New Fifth Circuit case in which the Court appears to be backtracking on or just ignoring its own decision in Rachid v. Jack In The Box, Inc., 375 F.3d 305 (5th Cir. 2004). Keelan v. Majesco Software, Inc., No. 04-10317 (5th Cir. Apr. 12, 2005) is a national origin case in which several non-Indian employees of an Indian subsidiary were allegedly terminated on the basis of their national origin. They appeal a summary judgment in favor of the employer that was decided under traditional McDonnell Douglas grounds.On appeal the main thrust of the Plaintiff's argument is that the district court improperly failed to utilize the appropriate mixed motive legal standard. The Fifth Circuit holds that the Plaintiffs did not preserve this argument sufficiently and therefore it was perfectly fine for the Defendant to argue in favor of the wrong legal standard and for the district court to utilize same.
"However, based upon our careful review of the record, we agree with Majesco that Appellants did not properly raise in the district court the argument that showing similarly situated employees were more favorably treated to meet the fourth element of McDonnell Douglas is not required to prove up a prima facie case of discrimination. While Appellants objected that their case should be treated under a mixed-motive theory perDesert Palace, they did not object to the similarly situated disparate treatment formulation of the fourth element of the prima facie case. Because Appellants did not sufficiently object below, the district court did not have any opportunity to rule on their argument; appellants' legal argument on formulation is thus waived."
So while the "District Court acknowledged the request, it still was not preserved. Umm...yeah.
The Court then went on to analyze the case under mixed-motive analysis and held that even if they had preserved the argument, they would have lost b/c there was no evidence of any discriminatory motive in their termination of the Plaintiffs. Here is some of the non-evidence cited by the Court:
"Keelan and Sullivan also complained to P.N. Prasad ('Prasad'), an Indian Majesco executive, about what they perceived to be discrimination against non-Indians. Keelan said Prasad also stated that 'Americans have never worked out' at the company. Sullivan spoke to Ketan Mehta ('Mehta'), Majesco's CEO and an Indian, about the apparent discrimination; Mehta's response was, 'I can see how you would feel that way.'"