Firm Articles

PROVING EMPLOYMENT DISCRIMINATION
- A LIGHT FROM THE 5th CIRCUIT

Durwood D. Crawford Goins, Underkofler,
Crawford & Langdon, LLP

For the Dallas Bar Association
OCTOBER 18, 2004

Over a year ago, in June 2003, the Supreme Court decided Desert Palace, Inc. v. Costa (DP)¹ which was an appeal from a jury verdict where the jury found that the employer's discharge of Ms. Costa violated Title VII. The meaning of DP has been vigorously argued in many subsequent cases and totally overlooked by almost as many. In June 2004, the 5th Circuit decided Rachid v. Jack-in-the-Box,² and the Opinion in that case adds substantial clarity to an otherwise confused area of the law.

The MCD Method of Proof -The Standard Since 1973

Over thirty (30) years ago, the Supreme Court decided McDonnell Douglas v. Green (MCG) setting forth the proof methodology to be used in a Title VII discrimination case at the summary judgment stage, in those cases where the evidence was entirely circumstantial. It has also become the standard for use in all other types of discrimination claims. As a result of the DP decision a serious argument has raged over what standard now applies at the summary judgment stage. Plaintiff's attorneys contend that DP replaces all or part of MCG - thus making a summary judgment more difficult for Defendants to obtain. Defense attorneys, on the other hand, point out that the DP Opinion did not mention MCG and that the Court therefore had no intention of changing or overruling its 30 year reign as the standard for deciding summary judgments.

MCD, as amplified by Texas Department of Community Affairs v. Burdine, specified that, in order for a Plaintiff to survive a MSJ, when only circumstantial evidence of discrimination was available, he/she: (1) had to establish a "prima facie case" of discrimination; and (after the employer offered its legitimate reason for its action) (2) had to establish that the non-discriminatory reason offered by the employer was false, ("unworthy of credence")³

After jury trials were allowed in Title VII discrimination cases by the Civil Rights Act of 1991 the MSJ became a formable first line of defense for employers. Initially, the prima facie case (Step 1) was supposed to be easy for the Plaintiff to establish. The Supreme Court attempted to make this very clear early, stating that a prima facie case could be established by evidence that permitted an inference of discrimination - which could be done many different ways.⁴ However, it did not remain that way in practice, and many decisions can be found which say that a Plaintiff must either show that he/she was replaced by a non-minority, or must show that some non-minority was treated more favorably under the same circumstances.⁵ In reality, facts which will permit an inference of discrimination come in many different and diverse forms, and don't necessarily fit into these molds. For example, if the discharged employee was the only one in the job classification or was not replaced at all (or the job was divided among many others) the Plaintiff cannot show replacement by a non-minority. Likewise, if the Plaintiff's alleged offense was different from that of any other employee, he/she will fail to show that a non-minority was treated differently. In these examples, if the Court adheres to the MCD requirement (as it has evolved) the Plaintiff will fail to prove a prima facie case - regardless of any other evidence that points to discrimination.

Step 2 for the Plaintiff under MCD has undergone like development, and until recently it was an even a bigger hurdle. This came about because of two concepts that developed. One such hurdle was a court-created expansion of the requirement to show that the employer's reason was false. This expansion became known as the "pretext-plus" requirement. This required the Plaintiff to go beyond showing that the reason given by the employer was false, and required the Plaintiff to show that the falsity was actually advanced as a pretext for the very purpose of hiding the employer's discriminatory motive-as distinguished from it having some other motive for lying.⁶ This was virtually impossible to prove without what amounted to "direct" evidence of discriminatory intent. But, if the Plaintiff had such "direct" evidence available he/she didn't even need to use the MCD approach in the first place (as discussed later). The "pretext plus" requirement flourished in the 5th Circuit for many years but officially died when the Supreme Court overruled that Court in Reeves v. Sanderson Plumbing Co. in 2000.⁷

The other legal concept that resulted in many failures to prove the employer's reason false was the so-called "stray remark" doctrine. Under it the Court decides, as a matter of law, that remarks that carry overtones of a discriminatory attitude are too remote in time, too vague, or not made by the decision maker, and therefore they offer no proof whatsoever of a discriminatory motive.⁸ Until very recently, in deciding MSJs, the 5th Circuit had been generous to employers in saying that such comments were merely "stray remarks" and furnished no evidence of discrimination.   This may be changing. However, in 2003, the Court said:

