5th Circuit Affirms Ruling Against Bias Claim

August 25, 2011 (PLANSPONSOR.com) – The 5th U.S. Circuit Court of Appeals has affirmed a summary judgment ruling for an employer accused of race and age bias in terminating an employee.

The appellate court noted that a plaintiff must produce substantial evidence that the defendant’s nondiscriminatory reason for a termination is merely a pretext for illegal discrimination. It found that Norman G. Gobert did not offer “substantial” evidence of pretext sufficient to overcome summary judgment.  

According to the opinion, as evidence of pretext, Gobert points to his favorable performance review about a month before the termination, as well as previous positive reviews and an earlier promotion; a white co-worker’s alleged comment to other co-workers that they should “be careful what you say in front of [Gobert] because [he] is black;” and the employer’s approval of cell phones for some white IT employees, but not for Gobert.  

The court said the performance reviews and the promotion do not speak to Gobert’s actions immediately preceding his termination—the actions that Saitech Incorporated says caused his termination. He does not point to any evidence disputing that he failed to monitor the processing of documents for over a week.  

In addition, the court found the fact that he previously received positive performance reviews by the same supervisors who fired him suggests, if anything, a lack of racial or age-based animus.  

As for the isolated comment by the co-worker, Gobert does not in any way connect it to his supervisors, let alone to their actions in terminating him. And he admits his supervisors did not make inappropriate comments.  

The court also said there was conflicting evidence about whether cell phones were available only to supervisors – which Gobert was not – or also to some lower-ranking employees.  

The 5th Circuit’s opinion available is at http://www.ca5.uscourts.gov/opinions/unpub/10/10-61004.0.wpd.pdf.