Call The Right Attorney™
No Fee Guarantee

Bringing Discrimination Claims In The Alternative: Was It Race Or Age?

by | Mar 2, 2023 | Age Discrimination, Employment Discrimination, Employment Law, Race Discrimination |

The recent case of Watson v. School Board Of Franklin Parish out of the United States Court of Appeals for the Fifth Circuit provides a few good lessons. Let’s start with the facts of the case.

Esther Watson worked in education, including as a teacher for over twenty years, an assistant principal for almost a decade, a principal for around seven years, and a child welfare and attendance supervisor for another seven years or so. She also had a Master of Education. After retiring, Watson returned to the workforce by becoming the assistant principal at a junior high school in Franklin Parish in 2008. After serving in the position for almost 10 more years, the principal of her school retired, and Watson applied for the position. The retiring principal recommended her for the job. Watson scored the highest on the interviews and was recommended by the committee. So, naturally, the superintendent hired Scott McHand.

McHand had been a teacher within the Franklin Parish School District since 2011. He lacked any prior experience in school administration. However, he had earned both a Master of Teaching, Elementary Education and a Master of Educational Leadership.

So, Watson sued the school district under Title VII of the Civil Rights Act of 1964 for race discrimination. You see, Watson is Black and McHand is White. Importantly, for reasons that are not clear from the opinion, Watson – who was represented by attorneys – did not file an age discrimination claim. This will be an important failure as we move forward in reviewing this case.

In an employment discrimination or wrongful termination case, can you bring alternative causes of action based on different protected classes?

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of race, color, religion, gender/sex, sexual orientation, gender identity, and national origin. The Age Discrimination in Employment Act of 1967 (“ADEA”) similarly protects employees over the age of 40 from age discrimination; and Americans with Disabilities Act (“ADA”) does so for employees with various disabilities. At the time of termination, failure to promote, refusal to hire, or other adverse employment action taken against the employee, the employee may not know the full reason behind the employer’s actions.

In civil lawsuits, bringing claims in the alternative means that a plaintiff is presenting multiple legal claims that could each independently support their case. For example, a plaintiff may bring two claims against a defendant, knowing that he/she/they may succeed on one, two, or none of the claims. The plaintiff can bring these claims in the alternative so that they can argue both and see which one is more likely to be successful, particularly after the opportunity to do discovery and depose the employer. Bringing claims in the alternative can be useful when the plaintiff is not certain which legal claim is the strongest or when there is uncertainty as to which legal theory will be most effective in persuading the court. It also allows the plaintiff to potentially obtain a favorable outcome even if the court dismisses.

For example, if an employee believes he was fired due to discrimination based on his race, but they are not sure if they have enough evidence to prove that claim, he might also bring a claim for breach of contract, arguing that the employer breached a contract by firing them without just cause. If the discrimination claim is unsuccessful, the breach of contract claim could still potentially succeed.

Watson could have pled race and age discrimination in the alternative. She did not.

Best Lawyer Blogs On Point:

·       How Many Claims Can I Sue My Employer For At One Time? A Lot

·       What Evidence Do I Need To Prove Hostile Work Environment And Constructive Discharge?

·       What Evidence Do I Need To Show Race Discrimination At Work?

·       You Don’t Need All Evidence To Start A Discrimination Case

How do you prove a failure to promote claim under Title VII?

A failure to promote claim can be proven either by direct or circumstantial evidence.

Direct evidence of discrimination is evidence that directly proves that an employer took an adverse employment action against an employee or applicant based on their membership in a protected class. In other words, direct evidence is evidence that shows a clear link between the employer’s decision and the employee’s protected status. For example, statements by an employer or decision-maker indicating a preference or bias based on a protected characteristic, such as race or age.

It’s important to note that direct evidence of discrimination is often difficult to obtain. In many cases, discrimination is more subtle, and employees may need to rely on circumstantial evidence or statistical evidence to establish their claims of discrimination. A Title VII claim for employment discrimination based on circumstantial evidence is evaluated under the burden-shifting framework first established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this this three-part framework, an employee must first establish a prima facie case of discrimination. Specifically, the employee must initially present evidence that he/she/they

(1)   is a member of a protected group;

(2)   was qualified for the position at issue;

(3)   was fired or suffered some adverse employment action by the employer; and

(4)   either was (a) replaced by or not selected in favor of someone outside that employee’s protected class or (b) treated less favorably than other similarly situated employees outside the protected group.

