Eleventh Circuit Warns McDonnell-Douglas Test Not the Only Option for Title VII Claims

This alert was expanded for additional publication by Law360 under the title Race Bias Defense Considerations After 11th Circ. Ruling. It was also featured in Hillsborough County Bar Association's Lawyer Magazine.

The U.S. Court of Appeals for the Eleventh Circuit recently rendered a decision with long-standing ramifications in employment discrimination cases going forward. It signals a shift in litigation strategy for many employers who rely solely on McDonnell Douglas when moving for summary judgment and serves as a reminder that Title VII plaintiffs have other options to prove their case when trying to fend off summary judgment. Following its release, the decision has already been cited in over a dozen decisions as an articulation of the summary judgment standard in the Eleventh Circuit. 

The Court in Tynes v. Florida Department of Juvenile Justice reaffirmed that McDonnell Douglas­—the framework cited in thousands of Title VII summary judgment decisions—is merely an evidentiary framework, as opposed to a substantive standard of liability.

According to the Eleventh Circuit, which has appellate jurisdiction over federal district courts in Alabama, Florida and Georgia, courts have erroneously treated the framework as “an independent standard of liability” or a “set of elements that an employee must prove.” Yet, McDonnell Douglas simply shifts the burden of production between the parties to determine the underlying reason for an adverse employment action. It is only one method by which a plaintiff can prove discrimination through circumstantial evidence. A plaintiff who cannot satisfy this framework may still be able to show discrimination through a “convincing mosaic of circumstantial evidence.” 

By dispelling the misconceptions about McDonnell Douglas, Tynes offers guidance on how employers should approach litigating discrimination cases in the Eleventh Circuit. Should employers ignore the guidance from Tynes when moving for summary judgment, they risk that their motions will be too narrow and provide plaintiffs with a greater opportunity to stave off summary judgment by proving their claims through alternate means, like the “convincing mosaic.”

Historical Underpinnings of McDonnell Douglas

Title VII of the Civil Rights Act of 1964 broadly prohibits workplace discrimination. Yet, when only circumstantial evidence is available, discerning the actual reason for termination is difficult.

To confront these difficulties, the Supreme Court outlined a burden-shifting framework designed to draw out the necessary evidence. Under the McDonnell-Douglas framework, a plaintiff can establish a prima facie case by showing the following:

• • “She belongs to a protected class.”
  • “She was subjected to an adverse employment action.”
  • “She was qualified to perform the job in question.”
  • “Her employer treated ‘similarly situated’ employees outside her class more favorably.”

If the plaintiff establishes a prima facie case, the defendant then rebuts that presumption by offering evidence of a valid, non-discriminatory justification for the adverse action. The plaintiff bears the ultimate burden of establishing that the employer’s stated reason for terminating the employment was pretextual, and that discrimination was the real reason.

Over time, McDonnell Douglas was viewed as the exclusive framework for discrimination claims, with litigants relying solely on it when pursuing summary judgment. It was widely misunderstood that the requirements were “standalone, case-dispositive elements.” 

Convincing Mosaic Standard

The convincing mosaic standard arose as a response to the misconceptions about McDonnell Douglas. Despite its label, the evidentiary standard is simply a rearticulation of the summary judgment standard. A “convincing mosaic” of circumstantial evidence is merely enough evidence for a factfinder to deduce intentional discrimination, which is the ultimate question of liability in a discrimination lawsuit. “No bells, no whistles—just reasonable inferences and triable facts.” Yet, despite the convincing mosaic standard’s utility, it trailed behind McDonnell Douglas as an afterthought. The Tynes ruling firmly places McDonnell Douglas and its progeny on equal footing.

It’s about Tyne…

In Tynes, the plaintiff was a superintendent of the Broward Regional Juvenile Detention Center. Following review of staffing and personnel issues at the detention center, the Department of Juvenile Justice terminated Tynes for performance-based reasons. Tynes sued the Department in the Southern District of Florida alleging race and sex discrimination.

Ultimately, Tynes prevailed at the trial court level, with the jury finding that race and sex were motivating factors in her discharge. In response, the Department filed a renewed motion for judgment as a matter of law or, alternatively, for a new trial. The Department argued that it was entitled to judgment on the Title VII claims because Tynes failed to proffer comparators who were similarly situated in all material respects. The district court summarily denied the Department’s motion. On appeal, the Eleventh Circuit affirmed the district court’s ruling, holding that a plaintiff’s failure to produce a comparator is not dispositive.

According to the Eleventh Circuit, McDonnell Douglas has been misconstrued as an independent standard of liability. Yet, the McDonnell-Douglas framework is not, and never was, intended to be the only option for a plaintiff to survive summary judgment.

McDonnell Douglas functions as a procedural device, establishing an order of proof and production. It is an evidentiary standard, not a pleading requirement. The prima facie showing exerts a sort of “practical coercion” that forces the defendant to advance evidence justifying its actions. Once the prima facie case elicits a response from the defendant, it drops out of the picture.

Indeed, McDonnell Douglas is only one method by which an employee can prove discrimination. A plaintiff can still prevail by presenting a “convincing mosaic of circumstantial evidence.” As the Court emphasized, “the analysis turns on the substantive claims and evidence in the case, not the evidentiary framework.”

Practical Impact for Employers

Technically speaking, the standard has not changed. Yet, when evaluating the merits of a discrimination claim and moving for summary judgement, employers should not focus solely on the stringent requirements of McDonnell Douglas, lest their motion be too narrow. Instead, employers should consider the totality of the circumstances in their motion for summary judgment. Prudent employers should emphasize why all of the evidence, taken together, fails to lead to an inference of intentional discrimination.

In the aftermath of Tynes, the convincing mosaic standard may gain ground as an alternative to overcome summary judgment. Arguably, it is a lower evidentiary threshold and less defined than the McDonnell-Douglas test. The convincing mosaic standard will be of significance when the plaintiff cannot identify a similarly situated comparator, as the McDonnell-Douglas framework requires.

However, Tynes also notes that a failure in the prima facie case is often indicative of a deficiency in the overall evidence. Although courts do not dwell on the technical requirements of McDonnell Douglas once the defendant has met its burden of production, the questions the plaintiff must answer to make a prima facie case are relevant to the ultimate question of discrimination. A failure of such evidence underscores that the plaintiff cannot prove a necessary element of their case. Thus, the prima facie elements of McDonnell Douglas remain relevant in discrimination claims, but employers must stay mindful of other means for employees to prove their claims.

Please contact Helen Jay or any member of Phelps’ Labor and Employment team with questions or for advice and guidance.