First Circuit Affirms Three-Step Framework in Disparate-Treatment Employment Discrimination Cases

Disparate treatment in the employment law context occurs when a member or members of a protected class are treated differently than others by an employer. Where a plaintiff in a disparate treatment case is unable to proffer direct evidence of discrimination, courts in the First Circuit use a three-step framework – the so-called McDonnell Douglas framework – to determine the validity of the claim. In a recent decision, Boykin v. Genzyme Therapeutic Products, LP, the First Circuit re-affirmed that tripartite framework.

First, a plaintiff must make out a prima facie showing of discrimination. That is, a plaintiff must proffer evidence that would support a finding that the claim is valid.

Second, if a plaintiff meets that threshold, then the burden of production shifts to the defendant, who must show that there was a legitimate, non-discriminatory reason for the adverse employment action.

Finally, if the employer has provided a legitimate, non-discriminatory reason for the adverse employment action, the burden shifts back to the plaintiff, who must show that the employer’s stated reason was pretextual and that, in fact, the real reason for the adverse employment action was improper discrimination. If a plaintiff is unable to show that the legitimate reason offered was a pretext, then the plaintiff’s claim fails.

In Boykin, the plaintiff challenged a lower court’s decision dismissing his claim, arguing (1) that the District Court had failed to analyze the tripartite framework in the proper order, and (2) that the District Court had committed error in finding that plaintiff had failed to establish that the reason proffered by the employer for the adverse employment action was pretextual.

With respect to the first argument, the District Court considered whether the plaintiff had made a prima facie showing of discrimination, but noted that there was a question of whether a negative performance review could constitute the adverse employment action necessary for a claim of discrimination. Because the District Court found that the plaintiff had not established that the employer’s proffered reason was pretextual, the Court found that it did not need to consider the first step. The First Circuit agreed with this approach, finding that there is no requirement that the steps must be considered in order when the first step is uncertain, but the third step clearly shows a plaintiff cannot prevail.

With respect to the second argument, the First Circuit affirmed the District Court’s finding that the plaintiff failed to show that the employer’s reason for the negative performance review was pretextual. The First Circuit found that the argument for discrimination made by the plaintiff might be a possibility, but it was not backed by the kind of definite evidence courts require for a claim to survive summary judgment.


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