Despite Costa, Ninth Circuit Reaffirms Higher Burden of Proof for Plaintiff In Circumstantial Evidence Cases

This case involved a Washington commercial fisherman who was hired in 1997. ?In 2001, he was removed ?as ?vessel? mate.?????? He ?claimed discrimination because he was not Norwegian.? The court granted the employer?s motion for summary judgment and the Ninth Circuit affirmed. ?In doing so, the panel severely confused the evidentiary burdens for discrimination cases.? ?In Costa, the United States Supreme Court held that Title VII does not recognize any distinction between direct and circumstantial evidence and that circumstantial evidence is often more powerful than direct. Without citing Costa and prior Ninth Circuit case following it, a Ninth Circuit panel has reaffirmed pre-Costa circuit law that arguably requires a plaintiff who relies on circumstantial proof of discrimination?? to?? meet?? a?? higher?? evidentiary standard. ?That law required a plaintiff to introduce ?specific and substantial? evidence of pretext to survive summary judgment.? ?The case is notable for numerous other misstatements regarding the McDonnell Douglas Burdine framework. ?The case also holds that a plaintiff must ?muster [an] extraordinarily strong showing of discrimination? to overcome the same-actor inference.?? The panel also stated that the same-actor interference is more than an inference for a jury to draw, but ?a strong inference? that a court must take into account on a summary judgment motion.?? ?Even though the record contained some evidence of discrimination, the court held it was not sufficient to overcome the ?burden imposed by the same-actor inference.? Couglan v. American Seafoods, Inc., No. 03-35314 (07/07/05; O?Scannlain, Leavy, Bea).