The Fifth Circuit giveth and the Fifth Circuit taketh away. We just talked about a poorly drafted decision in Owens v. Circassia Pharmaceuticals, No. 21-10760 (5th Cir. 5/13/2022) regarding an important employment law decision. See that post here. This Owens decision turned Reeves v. Sanderson Plumbing Products, 530 U.S. 133 (2000) on its head and required proof of pretext, plus proof of discrimination. And. now in Sears v. Zions Bancorporation, No. 21-10448 (5th Cir. 6/2/2022), the same Fifth Circuit essentially does the opposite, it finds that evidence of pretext alone may support a finding of discrimination.

The judge who wrote the Owens case also wrote the opinion for the Sears case. In Sears, the Fifth Circuit overturned the lower court’s summary judgment. Plaintiff Sears alleged age discrimination. Like the plaintiff in Owens, Sears had generally good performance evaluations. The worst evaluation came some months after the Board had already apparently decided to “transition” Mr. Sears out of his job as Senior Vice-President.

The District Court had found that Sears had failed to make out a prima facie case of discrimination. The lower court found that Sears could not show he was replaced by a younger person. But, Judge Englehardt, who also wrote the Owens decision, noted that Sears claims the had been replaced by the much younger, Askew. The employer, however, claimed Sears had not actually been replaced. But, as the three judge panel noted, the court prong of the prima facie case can also be satisfied if the plaintiff simply shows he was otherwise treated less favorably than others in his class. And, there was evince that Sears was treated much differently than the other Senior Vice-Presidents. Askew, after all, was mot only not fired, but he was promoted.

Judge Englehardt also noted that there was sufficient evidence to case doubt on the employer’s proffered explanation for the firing. Sears was fired, said the employer, so it could hire a manager for the Dallas energy banking department. But, the bank never hired such a manager. The bank claimed it made the decision to terminate Sears in the Spring of 2018. But, there was an email from January, 2018 in which the board discussed “transitioning” Sears out of his job. Plaintiff Sears’ boss also testified that he was not sure if he had complied with the bank’s performance review policies regarding Mr. Sears. The court noted that failure to follow its own internal rules supports a finding of pretext.

The court then noted that taking all this evidence “cumulatively,” there was sufficient evidence on which a jury could find age discrimination. See the decision in Sears here. Yes, every court is required to consider the evidence cumulatively. But, precious few do so.