For the Chapter: Not Worthy of Credence

The U.S. Supreme Court has set forth the respective evidentiary burdens of a plaintiff-employee and a defendant-employer in a Title VII discrimination case as follows:

The ultimate burden of persuading the trier of fact that the defendant [employer] intentionally discriminated against the plaintiff [employee] remains at all times with the plaintiff. See Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24, 439 U. S. 25, n. 2 (1978); id. at 439 U.S. 29 (STEVENS, J., dissenting). See generally 9 J. Wigmore, Evidence § 2489 (3d ed.1940) (the burden of persuasion "never shifts"). The McDonnell Douglas division of intermediate evidentiary burdens serves to bring the litigants and the court expeditiously and fairly to this ultimate question.

The burden of establishing a prima facie case of disparate treatment is not onerous. The plaintiff must prove by a preponderance of the evidence that she applied for an available position for which she was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination.  The prima facie case serves an important function in the litigation: it eliminates the most common nondiscriminatory reasons for the plaintiff's rejection. See Teamsters v. United States, 431 U.S. 324, 431 U.S. 358, and n. 44 (1977). As the Court explained in Furnco Construction Corp. v. Waters, 438 U. S. 567,  438 U. S. 577 (1978), the prima facie case "raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors."

Establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee. If the trier of fact believes the plaintiff's evidence, and if the employer is silent in the face of the presumption, the court must enter judgment for the plaintiff because no issue of fact remains in the case.

The burden that shifts to the defendant, therefore, is to rebut the presumption of discrimination by producing evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason. The defendant need not persuade the court that it was actually motivated by the proffered reasons. See Sweeney, supra at 439 U.S. 25. It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff.

To accomplish this, the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiff's rejection. The explanation provided must be legally sufficient to justify a judgment for the defendant. If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity. Placing this burden of production on the defendant thus serves simultaneously to meet the plaintiff's prima facie case by presenting a legitimate reason for the action and to frame the factual issue with sufficient clarity so that the plaintiff will have a full and fair opportunity to demonstrate pretext. The sufficiency of the defendant's evidence should be evaluated by the extent to which it fulfills these functions.

The plaintiff retains the burden of persuasion. She now must have the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision. This burden now merges with the ultimate burden of persuading the court that she has been the victim of intentional discrimination. She may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence. See McDonnell Douglas, 411 U.S. at 411 U.S. 804-805.  Texas Dept. of Commun. Affairs v. Burdine, 450 U.S. 248 (1981).
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A man says, "I put on artificial wings and flew from New Jersey to France across the Atlantic Ocean.  But there is no evidence of my flight because I landed in a secluded area in France."  The man has produced evidence that he flew to France on artificial wings.

REALITY CHECK:  You can't fly from New Jersey to France using artificial wings!

Akin Gump: "We spoke to a mental health counselor at Sheppard Pratt about Mr. Freedman's mental status.  The counselor did not object to our contemplated plan to terminate Mr. Freedman.  Sheppard Pratt has no record of the communication because we spoke to the counselor without mentioning Mr. Freedman by name."  Akin Gump produced evidence that it's attorney managers reviewed my case with a Sheppard Pratt counselor.

REALITY CHECK: Sheppard Pratt's business policy does not permit the type of communication alleged by Akin Gump.  Sheppard Pratt policy mandates that its counselors prepare a written record--on an Employer Consultation Intake Form--of any communications with employers concerning a potential employee-client and that the record be maintained in a file of mental health information (Record 65); this policy applies even in instances in which the consultation with the employer is not “employee-specific” (Record 65).  
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Sheppard Pratt Preferred Resources, Inc.

July 14, 1993

Gary Freedman
3801 Connecticut Avenue, NW
#136
Washington, DC 20008

Dear Mr. Freedman

This letter is in response to your recent inquiry about your case file.

With regard to your question concerning EAP consultation with Akin, Gump, Strauss, Hauer & Feld:

We have no record of contact concerning you with either Dennis Race or Malcolm Lassman.

With regard to your question about Sheppard Pratt EAP's role in providing consultation to employers regarding employees whose job performance is affected by personal problems (attendance, quality/quantity of work or workplace conduct):

When an employer calls to discuss a troubled employee, we inquire about the history of documentation to determine if the employee's problem is chronic or in early stages. If the employer hasn't documented any earlier problem we suggest a statement of concern and an informal referral to the EAP. This can often prevent the problems from intensifying if the client follows up with recommendations. If the problem is chronic and there is documentation of a pattern of behavior impacting on job performance over a long period of time, we recommend a formal referral to the EAP. The purpose is to provide confidential intervention/support or accommodation to the problem which if addressed could ultimately lead to termination.

We do not tell employers to terminate employees. If an employer has months of documentation and has followed internal disciplinary procedures, i.e., providing verbal, written and suspension as counseling techniques it is the company's decision to fire for cause. Generally, employers do not call to ask EAP advice about terminating employees. They may call us to inform us about their decision if they know the employee was referred to the EAP, yet the performance problems continued over a long period of time. If we do not oppose the decision, this does not imply that we concur in the decision to terminate the employee.

Sincerely,

Suzanne Reynolds, M.A., CEAP
Assistant Director
Director -- Washington Operations
Employee Assistance Programs

SR/ab

(record on appeal at 63-6)