En Banc MS Supreme Court Weighs In on ADEA Pretext Case

In Cash Distributing v. Neely (Miss. Jan. 25, 2007) (en banc), the Mississippi Supreme Court found in a 5-3 en banc decision an ADEA plaintiff may prevail at trial without rebutting all of the employer's nondiscriminatory reasons.  The court found that United States Supreme Court precedent required only that the plaintiff rebut the employer's nondiscriminatory reasons for the discharge by persuading the jury that, true or not, the reasons offered by the employer were not the motivating reasons for his discharge. (The use of the motivating reasons language seems to fit with mixed motive analysis.  It does not appear, however, that mixed motive analysis played any role in this case.).

I think the majority has it right, given language from Reeves, quoting Hicks.  In particular:

The factfinder’s disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant’s proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination.

In particular, I don't think the plaintiff need show that the employer's nondiscriminatory reasons are false, but merely that those reasons did not cause the employee to lose his or her job. Such a finding, along with establishment of the prima facie case by the plaintiff, should permit (not require) a factfinder to find unlawful discrimination on the part of the employer.

We have not heard the last on this issue.  It bears mentioning that this case goes against a substantial amount of contrary existing precedent in the 3rd, 5th,  7th, and 11th Circuits, which all require rebuttal  by the plaintiff of each and every nondiscriminatory reason offered by the employer in order for an employment discrimination plaintiff to prevail in a pretext case.

The Supreme Court should decide, once and for all, that these Circuit Courts' understanding of McDonnell Douglas and Burdine is a far too restrictive reading of what plaintiffs should have to establish in Title VII/ADEA  pretext cases in order to prevail.

Hat Tip:  Ross Runkel

PS