in a recent decision, the Fifth Circuit in New Orleans reversed summary judgment.  In Johnson v. Maestri-Murrell Property Management, LLC, No. 11-30914 (5th Cir. 8/14/12), the EEOC found in favor of the employee, a very rare event.  Yet, the lower court granted summary judgment in favor of the employer.  

The Plaintiff had direct evidence of discriminatory bias.  Ms. Johnson applied for a job as an assistant manager for an apartment property.  Ms. Johnson was black.  According to an employee of the apartment complex, the manager commented that she did not think the owners would want a black assistant manager.  The manager made notes on all the resumes, other than Ms. Johnson’s, an indication that she did not consider Ms. Johnson’s resume.  The property manager never interviewed Ms. Johnson.  The manager later hired a Caucasian woman for the position.  

That is strong evidence of discrimination.  Ms. Johnson was fortunate to have such evidence.  Only rarely does an applicant learn why they were not selected for a particular position.  It is remarkable that the district court would grant summary judgment in the face of this sort of evidence.  The property owners defended themselves, saying Ms. Johnson did not have experience in the field.  But, the person actually selected also lacked experience in managing apartments.  The lower court rejected the discriminatory comments because, said the district court, it is not clear whether they were made before or after the decision to hire the Caucasian applicant.   But, as the Fifth Circuit explained, the timing is less important than the content of the remarks.  They show a clear discriminatory intent regardless of when they were uttered. 

Viewing the evidence in favor of the non-movant, the court finds sufficient evidence upon which the jury could find in favor of the employee.  That means summary judgment is not appropriate. 

The Fifth Circuit correctly noted that on appeal, the court reviews the evidence de novo (i.e., without giving weight to what the lower court decided).  The court did not decide whether this evidence was direct or circumstantial, noting that either way, the Plaintiff had established a prima facie case of discrimination.  The district court should have denied the employer’s motion for summary judgment.  The Fifth Circuit did not mention the now discredited "stray remarks" doctrine in the decision. 

The Fifth Circuit got it right.  This decision is all the more remarkable since one of the more conservative judges, Edith Jones, sat on the panel.  See decision here.