As everyone knows, I keep a list of my favorite blogs in my blogroll section. One of those blogs on the list is Jonathan Hyman’s Ohio Employer’s Law Blog, An ABA Blawg 100 Hall of Fame Blog. I highly recommend it. Jon has a very unusual perspective on labor and employment law. In a recent blog entry discussing a case from the Seventh Circuit, he posits that the Seventh Circuit in a recent decision may have killed McDonnell-Douglas Corp. v. Green. His blog entry got me thinking. So, I read both this Seventh Circuit decision, Ortiz v. Werner Enterprises, Inc., and reread McDonnell-Douglas. I wound up reaching the exact opposite conclusion. That is, far from killing McDonnell-Douglas, McDonnell-Douglas in the Seventh Circuit is the only paradigm that matters. Let me explain why. Before proceeding further, this blog entry as usual is divided into categories: Historical overview; McDonnell Douglas everywhere and convincing mosaic as a separate standard thrown out; and takeaways. The reader is free to focus on any or all of the categories.
In McDonnell-Douglas, a 1973 decision written by Justice Powell involving violations of title VII of the Civil Rights Act of 1964 for racial discrimination, the court discusses the order and nature of proof for such actions. More specifically: plaintiff must establish a prima facie case; the burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the adverse action; and if the employer does that, the plaintiff has to be given a full and fair opportunity to demonstrate that the nondiscriminatory reason was in fact a pretext for the discriminatory decision. I have seen, for example here, McDonnell Douglas carry over to non-employment situations, such as Title II of the ADA, as well. After McDonnell Douglas, case law winds up evolving so that you have three different standards. First, with respect to indirect evidence, McDonnell-Douglas is the way to go. Direct evidence has a different system (see this blog entry for example), and then a third standard was developed, convincing mosaic. With respect to the direct and indirect evidence dichotomy, it is interesting that things evolved that way because while McDonnell-Douglas was an indirect evidence case, nothing in that decision suggests that McDonnell-Douglas is limited to indirect evidence. In fact, the term “indirect evidence,” doesn’t even appear in the decision.
McDonnell Douglas Everywhere and Convincing Mosaic as a Separate Standard Thrown out
In this section, we will explore the Seventh Circuit’s reasoning in Ortiz v. Werner Enterprises, Inc., to see why it is my conclusion that McDonnell Douglas is everywhere.
- The Seventh Circuit noted that the District Court treated each method as having its own elements and rules. However, these methods are just means to consider whether one fact (ethnicity in Ortiz), caused another and the methods are not elements of any claim.
- The District Court’s effort to shoehorn all evidence into two methods and its insistence that either method be implemented by looking for a convincing mosaic, detracted attention from the only question that matters, namely whether a reasonable juror could conclude that the plaintiff would have kept his job if he had a different ethnicity and everything else had remained the same.
- The use of disparate methods and the search for elusive mosaics has complicated and sidetracked employment-discrimination litigation for many years. In fact, in the Seventh Circuit, every member has disapproved both the multiple methods and the search for mosaics. So, to the Seventh Circuit, the time has come to jettison the diversions and focus analysis on the substantive legal issue.
- Convincing mosaic was never designed as a separate standard, rather it was supposed to be a metaphor to illustrate why courts should not try to differentiate between direct and indirect evidence. That particular case explained that all evidence is inferential and cannot be sorted into boxes. However, instead of persuading district judges and litigants to merge the direct and indirect methods into a unified approach, this particular case, Troupe v. May Department Stores Company, was understood by many to add a new test that had to be satisfied, convincing mosaic. How a mosaic could be a test rather than a mental picture never was addressed. For that matter, the question how such a legal test was rooted in the statute governing employment-discrimination cases was never addressed either. Therefore, convincing mosaic is not a legal test and opinions saying otherwise are overruled.
- In addition to the Seventh Circuit saying that convincing mosaic is not a legal test and overruling decisions saying it was, it went even further by saying that an employment-discrimination case is subject to summary reversal with respect to any decision that treats convincing mosaic as a legal requirement.
