Same-actor inference insufficient to warrant summary judgment for employer where employee has raised other issues of material fact

Law Reporter, Jun 2003

Wexler v. White's Fine Furniture, __ F.3d __, No. 99-3929, 2003 WL 169763 (6th Cir. Jan. 27, 2003).

The Sixth Circuit Court of Appeals held that the same-actor inference-that discrimination was not the determining factor where the same individual hires and then shortly thereafter fires an employee-is not a mandatory inference, and is an insufficient basis for awarding an employer summary judgment on a discrimination claim where the employee raises genuine issues of material fact.

Here, Wexler, 59, was a manager at a furniture store. The president of the company had hired Wexler as a sales representative when Wexler was 55, and had promoted Wexler a year and a half later.

After the store where Wexler worked experienced a decrease in sales, Wexler was demoted. In explaining Wexler's demotion to other store employees, the president made disparaging remarks about Wexler's age, while the youth of the incoming sales manager was mentioned as a positive factor. On other occasions, company officials made pejorative comments concerning Wexler's age.

Wexler sued the furniture chain, alleging age discrimination. The trial court granted defendant summary judgment. A panel of the circuit court affirmed, and plaintiff petitioned for a rehearing en banc.

Reversing, the Sixth Circuit stated that criticism of an employee's performance-even if true-which is linked to stereotypes associated with a plaintiff's membership in a protected class is analyzed under the mixed-motive rubric presented in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The association of stigmatizing beliefs widi an adverse employment decision creates a genuine issue of material fact as to whether the employer was motivated, at least in part, by discrimination based on the stereotypes.

In this case, plaintiff had submitted evidence indicating that management held certain stigmatizing beliefs about age, which came out in the discussions around plaintiff's demotion. The factfinder could reasonably conclude that the statements reflected discrimination and a discriminatory intent. The statements were made by a decisionmaker, they indicated a belief that a store manager's capabilities diminish with age, and several of the statements were made while the decisionmakers were carrying out die plaintiffs demotion, the court noted.

In an employment discrimination case such as this one where the same individual hired plaintiff and then fired him within a relatively short time, an inference exists that discrimination was not the determining factor in the firing. The different circuit courts give various weight to the same-actor inference, the court noted.

An approach giving the inference less weight is more consistent with the requirement that in considering a motion for summary judgment, the court must view the evidence and draw all reasonable inferences in favor of the nonmoving party, the court reasoned. The court therefore held that where a factfinder chooses to draw the same-actor inference, the inference by itself is insufficient to warrant summary judgment for a defendant employer when the employee has otherwise raised a genuine issue of material fact.

Accordingly, the court reversed.

Plaintiff's Counsel

Louis A. Jacobs, Columbus, Ohio

*John S. Marshall, Columbus, Ohio