Print Friendly, PDF & Email

The Seventh Circuit Court of Appeals previously explained that the “common actor inference” says it is reasonable to assume that if a person was unbiased at Time A (when he decided to hire the plaintiff), he was also unbiased at Time B (when he fired the plaintiff).  This principle dates back to EEOC v. Our Lady of Resurrection Medical Center, 77 F.3d 145, 151–52 (7th Cir. 1996).  However, over the years, the Seventh Circuit has clarified that this inference is not a conclusive presumption and that it should be considered by the ultimate trier of fact rather than on summary judgment or the pleadings.  See Perez v. Thorntons, Inc., 731 F.3d 699, 710 (7th Cir. 2013).

This clarification was recently exemplified in McKinney v. Office of the Sheriff of Whitley County where the Seventh Circuit reversed the grant of summary judgment, in part because the district court utilized the common actor inference as a conclusive presumption of no discrimination. The Seventh Circuit stated as follows:


 “We have tried to impose limits on the common actor inference

to ensure it does not outgrow its usefulness. The inference

may be helpful in some limited situations, which is why

“we allow the jury to hear such evidence and weigh it for

what it is worth.” Perez, 731 F.3d at 710. There are many other

occasions, however, where it is unsound to infer the absence

of discrimination simply because the same person both hired

and fired the plaintiff-employee. Examples abound. The same

supervisor may need to fill a position quickly, then later when

the exigency subsides, fire the employee due to unlawful bias.

The same supervisor could both hire a woman and then refuse

to promote her for discriminatory reasons. The same supervisor

could both hire a woman and later fire her because she became

 pregnant. Cf. Young v. United Parcel Service, Inc., 575 U.S.

—, —, 135 S. Ct. 1338, 1343 (2015) (“The Pregnancy

Discrimination Act makes clear that Title VII’s prohibition

against sex discrimination applies to discrimination based on pregnancy.”)

. The list could go on, but only one more example is needed. The same

supervisor could hire a county’s first black police officer, hoping there would be no

racial friction in the workplace. But after it became clear that

other officers would not fully accept their new black colleague,

that same supervisor could fire the black officer because

of his race based on a mistaken notion of the “greater

good” of the department.”

No. 16-4131, pages 22-23.

            Thus, the court noted that the common actor inference is a rebuttable presumption left to the jury.  It is not a factor to be used in support of summary judgment.  As a litigation tactic, defense counsel should be prepared to submit evidence rejecting a rebuttable presumption as noted above. The common actor interest is no longer a valid basis for the entry of summary judgment.