"Proffer" vs. "Establish" or "Show"

The Tenth Circuit issued a new opinion today in an ADEA case. The district court granted summary judgment to the defendant, finding that the plaintiff had failed to bring forth sufficient evidence to create a jury question as to whether the defendant's alleged nondiscriminatory reason for terminating her was actually a pretext for age discrimination. The Tenth Circuit affirmed.

The case discusses the McDonnell Douglas burden-shifting analysis with respect to summary judgment standards, finding that the well-known analytical framework applies even during summary judgment determinations. "In the employment discrimination context, there is no need for a trial if one party has failed to produce sufficient evidence to carry its burden of persuasion. It is therefore appropriate for a court to reference the burdens of proof articulated by McDonnell Douglas in determining whether the parties have come forward with sufficient evidence to make a trial necessary."

Interestingly, the Court also discussed the nature of the burdens placed on the parties during the summary judgment stage. The burden is one of "production." The Court noted that cases had often described the burden of production in general terms like "establish" or "show." The Court noted that a nonmovant is only required to "bring forth evidence tending to establish or show the material fact at issue." With respect to the defendant's obligation to produce evidence of a legitimate nondiscriminatory reason for the adverse action, the Court stated that the proper terminology would be "proffer." Likewise, at the summary judgment stage, the plaintiff must "proffer some probative evidence that would be sufficient to sustain her burden of persuasion at trial, but she need not offer conclusive proof to the court in order to withstand summary judgment."

Word choice appears to matter in this context.