Tuesday, March 3, 2020
In late February, the Supreme Court denied cert in a case that could have impacted discrimination proof structures. As many readers of this blog know, the Eleventh Circuit has often articulated a fairly narrow version of the McDonnell Douglas framework. However, if a plaintiff cannot prevail under McDonnell Douglas, the Eleventh Circuit will allow the plaintiff to also argue the case through a separate “convincing mosaic” test.
In Williams v. Hous. Opportunities for Persons with Exceptionalities, 777 F. App'x 451, 452 (11th Cir. 2019), the Eleventh Circuit held that a plaintiff could not survive summary judgment on his termination claim. The plaintiff alleged that his employer terminated him based on his race, violating both Title VII and Section 1981. The plaintiff presented evidence that on the day he was fired, his supervisor told him, “I can’t stand your black ass.” Id. at 452. The plaintiff also alleged that the employer’s reason for dismissing him was pretext. The employer argued that the plaintiff abandoned his job; however, the plaintiff presented evidence that the supervisor told him he was being fired because he refused to cover another employee’s shift.
The Eleventh Circuit held that the plaintiff could not proceed under McDonnell Douglas because the plaintiff could not establish the prima facie case. The Eleventh Circuit held the prima facie case required the plaintiff to show a similarly situated comparator. It then held that the plaintiff’s evidence was not sufficient under the convincing mosaic test because although the supervisor’s “comment evinces discriminatory animus and is unbefitting of any workplace. . . a reasonable jury could not find that she fired him because of his race based only on that statement because its content bears no relation to the termination decision.” Id. at 455.
In his petition for a writ of certiorari, the plaintiff argued that the Eleventh Circuit must allow plaintiffs to use a more flexible prima facie case under McDonnell Douglas. For example, other circuits allow the plaintiff to establish a prima facie case by showing, among other things, that there is evidence that could give rise to an inference of discrimination.
The plaintiff also argued that the Eleventh Circuit’s convincing mosaic test required the plaintiff to produce more evidence than the text of the discrimination statutes require. This argument harkens back to the Seventh Circuit’s rejection of the convincing mosaic structure in Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 765 (7th Cir. 2016). The Seventh Circuit abandoned the test because the test tended to cause judges to separate evidence into discrete frameworks rather than viewing it holistically. The Seventh Circuit found that a framework more clearly grounded in the discrimination statutes and the civil procedure standards would be better than the convincing mosaic standard. Thus, a plaintiff can survive the employer’s summary judgment motion by presenting evidence through which a reasonable jury could find that the employer took a contested action because of a protected trait. The Seventh Circuit left open the option for a plaintiff to also proceed through the McDonnell Douglas framework.
-- Sandra Sperino