This week’s blog entry discusses Justice Thomas with Justice Gorsuch joining concurring opinion in Ames v. Ohio Department of Youth Services, here. By now, you most likely know that the opinion for the Court written by Justice Jackson, holds that a higher standard of proof is not in order if you are from a group of people not traditionally considered a member of a majority group and are alleging discrimination. What I want to focus on is the concurring opinion that lays out the case as to why McDonnell Douglas burden shifting approach as a summary judgment tool doesn’t make any sense. So, the blog entry is divided into two categories and they are: Justice Thomas makes the case for why McDonnell Douglas as a summary judgment tool doesn’t make any sense; and thoughts takeaways.

 

I

Justice Thomas Makes the Case for Why McDonnell Douglas as a Tool for Deciding Summary Judgment Doesn’t Make Sense.

 

  1. The opinion for the Court in Ames assumes without deciding that the McDonnell Douglas framework is an appropriate tool for deciding whether to grant summary judgment.
  2. The judge made McDonnell Douglas framework has no basis in the text of Title VII.
  3. Lower courts extension of the doctrine into the summary judgment world has caused significant confusion and troubling outcomes on the ground.
  4. The framework is a judge made evidentiary tool originally developed for courts to use in a bench trial. Its intended purpose was to help bring the litigants and the court expeditiously and fairly to the ultimate question in a Title VII case-i.e. whether the defendant intentionally discriminated against the plaintiff.
  5. The McDonnell Douglas framework was made out of whole cloth and has no basis in Title VII or any other source of law. In fact, Justice Thomas referencing a case that we discussed here, said that the Court has never attempted to justify it on textual grounds.
  6. Although originally designed for the bench trial context, the McDonnell Douglas framework has over the years taken on a life of its own. It is today the presumptive means of resolving Title VII cases at summary judgment, which is a development that came without the Court ever considering-much less holding-that the framework is an appropriate test for summary judgment task in the first place.
  7. The Court has taken steps to limit the relevancy and applicability of the McDonnell Douglas framework to other contexts. For example, the Court has held: 1) the framework is not applicable when the plaintiff relies on direct evidence to prove the claim; 2) the framework is not applicable to mixed motive cases; 3) the framework is not applicable at the pleading stage and in deciding posttrial motions; 4) the framework’s first step does not need to be satisfied by a plaintiff at trial; and 5) the Court has strongly suggested that the framework should not be referenced in jury instructions because it is too confusing.
  8. Notwithstanding the Supreme Court’s steps to limit McDonnell Douglas, it is now the framework that courts typically apply to determine whether the plaintiff has put forward sufficient evidence to survive summary judgment. The reason for that is unclear as the Court has only once addressed the application of McDonnell Douglas to Title VII cases at summary judgment and held the framework did not apply.
  9. In a footnote, Justice Thomas said that the Court has assumed without deciding that the McDonnell Douglas framework applies at summary judgment outside of Title VII, but as far as he can tell, the Court has never had occasion to decide whether the framework is a useful or appropriate tool for evaluating any kind of claim at summary judgment.
  10. The framework is incompatible with the summary judgment standard for several reasons: 1) it does not encompass the various ways a plaintiff can prove his claim; 2) it requires courts to maintain artificial distinctions between direct and circumstantial evidence; and 3) it has created outsized judicial confusion.
  11. McDonnell Douglas framework does not track Federal Rules of Civil Procedure 56, which requires a court to grant summary judgment when the movant establishes that there is no genuine dispute as to any material fact and therefore, the movant is entitled to judgment as a matter of law.
  12. McDonnell Douglas does not speak in terms of a genuine dispute regarding the facts. Instead, it speaks in terms of proving facts by the preponderance of the evidence. That difference is significant because a plaintiff need not establish or prove any elements by a preponderance or otherwise in order to survive summary judgment. So, McDonnell Douglas requires a plaintiff to prove too much at summary judgment.
  13. If courts are to apply McDonnell Douglas at summary judgment, the framework should be modified to match the applicable legal standard. For example, the third step of the framework cannot involve proving by a preponderance of the evidence that the legitimate reasons offered by the defendant were a pretext for discrimination. Instead, if Rule 56 is to be applied properly, the plaintiff need only present sufficient evidence to create a genuine dispute as to whether the employer’s stated reason was pretextual.
  14. McDonnell Douglas framework fails to capture all the ways a plaintiff can prove a Title VII claim. For example, the explicit statutory provisions of Title VII allow for an unlawful employment practice to be established when the complaining party demonstrate that the race, color, religion, sex, or national origin was a motivating factor for any employment practice even though other factors also motivated that practice. That is, plaintiff can establish a violation of Title VII by proving that an employer took an employment action in part because of an unlawful motive. McDonnell Douglas takes a different approach by requiring a plaintiff to prove that the legitimate reasons offered by the defendant was not it’s true reasons but was a pretext for discrimination. That requirement goes beyond Title VII.
  15. Under Title VII, a plaintiff need not establish that the employer’s reason for its action was wholly pretextual. A plaintiff could prevail even if the employer’s stated reason what just part of the reason for the employer’s action. Therefore, a plaintiff’s inability to satisfy McDonnell Douglas’s third step of the framework does not necessarily mean that the plaintiff’s claim should fail. For example, the Court has held that the McDonnell Douglas framework should not be used in cases where the plaintiff argues that the employer operated with mixed motive.
  16. Even in single motive cases, McDonnell Douglas fails to capture all the ways a plaintiff could prevail. For example, a plaintiff who cannot establish a prima facie case at the first step or pretext at the third step, could still prevail under Title VII the long as his evidence raises a reasonable inference of unlawful discrimination. The ultimate question is simply whether the defendant intentionally discriminated against the plaintiff.
  17. Another problem with McDonnell Douglas it that it requires court to draw and maintain an artificial distinction between direct and circumstantial evidence.
  18. The Court’s holding that McDonnell Douglas is not applicable when a plaintiff presents direct evidence of discrimination, forces courts to make the often subtle and difficult distinction between direct and indirect or circumstantial evidence.
  19. In any lawsuit, the plaintiff may prove his case by direct or circumstantial evidence or some combination of that. The law makes no distinction regarding the weight or value assigned to either kind of evidence. The reason for treating circumstantial and direct evidence the same is that circumstantial evidence is not only sufficient, but may also be more certain, satisfying, and even more persuasive than direct evidence.
  20. The conventional rule of civil litigation that a plaintiff can proceed with either direct or circumstantial evidence applies with full force to Title VII cases. Yet, McDonnell Douglas requires courts to determine at the outset the nature of the evidence before it, which often only prolongs litigation instead of streamlining it.
  21. Since a Title VII plaintiff can prove his claim with either direct or circumstantial evidence, one has to be skeptical about a framework that requires court to perform the difficult task of characterizing each piece of evidence.
  22. McDonnell Douglas has befuddled courts since its origins and that is another reason to question it.
  23. Six years after the Court created the framework, the First Circuit observed that the subtleties of McDonnell Douglas are confusing and have caused considerable difficulty for judges at all levels. A decade later, Justice Kennedy made the same observation. Twenty years after that, another judge said that lower courts have struggled to implement the burden shifting framework for over thirty years. McDonnell Douglas has now been on the books for fifty years and the courts are still reporting continuing confusion. Those who have carefully dived into the framework for decades cannot make sense of it and that suggests the framework is unworkable.
  24. While McDonnell Douglas as a summary judgment tool was not before the court in this case, Justice Thomas and Justice Gorsuch would be willing to consider whether that framework should be used for summary judgment purposes when squarely presented with the question.
  25. Litigants and lower courts are free to proceed without the McDonnell Douglas framework. The Court has never required anyone to use it. District courts are well-equipped to resolve summary judgment motion without it. Every day-and in almost every situation outside of the Title VII context- district courts across the country resolve summary judgment motion by applying the straightforward provisions of Rule 56.

