I hope everyone is getting back into the swing of the new year. Next week, I will be visiting my daughter in between January term and second semester. I will be here Monday but leave Tuesday and back Friday. So, I am not sure of the timing of the blog entry for next week. This week we revisit an issue that we have discussed before. The question is whether the evidentiary framework set out in McDonnell Douglas is a stand-in for the ultimate question of liability. Again, the case of the day is not even an ADA case but a title VII case. Nevertheless, it is instructive. The facts aren’t terribly significant because of the issue involved. Basically, plaintiff had enough evidence to get by summary judgment but that evidence was not set up in such a way the plaintiff could survive McDonnell Douglas as a stand-in for the ultimate question of liability. Does the plaintiff get to go forward to trial anyway? The 11th Circuit in Tynes v. Florida Department of Juvenile Justice, here, says yes. As usual, the blog entry is divided into categories, and they are: recapping Ortiz v. Werner Enterprises, Inc.; Tynes reasoning that McDonnell Douglas is not a stand-in for the ultimate question of liability in title VII discrimination cases; Judge Newsom’s concurring opinion that convincing mosaic is not only a separate legal standard but the only one that should be used for summary judgment analysis; Judge Newsom’s section of his concurring opinion that there is a lot to like about the convincing mosaic standard; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.
Recapping Ortiz v. Werner Enterprises, Inc.
- In Ortiz v. Werner Enterprises, Inc. decided by the Seventh Circuit in August of 2016 and discussed here, the Seventh Circuit said that the indirect or direct evidence distinction McDonnell Douglas creates is silly because evidence is evidence. That is, all evidence belongs in a single pile that must be evaluated as a whole.
- The Seventh Circuit simply will not play ball anymore trying to figure out whether the evidence is direct or indirect.
- Convincing mosaic is not a legal standard and should not be used as such. Rather, it exists as a metaphor to illustrate why courts should not try to differentiate between direct and indirect evidence.
- The Seventh Circuit went so far as to overrule cases saying that convincing mosaic was a legal test, and they also said that they would summarily reverse any lower court decision treating convincing mosaic as a legal requirement.
Tyne’s Reasoning That McDonnell Douglas Is Not a Stand-In for the Ultimate Question of Liability and Title VII Discrimination Cases
- McDonnell Douglas is an evidentiary tool functioning as a procedural device designed only to establish an order of proof and production.
- McDonnell Douglas is not an independent standard of liability under title VII or §1981.
- McDonnell Douglas is not a first step either. That is, it was never intended to be the end-all and be-all for a plaintiff to survive a summary judgment motion.
- The prima facie case laid out in McDonnell Douglas is not a substantive standard of liability.
- Within the McDonnell Douglas framework, the term prima facie case has a different meaning. That is, it marks the establishment of a legally mandatory, rebuttable presumption.
- In the typical summary judgment context, a prima facie case typically does mean enough evidence for a plaintiff to prevail on a particular claim. However, the meaning is different when utilizing McDonnell Douglas. In McDonell Douglas, a prima facie case just allows the plaintiff to be entitled to a legally mandatory, rebuttable presumption that the employer intentionally discriminated against her. All that means, is that once a plaintiff satisfies her prima facie burden, the defendant knows its failure to introduce evidence of a nondiscriminatory reason will cause judgment to go against it. This presumption thus helps to narrow things down and frame the factual issue by drawing out an explanation the plaintiff can then see to demonstrate is pretextual.
- The McDonnell Douglas prima facie showing exerts a sort of practical coordination forcing the defendant to come forward with evidence explaining its actions. It also offers a benefit for the defendant employer who now has a better idea of what evidence needs to be rebutted.
- Once the McDonnell Douglas prima facie case has fulfilled its role, and forces the defendant to come forward with some response, it no longer has any work to do. This is because the District Court then has before it all the evidence it needs to decide whether the defendant intentionally discriminated against the plaintiff. So when the defendant employer offers evidence of the reason for its actions towards the plaintiff, the presumption of discrimination created by the McDonnell Douglas prima facie case simply drops out of the picture. This is not at all the same thing as a substitute standard necessary for surviving summary judgment.
