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What does "articulate" mean in the legal sense?

Warrington, PA |

The law says that, if a prima facie case of discrimination is established, the defendant must "articulate a legitimate, non-discriminitory reason underlying its inverse employment action." Does "articulate" in this sense mean "to say" a reason, or does it include proof? i.e., is the employer's word that they had a good reason enough? If they don't have to provide evidence of their accusations, can't they claim anything?

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Attorney answers 3

Posted

In 1973, the U.S. Supreme Court said in McDonnell Douglas Corp. v. Green that once the plaintiff (court uses the word petitioner if you want to read the case; respondent means defendant) meets the burden of showing a prima facie case, then the burden shifts and the defendant must offer evidence (yes, it can be testimony) to rebut the prima facie case of discrimination. Testimony or not, the evidence or reason offered by the defendant for the conduct should be based on an objective standard, not a subjective standard, opinioin, or personal judgment.

However, although they can "claim anything" as you put it, the burden then shifts back to you and at that point all the plaintiff will be given an opportunity to show that the defendant's reason is 1) pretext (pretext in this case means testimony or evidence put forward to conceal a true purpose) or 2) that the the reason or system that you are claiming caused the discrimination against you is in fact discriminatory in its effect. This means that you have an opportunity to show that it has a discriminatory effect on other protected classes of employees such as yourself. If you prove either of those things, 1) employer's reason was pretext; or 2) that employers reason or method is discriminatory in application, you should prevail.

So the short answer to your question is yes and no. The defendant may say what he wants and if the defendant's reason appears to be non-discriminatory, you will recieve an opportunity to prove that they are lying to cover up the discrimination or that their reasoning although not specifically aimed at discriminating against you, has a discriminaotory affect.

If you want further details, google the case I mentioned previously.

William Jason Scheil

William Jason Scheil

Posted

If you want to see a fairly straightforward discussion of the burden shifting (by burden I mean burden of proof--who must prove what), copy the following and paste it into google. It is a google document. The case is long, so once you understand the basic facts from the first few paragraphs, scroll down about half way until you see the heading "Burden Shifting Framework." Here is the text to copy and paste: Rooney v. BROWN GROUP RETAIL, INC., Dist. Court, ED New York 2011

Asker

Posted

Thank you for this information, I will look up the casces you cited. In their motion for summary judgment, the employer accused the employee of "mishandling" funds even though he handled the funds the way he had for many years without. Employer claimed they could not reconcile funds because of "improper" record keeping. However, employee had handled these funds for many years, (collecting money for trips, handing it in to the bookkeeper, who then paid bills with the funds) without ever having a shortage or his integrity questioned. Employee (and others) had been targeted by Employer for dismissal and looking at everything seems clear that they were "inventing" reasons to dismiss employees. In this case, they accused the employee of mishandling funds, going as far to say that they could not reconcile money after he handled it. But they offered no proof whatsoever. No precise dollar amounts, no bills that were to be paid, how much $ exactly was handed in by the employer, etc. This is why I asked about whether all they had to do was "articulate" a reason. They have absolutely no proof of their accusations and now it is up to the Plaintiff (the employee) to "prove" that their accusations are false. How does one do that? THis is only one of the accusations made that are 100% false and presented without proof. How does an employee fight that? The employer has basically implied theft on the part of the employee (who worked at theorganization for 25+ years without any proof at all. We've been told that they can say whatever they want in the motion for summary judgment with the hope that it will not go to trial (where they'd have to prove their claims). How does an employee "prove" the negative?

Eric Sanders

Eric Sanders

Posted

As a senior federal judge said in a case I recently settled "What the hell does that mean?" In other words, he says that the so-called burden shifting framework is an unworkable legal fiction that makes no sense to anyone.

Asker

Posted

So, if it makes no sense to anyone, what does that mean for us? We are trying to appeal a summary judgment against us, which was won by defendants who LIED -- "articulating" (saying, NOT showing or proving) so-called "legitimate reasons for termination" that the judge apparently accepted as truth. Being new to the legal process, we are saddened and overwhelmed by this. Where does what's true or what's right come into the picture? Is it even possible to win an appeal to the summary judgment? We want to go to court, because we know they will not be able to stand behind their lies. With the summary judgment, they didn't have to. What am I missing here?