"Post-Reeves, this court has taken a more 'cautious' view of the stray remark doctrine discussed in Wyvill."⁹

Enter Price Waterhouse/The Mixed Motive Method of Proof

Ms. Hopkins did not make partner at Price Waterhouse and claimed that her sex was the reason. The evidence showed that she had some performance problems, but also that she was criticized as being too abrasive and pushy for a female and did not fit the "lady like mode" that the male partners desired. The Supreme Court concluded that the evidence showed that two motives were involved in the Company's action, one being a legitimate criticism of her job performance and the other being related to her sex (too aggressive for a female). The Court announced what it called the "mixed motive" concept and held that, where an unlawful motive (sex discrimination) was shown to be involved, that without the need to prove the Company's reason false, the Plaintiff had established her case of discrimination. The Court went on to hold that, when both a legal and illegal motive were shown to be motivating factors, the Plaintiff would prevail, unless the Defendant showed, as an affirmative defense, that it would have taken the same action without the illegal motive being present. This method clearly eased the burden of proof for Plaintiffs and shifted more to the Defendants.¹⁰

Exit the Mixed Motive Method of Proof

For a moment it appeared that Price Waterhouse would share the stage with MCD. However, Justice O'Connor wrote a concurring Opinion in Price Waterhouse and announced her interpretation of what the Court meant in its Opinion (but what it didn't say). She could see the conflict with the MCD proof methodology and announced that, what the Court meant was that, for the Price Waterhouse "mixed motive" format to apply, there had to be "direct" evidence of discrimination. She said that Ms. Hopkins had presented such evidence.¹¹

Faced with the question of which method of proof to utilize, the lower Courts almost uniformly adopted the direct evidence requirement, for application of the mixed motive method, as suggested by Justice O'Connor.¹² "Direct" evidence, as defined, means evidence where no inference is necessary to determine its meaning - in other words it is basically a confession of illegal action.¹³ Since persons violating the law very seldom make such admissions it is not surprising that the "mixed motive" method of proof has lain fallow, because the Plaintiff seldom could produce such "direct" evidence.

The use of the term "mixed motive" to describe the Price Waterhouse method of proof was unfortunate in a way because it led to the MCD approach being called the "single motive" method. In reality, there is no such thing as a single motive case! The employer always provides some proof of a legitimate reason. If it were not provided, judgment would be rendered for the Plaintiff as a matter of law under the McDonnell Douglas formula.¹⁴ Thus in every instance, where the Plaintiff makes out a prima facie case, some proof of both an illegal and legitimate motive is put into evidence.

Enter Congress

There was displeasure in Congress with that portion of the Price Waterhouse decision that permitted a Defendant to totally escape any liability by showing that it would have taken the same action even if the illegal motive were not present.  Thus it legislated changes in Title VII to say that, if the Plaintiff could show that an illegal motive was a motivating factor, a Defendant could only partially escape.¹⁵ If it could prove, as an affirmative defense, that it would have taken the same action anyway, the Defendant would not be liable for back pay or front pay damages but would still be liable for attorneys' fees and costs. Thus, this defense is referred to by the Courts as the "limited affirmative defense." Congress did not address the severe limitation written into the Price Waterhouse decision by the lower courts' adoption of Justice O'Connor's requirement of "direct evidence", which, as a practical matter, nullified the impact of Price Waterhouse anyway! The various other anti-discrimination statutes were not similarly amended by Congress.

Enter Desert Palace

The Desert Palace case was tried to a jury, and the Trial Court, having read what Congress had done in amending Title VII, concluded that a "mixed motive" submission to the jury was required. There was no direct evidence in the case and the Trial Court made its submission to the jury based on the argument that the Amendments to the Statute required that the "mixed motive" method be used in purely circumstantial evidence cases. Two questions were asked of the jury- (1) Do you find that a motivating factor was Plaintiff's sex, and (2) if so, would the Defendant have taken the same action without considering her sex? The jury answered that sex was a motivating factor in Defendant's action and it answered "no" to the "same action" defense. On appeal to the 9th Circuit an en bane decision resulted.¹⁶ Since the case had already gone to trial it did not present the issue at the summary judgment phase of a case, (where McDonnell Douglas has application) however, three dissenting judges noted that, without the requirement of "direct evidence" a conflict was created with the MCD methodology at the summary judgment stage.¹⁷

