Dora Vivaz, Senior Attorney, National Legal Research Group
Inferences have always played an important role in the analysis of discrimination cases, because direct evidence of discrimination is rare, and such cases, therefore, most often depend on circumstantial evidence. Accordingly, a plaintiff may establish a prima facie case of discrimination by showing circumstantial evidence sufficient to support an inference of discrimination. By the same token, the evidence may allow inferences that benefit the defendant.
In the employment discrimination context, one such inference is the "same actor inference," which allows the factfinder to infer that when the person who took the adverse employment action against the plaintiff is the same person who hired the plaintiff, the adverse action was probably not based on unlawful discrimination. As the court noted in a recent case, there is a split amongst the circuits as to whether the inference is mandatory or permissive and as to whether it may be relied upon as a basis for summary judgment. See, e.g., Garrett v. Sw. Med. Clinic PC, No. 1:13-cv-634, 2014 WL 7330947 (W.D. Mich. Dec. 19, 2014) (text available only on Westlaw).
Garrett argued that the inference is not mandatory and that it cannot compel summary judgment, in any case. In addressing these issues, the court referenced an earlier case, Wexler v. White's Fine Furniture, Inc., 2003 FED App. 0029P, 317 F.3d 564, 573-74 (6th Cir.). In Wexler, the Sixth Circuit had noted that some Circuits (Fourth, Eighth, and Ninth) find the inference sufficient to support summary judgment, while others (Third and Fifth) merely allow the inference but do not require it; Wexler had sided with the latter courts. The Sixth Circuit had reasoned that a mandatory inference was inconsistent with Supreme Court cases holding that at the summary judgment stage, all inferences must be resolved in favor of the nonmoving party. Therefore, although the factfinder can draw a same-actor inference, the inference is insufficient to support summary judgment for the defendant when the plaintiff has otherwise raised a genuine issue of fact. Following the Sixth Circuit, the court stated that the courts may choose whether to apply the inference on summary judgment. The court stated that although not mandatory, the inference does weaken a plaintiff's evidence of discrimination, requiring a strong showing on the issue of pretext in order to prove discrimination.
In the case before it, the Garrett court found that there was no factual issue on whether the person who made the decision to fire the plaintiff was also the sole decisionmaker in hiring her, such that the inference was applicable. It further found, however, that the inference was not mandatory or dispositive in the defendant's favor. Nevertheless, the court granted summary judgment in the defendant's favor because it concluded that Garrett's evidence of pretext was insufficient to create a genuine issue of fact on that question, highlighting again the heavy burden that discrimination plaintiffs are required to satisfy.
