This case should have been submitted to a jury for final resolution. Therefore, I respectfully dissent. I am authorized to state that Justice McGraw joins me in this dissent. Rather, it provides a framework for analyzing the evidence and facilitating a trial court's rulings on motions to dismiss and for directed verdicts. Second, neither form of proof is necessarily more reliable than the other.
Circumstantial evidence can be powerful, and direct evidence limp, and vice versa.
Third, the direct-circumstantial distinction overlooks what the jury's role is in disparate treatment cases. Essentially, the jury is charged with the duty of recreating what in fact happened and whether the facts that did happen included intentional discrimination. Thus, if the jury reads the facts and concludes that the employee has proved that a discriminatory motive entered into the employer's decision, it should not matter whether that conclusion was induced by direct or circumstantial evidence. Fourth, we are not convinced that the direct- circumstantial distinction is a viable or meaningful one. Based on information provided, to me and my own conversations with the persons involved, I concluded, and was under the distinct impression that Mr. Denny, Mr. McMahon and Carl Blackburn, Director of Human Resources, agreed with me, that Mr. Smith had not committed an offense which gave Sears just cause to fire him.