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Heiat v. Eastern Montana College3/4/1996
easonable inference that he or she was denied an employment opportunity. . . ."
We went on to hold that:
If that burden is met, the employer must rebut the inference of discrimination with evidence of legitimate nondiscriminatory reasons the plaintiff was not hired or was terminated; upon such a showing, the burden shifts back to the employee to demonstrate with specific facts that the employer's explanation is a pretext.
Kenyon, 835 P.2d at 746 (citing Foster v. Arcata Associates, Inc. (9th Cir. 1985), 772 F.2d 1453, 1459, cert. denied, 475 U.S. 1048, 106 S.Ct. 1267, 89 L.Ed.2d 576 (1986), overruled on other grounds by, Kennedy v. Allied Mut. Ins. Co. (9th Cir. 1991), 952 F.2d 262). We now determine that this process places a plaintiff, the nonmoving party in this summary judgment context, in the peculiar position of having to prove her case to survive the defendant's motion. The order of proof and shifting of burdens at trial must be viewed in light of the traditional test for granting a motion for summary judgment. Thus, to survive a motion for summary judgment, a plaintiff must only produce evidence sufficient to support a reasonable inference of the existence of the fact at issue. Under the Kenyon test, the non-moving party is saddled with two burdens, first, to "adduce facts which, if believed, support a reasonable inference that he or she was denied an employment opportunity" and, if the employer rebuts the inference of discrimination with evidence of legitimate nondiscriminatory reasons, to "demonstrate with specific facts that the employer's explanation is a pretext." Kenyon, 835 P.2d at 746.
The three-step McDonnell Douglas analysis, as adopted in the summary judgment context by this Court in Kenyon, conflicts with the two-step analysis traditionally employed in deciding motions for summary judgment. Under the traditional summary judgment analysis the party opposing summary judgment has only one burden, namely, to demonstrate that genuine issues of material fact exist. To do so, the party opposing summary judgment must present material and substantial evidence, rather than mere conclusory and speculative statements, to raise a genuine issue of material fact. Howard, 901 P.2d at 119. In Kenyon, we made the mistake of following the lead of many state and federal courts throughout the country and superimposed the three-step McDonnell Douglas trial analysis into the summary judgment context without specifically noting that the plaintiff's burden in defending against a motion for summary judgment differs from the plaintiff's burden at trial. At trial, the plaintiff has the burden of proof so the McDonnell Douglas construct of placing the initial burden on the plaintiff is logical. However, when, as here, the defendant makes a motion for summary judgment, that construct does not work. In summary judgment, the moving party has the initial burden of establishing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P.
We now determine that it is error to require a plaintiff in a discrimination case to satisfy the burdens set forth in Kenyon to survive a motion for summary judgment. Accordingly, we overrule that portion of Kenyon v. Stillwater County which requires a plaintiff to initially "adduce facts which, if believed, support a reasonable inference that he or she was denied an employment opportunity" and, in rebuttal, to "demonstrate with specific facts that the employer's explanation is a pretext." Kenyon, 835 P.2d at 746.
Instead, we now adopt an analysis consistent with the Burdine test, yet more compatible with the traditional analysis used in t
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