First Circuit doubles down on “Pretext-Plus” Test

The First Circuit recently reaffirmed its decision in Feliciano de la Cruz v. El Conquistador Resort & Country Club, 218 F.3d 1 (1st Cir. 2000). In Feliciano de la Cruz, the First Circuit affirmed a grant of summary judgment on a national original discrimination claim, even though the plaintiff case could point to evidence that the employer’s stated reasoning for firing her was pretextual and that the employer “hence fired her for some other reason.” The First Circuit’s reasoning was that, even though a jury could find that the plaintiff was not fired for the stated reason, the plaintiff offered no evidence that national origin discrimination was the true reason. A jury would therefore be “left to guess at the reason behind the pretext.”

The First Circuit discussed this holding in Henderson v. Mass. Bay Transp. Auth., No. 19-1720, 2020 U.S. App. LEXIS 32105, at *1 (1st Cir. Sep. 30, 2020) and held, in a 2-1 decision, that Feliciano de la Cruz’s pretext-plus standard was controlling and that the plaintiff had failed to show any evidence of discriminatory intent. The majority explained that Feliciano de la Cruz has been repeatedly applied since it was decided, and distinguished the Supreme Court’s holding in Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 148 (2000). In Reeves, the Supreme Court held that “a plaintiff’s prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated[,]” but cautioned that “[t]his is not to say that such a showing by the plaintiff will always be adequate to sustain a jury’s finding of liability. Certainly, there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant’s explanation, no rational factfinder could conclude that the action was discriminatory.” In contrast, the dissent argued that, although Feliciano de la Cruz remains good law, it was merely a “fact-dependent ruling” that was readily distinguishable. The decision highlights that, in the First Circuit, a Title VII plaintiff must generally do more than demonstrate that an adverse employment action is irrational, unfair, or even pretextual; the plaintiff must point to evidence from which a jury could reasonably conclude “that the pretext masked unlawful . . . discrimination.”

Tyler J. Smith

Tyler Smith joined Libby O’Brien Kingsley & Champion as an associate in 2012 and became a partner in 2018. He maintains a general litigation practice, with experience in criminal defense, employment law, appellate advocacy, defamation/slander, civil rights, undue influence, and other civil disputes. He is also experienced in representing professionals before professional licensing boards. In… Read more »