Karen Gorbitz, Cross v. Corvilla, Inc., Cross

CUDAHY, Circuit Judge,

concurring in the judgment.

It is quite clear that the reason proffered by Corvilla for terminating Gorbitz was not pretextual. This is the basis on which the district court decided the case. In reaching that conclusion, the district court conceded, however, that there were questions of material fact regarding Gorbitz’s prima facie case of discrimination. The majority, on the other hand, vigorously denies the possibility of a prima facie case. In so doing, I believe, it draws inferences in favor of Corvilla and not against it, as summary judgment practice requires. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The issue whether there is a prima facie case is close — and one we need not reach at all since Corvilla has offered a perfectly plausible and nondiscriminatory reason for the termination.

I therefore cannot approve the majority’s approach to the analysis, which may lay out a misleading path in dealing with future cases of disability discrimination.