- Another reason for all the confusion with the prima facie case terminology is that prima facie case often also reflects a failure of the overall evidence. However, that isn’t what is going on with the McDonnell Douglas paradigm. The key question is whether the plaintiff can prove a necessary element for his employment discrimination case. The prima facie distinction between McDonnell Douglas and the typical discussion of a prima facie case is an important one because the components of a prima facie case are not necessarily coextensive with the evidence needed to proven employment discrimination claim. It also explains why courts in the 11th Circuit do not instruct juries on the prima facie case or the McDonnell Douglas framework.
- The distinction is important because a plaintiff’s failure to produce a comparator does not necessarily torpedo a plaintiff’s case. Indeed, plaintiff always survive summary judgment if he presents circumstantial evidence creating a triable issue concerning the employer’s discriminatory intent.
- McDonnell Douglas is just one method by which the plaintiff can prove discrimination by circumstantial evidence. A plaintiff who cannot satisfy the McDonnell Douglas framework may still be able to prove her case by putting forth a convincing mosaic of circumstantial evidence allowing a jury to infer intentional discrimination by decision-maker.
- A convincing mosaic of circumstantial evidence is simply enough evidence for a reasonable factfinder to infer intentional discrimination in an employment action, which is the ultimate inquiry in a discrimination lawsuit. Utilizing convincing mosaic as an approach to analyzing the evidence, treat an employment discrimination suit in the same way as it would treat any other case, i.e. jumping directly to the ultimate question of liability in deciding whether the moving party is entitled to judgment at that stage of the case. It isn’t any different than the standards ordinarily applied in deciding summary judgment and post-trial motions. That is, if the plaintiff presents enough circumstantial evidence raising a reasonable inference of intentional discrimination, the claim survives summary judgment.
- Parties already understand that when using the convincing mosaic standard, a court is looking beyond the prima facie case to consider all relevant evidence in the record to decide the ultimate question of intentional discrimination. However, that understanding is not always clear when the McDonnell Douglas standard is utilized. With McDonnell Douglas, stating that a prima facie case has not been satisfied might mean that there was not enough evidence to infer discrimination. It also might mean that there was no adverse employment action.
- Cases should turn on the substantive claims and evidence and not on the evidentiary framework. The only question that should be asked is whether there is sufficient evidentiary basis for the jury to find the defendant intentionally discriminated against the plaintiff.
Judge Newsom’s Concurring Opinion That Convincing Mosaic Is Not Only a Separate Legal Standard but the Only One That Should Be Used
- McDonnell Douglas lacks any real footing in the text of Rule 56 and actually obscures the answer to the only question that matters in summary judgment, which is whether the plaintiff has shown a genuine dispute of any material fact.
- Neither the Supreme Court nor the 11th Circuit has ever said that McDonnell Douglas provides the sole mechanism for adjudicating summary judgment motions.
- Upon further review, Judge Newsom believes that convincing mosaic more accurately captures and implement the summary judgment standard.
- McDonnell Douglas distinguishes between direct evidence and indirect evidence. The problem with that is that direct evidence cases are very rare, so most title VII suits turn on circumstantial evidence. In that situation, McDonnell Douglas is clearly the dominant framework with convincing mosaic as something of an afterthought.
- Upon further thinking, McDonnell Douglas is the actual interloper and convincing mosaic is the more appropriate standard.
- McDonnell Douglas is a judge-concocted doctrine that makes a mess of the critical inquiry. Whereas, convincing mosaic is basically just Rule 56 in operation. Convincing mosaic unlike McDonnell Douglas, actually asks the key question, which is whether the record viewed in the light most favorable to the plaintiff, presents a convincing mosaic of circumstantial evidence allowing a jury to infer intentional discrimination by the decision-maker. If you strip away all the legal mumbo-jumbo, convincing mosaic of circumstantial evidence just means evidence, which is exactly Rule 56’s summary judgment standard.
- McDonnell Douglas doesn’t reliably get a court to the result that Rule 56 requires.
