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August 28, 2014
As any lawyer practicing employment discrimination law learns, the burden shifting and order of presentment scheme set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), is standard in all discrimination cases, including Title VII, Section 1981, ADA, ADEA, and constitutional equal protection claims under Section 1983. Courts can take the test too literal and overlook critical evidence of discrimination in doing so. While there are many areas in which the McDonnell Douglas “test” has been overused, below I highlight its specific misuse at trial.McDonnell Douglas is Useful to Narrow the Issues in Employment Discrimination Cases
Every employment discrimination case runs through the McDonnell Douglas prima facie case analysis at summary judgment. The plaintiff must prove the following elements: (1) the plaintiff was a member of a protected class; (2) the plaintiff was qualified for the job held (or the position sought in a promotion case); (3) the plaintiff suffered an adverse employment action; and (4) the plaintiff was treated different than or replaced with someone outside of the protected class. Walker v. NationsBank of Fla., N.A., 53 F.3d 1548, 1556 (11th Cir.1995). Perhaps because of the perceived simplicity of this analysis, some trial judges refer to McDonnell Douglas even during the trial of case to determine with a plaintiff’s evidence should be sent to the jury or dismissed. It is important to confront this misuse of the test at this stage of litigation.McDonnell Douglas Does Not Apply at Trial
A federal district court’s reliance on a McDonnell Douglas analysis at the end of a trial is contrary to binding United States Supreme Court precedent. Both the Supreme Court and the Eleventh Circuit have held that, once a matter is fully tried to a fact-finder, it is error for a trial court to revisit the adequacy of a plaintiff’s prima facie case as a basis for dismissal. In U.S. Postal Services v. Aikens 460 U.S. 711 (1983), the high court expressly held that it is error for a district court to rely on the burden-shifting scheme articulated in McDonnell Douglas. In Aikens, the plaintiff claimed he was denied a promotion based on his race. Id. at 711. Defendant initially moved for a motion to dismiss at the close of plaintiff’s case, which the district court denied. Id. at 714. Then, after the case was fully tried, the district court held the plaintiff failed to establish a prima facie case of discrimination and entered judgment for the Postal Service. Id. at 713-714.
The D.C. Court of Appeals reversed, holding that the district court’s formulation of the prima facie case improperly included the requirement that the plaintiff prove he was more qualified than the successful candidate. Id. at 713. The Supreme Court granted certiorari and vacated the appellate decision, holding that the relevant inquiry for the district court was not whether plaintiff presented a prima facie case but was instead to determine the ultimate question of discrimination based on the evidence. Id. at 717 (citing Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981)).
The Court emphasized the role of the fact-finder as to the issue of discriminatory intent at trial:
Because this case was fully tried on the merits, it is surprising to find the parties … still addressing the question whether [plaintiff] made out a prima facie case. We think that by framing the issue in these terms, they have unnecessarily evaded the ultimate question of discrimination vel non.
The prima facie case method established in McDonnell Douglas was “never intended to be rigid, mechanized, or ritualistic. Rather it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination.” Where the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant. The district court has before it all the evidence it needs to decide whether “the defendant intentionally discriminated against the plaintiff.”
Id. at 715-716 (internal citations omitted). The Court thus recognized the factual subtleties that make proof of discriminatory intent so difficult. As the Court explained, district courts should not “make their inquiry even more difficult” by relying upon a rigid formulation of burden allocation in deciding the issue. Trial courts should avoid “erroneously focus[ing] on the question of prima facie case rather than directly on the question of discrimination.” 460 U.S. at 717.
Once the defendant “responds to the plaintiff’s proof by offering evidence of the reason for the plaintiff’s rejection, the fact finder must then decide whether the rejection was discriminatory within the meaning of Title VII. At this stage, the McDonnell-Burdine presumption ‘drops from the case.’” 460 U.S. at 714-715 (citing Burdine, 450 U.S. at 255, n. 10) (emphasis added). Therefore, regardless of whether a plaintiff could successfully demonstrate “pretext” or any other discrete element of the prima facie case are issues for the jury, not the trial judge.
The Eleventh Circuit has repeatedly embraced the holding in Aikens. See Holland v. Gee, 677 F.3d 1047, 1056 (11th Cir. 2012) (the Court would not look back to determine whether plaintiff in fact established a prima facie case); Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 1194 (11th Cir. 2004) (“[a]fter a trial on the merits, [we] should not revisit whether the plaintiff established a prima facie case.”); Tidwell v. Carter Products, 135 F.3d 1422, 1426 n. 1 (11th Cir. 1998) (“Our task is not to revisit whether the plaintiff below successfully established a prima facie case of discrimination.”); Richardson v. Leeds Police Dept., 71 F.3d 801, 806 (11th Cir. 1995) (“district court erred by visiting whether [plaintiff] had established a prima facie case . . . after the action was fully tried on the merits”); Carmichael v. Birmingham Saw Works, 738 F.2d 1126, 1129 (11th Cir. 1984) (“We are mindful . . . that when a disparate treatment case is fully tried . . . both the trial and the appellate courts should proceed directly to the ultimate question in the case.”)Conclusion
It is therefore well-settled that once the question of discriminatory intent is joined at trial, and the employer offers its supposed non-discriminatory reason for the challenged job action, whether the employer was motivated by discriminatory intent is a matter squarely in the realm of the jury.