that “[t]he decision-makers inthe hiring and firing need not mirror eachother exactly as long as one management-level employee played a substantial rolein both decisions.”12Accordingly, thecourt held that the same-actor inferenceapplied despite the participation of thenonhiring decision makers.Similarly, in DeJarnette v. Corning,Inc., a pregnancy discrimination case, thecourt applied the doctrine where one ofthe three people who participated in thedecision to fire the plaintiff knew thatthe plaintiff was pregnant at the time shewas hired, notwithstanding the fact thatthe individual did not participate in thehiring decision.13Further extending the doctrine,C. Scott Schwefel is with Shipman, Sosensky,Randich & Marks, LLC, in Farmington,Connecticut.The Same-Actor Inference:A Look at Proud v. Stone and Its ProgenyBy C. Scott SchwefelPublished in Employment & Labor Relations Law, Volume 6, Number3, Spring 2008. © 2008 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portionthereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.ELRL_spr08_edited_reprint.indd 17 7/2/08 8:29:22 AM
  2. 2. Employment & Labor Relations Law Spring 2008numerous courts have applied thedoctrine where the alleged discrimina-tor engaged in some positive action orfavorable treatment toward the employeeprior to terminating the employee, evenwhere the alleged discriminator did notparticipate in the hiring decision.14Forexample, in its 1996 decision in Hartselv. Keys, the Sixth Circuit applied thesame-actor inference where the deci-sion maker had not initially hired theplaintiff but had promoted her prior toher termination.15In that case, a formercity employee brought an age and genderdiscrimination suit against her municipalemployer and its mayor when the mayorfailed to promote her. Citing a previouspromotion and raise, the court observed:This circuit has recently endorsedthe “same actor inference,” whichallows an inference of a lack of dis-criminatory animus where the sameperson is responsible for both hiringand firing the individual. . . . Thisrationale seems applicable to Keys’sdecision to promote Hartsel tempo-rarily but later finding her lackingfor the permanent position.16More recently, in Coghlan v. AmericanSeafoods Co., the Ninth Circuit affirmedsummary judgment for the employer ina national-origin discrimination casewhere the plaintiff was unable to over-come the same-actor inference appliedby the district court. On appeal, at issuewas whether the trial court, in applyingthe same-actor inference, had correctlydeemed a previous transfer of the plain-tiff as favorable treatment. The employeeargued on appeal that the lower court’sapplication of the same-actor inferencewas inappropriate because the transferwas, technically, a step down in rank.The court held that the decision maker,in spite of the demotion in rank of theplaintiff “intentionally chose to appoint[plaintiff] to a new, better-paid, moredemanding position. . . . The favorablenature of the reassignment satisfies us thatthe same-actor inference should arise.”17There is a split of authority among thecircuit courts as to the weight assigned tothe inference, as well as whether the doc-trine should be applied at the summary-judgment stage.The Fourth Circuit, since Proud, stillaffords a strong inference of nondiscrimina-tion, and its courts often apply the doctrinein dismissing claims on summary judg-ment.18Similarly, the Ninth Circuit char-acterized a plaintiff’s burden in overcomingthe doctrine as “especially steep” and hasnoted that it requires an “extraordinarilystrong showing of discrimination necessaryto defeat the same-actor inference.”19TheEighth Circuit also affords the inferencesignificant weight. In Lowe v. J.B. HuntTransport, Inc., the court described thesame-actor inference as being “fatal” tothe plaintiff’s case.20In affirming the lowercourt’s directed verdict, the court explained:The evidence that plaintiff claimsis inconsistent with defendant’sproffered justification is thin, butperhaps sufficient, all other thingsbeing equal, to defeat a motionfor directed verdict. In the presentcase, however, all other things werenot equal. The most important facthere is that plaintiff was a memberof the protected age group both atthe time of his hiring and at thetime of his firing, and that the samepeople who hired him also firedhim. . . . It is simply incredible, inlight of the weakness of plaintiff’sevidence otherwise, that the com-pany officials who hired him at agefifty-one had suddenly developed anaversion to older people less thantwo years later.21Similarly, the Second Circuit indicatedthat the same-actor