Here’s a case that may be of value to Title VII litigants, as well as in First Amendment cases. The Eighth Circuit holds that for an employer to win a mixed-motive case, where the claimed reason for termination was poor performance, it must offer “evidence showing [that the plaintiff’s] performance would have indisputably caused her termination.” That proves a heavy lift.
Mahn v. Jefferson Cnty., No. 16-1731 (8th Cir. June 7, 2018): Title VII, as amended by the Civil Rights Act of 1991, provides that an employee is entitled to a judgment if they “demonstrate that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” 42 U.S.C. § 2000e-2(m). The employer can avoid damages and most equitable relief, though, by “demonstrat[ing] that the respondent would have taken the same action in the absence of the impermissible motivating factor.” Id. § 2000e-5(g)(2)(B). The Title VII framework mirrors, in significant respects, the mixed-motive framework long used in constitutional tort cases, the so-called Mt. Healthy rule (from Mt. Healthy City Sch. Dist. Bd. of Ed. v. Doyle, 429 U.S. 274 (1977)).
But the Title VII mixed-motive defense, unlike Mt. Healthy, is seldom the subject of published decisions. The value in this new Eighth Circuit case is that it sorts out the standard of proof and contrasts it with the omnipresent McDonnell Douglas case. It also shows that the employer’s same-action defense is a heavy lift.
The facts in a nutshell were that Mahn voted against her boss Howard’s preferred candidate in a primary, and Howard found out. “She alleges that on August 26, Howard told her: ‘Just wanted to chat with you a little bit. Just wanted to let you know that, you know, I know how you voted. And I don’t think you made the right decision. You know this could cause you your job.'” Four weeks later, Howard fired Mahn.
The district court granted summary judgment to defendants on the plaintiff’s First Amendment retaliation claim, holding that while “Mahn has submitted sufficient evidence that political affiliation or loyalty was a motivating factor in her dismissal,” defendants supposedly “established that Mahn would have been terminated in any event.”
The Eighth Circuit reverses in part. The plaintiff’s principal argument for reversal was that once she presented “direct” evidence of her boss’s motive (the threat to fire her), then under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), she was entitled to a trial. The court rejects this, noting that – while the circuit law was somewhat inconsistent – Mt. Healthy and not McDonnell Douglas provides the rule of decision.
Nevertheless, the district court erred by holding that defendants must win, as a matter of law, on the same-decision defense. The “district court explained that Mahn did not ‘adequately refute the evidence that she made numerous docketing errors, the Clerk’s office received complaints about her work from judges, other court staff, and the public, and that Mahn received notification about these performance issues.” But it was the defendants’ burden to prove, not the plaintiff’s to disprove, same-decision.
As the Eighth Circuit boils it down, defendants did “not establish[ that] Howard would have terminated Mahn anyway for her performance issues. Without evidence showing Mahn’s performance would have indisputably caused her termination, Howard and Reuter were not entitled to summary judgment under Mt. Healthy.” In contrast to McDonnell Douglas, the employer’s burden is one of persuasion, not production, and its reasons are thus entitled to no special deference.
(The panel also rejects qualified and Eleventh Amendment immunity defenses, though it affirms summary judgment as to the county itself.)