When the only tool in your box is a hammer, everything looks like a nail. Some days, it seems that McDonnell Douglas is the only tool in the federal judiciary’s box to decide employment law cases. Judge Posner, in this opinion decided under Illinois tort law, tries to curb that habit a little.
Gacek v. American Airlines, No. 09-3131 (7th Cir. July 15, 2010): This fairly routine opinion — affirming summary judgment on an Illinois state-law retaliatory discharge tort — takes a frolic and detour over to the question of whether the inferential, burden-shifting method of proof launched by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), should apply to such claims. The Supreme Court of Illinois had already held in Clemons v. Mechanical Devices Co., 704 N.E.2d 403, 407-08 (Ill. 1998), that the McDonnell Douglas framework did not apply to cases of retaliatory discharge for making a workers’ compensation claim. It held that the common-law tort should not “expand . . . by reducing plaintiff’s burden of proving the elements of the tort,” namely, that the workers’ compensation claim was the cause of the plaintiff’s being fired. The McDonnell Douglas method of proof (by contrast) does not require direct proof of causation, but allows the trier of fact to infer causation if the plaintiff negates other possible causes for being fired.
The Seventh Circuit, though, had apparently never squarely decided whether McDonnell Douglas ought to provide the rule of decision in diversity cases raising the same claim. The panel concludes that the standard of proof embodied by the Clemons case differs from McDonnell Douglas and is substantive, rather than procedural, in nature:
“We know that Illinois requires proof of causation, and that can make a difference. For suppose that in a case governed by McDonnell Douglas the employer fails to offer any reason for having fired the plaintiff. An inference would arise that the reason was the unlawful one alleged by the plaintiff. Yet in some cases the reason might be unknown to the employer (the actual firing having been done by a subordinate who may have left the company or be unwilling to cooperate in its investigation) or the employer might be unwilling to reveal the real reason because it would disclose an illegal or unethical or otherwise embarrassing practice (nepotism, for example, or blackmail) though one unrelated to the discrimination alleged in the suit. Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1399 (7th Cir. 1997). Then the plaintiff would win under McDonnell Douglas without more, but under the Illinois rule he would have to prove that the alleged discrimination was the cause of his being fired. So the choice between the federal McDonnell Douglas approach and the state Clemons approach may make a difference in at least some cases governed by Illinois law, and it is a difference that will favor plaintiffs if McDonnell Douglas is applied in preference to Clemons.”
The panel concludes, under Erie principles, that the state rule of decision ought to apply. While McDonnell Douglas was “designed to make it easier for plaintiffs to withstand summary judgment in discrimination cases,” Illinois’s high court did not have the same aim in crafting its state common law:
“Illinois, however, doesn’t want to give plaintiffs in retaliatory discharge cases governed by state law that leg up; it doesn’t want to modify the conventional principles of tort law. That is a substantive judgment, one that a state is free to make in areas governed by state law, whether we think it wise or unwise. In most cases of employment discrimination the state and federal standards for summary judgment will be materially the same and the federal judges’ greater familiarity with the McDonnell Douglas doctrine will provide a compelling reason to apply it. But when a retaliatory discharge case governed by Illinois law is litigated in a federal court, the federal court must apply the standard of the state law to a motion for summary judgment, and not the federal standard, because the standards are materially different and the difference is rooted in a substantive policy of the state.”
What this analysis – correct as far as it goes – leaves out is the fact, known to all litigators locally, that it is far harder to get summary judgment in Illinois state court than federal court. So a plaintiff filing in federal court (or removed there) will be hobbled by pro-defendant summary judgment practices without parallel in state court.