It is not often that the Fifth Circuit overturns summary judgment.  The chances of that happening are about ten percent, according to one study.  I previously discussed that study here.  in Haverda v. Hays County, No. 12-51008 (5th Cir. 7/17/13), the 20 year employee Richard Haverda supported the incumbent in his race for re-election as County Sheriff.  Capt. Haverda published a letter supporting the incumbent describing his efforts regarding running the County Jail.  The incumbent lost.  So, as often happens after an election, the winning Sheriff sought to remove supporters of the opponent, in this case, the Captain of the Jail.  The new Sheriff cited problems in the jail as grounds for terminating Capt. Haverda.

 The employer moved for summary judgment and won, citing the alleged work deficiencies claimed by the new Sheriff.  On appeal, the court noted the alleged deficiencies but rejected the lower court’s finding that the employee was simply disagreeing with the employer’s assessment of his work performance.  The employee had actually asserted pretext regarding the employer’s claims, said the higher court.  If all the employee had done was to deny the allegations, that might not have been enough to create a genuine issue of fact.  But, said the Fifth Circuit, the employee also provided testimony from a co-worker that the allegations regarding Capt. Haverda’s work performance were not true.  The plaintiff also offered evidence of 20 years of positive work evaluations and an alternative explanation for a separate issue.  Such evidence, said the court, was enough to create a fact issue, whether the fact issue be "weak or strong.  Too, no jail personnel other than Mr. Haverda were terminated.   

Even though this was a First Amendment case, the same analysis would apply in any discrimination case.  The issue is whether the plaintiff can create fact issue based on more than mere conclusory allegations.  Here, the plaintiff did so, and this one time perhaps, the court was listening.