 

II

Thoughts/Takeaways

 

  1. McDonnell Douglas indeed multiplied everywhere. It is standard practice for McDonnell Douglas to be used throughout the ADA universe.
  2. Justice Thomas makes a strong case as to why McDonnell Douglas, especially by itself: 1) makes no sense as a summary judgment tool; 2) uses unsupportable distinctions between evidence; and 3) also goes beyond what is allowed by Rule 56 of the Federal Rules of Civil Procedure.
  3. I read an awful lot of case law, and McDonnell Douglas comes up frequently. Trying to figure out the distinction between direct and indirect evidence and what that means can be mind-boggling even for a reader involved with it all the time. The third step, pretext, can also be mind-numbing to deal with as well.
  4. So, what’s next? Justice Thomas said that litigants and lower courts are free to proceed without the McDonnell Douglas framework and the Court has never required anyone to use it. What this means is that any of three things will happen: 1) courts will adopt the Ortiz approach of the Seventh Circuit, which we discussed here; 2) courts will adopt the Tynes approach of the 11th Circuit, which we discussed here; or 3) the courts (as we are seeing in the district court’s within the Seventh Circuit), will allow litigants to use either the McDonnell Douglas framework or the Ortiz/Tynes approach (Ortiz and Tynes are very similar in their approach except that the Seventh Circuit refuses at the pain of it being reversible error, to use the term, “convincing mosaic”). I think it is fair to say with respect to any of these approaches just described, that you will see more plaintiffs surviving summary judgment motions.