inference “stronglysuggest[s] that invidious discriminationwas unlikely”22and that the doctrine is a“highly relevant factor” in deciding sum-mary judgment.23Moreover, the Fifth andTenth circuits also attach strong value tothe same-actor inference.24In contrast, the Sixth Circuit“reject[s] the idea that a mandatoryinference must be applied in favor of asummary-judgment movant wheneverthe claimant has been hired and firedby the same individual.”25The courtfurther elaborated:[A]lthough the factfinder is permit-ted to draw this inference, it is by nomeans a mandatory one, and it maybe weakened by other evidence. . . .We therefore specifically hold thatwhere, as in this case, the factfinderdecides to draw the same-actor infer-ence, it is insufficient to warrantsummary judgment for the defendantif the employee has otherwise raiseda genuine issue of material fact.26Both the Eleventh and Third circuitsexpressly reject the same-actor inferenceas a means of summary disposition. In Wil-liams v. Vitro Services Corp., the EleventhCircuit held that it is improper to grantsummary judgment on the basis that thehirer and firer are the same actor but thatthe jury can consider same-actor evidencein determining the issue of pretext.27Thecourt noted that “it is the province of thejury rather than the court, however, todetermine whether the inference gener-ated by ‘same-actor’ evidence is strongenough to outweigh a plaintiff’s evidenceof pretext.”28The court explained:[W]ithin the [employment discrimi-nation] burden-shifting framework. . . this inference is a permissible—not a mandatory—inference that ajury may make in deciding whetherintentional discrimination mo-Both theEleventh andThird circuitsexpresslyreject thesame-actorinference asa means ofsummarydisposition.Published in Employment & Labor Relations Law, Volume 6, Number3, Spring 2008. © 2008 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portionthereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.ELRL_spr08_edited_reprint.indd 18 7/2/08 8:29:23 AM
  3. 3. Spring 2008 Employment & Labor Relations Lawtivated the employer’s conduct.[A] prima facie case plus evidencepermitting disbelief of the em-ployer’s proffered reasons equalsthe plaintiff’s entitlement to havethe factfinder decide the ultimateissue of discrimination. [T]he jurymust measure the strength of thepermissible inference of discrimina-tion that can be drawn from theplaintiff’s prima facie case alongwith the evidence that discredits theemployer’s proffered explanationsfor its decision.29In Waldron v. SL Industries, Inc., theThird Circuit similarly held that thesame-actor inference “is simply evidencelike any other and should not be affordedpresumptive value”.30Last, courts are split as to whether aparty seeking to invoke the doctrine attrial is entitled to a jury instruction on thesame-actor inference. In Buhrmaster, theSixth Circuit held that it was not error togive a same-actor instruction allowing thejury to infer a lack of discrimination fromthe fact that the same individual bothhired and fired the employee.31Moreover,at least one court has reversed a lowercourt judgment for failure to instruct thejury as to the doctrine.32On the otherhand, the Second Circuit held that a trialcourt need not necessarily provide such aninstruction, explaining:Although we have recognized thevalidity of this “same actor” argu-ment . . . we do not believe thatdefendants were prejudiced by thecourt’s refusal to give an instructionon this issue, particularly inasmuchas over six years had passed betweenthe time plaintiff was hired andthe time he was fired. . . . Notably,although the court told defendantsthat they remained free to make the“same actor” argument to the jury,defendants failed to rely on this al-legedly crucial aspect of their case intheir closing argument.33xyEndnotes1. 42 U.S.C. §§2000e to 2000e-17(2000).2. 29 U.S.C. § 621 et seq. (1988).3. Proud v. Stone, 945 F.2d 796 (4thCir. 1991).4. Brown v. CSC Logic, Inc., 82 F.3d651, 658 (5th Cir.1996) (quoting Proud,945 F.2d at 797 (internal quotation marksomitted)).5. Proud, 945 F.2d. at 797.6. Id. at 798.7. Buhrmaster v. Overnite Transp. Co.,61 F.3d 461, 464 (6th Cir. 1995) (“Thisgeneral principle applies regardless ofwhether the class is age, race, sex, or someother protected classification”); Tyndall v.Nat’l Educ. Ctrs., Inc., of Calif., 31 F.3d209 (4th Cir. 1994) (ADA); DeJarnettev. Corning, Inc., 133 F.3d 293 (4th Cir.1998) (Pregnancy Discrimination Act);Amirmokri v. Baltimore Gas and Elec.Co., 60 F.3d 1126 (4th Cir. 1995) (na-tional origin); Raheim v. N.Y. City Bd.of Educ., 2006 WL 2385428 (E.D.N.Y.)