Direct Evidence is testimony or other proof which expressly or straight-forwardly proves the existence of a fact. It is the opposite of circumstantial evidence, which is evidence that, without going directly to prove the existence of a fact, gives rise to a logical inference that such fact does exist.
Direct evidence is evidence which, if believed, proves the existence of the fact in issue without inference or presumption. It is evidence which comes from one who speaks directly of his or her own knowledge on the main or ultimate fact to be proved, or who saw or heard the factual matters which are the subject of the testimony. It is not necessary that this direct knowledge be gained through the senses of sight and hearing alone, but it may be obtained from any of the senses through which outside knowledge is acquired, including the senses of touch or pain.
Directevidence of discriminatory motive may be any written or verbal policy or statement made by a respondent or respondent official that on its face demonstrates a bias against a protected group and is linked to the complained of adverse action.
Respondent is unable to impeach this directevidence, but it establishes that CP had less job-related experience than all the other candidates for promotion, and that this was a primary factor in the decision to reject her.
Directevidence, then, is not limited to evidence from which no inferences need be drawn; rather it is evidence that "relates to actions or statements of an employer reflecting a discriminatory or retaliatory attitude correlating to the discrimination or retaliation complained of." Caban-Wheeler v.
Petitioner objected to this instruction on the ground that the case was not a "mixed motive" case because respondent failed to submit "directevidence" that her gender was a motivating factor in her firing.
Evidence that merely raises an inference of discrimination is, therefore, insufficient to shift the burden to the defendant.
Purely statistical evidence, evidence establishing merely the plaintiff's qualification for and the availability of a position, and stray remarks in the workplace by persons who are not involved in the pertinent decisionmaking process-all of which might be sufficient to make out a prima facie case under McDonnell Douglas-are insufficient for invoking the mixed-motive analysis.
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