Blog Post

Brady v. Livingood, No. 06-5362 (D.C. Cir. Mar. 28, 2008)

Posted by: Paul Mollica
March 31, 2008
Topic: Daily Developments in EEO Law

The D.C. Circuit has stood alone in applying the unqualified language of U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983), in individual disparate treatment cases: "Where the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant. The district court has before it all the evidence it needs to decide whether the defendant intentionally discriminated against the plaintiff."

Thus, in the D.C. Circuit alone, once the employer proffers a putatively legitimate, non-discriminatory reason for an adverse action, the district court does not consider whether the employee made out his or her prima facie case, but considers whether the record as a whole implies discriminatory intent.

In Brady v. Livingood, No. 06-5362 (D.C. Cir. Mar. 28, 2008), the panel once again reiterates this standard. Despite unpromising facts and a bottom-line win for the defendant, this case states an important and enduring lesson for employees seeking to avoid summary judgment . . . if the other eleven U.S. courts of appeals are paying attention.

As to the unpromising facts, U.S. House Office of the Sergeant at Arms -- acting on a complaint of sexual harassment -- demoted plaintiff Brady, a supervisor within the office. The entirety of the alleged harassment was that Brady was said to have grabbed his crotch in front of two female (and one male) employees. (These marshals are a very sensitive group -- at least one investigator summoned to interview all of the witnesses to the incident recommended that Brady be fired for this single offense.) Brady claimed that the entire event was confected by the House Office as an excuse to demote him because of his race (African American).

The district court granted summary judgment and the D.C. Circuit affirmed. But before reaching the holding, the panel detoured for a few pages to criticize the district court's focus on the prima facie case

"But judicial inquiry into the prima facie case is usually misplaced. In the years since McDonnell Douglas, the Supreme Court's decisions have clarified that the question whether the employee made out a prima facie case is almost always irrelevant. At the motion to dismiss stage, the district court cannot throw out a complaint even if the plaintiff did not plead the elements of a prima facie case. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-11 (2002). And by the time the district court considers an employer's motion for summary judgment or judgment as a matter of law, the employer ordinarily will have asserted a legitimate, non-discriminatory reason for the challenged decision - for example, through a declaration, deposition, or other testimony from the employer's decisionmaker. That's important because once the employer asserts a legitimate, non-discriminatory reason, the question whether the employee actually made out a prima facie case is 'no longer relevant' and thus 'disappear[s]' and 'drops out of the picture.' St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510, 511 (1993); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000).
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"Much ink has been spilled regarding the proper contours of the prima-facie-case aspect of McDonnell Douglas. But as we read the Supreme Court precedents beginning with Aikens, the prima facie case is a largely unnecessary sideshow. It has not benefited employees or employers; nor has it simplified or expedited court proceedings. In fact, it has done exactly the opposite, spawning enormous confusion and wasting litigant and judicial resources.
"Lest there be any lingering uncertainty, we state the rule clearly: In a Title VII disparate-treatment suit where an employee has suffered an adverse employment action and an employer has asserted a legitimate, non-discriminatory reason for the decision, the district court need not - and should not - decide whether the plaintiff actually made out a prima facie case under McDonnell Douglas. Rather, in considering an employer's motion for summary judgment or judgment as a matter of law in those circumstances, the district court must resolve one central question: Has the employee produced sufficient evidence for a reasonable jury to find that the employer's asserted non-discriminatory reason was not the actual reason and that the employer intentionally discriminated against the employee on the basis of race, color, religion, sex, or national origin?"

Ultimately, though, the employee's claim foundered on the panel's conclusion that (1) the employer acted on its good-faith belief that the employee had committed the act in question, and (2) the employee's disavowal of wrongdoing did not itself present a genuine issue of material fact: "Although Brady asserts that the accusations and ensuing investigation were racially tainted and the incident did not occur, he did not produce evidence sufficient to show that the Sergeant at Arms' conclusion was dishonest or unreasonable."