Maria C. BITTAR, Plaintiff-Appellant, v. AIR CANADA, a Corporation of Canada, Defendant-Appellee

Fifth Circuit

Maria C. BITTAR, Plaintiff-Appellant, v. AIR CANADA, a Corporation of Canada, Defendant-Appellee

512 F.2d 582, 10 Fair Empl. Prac. Cas. (BNA) 1137

CourtCourt of Appeals for the Fifth Circuit

DecidedApril 30, 1975

Docket74-3873

StatusPublished

Cited by38 cases

This text of 512 F.2d 582 (Maria C. BITTAR, Plaintiff-Appellant, v. AIR CANADA, a Corporation of Canada, Defendant-Appellee) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Maria C. BITTAR, Plaintiff-Appellant, v. AIR CANADA, a Corporation of Canada, Defendant-Appellee, 512 F.2d 582, 10 Fair Empl. Prac. Cas. (BNA) 1137 (5th Cir. 1975).

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Opinion

PER CURIAM:

Plaintiff, Maria C. Bittar, brought this action against her former employer, Air Canada, alleging that she was discharged because of her age in violation of the Age Discrimination Act of 1967 (29 U.S. C.A. § 621 et seq.). After a prima facie showing of age discrimination by the plaintiff, the defendant-employer produced evidence of numerous instances of unsatisfactory job performance- on the part of the plaintiff. The district court, concluding that the plaintiff failed to prove her claim of age discrimination by a preponderance of the evidence, found in favor of defendant-employer, Air Canada.

On appeal plaintiff asserts that the trial court erroneously assessed the burden of proof between the parties. She contends that upon a prima facie showing of discrimination by the plaintiff-discriminatee, the burden of proof shifts to the defendant-employer to prove nondiscrimination by a preponderance of the evidence. This is specious. Upon such a prima facie showing by the plaintiff, there is a shift, but not in the burden of proof. Only the burden of going forward with the evidence shifts to the defendant-employer. E. g., Hodgson v. First Fed. Sav. & L. Ass’n, 455 F.2d 818 (5th Cir. 1972); Johnson v. University of Pittsburgh, 359 F.Supp. 1002 (W.D.Pa.1973); Ochoa v. Monsanto Co., 335 F.Supp. 53, 58-59 (S.D.Tex.1971), aff’d per curiam, 473 F.2d 318 (5th Cir. 1973). Once the defendant-employer comes forward with evidence that the plaintiff *583 was discharged because of reasonable factors other than age, the plaintiff must still bear the burden of establishing a case of discrimination by a preponderance of the evidence. See, e. g., Ochoa v. Monsanto, supra; Barnes v. Lerner Shops of Texas, Inc., 323 F.Supp. 617 (S.D.Tex.1971). In Sabatino v. Curtiss Nat’l Bank, 446 F.2d 1046 (5th Cir. 1971) we stated: “[W]hen the party having the burden of proof makes a prima facie case, the burden of proof does not shift to the opposite party, but he [the opposite party] is only required to come forward with some evidence to rebut such prima facie case.” Id. at 1055.

Since the defendant-employer in the case at bar offered persuasive rebuttal evidence to overcome plaintiff’s prima facie case, the trial court properly utilized the preponderance of the evidence standard in weighing the sufficiency of the plaintiff’s proof.

Plaintiff’s remaining contentions are without merit.

Affirmed.

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PER CURIAM:

Plaintiff, Maria C. Bittar, brought this action against her former employer, Air Canada, alleging that she was discharged because of her age in violation of the Age Discrimination Act of 1967 (29 U.S. C.A. § 621 et seq.). After a prima facie showing of age discrimination by the plaintiff, the defendant-employer produced evidence of numerous instances of unsatisfactory job performance- on the part of the plaintiff. The district court, concluding that the plaintiff failed to prove her claim of age discrimination by a preponderance of the evidence, found in favor of defendant-employer, Air Canada.

On appeal plaintiff asserts that the trial court erroneously assessed the burden of proof between the parties. She contends that upon a prima facie showing of discrimination by the plaintiff-discriminatee, the burden of proof shifts to the defendant-employer to prove nondiscrimination by a preponderance of the evidence. This is specious. Upon such a prima facie showing by the plaintiff, there is a shift, but not in the burden of proof. Only the burden of going forward with the evidence shifts to the defendant-employer. E. g., Hodgson v. First Fed. Sav. & L. Ass’n, 455 F.2d 818 (5th Cir. 1972); Johnson v. University of Pittsburgh, 359 F.Supp. 1002 (W.D.Pa.1973); Ochoa v. Monsanto Co., 335 F.Supp. 53, 58-59 (S.D.Tex.1971), aff’d per curiam, 473 F.2d 318 (5th Cir. 1973). Once the defendant-employer comes forward with evidence that the plaintiff *583 was discharged because of reasonable factors other than age, the plaintiff must still bear the burden of establishing a case of discrimination by a preponderance of the evidence. See, e. g., Ochoa v. Monsanto, supra; Barnes v. Lerner Shops of Texas, Inc., 323 F.Supp. 617 (S.D.Tex.1971). In Sabatino v. Curtiss Nat’l Bank, 446 F.2d 1046 (5th Cir. 1971) we stated: “[W]hen the party having the burden of proof makes a prima facie case, the burden of proof does not shift to the opposite party, but he [the opposite party] is only required to come forward with some evidence to rebut such prima facie case.” Id. at 1055.

Since the defendant-employer in the case at bar offered persuasive rebuttal evidence to overcome plaintiff’s prima facie case, the trial court properly utilized the preponderance of the evidence standard in weighing the sufficiency of the plaintiff’s proof.

Plaintiff’s remaining contentions are without merit.

Affirmed.

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512 F.2d 582, 10 Fair Empl. Prac. Cas. (BNA) 1137, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maria-c-bittar-plaintiff-appellant-v-air-canada-a-corporation-of-ca5-1975.

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