In Wilkinson v. Pinnacle Lodging, LLC et al, No. 22-30556, 2023 WL 6518142 (5th Cir. Oct. 5, 2023), the court, inter alia, reversed the district court’s grant of summary judgment to the defendant employer on plaintiff’s claim of wrongful termination asserted under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981.
From the decision:
Turning to the comments at issue in this case, Rosa told Wilkinson that she wanted to replace him and his staff with “Hispanic” employees because they “work cheaper and faster”; and Rosa said, “male GMs don’t make good general managers, and as far as [she was] concerned, [Wilkinson] shouldn’t be here.” ROA.1100–01.
We agree with the district court that Rosa’s comments to Wilkinson meet each of this Court’s four direct-evidence criteria. First, the comments relate directly to Wilkinson’s race and sex by negative implication. See Eaglin, 801 F. App’x at 255–56 (involving similar comments about replacing employee with Hispanic employee). Second, Rosa made the comments close in time to the relevant employment decision—less than four months before Wilkinson’s termination. Third, Rosa was Wilkinson’s immediate supervisor who (along with Block) made the decision to terminate him. Fourth, Rosa’s comments “related to the challenged employment decision” because she said she wanted to “replace” Wilkinson and that she thought Wilkinson “shouldn’t be here,” respectively. See Ryan’s Pointe Houston, 2022 WL 4494148 at *5 (concluding that there was sufficient direct evidence of discrimination where all four factors were met); Jones v. Robinson Property Group, LP, 427 F.3d 987 (5th Cir. 2005) (same). Just like in Ryan’s Pointe and Jones, Rosa’s comments—which meet all four of our direct evidence factors—make this a quintessential “direct evidence” case.
Under this Court’s longstanding approach to direct evidence cases, where “the plaintiff presents direct evidence of discrimination, ‘the burden of proof shifts to the employer to establish by a preponderance of the evidence that the same decision would have been made regardless of the forbidden factor.’ ” Etienne, 778 F.3d at 475 (quoting Brown v. E. Miss. Elec. Power Ass’n, 989 F.2d 858, 861 (5th Cir. 1993)); accord Ryan’s Pointe, 2022 WL 4494148, at *4 (citing Hamilton v. Dallas Cnty., 42 F.4th 550, 554 (5th Cir. 2022)).
*4 At this point, we part ways with the district court. After concluding that Rosa’s comments constituted direct evidence of discrimination, the district court went on to conclude that Pinnacle met its burden to show by a preponderance that Wilkinson would have been terminated regardless of the forbidden factor. For support, the district court pointed to (1) the “consistent” and “uncontroverted testimony” of Wilkinson’s supervisors and (2) the termination letter.
The court noted that the supervisors’ testimony as to the nondiscriminatory reasons plaintiff was fired was “neither consistent nor uncontroverted,” as well as the “complete absence of any record of discipline the entire time he served as general manager,” despite the existence of a “progressive discipline” policy requiring two written warnings prior to termination.
Accordingly, it concluded that defendant failed to carry its summary judgment burden.