The same actor inference reasons that a supervisor who hires or shows favorable treatment to an employee in a protected category will not later discriminate against the same employee. This inference provides strong support for an employer's motion for summary disposition. This article will explain the origins of the same actor inference and discuss Michigan and federal cases which explain the inference.
Origins of the Same Actor Inference
The Fourth Circuit first used the same actor inference in Proud v Stone. Proud, who was 68 years old, applied for a position with the Department of Army. On his application, he wrote his date of birth. Robert Klauss, the hiring decision maker, made a chart comparing the qualifications of the seven applicants. One of the columns listed each applicants age. Proud was the oldest applicant, and two of the applicants were under 40 years of age. Finding Proud the most qualified candidate, Klauss hired Proud on June 14, 1985. Klauss immediately began having performance problems with Proud and counseled him on two occasions. During the second counseling session, Proud was told that adverse action would occur if his performance did not improve. A month later, six months after Proud was hired, Klauss recommended Proud's termination. Proud brought suit alleging age discrimination in violation of the Age Discrimination in Employment Act. At the close of Proud's proofs at trial, the lower court dismissed the case pursuant to FRCP 41(b).
On appeal, Proud argued that his performance problems were caused by lack of training, difficulty in obtaining necessary information, inaccurate information and the Army's failure to assign him to the job he was hired for. Rather than rebut each of Proud's contention, the court examined whether Proud presented evidence which proved age was a determining factor in the decision to discharge him. Addressing this issue, the court stated:
In assessing whether Proud established that age was a motivating factor for his discharge, we focus on the undisputed fact that the individual who fired Proud is the same individual who hired him less than six months earlier with full knowledge of his age. One is quickly drawn to the realization that "[c]laims that employer animus exists in termination but not in hiring seem irrational." From the stand point of the putative discriminator, "[i]t hardly makes sense to hire workers from a group one dislikes (thereby incurring the psychological costs of associating with them), only to fire them once they are on the job." Donohue & Siegelman, The Changing Nature of Employment Discrimination Litigation, 43 Stan. L. Rev. 983, 1017 (1991).
Therefore, in cases where the hirer and the firer are the same individual and the termination of employment occurs within a relatively short time span following the hiring, a strong inference exists that discrimination was not a determining factor for the adverse action taken by the employer.
The court did recognize that egregious factual scenarios might exist where courts should not use the same actor inference. However, the court found that where the same individual hires and fires the employee the inference will make cases involving this situation amenable to resolution at an early stage. The court concluded that the fact that Klauss hired and fired Proud within a short period of time made any inference of discriminatory animus unwarranted.
The court dismissed the argument that this analysis conflicted with the shifting burden of proof analysis announced in McDonnell Douglas Corp. v Green. The court held,when the hirer and firer are the same individual, there is a powerful inference relating to the ultimate question` that discrimination did not motivate the employer, and the early resolution of this question need not be derailed by strict fealty to proof schemes. However, the court went on to analyze Proud's claim under the McDonnell Douglas shifting burden of proof analysis. The court found that the same actor inference would prevent a plaintiff from proving pretext in most cases.
Finally, the court concluded that its holding advanced the aims of the ADEA. The court reasoned that by allowing employers to discharge new hires who failed to perform, the rule allowed employers to hire older workers without the fear that the employer would face an age discrimination law suit if it fired the employee soon after it hired him or her. The court concluded, Courts must promptly dismiss such insubstantial claims in order to prevent the statute from becoming a cure that worsens the malady of age discrimination.
Other Federal Court's Adopt the Same Actor Inference
Since Proud, many federal court's have adopted the same actor inference. The courts have applied the inference to cases alleging violations of Title VII as well as the Americans with Disability Act. Courts have also applied the inference even though there were a number of years between the plaintiff's hiring and discharge.
Buhrmaster v Overnite Transportation Company is an example of how federal circuit court's are applying the same actor inference. Buhmaster, a female, was hired by Charles Littleton, the manager of defendant's Dayton terminal. Buhmaster worked for defendant for seven and a half years and received several promotions culminating in her appointment as office manager. When several employees complained about Buhmaster's management style, defendant investigated the complaints, and Littleton decided to discharge her. Buhmaster brought an action alleging sex discrimination. At trial, the judge gave the jury an instruction on the same actor inference. The jury returned a verdict for defendant.
On appeal, plaintiff argued that the same actor inference only applied to age discrimination cases and should not apply where the plaintiff was hired seven years before her discharge. The court rejected the plaintiff's argument that the inference only applied to age cases. The court reasoned that a person who was willing to hire or promote an individual in a protected class was unlikely to fire the individual because he or she was a member of that class. The court ruled that the same actor inference could be used to defeat a claim of age, race, sex, or any other type of discrimination.
Addressing Buhrmaster's argument that the passage of time prevented the use of the inference, the court recognized that the length of time between the hiring and the discharge might affect the strength of the inference. However, the court reasoned that in discrimination cases where the employee's class does not change, it remains possible that an employer who had nothing against women per se when it hires a certain female will have nothing against women per se when it fires that female, regardless of the number of years that pass. Thus, a short period of time was not an essential element of the same actor inference, at least in cases where the plaintiff's class does not change.
Other courts have used the inference in cases other than discharges. In Evans v Technologies Applications, Evans was hired by Gary Houseman as a inspector in June, 1991. In December, 1991, Evans informed defendant that she was interested in obtaining a supervisory position. While Evan's received good evaluations from Houseman, he did note that she was moody and disciplined her and a male employee for squabbling on the job. Between 1992 and 1993, the position of Quality Control Supervisor became vacant twice. The first time the position was filled by a male. The second time, the position was eliminated and its responsibilities were given to a male employee. Evans brought an action alleging in part that she was not promoted because of her sex. The lower court, granting defendant's motion for summary judgment, dismissed Evans's action.