- The proper legal standard is simply whether the evidence would permit a reasonable factfinder to conclude that the plaintiff’s race, ethnicity, sex, religion, or other proscribed factor caused the discharge or other adverse employment action. The evidence must be considered as a whole, rather than asking whether any particular piece of evidence proves the case by itself (or trying to figure out whether you get there by direct or indirect evidence). Evidence is evidence and relevant evidence must be considered while all irrelevant evidence disregarded. No evidence should be treated differently from other evidence because it can be labeled “direct,” or, “indirect.” After all, why have two tests if they consider the same information and answer the same question.
- Few discrimination cases are straightforward and usually involve factually complex and the sifting of ambiguous pieces of evidence. The direct and indirect framework does nothing to simplify the analysis. Instead, it complicates matters considerably by forcing parties to consider the same evidence in multiple ways and sometimes to disregard evidence that doesn’t seem to fit one method rather than the other. Accordingly, district courts have to stop separating “direct,” from “indirect,” evidence and proceeding as if they were subject to different legal standards.
- The Seventh Circuit has to accept its share of the responsibility because even as some panels were disparaging the “direct,” and “indirect,” approaches, other panels were circulating them as governing legal standards. Accordingly, to bring harmony to Seventh Circuit law, those cases are overruled.
- I usually don’t quote directly from a decision, but the importance of the following is so critical, that I will do so here: “One point of clarification may be helpful. The burden shifting framework created by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), sometimes is referred to as an “indirect,” means of proving employment discrimination. Today’s decision does not concern McDonnell Douglas or any other burden-shifting framework, no matter what it is called as a shorthand. We are instead concerned about the proposition that evidence must be sorted into different piles, labeled “direct” and “indirect,” that are evaluated differently. Instead, all evidence belongs in a single pile must be evaluated as a whole. That conclusion is consistent with McDonnell Douglas and its successors. With the rat’s nest of surplus “tests” removed from the law of the Circuit, we can turn back to Ortiz’s claim and his supporting evidence. Stripped of the layers of tests, our analysis is straightforward.”
- Since the opinion overruled two lines of cases in the Seventh Circuit, it was circulated before release to all judges in active service on the Seventh Circuit and none of them favored a hearing en banc.
- The Seventh Circuit for these reasons winds up saying that in light of what is now the proper standard with respect to the burden of proof, summary judgment was inappropriate and a trial was necessary.
- This decision will have a huge impact and not just on employment cases. As mentioned above, Title II cases have employed the direct and indirect distinctions as well.
- Convincing mosaic as a separate standard in the Seventh Circuit is dead. However, convincing mosaic as a metaphor for viewing the evidence is everything.
- Paragraph II9 above, to my mind, essentially says that McDonnell Douglas– without the direct and indirect evidence distinction and viewed through the metaphor of convincing mosaic,- is the only burden of proof paradigm that works. As mentioned above, no distinction between direct and indirect evidence is made in McDonnell Douglas.
- In the Seventh Circuit, a District Court decision from Wisconsin, Indiana, or Illinois focusing on indirect and direct evidence will run into serious problems on appeal. Same goes for any District Court decision utilizing convincing mosaic as a separate standard rather than as a metaphor to view the evidence.
- Part of the problem here is that unlike other Circuits, the Seventh Circuit does not have a system to deal with situations where panels start contradicting each other. In some Circuits where a panel starts contradicting another panel, it triggers automatic en banc review. Historically (it has been a while since I checked on this), that was not the practice in the Seventh Circuit, which explains why so many panels went so many different ways. It is also the reason why you see this panel saying that they ran the decision by the entire Seventh Circuit before issuing it. One wonders if this kind of decision wouldn’t lead to the Seventh Circuit adopting the approach seen in some other Circuits of triggering automatic en banc hearing when panels start contradicting each other, particularly when it happens often.
- This case is revolutionary in what it does, and I would expect an appeal to the U.S. Supreme Court for that reason.