The Eleventh Circuit adds its voice to the lower-court movement to abandon the McDonnell Douglas v. Green, 411 U.S. 792 (1973), proof framework in discrimination cases – such as this one – where the plaintiff presents circumstantial evidence that bias was a motivating factor in an adverse decision. This could be the case that allows the Supreme Court to revisit this long-standing precedent.
Quigg v. Thomas County school District, No. 14-14530 (11th Cir. Feb. 22, 2016): The Supreme Court developed the McDonnell Douglas framework for advancing discrimination (and retaliation) claims where overt evidence of bias is scarce. Yet we find even in 2016 that There are cases where decision-makers are (allegedly) incautious about expressing their intolerance of women, racial minorities, and others in the workplace. The McDonnell Douglas “pretext” framework is an uncomfortable fit for such cases. The search under McDonnell Douglas for “comparable” employees and rebuttal of other, non-biased motives can obscure the more-direct proof of the decision-makers’ actual motives.
In this case, the plaintiff – a female school superintendent – was not renewed by the school board, on a vote of five to two. There was evidence that at least some board members were influenced by gender bias:
“Morgan and Nesmith told Quigg that she needed a tough ‘hatchet man’ to address school policy implementation-a ‘guy’ she could send to individual schools to ‘handle’ things. Morgan and Nesmith recommended a specific male employee for the position, but Quigg suggested a female employee. In response, Morgan replied: ‘We have no males in the school system?’ And, at another point during a conversation with Nesmith and Quigg about the assistant superintendent position, Morgan stated to Quigg: ‘[What about a guy in this position? . . . I’m just being honest about that, you know, a guy will-and I was just thinking from the standpoint of an offset.’ However, following these comments, Morgan named a female school employee as a possible candidate for the position . . . . Referring to the position of superintendent, the proposed assistant superintendent position, or alternatively, the office of the superintendent more generally, Nesmith told the parent: ‘[I]t is time to put a man in There.'”
The case is complicated, though. The record (even read in the light most favorable to plaintiff) shows that her performance evaluations were mixed, that Quigg “openly supported” opponents against two board members, and that some board members averred “ethical concerns about Quigg’s administration of the programs.” Any or all of these reasons pressed on the school board in making its decision.
The record thus presented a straight-forward “mixed-motive” case, where the record included evidence of proper and improper motives. Quigg brought her case both under Title VII – which defines the standard of proof as “motivating factor” (42 U.S.C. § 2000e-2(m)) – and § 1983. (Under § 1983, proof is sex discrimination is also “motivating factor” under Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977).)
Nevertheless, the district court granted summary judgment, holding that Quigg failed to create a genuine dispute of material fact under the McDonnell Douglas method. It did not review case under a direct- or circumstantial-evidence framework.
The Eleventh Circuit reverses. Quigg’s appeal directly targeted McDonnell Douglas, arguing that the pretext “framework is not the proper framework for evaluating mixed-motive claims that rely on circumstantial evidence.”
Noting that the issue was “a novel question in our circuit, as we have yet to identify the appropriate summary judgment framework for evaluating mixed-motive discrimination claims based on circumstantial evidence,” the panel thoroughly reviews Supreme Court and other circuit developments since McDonnell Douglas.
The panel holds that:
“[t]his framework is fatally inconsistent with the mixed-motive theory of discrimination because the framework is predicated on proof of a single, ‘true reason’ for an adverse action . . . . Thus, if an employee cannot rebut her employer’s proffered reasons for an adverse action but offers evidence demonstrating that the employer also relied on a forbidden consideration, she will not meet her burden. Yet, this the exact type of employee that the mixed-motive theory of discrimination is designed to protect.”
The panel notes that every circuit to consider the question, except for the Eighth, has either scrapped or modified the McDonnell Douglas framework in circumstantial-evidence cases such as this one. It adopts the Sixth Circuit’s standard, a two-factor examination for summary judgment: “(1) the defendant took an adverse employment action against the plaintiff; and (2) [a protected characteristic] was a motivating factor for the defendant’s adverse employment action.”
Applying that test to the record at hand, the Eleventh Circuit reverses summary judgment on Quigg’s discrimination claim against the board and (under § 1983) individual board members. “Various statements made by school Board members . . . indicate that sex or gender-based bias was a motivating factor in their votes against her . . . . These statements indicate that Nesmith, Morgan, and Hiers preferred men-or, at the least, individuals with masculine characteristics-for positions within the office of the superintendent.” The panel notes that the comments, while not direct evidence of bias (proving the fact without inference or presumption), were certainly circumstantial.
The panel also refuses to affirm the judgment on a “same decision” ground, i.e., that Quigg would have lost her job regardless of sex or gender bias. “Same decision” is a defense on which the employer bears the burden of proof. The panel holds that two out of the five majority voting members could not prove, as a matter of law, that they would have voted against Quigg regardless of such bias. That issue belongs, holds the panel, to a jury. The panel also reverses summary judgment on individual liability for the same two board members.
Finally, the panel affirms summary judgment on a connected retaliation claim, because There was no genuine dispute that the decision-makers learned about the protected activity (protesting discrimination in a reorganization plan and filing an EEOC charge) only after taking adverse action.