Challenge “Same Actor” Inference on Summary Judgment
Defense counsel routinely argue, as grounds for summary judgment, that the plaintiff’s employment discrimination case must fail when the hirer and firer are the same individual. Although the “same actor” inference has some superficial appeal, it is by no means a bullet-proof defense. Indeed, here are six arguments you can use to combat the hirer-firer inference, excerpted from Litigating Employment Discrimination Cases:
(1) Persons Not Involved in Hiring Were Involved in Firing. You may be able to argue that the hirer-firer cases do not apply because there are individuals involved in the adverse employment action who were not also involved in the hiring (or vice-versa). The same actor inference requires that the decision-maker be the same for both the hiring and the adverse employment action. It cannot be imputed to the organization as a whole.
(2) Passage of Time Diminishes Hirer-Firer Inference. A crucial element in creating the same-actor inference is a short passage of time between the hiring and the firing. The hirer-firer inference disappears or is greatly diminished over the course of time. This is particularly true in age discrimination cases.
(3) Employee Did Not Have Protected Characteristic When Hired or Intervening Event Made Protected Characteristic More Apparent After Hire. A court should not apply the hirer-firer inference if the employee did not have the protected characteristic when he was hired (e.g., if he was under the age of 40) or if an intervening event occurred to make the protected characteristic more apparent after hire. If, for example, the plaintiff’s protected characteristic (age) became more when, six months after he was hired, he had a stroke, then the hirer-firer inference should not apply.
(4) Hirer-Firer Inference Should Not Apply in Failure to Promote Cases. You may be able to persuade the court that the hirer-firer inference should not apply in a failure to promote case because the decision-maker may believe that while individuals with certain protected characteristics can perform low-level jobs, they cannot or should not perform higher-level jobs. That is, it is not unreasonable to believe that there might be an employer who would hire a member of a disfavored race or gender for an entry-level position, but refuse to promote him or her above a certain level (think of the “glass ceiling” some women and minorities face).
(5) Inference Should Not Apply Where Decision-Maker “Temporarily” Hires or Promotes Plaintiff While Grooming Decision-Maker’s Favored Candidate. The same-actor inference should not apply where the decision-maker simply hired or promoted the plaintiff as a “place holder,” while actually grooming the decision-maker’s favored candidate until he or she was ready for the position.
(6) Same Hirer-Firer Is Fact for Jury to Consider. If the arguments listed above do not convince the judge that the hirer-firer cases do not apply to your case, then point out that the fact that the hirer and firer are the same individual is merely one fact that should be considered by the jury, along with all the other facts in the case. The “same actor” inference is just that—an inference that should not be accorded any presumptive value and should play no role on summary judgment. It is the province of the jury, not the court, to determine whether the inference generated by “same actor” evidence is strong enough to outweigh a plaintiff’s evidence of pretext.
Andrew H. Friedman is a name partner in the law firm of Helmer • Friedman, LLP in Los Angeles, California. He has practiced primarily in the area of employment law since completing his judicial clerkship with the Honorable John T. Nixon (United States District Court for the Middle District of Tennessee) in 1990. Mr. Friedman graduated from Vanderbilt University, cum laude, in 1986 with a B.A. in History and Psychology. He earned his law degree from Cornell Law School in 1989, where he was an Editor of the Cornell Law Review.
