And I’m not talking about Beryllium. I’m referring to the fourth element of a prima facie case. In discrimination cases, courts have created a concept called a “prima facie” case, which means that once a plaintiff has presented evidence of the elements of a prima facie case, then the defendant employer is required to come forward with a credible reason why their action was taken for a legitimate reason which is not an illegal discriminatory act. Once the employer has stated that reason then the employee has to present enough evidence to create a reasonable fact question for the jury to consider. This all occurs on a motion for summary judgment and if the plaintiff fails to present facts that create the prima facie case on all of the elements of the cause of action, the court grants the motion for summary judgment and the plaintiff loses. Generally, cases of discrimination have 3 or 4 elements in the prima facie case. For example, in a disability or race discrimination case, some courts have said that the 4 elements are that (1) the plaintiff belongs to a protected group, (2) he is qualified for the job (3) the plaintiff was discriminated against, and (4) the plaintiff was replaced bv a nonminority. It’s the fourth element that is usually the most difficult and elusive to prove because many times the person wasn’t replaced or it is difficult to later find a person who replaced the plaintiff. Also, sometimes the plaintiff was replaced by a person of the minority. Therefore, many courts have ignored or bypassed the fourth element. The Fifth Circuit has gone both ways. In Byrd v. Roadway Express, Inc. 687 F2d 85, 86 (5th Cir. 1982), the Court held that the focus of the inquiry may not be obscured by “blindered recitation of a litany” and if a plaintiff cannot establish some or all of the steps, the district court must examine all the evidence that has been adduced for other indicia of discrimination relating to the discharge to determine whether it is more likely than not that the employer’s actions were based on illegal discriminatory criteria. Other cases have followed this case. However, some cases have stuck by the old harsh “blindered litany” resulting in much injustice to plaintiffs whose facts just don’t include that one fourth element but still have clear evidence that the actions against them were for a discriminatory reason. The lesson is that if a plaintiff has the fourth element it should be proved so as to avoid the question.