The Fifth Circuit has again applied a “pretext plus” formula to affirm a grant of summary judgment. In Harville v. City of Houston, Mississippi, No. 18-60117 (5th Cir. 8/16/2019), the City fired a deputy clerk. The City Clerk, Margaret Futral, testified that Mary Harville was an essential deputy clerk who worked on taxes. The Board of Aldermen made the decision to lay off Ms. Harville, saying the City was facing a funding shortage. The Board testified they believed working on taxes was seasonal, so they selected Ms. Harville, from among four deputy clerks for the layoff.
The plaintiff, however, countered that Ms. Futral testified that taxes were not a seasonal need. She was the City Clerk. She ought to know. But, the court pointed to one question in her deposition in which she was asked if the Board believed taxes were seasonal work. Ms. Futral’s answer was “You know, I don’t know. I guess they did. They said it.” The court found this ambiguous response showed that the Board believed the job was seasonal, even if they were wrong. The court did not explain how a City Clerk can speak for the entire Board. On re-hearing, the panel reached the same conclusion, that the Board sincerely believed, however wrongly, that Ms. Harville’s job was seasonal. If true, that seasonal rationale would present a non-discriminatory reason for the layoff.
But, the context here is summary judgment. The court should not be engaging in fact-finding. It should simply determine some minimal level of factual dispute. The plaintiff presented some evidence of pretext on the part of the employer. But, the Fifth Circuit is asking for something more than pretext. It is asking for pretext plus. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000) specifically provided that showing the falsity of the employer’s explanation would require that the jury decide the case, not the judge. This decision in Harville betrays a fundamental lack of understanding of the Reeves decision.