USERRA Certified question to U.S. Supreme Court

July 5, 2013

USERRAUSERRA Certified question to United States Supreme Court. Burden of production versus Burden of Persuasion

Under the Uniform Services Employment and Reemployment Rights Act, once a Plaintiff establishes a prima facie case of employment discrimination does the Defendant maintain the burden of production cited in McDonnel Douglas v. Corp. v. Green, or the burden of persuasion cited in NLRB v. Transportation Management Corp., that its articulated reasons are not pre-textual and were the true and real reasons behind its adverse action?

II. CERTIORARI SHOULD BE GRANTED SINCE THE DISTRICT COURT AND THE ELEVENTH CIRCUIT DETERMINED THAT IN USERRA CASES THE DEFENDANT CARRIES THE BURDEN OF PRODUCTION THAT ITS ARTICULATED REASONS FOR ADVERSE ACTION WERE PRETEXTUAL WHICH IS INCONSISTENT WITH OTHER CIRCUITS WHICH DETERMINED THAT THE DEFENDANT CARRIES THE BURDEN OF PERSUASION THAT ITS ARTICULATED REASONS ARE NOT PRETEXTAUL AND THE TRUE AND REAL REASONS BEHIND ITS ADVERSE ACTION.

In affirming the District Court’s grant of summary judgment in this USERRA case, the Eleventh Circuit applied one of its leading Title VII cases, Jackson v. State of Ala. Tenure Comm’n, 405 F.3d 1276, 1289 (11th Cir. 2005):

A plaintiff may establish pretext indirectly by showing that an employers’ proffered reasons for its decision is unworthy of credence. Under this analysis courts must evaluate whether the plaintiff demonstrated such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the proffered reason so that a reasonable fact finder could conclude that it is unworthy of credit.

The Eleventh Circuit went on to find that, “[the Plaintiff] has not sufficiently demonstrated pretext…. [the Plaintiff] has not demonstrated that the Fire Department’s reasons have shifted so as to permit a reasonable jury to infer pretext, [f]or example, the Fire Department proffered.” Landolfi v. Melbourne, Case No.: 12-14295 (11th Cir. April 5, 2013).
The Eleventh Circuit’s holding that Plaintiff is required to demonstrate that the Defendant’s articulated reasons are pretextual fails to shift the burden of persuasion onto the Defendant and is contrary to other Circuits which hold that in USERRA cases the Defendant carries the burden of persuasion that it would have behaved the same notwithstanding the Plaintiffs involvement in protected activity. see Velazquez-Garcia v. Horizon Lines of Puerto Rico, Inc., 473 F.3d 11, 20 (1st Cir. 2007) (stating the district court articulated the rule correctly however proceeded to follow McDonnel Dougless keeping the burden on Velazquez by holding employer was entitled to act, justified in its actions, and that employee failed to produce evidence that would lead Court to believe adverse action was pretextual); Leisek v. Brightwood Corporation, 278 F.3d 895, 900 (9th Cir, 2002) (stating the employer has not established as an uncontroverted fact that it would have engaged in adverse action absent the employees protected activity); Sheehan v. Department of the Navy, 240 F.3d 1009, 1013 (D.C. Cir. 2001) (stating the employer then has the opportunity to come forward with evidence to show, by a preponderance of the evidence, that the employer would have taken the adverse action anyway, for a valid reason); Maxfield v. Cintas Corp. No. 2, 427 F. 3d 544, 551 (8th Cir. 2005) (stating unlike the McDonnell Douglas framework [utilized in Title VII claims], the procedural framework and evidentiary burdens set out in section 4311 shift the burden of persuasion, as well as production, to the employer); Escher v. BWXT Y-12, LLC, 627 F. 3d 1020, 1026 (6th Cir. 2010) (stating burden of production and persuasion shifts to the employer); Hill v. Michelin North America, Inc., 252 F. 3d 307, 312 (4th Cir. 2001) (stating USERRA then shifts the burden of proof to the employer, allowing the employer to avoid liability only if the employer can prove that the action would have been taken in the absence of the protected activity); Gummo v. Village of Depew, New York, 75 F.3d 98, 106 (2nd Cir. 1996) (stating that employer may escape liability by showing as an affirmative defense it would have made the same decision).

Although this Court has not directly taken up the issue of a Defendant’s burden of persuasion in USERRA cases this Court should also find that the Eleventh Circuit’s decision is inconsistent with previous controlling Supreme Court decisions. NLRB v. Transportation Management Corp., 463 U.S. 393, 403 (1983) (stating that after employee establishes a prima facie case shifting the burden proof onto the employer to justify its adverse action as an affirmative defense is a reasonable construction of the National Labor Relations Act); see also Director, Office of Workers’ Compensation Programs v. Collieries, 512 U.S. 267, 275-76 (1994) (stating burden of proof means burden of persuasion and Transportation Management holding remains intact).

In addition the Eleventh Circuit and District Court by placing the burden of production on the Defendant instead of the burden of persuasion, are inadvertently making credibility assessments regarding the Defendant’s justifications because the Courts, by placing only the burden of production on the Defendant, is operating under an incorrect procedural mechanism that all the justifications given by the Defendant are automatically true and thus taking as true and giving credence to evidence that favors the Defendant in their own Motion for Judgment as a Matter of Law under Fed. R. Civ. P. 56.

This approach, when the Defendant is supposed to have the burden of persuasion is inconsistent and cannot be reconciled with a Motion for Judgment as a Matter of Law as this Court stated in Reeves, 530 U.S. at 151, which holds that, “the Court must disregard all evidence favorable to the moving party that the jury is not required to believe. The Court should give credence to the evidence favoring the nonmovant as well as that evidence supporting the movant that is uncontradicted and unimpeached, at least to the extent that it comes from disinterested witnesses.” see also Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986).

More Information: For more information, please visit our userra military discrimination page
Attorney: Maurice Arcadier and Stephen Biggie
Status: Pending
Date Filed: July 5th, 2013

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