In the recent decision in January v. City of Huntsville, No. 22-20380 (%th Cir.7/24/2023), the Fifth Circuit has returned again to its old friend, the discredited “pretext plus” doctrine. I have previously written about this insidious doctrine here and here. In January, a fire fighter had gall bladder surgery. The surgery was botched. Ten years later, he was still suffering the effects of that surgery. He was passed over for promotion. He met with City leaders and accused them of discrimination. He said he might complain to the EEOC.

In 2019, he went to City offices to copy some documents. City workers complained later that Plaintiff January appeared to be intoxicated that day. He was accused of blocking a female worker near the copy machine. Mr. January denied the accusations. He said he was suffering from hypoglycemia that day. In fact, he had told his employer months before that there might be times when he appeared to be drunk – due to the effects of hypoglycemia. The City fired January two weeks later.

Summary Judgment

Mr. January filed suit. But, the lower court granted the City’s motion for summary judgment. On appeal, Judge Clement pointed to the bad decision in Owens v. Circassia Pharmaceuticals, 33 F.4th 814, 835 (5th Cir. 2022), which applied a pretext plus analysis. Judge Clement cited that decision to assert that a plaintiff must show “substantial evidence” that the employer’s preferred explanation is a pretext for discrimination. January denied that he was drunk that day when he was making copies. he said he was suffering from hypoglycemia and that he was sleep deprived. January even produced an officers’ body cam video that shows him in a normal state that day.


But, the court said a video is “subjective” – suggesting a plaintiff needs objective evidence. The court also faulted the fire fighter for not having “actual” evidence that he suffered from hypoglycemia that day. The court was stating flatly that January’s testimony about his condition that day did not suffice. This assertion flies in the face of Tolan v. Cotton, 134 S.Ct. 1861 (2014), which holds that a plaintiff’s testimony has equal evidentiary value to that of any other witness. There is nothing in the Rules of Evidence that require the testimony of any witness be corroborated by so-called “actual” evidence. The testimony of a witness is evidence. A jury can assign that testimony less weight than other evidence. But, such testimony is still evidence.

In requiring the plaintiff to provide “actual” evidence (whatever that might mean), the court applied pretext plus. The court was requiring something more than just showing the employer’s explanation was false. Pretext plus was specifically rejected by the Supreme Court in Reeves v. Sanderson Plumbing Products, 530 U.S. 133 (2000).  Reeves said explicitly that falsity of the employer’s explanation alone can support a jury finding of discrimination. Reeves stated:

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

The Fifth Circuit clings stubbornly to the pretext plus doctrine. Summary judgment should only address cases which are so clear that a jury need not address it. Mr. January’s case is a classic he said.she said. Only the jury should assess credibility of opposing witnesses. See the decision here.