Alaska Employment Law

The United States House of Representatives Sergeant at Arms demoted Standley Brady, a supervisor, after it concluded he grabbed his crotch in front of three employees.  Brady sued under Titile VII, claiming he was demoted because of his race.  The District Court granted summary judgment for the Sergeant at Arms on two grounds: (1) that Brady had not made out a prima facie case because he could not show that any similarly situated employees outside his racial group had been treated more favorably, and (2) as an alternative ground, Brady presented no evidence from which a jury could conclude that the stated reason for the demotion was not the actual reason, that is, the employer’s actions were taken for a legitimate, non-discriminatory reason. 

The D.C. Circuit Court affirmed on the alternative ground, pointing out that the question whether the plaintiff made out a p.f. case is almost always irrelevant when the court considers an employer’s motion for summary judgment, citing St. Mary’s v. Hicks and US Postal Service v. Aikens.

The court reviewed the various p.f. cases, depending upon the discrimination claim, and noted that while trial courts often wrestle with the question of whether the employee made out a p.f. case, this judicial inquiry usually is misplaced.  In the years sinceMcDonell-Douglas, the Supreme Court’s decisions have clarified that whether the employee make out a p.f. case is almost always irrelevant, and that even at the motion to dismiss stage, a district court cannot throw out a complaint because the plaintiff did not plead a p.f. case.

By the time the district court considers the motion for summary judgment or judgment as a matter of law, the employer usually will have asserted a legitimate non-discriminatory reason for the challenged decision, the second stage of McDonnell Douglas.  This is important, because once the employer articulates its reason, the question of whether the employee made out a p.f. case is “no longer relevant” and “disappear[s]” or “drops out of the picture.”  St. Mary’s v. Hicks; Reeves v. Saunderson Plumbing.  The reasoning is that where the employer has done what would be required had the employee made the p.f. case, then whether the employee did so is no longer relevant.  This applies to both summary judgment and trial.

Noting that “much ink has been spilled” regarding the p.f. case, it is “a largely unnecessary sideshow,” spawning enormous confusion and wasting resources.  Thus, the court stated the rule:  where in a Title VII case, the employee has suffered an adverse action and the employer has provided a legitimate non-discriminatory reason for the decision, the district court should not decide whether plaintiff actually made out a p.f. case or not.  Rather, at this point, the inquiry moves on to the third stage of the McDonnell Douglas paradigm, that is, has the employee produced sufficient evidence for a reasonable jury to find the employer’s reason was not the actual reason and that the employer intentionally discriminated on the basis of a protected category, citing Hicks,  Aikens.

At this stage,showing the employer’s explanation was pretextual, the most common method is to show that other employees outside the protected class were treated more favorably.  Alternatively, the employee may demonstrate that the employer is making up or lying about the underlying facts that formed the predicate for the adverse action against the employee.  But if the employer’s stated belief about the underlying action is reasonable in light of the evidence, then there is no basis to permit the jury to conclude the employer is lying.  That is, even if incorrect, the employer’s taking action based on a good faith belief under the circumstances may be sufficient.

In Brady’s case, he contended the incident of harassment did not occur, but that his accusers were racist and made up the incident.  He claimed this issue should go to the jury as it is an issue of credibility for the jury to decide.  But the court determined that the question is not whether the crotch grabbing incident occurred, but whether the employer honestly and reasonably believed the underlying harassment occurred.  Brady did not show that the decision by the Sergeant at Arms, after an independent investigation, was dishonest or unreasonable. 

The court concluded that to follow Brady’s contentions would make all incidents of discipline or other employment actions subject to suit, simply where the employee denies the underlying accusations of misconduct.  This would “wreak havoc on district courts” and put employers in a “damned-if-you-do and damned-if-you-don’t” posture when addressing discriminatory issues in the workplace.

Brady also contended that the Sergeant at Arms overreacted and adopted a “hair trigger” approach to the reported incident.  But the court pointed out that employers are free to uniformly enforce a policy against any suggestion of sexual harassment in the workplace, and it is not the Judiciary’s place to micro-manage the employer’s sexual harassment policies when resolving a discrimination claim.

Brady v. Office of the Sergeant at Arms, US House,  ____F.3rd___, No. 06-5362 (DC Circuit, March 28, 2008).