In its Opinion the Supreme Court discussed the changes made by Congress and agreed with the 9th Circuit that Congress intended that, if an illegal motive is shown by either direct or circumstantial evidence, the burden shifts to the Defendant to prove its limited affirmative defense. The Court spent much of its time in the Opinion discussing how circumstantial evidence could be as reliable as direct evidence, and clearly held that it was discarding the "direct" evidence distinction which Justice O'Connor had drawn. (It did not say that Justice O'Connor had been wrong, but instead based its decision on the changes made by Congress.) What the Court did not mention in any way is what impact, if any, it viewed its decision as having on the MCD method of proof. But it cannot be said that, by its silence the Supreme Court was unaware of what it was doing. The Opinion of the three dissenting judges in the 9th Circuit specifically called it to the Court's attention. Furthermore a reading of the oral argument before the Court shows that numerous questions were asked about MCD and what impact the decision would have thereon. (One portion of the oral argument confirms what is said above about any case that goes forward being a "mixed motive" case. Following a question about this, the Justices laughed, saying that "single motive" cases "always settle.")¹⁸ But, since the Supreme Court did not specifically say what it was doing to MCD, the two proof methodologies stand side-by-side unexplained, awaiting evaluation by each Judge who is asked to rule on a MSJ in Title VII cases.

Many different views have been asserted to explain the disparity between the two methods of proof. Several Courts have concluded that, at the MSJ stage, the facts should be evaluated separately under both methods. Some other Courts have concluded that the MCD approach was dead or almost so. Many of the cases decided subsequent to DP have made no mention whatsoever of it, and have simply continued to use the MCD method without comment. Additionally, arguments have been made by some defense counsel that DP only applies when a case reaches the trial stage. Others have argued that the Plaintiff must specifically plead a "mixed motive" case. No case has been found where either of these arguments succeeded.

Enter Rachid v. Jack-in-the-Box

In Rachid the 5th Circuit thoroughly analyzed DP and MCD and held that DP created a "modified MCD method". The modification found by the Court was to the last step of the MCD method. It held that, at that point, the Plaintiff could defeat a motion for summary judgment by showing the employer's explanation was false, or by showing that the prohibited factor was one of several motives for the employer's action (i.e. mixed motive). Although, DP was a Title VII the 5th Circuit held that DP also applied to an ADEA case such as Rachid*s. A District Court has now applied it to a Title VII retaliation case.¹⁹

The 5th Circuit, (and the several district court cases it cited) felt a need to fit it into the MCD scheme as an option at the 3rd step - but this makes it unnecessary complex. The mixed motive analysis permits a much simpler approach to a Defendant's MSJ. When   the   Plaintiff   initially   presents   adequate   proof  to   raise   a   fact   issue of discrimination, the burden simply shifts to the Defendant to prove its affirmative defense, which will require a jury trial, unless the Court can find that the affirmative defense prevails as a matter of law. The 5th Circuit said in Mooney (cited at Note 12) that "the mixed motive theory is probably best viewed as a defense for the employer" p. 1216. There would seem to be no need to apply the burden shifting analysis of MCD prior to applying the mixed motive standard. Under mixed motive, if the Plaintiff meets his/her initial burden, sufficient to raise a fact issue, then the burden shifts to the Defendant, and to prevail on its MSJ it has to show, as a matter of law, that no fact issue exists. Nevertheless, since the Rachid opinion inserts mixed motive into the MCD format, its back and forth process must apparently take place before the Court gets to the actual point of deciding if the Defendant has shown as a matter of law, that it would have made the same decision in any event. It seems clear however that mixed motive will make summary judgments more difficult for employers to obtain.

The Opinion in Rachid will be of assistance to Plaintiffs in other ways also. The Court made numerous references to Bienkoivski v. American Airlines²⁰(an ADEA case decided in 1988 and largely forgotten in recent 5th Circuit decisions) wherein the Court gave weight to many vague statements to defeat a motion for summary judgment. The statements in Bienkowski would probably have been discarded as "stray comments" in many of the Court's later decisions.

Additionally, the Rachid Court rejected testimony (credited by the Trial Court) produced by the employer of other individuals allegedly discharged for the same violation.   The Court held that for this evidence to be utilized the Defendant was required to show a "similarity of circumstances" to Rachid's situation.²¹ This reasoning had been used in many other cases to discard evidence of this type produced by Plaintiffs, but (to the writer's knowledge) this was the first time that the 5th Circuit had cause to apply the standard when such evidence was offered by a Defendant.
Durwood D. Crawford