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Publications : Bar Bulletin : March 2006

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Fourth Circuit Decision Suggests "Flexibility" in Prima Facie Cases

In November 2005, the U.S. Court of Appeals for the Fourth Circuit issued its decision in Miles v. Dell, Inc, creating a fourth exception to the requirement that a Title VII plaintiff demonstrate, as part of his or her prima facie case, that "the position [from which the plaintiff was terminated or to which the plaintiff was not hired] remained open or was filled by similarly qualified applicants outside the protected class." Since then, the Fourth Circuit has applied Miles to allow "flexibility" in proving various prongs of the plaintiff's prima facie case of discrimination. By reiterating the importance of allowing flexibility when a plaintiff is proving a prima facie case of discrimination, Miles may have opened the door for future exceptions to the requirement that a plaintiff meet all four prongs of the prima facie case to survive a motion for summary judgment where a plaintiff demonstrates that factual circumstances warrant one.

In McDonnell Douglas Corp. v. Green, the Supreme Court established that "[t]he complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of … discrimination." After the complainant satisfies that initial burden, "[t]he burden must then shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee's rejection."

The Fourth Circuit articulated a Title VII complainant's prima facie case of discrimination, as recounted in Hill v. Lockheed Martin Logistics Mgmt.: "the plaintiff must show that (1) she is a member of a protected class; (2) she suffered adverse employment action; (3) she was performing her job duties at a level that met her employer's legitimate expectations at the time of the adverse employment action; and (4) the position remained open or was filled by similarly qualified applicants outside the protected class."

The Miles decision reconsidered the fourth prong. Before Miles, the Court recognized three exceptions to the fourth prong: (1) in age discrimination cases where a plaintiff within the protected class is replaced by another member of the same class who is significantly younger, (2) where there has been a significant lapse of time between the plaintiff's application and the employer's eventual decision to hire another member of the same class, and (3) where the employer's hiring of another member of the protected class is calculated to disguise its act of discrimination toward the plaintiff.

Miles added a fourth exception: "where … firing and replacement hiring decisions are made by different decision-makers." To reach that conclusion, the Court noted that the Supreme Court did not mandate the fourth prong of the prima facie case and determined that exceptions to that prong could be granted in "categories of cases that call for an exception." To determine whether an exception was called for, the Court considered the rationale for the fourth prong: replacement of a terminated employee by a member of the same class gives rise to an inference that the firing was based on a reason other than the plaintiff's membership in a protected class and therefore non-discriminatory.

In light of that rationale, the Court concluded that an exception was appropriate where the hiring and firing decision-makers were different. If one person rendered the decision to fire a complainant, a second person's later decision to hire another member of the protected class has no probative value as to the motives of the firing.

Miles leaves open not only the possibility of future exceptions to the fourth prong but additional flexibility in considering the other elements of the prima facie case requirement. In Warch v. Ohio Casualty Ins. Co., the Fourth Circuit, citing Miles, discussed the "flexibility" inherent in the prima facie case framework established in McDonnell Douglas. In Warch, the Court concluded that "[t]he same [flexibility] requirements apply to the legitimate expectations and qualifications prongs of the prima facie case."

The Fourth Circuit's decision in Miles reinforces the purpose of the prima facie case – to weed clear cases of non-discrimination from a court's docket by requiring the plaintiff to make basic demonstrations from which inferences of discrimination may be drawn. Rather than rigidly impose the prima facie case requirements, however, the Fourth Circuit has signaled its intention that the courts remain "flexible" in their analysis of prima facie cases. In the Warch decision, the Fourth Circuit has indicated that the flexibility arising from the Miles exception is to be employed in reviewing every prong of the prima facie case.

Megan Mechak is an associate in the Baltimore office of the law firm of Tydings & Rosenberg LLP. Her practice includes bankruptcy and creditors' rights as well as commercial litigation.

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Publications : Bar Bulletin: March 2006

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