The Fifth Circuit has resurrected the old pretext plus formula which we had once been dispensed with in Reeves v. Sanderson Plumbing Products, 530 U.S. 133 (2000). Reeves itself over-ruled a prior decision by the same Fifth Circuit. Some lessons, it seems, are never truly learned.

In the recent case of Owens v. Circassia Pharmaceuticals, No. 21-10760 (5th Cir. 5/13/2022), the Fifth Circuit issued addressed the case of a senior female manager who complained about gender discrimination at Circassia. The plaintiff claimed to have reported sex discrimination to her boss. The boss and an HR representative deny that Ms. Owens mentioned sex discrimination. The Court does not take a side, but it did not cite the familiar refrain that in addressing summary judgment, the court should always accept the facts posed by the non-movant. This suggests the court did take a side, but refrained from mentioning which persons it believed.

Highly Ranked

About six weeks after Ms. Owens’ complaint, she was placed on a Performance Improvement Plan (PIP). Yet, she had “solid” performance reviews at this point. And, her sales team consistently ranked among the best in the company. The court adds that the company did not consider sales be the “ultimate” metric for success. Which is an odd comment to make at  the summary judgment stage. The court, it seems, is again accepting the word of the employer’s witnesses over that of the employee. Indeed, in what company is it normal that revenue is not the “ultimate” metric of success? The court appears to have accepted the employer’s assertion at face value. It does not question an assertion that stretches credulity.

Owens later re-asserted again to HR that she believed she was being discriminated against – via this PIP based on her gender. Not surprisingly, the PIP did not go well. The boss said Owens’ performance was sub-par. Owens asked for examples of how her performance was low. Owens again emailed HR, saying she was being discriminated against. Her subordinates were being promoted. Her team still ranked high in the sales goals. Yet, the boss claimed she did not develop her subordinates. She told HR she was being evaluated based on subjective criteria. The boss continued to insist she was performing poorly.

But, the opinion recounts no examples of her supposed poor performance. Neither does it explain the nature of the criteria against which she was being judged. If the boss’ criteria was not subjective, what were his standards? The opinion ignores important points of this case. That omission suggests this evidence does not support the court’s opinion. Owens was then fired three days before the planned end date of her PIP.

Pretext Plus

The Fifth Circuit rightly views this as a circumstantial evidence case. It noted that Owens was replaced by a white male, even though the employer denied that assertion. The court argues that showing falsity of the employer’s explanation for the termination is not “necessarily” enough to show pretext on the part of the employer. Yet, Reeves says:

 ” . . . 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.”

Reeves, at p. 148. That passage does indeed provide that a jury “may” find discrimination solely based on the employer’s false explanation. The employer is in the best position to know why it fired someone, said the Reeves court. The Owens court even cites to this particular passage. Yet, it somehow concludes that the word “may” means the Judge can preclude the jury from making this determination. That is, the Fifth Court claims the court can make a factual determination regarding how strong the evidence of pretext is. But, in so doing, the court necessarily substitutes its judgment of the evidence for that of the jury.

The decision in Reeves does indeed allow that there will be instances in which the evidence of pretext is “weak.” That is, there will be cases in which the evidence that the employer was lying is weak. But, it meant not some sort of qualitative analysis, but more the wrong evdience.  The Reeves court mentions such instances as when the employer gives false testimony about something other than discrimination. Reeves, at 148.

But, here, Owens’ evidence does indeed address the alleged discriminatory motive. She claims, for example, that comparing her to the other managers, she conducted more field rides with her team. Her team performed well compared to other teams. The court, however, rejects this testimony, because, says the Court, Owens’ testimony is “conclusory.” Conclusory usually means a statement which lacks supporting facts for its assertion. But, in this instance, that seems silly. What more supporting facts would we need to show that Owens’ team performed well compared to other teams? Is the court insisting the plaintiff attach sales reports to her statement? Firsthand observation is always competent testimony. To show she conducted more field rides, should Owens have attached copies of the field ride reports to her statement? No, these facts, as presented by Owens, are sufficient. They are facts which the employer can rebut, or not.

Remarkably, the court notes that the HR representative conceded that Owens’ team outranked other teams, whose managers were not placed on a PIP. But, the court discounts this testimony, saying there is no evidence those other managers were comparable to Owens. Say what? They are managers of a team as Owens was, yet, that is somehow not necessarily comparable? That is an argument for the employer to make, not for the court. This was the HR representative’s testimony, after all. The HR person believed the comparison to be valid. But, the Fifth Circuit, who has never worked for Circassia Pharmaceuticals, does not. In addressing summary judgment, the court ought to be able to rely on comparisons made by the employer’s own HR person.

Plaintiff’s Best Argument

The plaintiff also pointed out the frequent praise of Owens’ team, all while claiming Owens herself was deficient in developing her team. Her team members were promoted, after all. The Fifth Circuit admits this was her strongest argument. But, the Court then asserts that while this evidence may allow the jury to find pretext on the part of the employer, that evidence is still not strong enough to conclude discrimination motivated the employer’s decision. This assertion simply turns Reeves on its head. It adds a wrinkle to Reeves by requiring not simple pretext, but pretext which would also support an inference of discrimination. Yet, Reeves said explicitly that falsity of that very explanation alone can support a jury finding of discrimination. Anything more than validity of the explanation is pretext plus.

“In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose.”


” . . . it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer’s explanation.”

Reeves, at p. 147.

The Overruled Decision

Consider the Fifth Circuit’s language in Reeves v. Sanderson Plumbing Products, 197 F.3d 688 (5th Cir. 1999), the decision which the Reeves Supreme Court overturned:

” . . . Because Reeves failed to offer evidence sufficient to prove both that this [articulated] reason is untrue and that age is what really triggered Reeves’s discharge . . “

Reeves, at 692. That sentence is pretext plus. Asking for both pretext and some evidence of discrimination is pretext plus. The Supreme Court explicitly said this language was wrong, because it required something more than simple falsity of the employer’s explanation. Yet, this language is very similar to that used in the Owens decision. The Owens decision is adding new requirements to the central holding of Reeves. See the Owens decision here. As Yogi Berra once said, its deja vu all over again.