(religion); Jiminez v. Mary WashingtonColl., 57 F.3d 369 (4th Cir. 1995) (race);Antonio v. Sygma Network, Inc., 458 F.3d1177 (10th Cir. 2006) (race).8. Carlton v. Mystic Transp., Inc.,202 F.3d 129, 132 (2d Cir. 2000) (quot-ing William Shakespeare, Sonnet LXV, inThe Complete Works of William Shakespeare(W.J. Craig ed., Oxford Univ. Press 1928)).9. Grady v. Affiliated Cent., Inc., 130F.3d 553, 561 (2d Cir. 1997) (8 days);Jacques v. Clean-Up Group, Inc., 96 F.3d506, 509 (1st Cir. 1996) (3 months);Proud, 945 F.2d at 798 (6 months); Brad-ley v. Harcourt Brace & Co., 104 F.3d 267,269 (9th Cir. 1996) (11 months); Robertsv. Separators, Inc., 172 F.3d 448, 452 (7thCir. 1999) (1 year); LeBlanc v. Great Am.Ins. Co., 6 F.3d 836, 847 (1st Cir. 1993)(2 years); Lowe v. J.B. Hunt Transp., Inc.,963 F.2d 173, 174-75 (8th Cir. 1992) (2years); Brown, 82 F.3d at 658 (4 years).10. Buhrmaster, 61 F.3d at 464.11. Amirmokri, 60 F.3d 1126; Birkbeckv. Marvel Lighting Corp., 30 F.3d 507, 513(4th Cir. 1994) (suggesting that a directrelationship between the individual hirerand the plaintiff is not necessary to establishthe inference so long as the firing official hashired others in the plaintiff’s protected class);Lowe, 963 F.2d at 174 (considering evidencethat “same people” or “same company offi-cials” hired and fired plaintiff in less than twoyears “compelling . . . in light of the weak-ness of the plaintiff’s evidence otherwise”).12. Campbell v. Alliance Nat’l Inc.,107 F. Supp. 2d 234, 250 (S.D.N.Y. 2000);see also Nieto v. L & H Packing Co., 108F.3d 621, 623 (5th Cir. 1997) (implicitlyrejecting employee’s contention disputingthe identity of the hirer and firer and ac-cepting employer’s argument that corpo-rate decisions are often made by manage-ment groups).13. DeJarnette, 133 F.3d 293; see alsoAntonio, 458 F.3d 1177 (applying theinference in a race and national-origindiscrimination case, where the hiring andfiring decisions were made by a group,even though the group comprised differentindividuals at the time of the employee’shiring and firing).14. Hooks v. Lockheed Martin SkunkWorks, 14 F. App’x. 769, 2001 WL 706919(9th Cir. 2006) (unpublished) (in a caseinvolving the denial of a promotion by anindividual who had previously promotedthe plaintiff, the court held that “[w]hen anindividual makes a favorable employmentdecision and then, within a short period oftime, the same actor makes an adverse em-ployment decision, ‘a strong inference arisesthat there was no discriminatory motive’”)(internal citations omitted).15. Hartsel v. Keys, 87 F.3d 795 (6thCir. 1996).16. Id. at 804 n.9.17. Coghlan v. American SeafoodsCo., 413 F.3d 1090, 1098 (9th Cir. 2005).18. Montgomery v. Ruxton HealthCare, IX, LLC, 2007 WL 1229708 (E.D.Va. Apr. 26, 2007) (unreported).19. Coghlan, 413 F.3d at 1096-97.20. Lowe, 963 F.2d 173 (8th Cir. 1992).21. Id. at 174 (internal citationsomitted).22. Grady, 130 F.3d at 560.23. Schnabel v. Abramson, 232 F.3d 83,91 (2d Cir. 2000).24. Brown, 82 F.3d at 651; But seeHaun v. Ideal Indus., Inc., 81 F.3d 541,546 (5th Cir. 1996) (“While evidence of[same actor] circumstances is relevant indetermining whether discrimination oc-curred, we decline to establish a rule thatno inference of discrimination could ariseunder such circumstances”); Antonio, 458F.3d at 1183.25. Wexler v. White’s Fine Furniture,Inc., 317 F.3d 564, 573 (6th Cir. 2003)(emphasis added).Published in Employment & Labor Relations Law, Volume 6, Number3, Spring 2008. © 2008 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portionthereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.ELRL_spr08_edited_reprint.indd 19 7/2/08 8:29:23 AM
  4. 4. Employment & Labor Relations Law Spring 200826. Id. at 573–74 (Citing Buhrmaster,61 F.3d at 464).27. Williams v. Vitro Servs. Corp., 144F.3d 1438 (11th Cir. 1998).28. Id. at 1443.29. Id.30. 56 F.3d 491, 496 n.6 (3d Cir. 1995).31. 61 F.3d at 463-64.32. Brown Distrib. Co. of W. PalmBeach v. Marcell, 890 So.2d 1227, 1232(Fla. 4th DCA 2005) (“Turning next tothe proposed jury instruction on the sameactor inference, we again find that it ac-curately states the law and is necessary forthe jury to properly resolve the issues ofthe case”).33. Kim v. Dial Serv. Intern., Inc., 159F.3d 1347, 1998 WL 514297, *4 (2d. Cir.1998) (unpublished disposition) (citingGrady, 130 F.3d at 560).Published in Employment & Labor Relations Law, Volume 6, Number3, Spring 2008. © 2008 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portionthereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.ELRL_spr08_edited_reprint.indd 20 7/2/08 8:29:24 AM

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