- McDonnell Douglas prima facie case is not necessarily coextensive with the evidence needed to prove an employment discrimination claim.
- McDonnell Douglas forces courts to ask and answer a series of questions only peripherally relating to the one Rule 56 poses, which is whether the plaintiff has presented a genuine issue of any material fact.
- McDonnell Douglas seems in retrospect to be awfully made up because there is no basis in the texts of title VII or in the Federal Rules for so elaborate a scheme and no one has ever sought to justify it as being rooted in either. McDonnell Douglas may have been a product of its time but seems to be quite legislative, which creates a flashing red light that something is very wrong.
- McDonnell Douglas has taken on a life of its own. That is, McDonnell Douglas’s burden shifting framework has become the presumptive means of resolving cases at summary judgment despite the fact that McDonnell Douglas arose not on summary judgment but out of a bench trial. Also, the Supreme Court has specifically addressed McDonnell Douglas’s application to title VII cases at summary judgment just once and held the decision didn’t apply.
- Despite the Supreme Court’s occasional reminders that McDonnell Douglas’s procedural device was intended only to establish an order of proof and production, courts have become progressively obsessed with its minute details thereby allowing it to drive substantive outcomes. Those details have grown increasingly intricate and code like, as courts have taken to forcing a holistic evidentiary question-whether all the evidence, viewed in the light most favorable to the plaintiff, actually creates a genuine factual dispute-into a collection of distinct doctrinal pigeonholes. In fact, courts have often treated McDonnell Douglas requirements as a series of standalone case dispositive elements, i.e. boxes to be checked, rather than simply asking the controlling question whether the facts give rise to a triable issue of discrimination.
- McDonnell Douglas actually obscures the key title VII inquiry, especially when it comes to summary judgment. Other jurists have said the same. For example, Justice Kavanaugh, then Judge Kavanaugh, has described the fixation on the plaintiff’s prima facie case in the McDonnell Douglas context as largely an unnecessary sideshow not benefiting employees or employers. In fact, it has done exactly the opposite by spawning enormous confusion and wasting litigation and judicial resources. He went further by explaining that McDonnell Douglas isn’t just wasteful, it is also potentially misleading in that it encourages reviewing courts to focus on non-core issues. As Justice Kavanaugh stated, at summary judgment, the prima facie case is almost always irrelevant and usually a misplaced inquiry because once the defendant offers an explanation for its decision, it no longer matters whether the plaintiff really made out a prima facie case. Justice Kavanaugh then went on to say that once the defendant explains itself, it is up to the district court to resolve the one central question, which is whether the employee produced sufficient evidence for reasonable jury to find that the employer intentionally discriminated against the employee on the basis of race, color, religion, sex, or national origin, which is the rule 56 question. Justice Gorsuch while on the 10th Circuit made similar observations. He said that McDonnell Douglas sometimes proves a sideshow and the framework itself has proven of limited value. He also said that courts too often get bogged down engaging in the business of trying to police fine lines, which can be very fine, between when McDonnell Douglas does and does not apply.
- McDonnell Douglas did not even arise on a summary judgment question. Even so, it has emerged as a purported procedural device in its day-to-day operations, disregards the promulgated rules of summary judgment procedure, overwrites the substance of title VII, and obscures the decisive question with its elaborate scheme. The only question is whether the summary judgment record reveals a genuine dispute of material fact about whether an employer discriminated against this employee because of a protected characteristic.
Judge Newsom’s Section of His Concurring Opinion That There Is A Lot to like about the Convincing mosaic Standard
- The convincing mosaic standard, even if it is a bit clumsy, points right at Rule 56. Under the convincing mosaic standard, a plaintiff always survives summary judgment, if they present circumstantial evidence creating a triable issue concerning the employer’s discriminatory intent. A triable issue of fact exists if the record, viewed in the light most favorable to the plaintiff, presents a commencing mosaic of circumstantial evidence allowing a jury to infer intentional discrimination by the decision-maker. Stripped of the legalese, convincing mosaic is in essence just a restatement of Rule 56’s summary judgment standard without the bells and whistles and just with reasonable inferences and triable facts.
