5th Circuit provides guidance on discrimination claims….

Earlier this month the 5th Circuit issued a decision that provides a tutorial about the basics of a discrimination claim.  The plaintiff alleged that she was the victim of three kinds of discrimination, and the court dealt with each one separately.  We will address the race and sex discrimination claims today and Thursday, and then discuss age discrimination on Friday.

Ms. Ross was the principal of Metzger Middle School in Judson ISD for six years.  Then, at the conclusion of the 2015-16 school year, the district non-renewed her contract.  She appealed that decision to the Commissioner, who affirmed the board’s decision. Then Ms. Ross took her case to court alleging race, sex, and age discrimination. 

The district had done a thorough investigation of alleged financial improprieties and had documented numerous reasons to justify Ms. Ross’s nonrenewal. All of this was presented in the nonrenewal hearing. We will tell you more about that on Friday when we look at the age discrimination claim.  However, when it discussed race and sex discrimination the court said nothing about Ms. Ross’s performance.  Her claim failed for a more fundamental reason.   Ms. Ross failed to convince the court that she had alleged facts that would amount to a “prima facie” case.  A “prima facie” case tosses the burden of proof over to the defendant.  In other words, it tells the defendant: “this begins to look like illegal discrimination. What do you have to say about it?”

To clear that “prima facie” hurdle, Ms. Ross had to allege facts that would establish four things.  Three of those things were not disputed.

First, she is a member of a group entitled to protection from discrimination based on race and/or sex. As an African-American woman she satisfied this standard with regard to both race and sex.  Check.

Second, she is qualified for her position. Check. She qualified to serve as principal.

Third, she suffered a final, adverse employment action.  Check. Her contract was not renewed. She’s been dismissed.

The fourth factor required proof that she was replaced by someone outside of her protected class. The theory behind that is simple: if a woman is replaced by a woman, it can’t be sex discrimination. If a Hispanic is replaced by a Hispanic, it’s not race discrimination. 

Ms. Ross was first placed on paid administrative leave. Her replacement was an African-American woman.  Then the board completed the nonrenewal of Ms. Ross’s contract and hired her permanent replacement—another African-American woman.  That principal served for three years, at which time the board hired a white woman.

Ms. Ross claimed that this meant that the board had replaced her with a white person, but the court did not see it that way, noting that all of the evidence showed that the woman who served for three years was a permanent replacement. Perhaps if the time frame had been shorter, Ms. Ross’s argument would have been more persuasive.  But it was three full school years before the board hired someone of a different race.

That wasn’t the end of it, however. Ms. Ross also had the opportunity to present evidence that she was treated differently from similarly situated employees.  In other words, if she could locate a white or Hispanic or male employee who was “similarly situated” but was treated better, she might have a legitimate case. We’ll tell you how that came out on Thursday.

This case is Ross v. Judson ISD, decided by the 5th Circuit on April 1, 2021.  The case can be found at 2021 WL 1216548.


Tomorrow: Toolbox Tuesday!!