In a bid to restore common sense to the adjudication of Title VII and other employment cases, a panel of the Seventh Circuit (with the acquiescence of the full court) decisively overrules both the “convincing mosaic” and “direct vs. indirect” methods of proof. It urges instead the straight-forward application of the anti-discrimination standard: whether the plaintiff “would have kept his job if he [or she] had a different ethnicity, and everything else had remained the same.”
Ortiz v. Werner Enterprises, Inc., No. 15-2574 (7th Cir. Aug. 19, 2016): for the past two decades, the Seventh Circuit has instructed litigants in Title VII cases that There are two routes to establishing employment discrimination at the summary judgment stage: the “direct” method, using admissions of discriminatory purpose or a “convincing mosaic” of circumstantial evidence; and the “indirect” method, essentially the familiar McDonnell Douglas burden-shifting test.
As of today, this all history. The majority holds that nneither “method” was meant to obscure or distract from the ultimate mission on summary judgment of deciding whether a jury could infer discrimination from a set of record facts. And so the panel – and the court as a whole (as polled under Circuit Rule 40(e)) – agree to drop both of these legal formalisms for good.
The case itself, brought under Section 1981 and Illinois state law, is the model of simplicity. The plaintiff alleged that his employer, a shipping company, regularly assigned him unprofitable loads. When the plaintiff questioned the branch’s assistant manager about assignments, the boss “refused to answer until saying: ‘Why won’t you just quit already?'” The branch manager later discharged plaintiff without further investigation on allegations that he falsified records, supposedly resulting in revenue losses … an accusation that plaintiff was fully able to rebut.
Finally, plaintiff alleged that both bosses “subjected him to a barrage of ethnic slurs.” “They frequently used epithets such as ‘beaner,’ ‘taco eater,’ ‘f[**]king beaner,’ ‘taco,’ ‘bean eater,’ ‘dumb Mexican,’ ‘stupid Puerto Rican,’ ‘dumb Puerto Rican,’ ‘fucking Puerto Rican,’ ‘Puerto Rican,’ and ‘dumb Jew’ ….” These name-calling incidents reportedly “increased in frequency and intensity in the months leading up to his discharge.”
One would have supposed with a record this clear that plaintiff would have at least gotten a jury trial. Yet the district court judge granted summary judgment. The lower court held that “Ortiz had failed to present a ‘convincing mosaic’ under the direct method because Lass’s racial slurs did not have anything to do with Ortiz’s discharge,” while he failed the indirect test at the prima facie stage because he was not performing to the employer’s “reasonable expectations.”
The Seventh Circuit, reversing the decision, shuts the lid hard on the summary judgment analysis used in that court since at least the 1990s. Instead, the panel bluntly reminds courts and litigants that There are no separate “summary judgment” tests in Title VII and related cases, but only the ultimate question:
“The district court’s effort to shoehorn all evidence into two ‘methods,’ and its insistence that neither method be implemented by looking for a ‘convincing mosaic,’ detracted attention from the sole question that matters: whether a reasonable juror could conclude that Ortiz would have kept his job if he had a different ethnicity, and everything else had remained the same.”
The panel regrets that “[t]he use of disparate methods and the search for elusive mosaics has complicated and sidetracked employment-discrimination litigation for many years.” It recognizes that beginning with Coleman v. Donahoe, 667 F.3d 835 (7th Cir. 2012) (concurring opinion by Judge Diane Wood joined by entire panel), the court has steadily expressed uneasiness with the double-barrelled “direct/indirect” methods of arraying evidence.
The panel first dismantles the “convincing mosaic” metaphor. This was supposed to communicate a mental image of record evidence which, while possibly unpersuasive standing by itself, could – when combined with other evidence – create a likeness (read, inference) of bias. “But instead of persuading district judges and litigants to merge ‘direct’ and ‘indirect’ methods into a unified approach,” the panel rues, it “was understood by many as adding a new ‘test’ that had to be satisfied.” Thus, “Instead of simplifying analysis, the ‘mosaic’ metaphor has produced a form of legal kudzu.”
The panel not only disaffirms the numerous cases that used “convincing mosaic,” but drives stake into its heart:
“From now on, any decision of a district court that treats this phrase as a legal requirement in an employment discrimination case is subject to summary reversal, so that the district court can evaluate the evidence under the correct standard.”
The panel next takes on the “direct/indirect” snare. It notes that the continued reliance on these formuli merely diverts courts from the true mission at summary judgment: determining whether record evidence reveals a case that is fit for trial.
Instead of deciding whether a particular category of evidence is “direct” or “indirect”, the panel recites that “[e]vidence must be considered as a whole, rather than asking whether any particular piece of evidence proves the case by itself-or whether just the ‘direct’ evidence does so, or the ‘indirect’ evidence. Evidence is evidence.” The attempt to so regiment evidence overlooks that employment-discrimination cases “are often factually complex and require sifting through ambiguous pieces of evidence.
And thus, “we hold that district courts must stop separating ‘direct’ from ‘indirect’ evidence and proceeding as if they were subject to different legal standards.”
The panel does caution, though, that this opinion should not be taken as overthrowing the burden-shifting, inferential analysis of McDonnell Douglas, devised by the U.S. Supreme Court. Indeed, the Seventh Circuit cannot overrule the Supreme Court’s case law (as recently restated in Young v. UPS) that a plaintiff may neither prove discrimination “(1) by direct evidence that a workplace policy, practice, or decision relies expressly on a protected characteristic, or (2) by using the burden-shifting framework set forth in McDonnell Douglas.”
Absent the diversionary “tests,” the case becomes much simpler:
“A reasonable juror could infer that [the managers] didn’t much like Hispanics (or Jews, though Ortiz is not Jewish) and tried to pin heavy losses on Ortiz to force him out the door. A juror also might infer that, because of Ortiz’s ethnicity, Werner’s managers fired him for using techniques that were tolerated when practiced by other brokers. In the end a jury might not credit Ortiz’s evidence and could accept Werner’s explanations. But given the conflict on material issues, a trial is necessary.”
Bam, that’s it! (And for good measure, the panel erases an other error: the district court believed that the plaintiff’s recounting of what his managers told him was inadmissible hearsay, which is clearly not the case. Fed. R. Evid. 801(d)(2)(D).)