William Jason Scheil

William Jason Scheil

Posted

Yes; it is possible to have an adverse ruling on summary judgment overruled. Actually, of all rulings, a summary judgment ruling is one of the easiest rulings to have overturned. It appears if the judge granted summary judgment, that you did not dispute the defendant's testimony that you were responsible for the theft. If that is indeed the basis on which the judge ruled and if you testified at the hearing that you did not steal any money from the defendant, that creates an issue of fact. The judge cannot grant summary judgment if you UNLESS you failed to present any admissible evidence, be it testimony or other evidence, refuting the defendant's claim that its conduct was not discriminatory in intent or in effect. From what you told me, as long as you presented admissible testimony to the effect that you did not steal or mishandle any of the defendant's money, you NEED TO GET AN ATTORNEY to represent you on appeal AND you need to stress that your denial of the alleged theft created an issue of fact, to be determined at trial, regarding whether you stole or mishandled the money. As you explain the case and assuming you denied stealing or mishanding defendant's money under oath, the appellate court should vacate the summary judgment and return the case to the trial court for further proceedings. The question is: did you testify or present admissible evidece that contradicted the defendant's allegations of theft. If yes, and if the judge based his ruling on the theft issue, then summary judgment was inappropriate and the appellate court should vacate the judgment and remand the case. If you do not have an attorney, you NEED TO GET AN ATTORNEY TO HANDLE THE APPEAL as well as other aspects of your case.

Posted

The defendant employer has to cite or identify (articulate) a non-discriminatory reason for the action against the plaintiff only after the plaintiff has introduced evidence that the employer's action constituted unlawful discrimination *if it is not otherwise explained.* Once the employer's stated non-discriminatory reason for the action against the employee has been identified, the plaintiff must prove that reason (or the claim that it is not discriminatory) is bogus. The plaintiff always has the ultimate burden of proving the unlawful discriminatory character of the disputed action.

My responses to questions on Avvo are never intended as legal advice and must not be relied upon as legal advice. I give legal advice only in the course of an attorney-client relationship. Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. That relationship is established only by individual consultation and execution of a written agreement for legal services.

Asker

Posted

Again, how do you prove the negative? If my employer accuses me of something that did not happen, how do I prove it didn't? How can an employee ever win when there is not a "smoking gun"?

Edward Clement Sweeney

Edward Clement Sweeney

Posted

You could have obtained witness testimony by deposition or affidavit, you could have made an affidavit yourself, or you could have requested documents to support your position. This should have been done before the summary judgment filing.

Posted

The other attorneys are correct. It means in this sense "to say." Proof is not required and you then have to submit evidence that their legitimate, non-disctiminatory reason is wrong. While it is true the Employer can try to say anything, in practice, the Employer's articulation of a reason "pins them down" and if you have a case you can marshall the existing evidence to prove the reason wrong and simply a pretext to let you go.

Asker

Posted

This is the difficulty we're having... the employer is most definitely in dispute of the proffered reasons and denies any mishandling of funds took place. He handled them the same way he had for years, with no incident, and no direction to do anything differently. This time, after the fact, they raised questions and doubts, even though they had no evidence of anything amiss (in fact, there was nothing amiss). However they claimed there was WITHOUT even providing any figures or evidence to back the claims up! This is why we'd LOVE to go to court, because they'd have to "put up" and they can't. In the meantime, a judge granted their summary judgment motion. He identified the proper standards, but did not apply them and missed a lot of information in considering the request. We are out of money (and left hanging by the lawyer we had who cannot go further without more money) and are trying to appeal pro se. It's hard and very disheartening to say the least. Thank you for your feedback.

Asker

Posted

*Meant to say "employee" in the first line above.

Edward Clement Sweeney

Edward Clement Sweeney

Posted

If you wish me to look over the Judge's decision, I can, but will not agree to representation or to appeal until we formalize an agreement.

Asker

Posted

Mr. Sweeney, if you would be willing to consider helping us, that would be wonderful. We have done a lot of research and legwork and have put together a pretty good draft of an appeal brief which we believe clearly shows how the judge identified, but failed to meet, the standards for summary judgment. He did not view facts in the light most favorable to the non-moving party and failed to consider all the evidence presented. (Don't know if it means anything, but we have identified another case where this judge granted a summary judgment that was reversed for pretty much the same reasons.) We are aware that we can file this brief pro se but are reluctant to do that without someone more knowledgeable about the law looking it over and assuring us we have all bases covered... and if we could find someone who believed in the case and was willing to represent us going forward, it could benefit us all. We really believe we have a case here. The brief is due just before Christmas and as I said, it's pretty much drafted already. Are you still willing to look over our information? If so, please me know where to contact you. Thank you so much!

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