Once the employee has made this showing, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for its employment action. Once the employer meets this easy task, the burden shifts back to the employee to rebut the employer’s purported explanation and to show that the reason given is merely pretextual.

An employee normally establishes pretext by presenting evidence that the employer’s proffered explanation is false or unworthy of credence. However, in failure to hire and failure to promote cases, the employee can also meet this burden by establishing that he/she/they was clearly better qualified (as opposed to merely better or as qualified) than the candidate who was ultimately hired or promoted. This is a very difficult burden. To meet the burden to show that the employee or applicant was clearly better qualified, evidence must be presented from which a jury could conclude that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question. To that end, showing that two candidates are similarly qualified does not establish pretext nor satisfy this this standard.

In Watson, the employer did not dispute that Watson satisfied the prima facie case and explained its choice: “Johnson believed that Watson was unlikely to remain in the principalship position, or even with the Franklin Parish School Board, for the long term,” which included that she had already retired once. Id. at *3. The employer might as well has come out and said that Watson was too old to be around for the long hall. This explanation arguably would have been direct evidence of age discrimination. But that claim was not brought and lost by the time this explanation was given by the employer.

Luckily for Watson, the United States Court of Appeals for the Fifth Circuit bailed Watson out and reversed the district court’s dismissal of her claim:

Here, Watson produced evidence from which a jury could find that she was clearly better qualified for the principal position and that therefore the School Board’s proffered reasons for selecting McHand over her were pretextual. Watson presented evidence showing that she had significantly more educational certifications than McHand. More importantly, she also presented evidence as to her substantial amount of relevant work experience, above all almost a decade as assistant principal at WES and several years as a principal in Catahoula Parish. In comparison, McHand, although he had recently received a degree in educational leadership, had less than a decade of teaching experience and no prior experience in any administrative position. Additionally, Watson scored higher in her interview with the interview committee. Given Watson’s long history of experience in administrative positions, especially as both an assistant principal and principal, her larger number of educational certifications of all types, including a certification to serve as a superintendent, and stronger performance before the interview committee, a jury could—not necessarily will—find that no reasonable person could have selected McHand over her in the absence of racial discrimination. Accordingly, summary judgment was inappropriate.

Id. at *4 (footnote omitted).

As callsign Charlie instructed Maverick in the original Top Gun, “The encounter was a victory, but I think that we’ve shown it as an example of what not to do.” (Note to my team, let me know what you feel the need for).

Unfortunately, Watson is not in the clear. She still must prove her case to a jury. The employer has the option of flat out telling the jury that it was not because of her race, but rather factors associated with her older age. While this would be an admission of age discrimination (which might factor into future cases), because Watson did not timely file an age discrimination charge with the EEOC and a claim in court, she would lose if the jury believes that the real reason was age discrimination.

Best Lawyer Blogs On Point:

·       There Must Be An Open Position To Prove Failure To Promote Case Under Title VII

·       My Company Doesn’t Allow Women To Be Promoted!

·       Gender Discrimination: A Failure To Promote Case Hits $500k Verdict

·       How Do You Prove An Unlawful Failure To Hire Claim?

·       How Do I Prove A Failure Hire Case?

·       What Constitutes Direct Evidence of Age Discrimination?

·        Employment Discrimination Question: What Is Pretext?

Who is the biggest employee’s rights firm?

Spitz, The Employee’s Law Firm is one of the nation’s largest law firms dedicated to and focusing exclusively on employee’s rights, including suing employers for employment discrimination, harassment, and wrongful termination based on race, national origin, gender, age, religion and disability. Don’t leave your employment claims to chance. If you are in need of an employment lawyer, then it would be best to call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?; Why Having Skilled Employment Attorneys Is Critical; Employment Law: Avoid Hiring The Wrong Attorney). Call our lawyers in Ohio, Michigan, North Carolina, and Kentucky to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.


This employment law website is an advertisement. The race and age discrimination information presented on this wrongful termination and failure to promote web page and at this employee’s workplace rights website are for informational purposes only and not for the purpose of providing legal advice. To get answers to any particular questions, it would be best for you to contact our top attorneys to obtain direct and specific advice. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, Brian Spitz, or any individual attorney.

"" "