- There are several reasons why convincing mosaic has failed to really launch, including: 1) McDonnell Douglas has been debated and applied for decades; 2) convincing mosaic framework suffers from a branding problem of sorts as the name just sounds contrived thereby sending formalists, which includes many judges, into a tailspin; 3) convincing mosaic is also a little bit misleading because satisfying the test requires neither convincing a reviewing court nor presenting enough evidence to compose a mosaic. Instead, it turns on the existence of a genuine factual dispute. It also send judges into a tailspin because courts when deciding summary judgment motions, don’t weigh evidence, and they don’t decide whether they are convinced. Finally, a mosaic in the truest sense is unnecessary to the beat summary judgment as a single item of evidence can at least theoretically defeat a summary judgment motion.
- Despite the reasons that might be behind the convincing mosaic standard failure to launch, the convincing mosaic standard, which might be better off being rebranded as the Rule 56 standard so as to get rid of unnecessary and confusing ornamentation, comes much closer to capturing the essence of summary judgment than does McDonnell Douglas.
- Is there a Circuit Court split between the Seventh and 11th Circuits? On the one hand, the Seventh Circuit goes out of its way saying that it wants nothing to do with the convincing mosaic legal test. On the other hand, it says that convincing mosaic must be used by way of a metaphor so that court do not get caught up between direct and indirect evidence. In the Seventh Circuit, it would seem that McDonnell Douglas burden shifting standard is still very much alive with the exception of the direct evidence and indirect evidence distinction. On the other hand, an argument can be made, as Jon Hyman has made in his blog, that in the Seventh Circuit McDonnell Douglas is dead because how can you have McDonnell Douglas if you get rid of the indirect and direct evidence distinction. Regardless, whether evidence is direct or indirect chews up a tremendous amount of court time and litigant time unnecessarily.
- While I have not done the research, it is quite likely that there are circuits all in on McDonnell Douglas as a means of deciding summary judgments. In that eventuality, a Circuit Court split exists thereby making it more likely that the Supreme Court will visit this issue.
- Personally, I have found McDonnell Douglas to be terribly confusing. Sometimes, I have wondered whether a person on the plaintiff side is not actually better off going for the burden shifting of McDonnell Douglas for indirect evidence rather than the direct evidence approach. As far as I can tell from reading the case law, the significance of direct evidence existing in a McDonnell Douglas framework, means that a plaintiff just about automatically survives summary judgment. If it is not direct evidence, then all the ensuing gyrations mentioned in this blog entry ensue and whether that gets to the proper Rule 56 inquiry is highly debatable.
- The 11th Circuit decision, which is published, seems to be written with Supreme Court review in mind when it cites to both Justice Kavanaugh and to Justice Gorsuch.
- This is not an ADA case, but ADA cases do get analyzed through the McDonnell Douglas prism all the time.
- In both the Seventh and 11th Circuits, McDonnell Douglas is just one method by which the plaintiff can prove discrimination by circumstantial evidence regardless of whether direct or indirect evidence is involved.
- I am not sure why the Seventh Circuit went out of its way to say that using convincing mosaic as a legal standard rather than as a metaphor is automatically subjected to summary reversal. The 11th Circuit on the other hand focuses on convincing mosaic as a standard. Why not utilize it as a standard rather than as just a metaphor when as a de facto matter, it is convincing mosaic being utilized as a standard?
- From the many many cases that I have read over the years, I certainly agree that courts have become progressively obsessed with the minute details of the McDonnell Douglas paradigm. I also certainly agree that courts have often treated McDonnell Douglas requirements as a series of standalone case dispositive elements rather than simply asking the controlling question of whether the facts gave rise to a triable issue of discrimination.
- Judge Newsom makes a lot of sense in describing the reasons why convincing mosaic hasn’t launched yet. One wonders whether that might change now that there are two circuits calling out the problems associated with McDonnell Douglas and preferring convincing mosaic, whether it be as a metaphor or as an actual legal standard. It will also be interesting to see whether a court doesn’t rebrand convincing mosaic as Rule 56. After all, branding can matter quite a bit.