Debra L. Herr v. Airborne Freight Corporation

LAY, Circuit Judge,

dissenting.

Airborne filed a motion for summary judgment in the district court, alleging the company discharged Herr for a non-discriminatory reason, and Herr failed to show such reason was pretextual. In doing so, as the district court found, Airborne expressly assumed Herr could make a prima facie showing of sex discrimination. For this reason, the district judge did not address the issue of whether Herr made a prima facie showing of sex discrimination. See Herr v. Airborne Freight Corp., 950 F.Supp. 273, 275 (E.D.Mo.1996)). The trial court ruled Herr failed to establish the existence of a genuine issue of material fact on the question of pretext, and Herr did not rebut Airborne’s proffered nondiscriminatory reason for her discharge. The parties briefed and argued this case on the basis of the district court’s ruling.5

In this circuit, grounds not raised in the district court shall not form the basis of an appeal. See United States v. One Parcel of Property, 959 F.2d 101, 103 (8th Cir.1992) (citing In re Pan Am. World Airways, Inc., 905 F.2d 1457, 1462 (11th Cir.1990)) (“[I]f a party hopes to preserve a claim, argument, theory, or defense for appeal, [the party] must first clearly present it to the district court, that is, in such a way as to afford the district court an opportunity to recognize and rule on it.”). Despite this fundamental rule, the majority affirms the district court on grounds not raised in that court’s ruling: namely, Herr failed to make a prima facie showing of sex discrimination.6

This issue is not before this court on appeal. Even if it were, there is ample evidence to support a prima facie case of sex discrimination.7 To urge otherwise overlooks basic evidence and slights permissible inferences available to Herr, violating the fundamental rule that on motion for summary judgment, the non-moving party is entitled to all favorable inferences. See Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 775 (8th Cir.1995).

The majority only draws inferences in favor of Airborne. For example, Herr testified Bruer, her immediate supervisor, told her she had passed the probationary period, and she would be called in as a casual worker. Bruer does not contradict this statement, and for two years, Herr called Airborne seeking casual work, and Airborne continually told Herr there was no work available. This gives rise to an inference that Bruer did make this statement. Cf. Adickes v. S.H. Kress & Co., 398 U.S. 144, 156-57, 90 S.Ct. 1598, 1607-07, 26 L.Ed.2d 142 (1970) (allowing inference of conspiracy where police officer did not deny presence in restaurant when management refused to serve white teacher accompanied by six black students, and police officer later arrested teacher outside the restaurant). The majority claims it credits Herr’s testimony on this point, yet draws no inference in favor of Herr.

*364Further, in 1994, the Union filed a grievance on Herr’s behalf. Suddenly, Airborne asserted it had terminated Herr two years earlier. To support this assertion, Airborne produced a document dated June 1992, stating Airborne terminated Herr for unsatisfactory job performance.8 Herr urges Airborne never notified her of the alleged termination, and the majority claims it credits Herr’s testimony on this point. Moreover, the majority acknowledges Bruer testified he could not remember whether he notified Herr of her termination. Based upon this evidence, Herr is entitled to the reasonable and favorable inference that Airborne’s proffered reason for not assigning her work for two years is pretextual.

Curiously, the only inference the majority draws from Airborne’s conduct is that Airborne’s “lack of a policy to notify unwanted casual drivers that they have been terminated may be an unkind business practice, but it is not evidence of sex discrimination.” The majority overlooks that evidence of pretext need not constitute direct evidence of discrimination. In most instances that is impossible. The evidence of pretext along with the elements of the prima facie case serve to create a permissible inference sufficient to take the case to the jury. See United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983) (“[Sjensitive and difficult” issue of intentional discrimination will frequently be proven by circumstantial evidence of pretext, as “[tjhere will seldom be ‘eyewitness’ testimony as to the employer’s mental processes.”).

Finally, the majority claims Herr cannot overcome the strong inference that sex discrimination was not a motivating factor in her termination since Bruer hired and fired Herr within a relatively short period of time. Given the peculiar circumstances surrounding Herr’s termination, and this court’s duty to view the evidence and all reasonable inferences which may be drawn therefrom in the light most favorable to Herr, the non-moving party, see Hutson, 63 F.3d at 775, I fail to see how the majority can draw this as a controlling inference in favor of Airborne.

This case may not be important legal precedent. However, it illustrates the unfortunate and pervasive philosophy that the jury is not an important fundamental right of litigants, and that judges can adequately substitute their own findings of fact in summary proceedings. This is a philosophy to which the law does not subscribe.

Judge John Gibbons, former Chief Judge for the Third Circuit, observed in dissent in a different context:

Part of my difficulty with the majority’s position probably results from a perception of the nature of the judicial process and the role of juries in that process____ In the process of gaining public acceptance for the imposition of sanctions, the role of the jury is highly significant. The jury is a sort of ad hoc parliament convened from the citizenry at large to lend respectability and authority to the process. Judges are often prone to believe that they, alone, can bear the full weight of this legitimizing function. 'I doubt that they can. Any erosion of citizen participation in the sanctioning system is in the long run likely, in my view, to result in a reduction in the moral authority that supports the process.

In re Japanese Elec. Products Antitrust Litig., 631 F.2d 1069, 1093 (3d Cir.1980) (Gibbons, J., dissenting). This statement is particularly apropos to the majority’s holding in the present case.

I dissent.

. Airborne repeated its concessions to this court: "In this case, Airborne was willing to assume that Ms. Herr had met her initial burden and undertook to demonstrate that she was terminated for a legitimate, nondiscriminatory reason." Appellee’s Br. at 8.

. Where an issue is not disputed on summary judgment in the district court, the non-moving party is deprived of fair notice if the district court or this court raises the issue sua sponte.

.This may explain why Airborne conceded the issue of Herr’s prima facie case. Although the evidence is disputed, Herr clearly demonstrated evidence of a prima facie case of .sex discrimination sufficient to survive summary judgment.

. In its brief to this court, Airborne claims "[flor reasons unknown to everyone, Ms. Herr apparently did not receive a copy of the termination notice.” Appellee's Br. at 5. It seems odd that Airborne would imply Herr should have received a copy of the notice if the termination notice is, as the majority terms it, "an internal business record used to remove an unwanted casual driver from the official list.” Supra (emphasis added).