Pretext in Peril

A. The Same-Actor Doctrine: Origin and Evolution 1. How It All Began The same-actor principle was first recognized by the Fourth Circuit in Proud v. Stone, which held that a strong inference exists that discrimination was not a motivating factor in those instances where the same decision maker terminated the employee within a relatively short time after hiring that individual. (198) The rationale of the Proud court is based on the assumed irrationality of the "psychological costs" incurred by a decision maker in associating with workers from a group one dislikes, only to take some adverse action against them thereafter. (199) That is, a person predisposed against a particular category of people would not have hired one who belongs to that group from the outset. In pronouncing this principle, the Proud court relied on no data points or other guideposts; instead, it made an incredible leap--one that has spawned a virtual cottage industry for employer successes, including summary dismissals, directed verdicts, and judgments as matters of law. (200) Workplace discrimination is already difficult to uncover. Proud further impeded plaintiffs' quest when it proclaimed that the nature of the hirer-firer relationship bears significantly on the ultimate question of discrimination. Since the formulation of the same-actor principle in 1991, its evolution has been steady and expansive. The principle has received affirmation from most of the courts addressing the issue, with most endorsing the Proud court's rationale with, if not resounding approval, at least passive acceptance. The circuits are split on the weight that same-actor evidence should be afforded, and the Supreme Court has yet to enter the dialogue. (201) Generally, courts deem same-actor evidence relevant for consideration on summary judgment and significant to their rulings if plaintiffs fail to rebut it, making it particularly difficult for plaintiffs to prove discrimination. More than fifteen years after its formulation, the doctrine is fully entrenched in employment discrimination jurisprudence. In my view, the same-actor principle represents well how procedure and substance interact badly to deprive plaintiffs of their chances to take their cases to a jury. Significantly, it provides another stark example of the distortion of the pretext prong under the McDonnell Douglas/Burdine framework, further diminishing the critical inquiry of intent. As discussed more fully below, once an employer inserts same-actor evidence into the case, the court deems it so relevant that it essentially elevates a plaintiff's burden. In fact, courts assign same-actor evidence a weight that a jury may deem unwarranted by drawing the inference that the employer could not have been motivated by unlawful discrimination due to the consistency of the actors involved. Accordingly, I argue that the same-actor doctrine constitutes an untenable analytical paradigm that allows judges to improperly usurp the role of the jury and offers far less with respect to human motivation than its rapid evolution suggests. 2. Why This Matters: Evolution of the Same-Actor Doctrine One may wonder why this doctrine warrants so much attention. In fact, one may argue that dissection of the principle elevates it in the discourse by giving it more consideration than it deserves. I disagree. This doctrine has been largely ignored in the legal academic literature. (202) Despite the dearth of attention, the same-actor principle has been a silent killer of plaintiffs' efforts to sustain claims of discrimination, infesting the substantive law with nonsensical, untheoretically sound assumptions. As its rapid evolution indicates, it has emboldened employers and operated as a straight-jacketing defense against plaintiffs. (203) We should be concerned about how courts activate and misuse their power to manipulate substance through procedure precisely due to the realities of the modern workplace. …