On appeal, Evans argued that the lower court failed to apply the proper standard in granting summary judgment. The court noted that because Houseman was the same person who hired and refused to promote Evans, there was a powerful inference that the failure to promote was not motivated by discriminatory animus. The court used the McDonnell Douglas shifting burden of proof analysis finding Evans failed to present evidence of sex discrimination in the promotional decision.
Federal Court's Limitations on Use of The Inference
Not every court has applied the same actor inference. In Waldron v Sl Industries, Waldron was 61 years old when he was hired as a consultant by defendant in the spring of 1989. A year later, Waldron was appointed electrical marketing manager. His position was later combined with the electronic marketing manager's position and Waldron was appointed to the new position. In 1991, the positions were again separated and Waldron was discharged. Ed Brown, a 32 year old employee was appointed to the electronic marketing managers position, but the defendant never filled the electrical marketing managers position. The defendant argued that Waldron was not appointed to that position because he failed to go after key accounts while he occupied the combined positions. The two positions were again combined 18 months later, and Brown was appointed to the combined position. Waldron brought an action alleging age discrimination. The lower court granted the defendant's motion for summary judgment finding that while Waldron presented facts which discredited the defendant's proffered nondiscriminatory reasons for his discharge, he failed to present evidence that showed that the real reason for his discharge was discriminatory animus.
On appeal, the Third Circuit found that once the plaintiff established a prima facie case and presented facts which call the defendant's proffered nondiscriminatory reasons into question, the case had to go to a jury. The court then examined the evidence to determine if there was a question of fact concerning the proffered nondiscriminatory reason. In a footnote, the court refused to follow Proud. Rather, the court adopted the position advanced by the Equal Employment Opportunities Commission. The court held that the defendant could argue that the same actor hired and fired the plaintiff but that this was merely evidence which should not be given presumptive value. The court then examined all the evidence and found that Waldron raised a material issue of fact concerning the defendants nondiscriminatory reasons for his discharge. The court reversed the lower court and remanded the case for trial.
Likewise, in Thurman v Yellow Freight Systems, Inc., the plaintiff, a former casual employee, sued the defendant for race discrimination alleging his former employer failed to hire him to a permanent position. The Court affirmed the district court's finding that the plaintiff established that the reason given by the employer was a pretext for intentional race discrimination. The Court noted that the defendant's reasons required careful scrutiny because the criteria for hiring casual employees were subjective, and because of the defendant's failure to meet the minority hiring goals of a prior consent decree to which it was a party. The Court rejected the employer's argument that there was an inference of nondiscrimination where the same person who hired the plaintiff as a casual employee also rejected him for the permanent position. The Court found that the same actor inference was rebutted by the evidence that the reason for not hiring the plaintiff was false.
The Michigan Supreme Court's Use of the Inference
In McConnell v Rollins Burdick Hunter of Michigan Incorporated, four justices of the Michigan Supreme Court addressed the issue of the same actor inference. McConnell, who was 55 years old, was hired as a sales representative in July, 1988. During 1989, McConnell was warned that if his revenues did not increase defendant would have to make some adjustment. When his sales did not improve, he was discharged in January, 1990. He brought an action alleging age discrimination which the lower court dismissed on defendant's motion for summary disposition. On appeal, the Court of Appeals initially affirmed the lower court but on rehearing remanded the case for trial on McConnell's age claim.
On appeal, the Supreme Court first addressed a plaintiff's burden of demonstrating the defendant's nondiscriminatory reason was a pretext for intentional discrimination. The Court held that to avoid summary disposition, the plaintiff had to present a material issue of fact on which reasonable minds could conclude that the employer's stated reason was a pretext for discrimination. Turning to the evidence presented by McConnell, Justice Brickley, joined by Justices Boyle and Weaver, found that McConnell failed to demonstrate that a similarly situated younger employee was treated more favorably. Justice Brickley, relying on Proud, acknowledged the fact that McConnell was only employed by defendant for a relatively short period of time. Justice Brickley rejected McConnell's argument that the same actor inference should not apply because he was really transferred not hired by defendant. Justice Brickley applied the same actor inference because the person who transferred McConnell was the same person who discharged him. Justice Brickley concluded, Taking the above inference in combination with the paucity of McConnell's other evidence, we conclude that he did not submit evidence of pretext sufficient to enable a reasonable fact finder to infer that the employer's decision had a discriminatory basis.
Justice Riley concurred with Justice Brickley but disagreed with his use of the same actor inference. Justice Riley disagreed that McConnell was hired by the same actor that discharged him finding that he was transferred when his previous company merged with the defendant. Citing Waldron v SL Industries, Inc., Justice Riley also argued that even if McConnell was hired and discharged by the same actor, this was just evidence and should not be given any presumptive value.
The vast weight of federal authority supports the use of the same actor inference in discrimination cases. The majority of the circuits and lower courts that have addressed the inference have adopted it and have used it in a variety of cases including age, race, sex, national origin and disability. They have also used the inference even where the period between the hiring and the discharge was a long period of time. When used, the inference results in the dismissal of the plaintiff's discrimination action.
For plaintiff's attorneys who must argue against the inference, it is important to develop facts which demonstrate some type of discriminatory intent. In cases where courts have refused to apply the inference, the plaintiff was able to produce evidence that employees outside the protected class were treated more favorably than the plaintiff. Discriminatory statements by the decision maker have also been used to defeat the inference. Absent some evidence of discriminatory intent on the part of the decision maker, plaintiffs faced with the same actor inference could have their case dismissed at an early stage of the proceedings.