Slicing & dicing of individual disparate treatment law

Louisiana Law Review

Volumn 61, Issue 3, 2001, Pages 577-603

  Zimmer, Michael J ^a,b  

^a UNIVERSITY OF ILLINOIS AT URBANA CHAMPAIGN   (United States)

^b SETON HALL UNIVERSITY   (United States)

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EID: 26044444134     PISSN: 00246859     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (109)

1. 530 U.S. 133, 120 S. Ct. 2097 (2000).
2. 507 US. 604, 113 S. Ct. 1701 (1993).
3. 509 U.S. 502, 113 S. Ct. 2742 (1993).
4. 411 U.S. 792, 93 S. Ct. 1817 (1973).
5. Deborah C. Malamud The Last Minuet: Disparate Treatment After Hicks, 93 Mich L. Rev. 2229, 2236 (1995).
6. For criticism of the way courts have been deciding summary judgment motions, see, Ann C. McGinley, Credulous Courts and the Tortured Trilogy: The Improper Use of Summary Judgment in Title VII and ADEA Cases, 34 B.C. L. Rev. 203 (1993); Malamud, supra note 5;
7. Kenneth R. Davis, The Stumbling Three Step. Burden-Shifting Approach in Employment Discrimination Cases, 61 Brook. L. Rev. 703 (1995).
8. 490 US. 228, 109 S. Ct. 1775 (1989).
9. "Direct" evidence has been defined several different ways. The classic, but now rejected, definition in the law of evidence is evidence that proves the fact at issue without the need to draw an inference. For a discussion of this classic test, see Michael J. Zimmer, The Emerging Uniform Structure of Disparate Treatment Discrimination Litigation, 30 Ga. L. Rev. 563, 611-16 (1996) [hereinafter, Zimmer, Uniform Structure]. An example of that may be an admission by the employer to the employee that, "I am discharging you because you are too old." While the Supreme Court has not defined what is direct evidence, the lower courts have developed a number of different approaches. There are other, broader definitions that some courts have come to use in discrimination cases.
10. For a discussion of these approaches, see Michael J. Zimmer, Chaos or Coherence: Individual Disparate Treatment Discrimination and the ADEA, 51 Mercer L. Rev. 693 (2000) [hereinafter, Zimmer, Chaos or Coherence].
11. "Circumstantial" evidence is evidence that can be used to support drawing an inference of the fact at issue. In individual disparate treatment cases, the key fact at issue is the intent of the employer to discriminate. Where an employee shows that she is within a group protected against discrimination and that she has been doing a good job but then is fired and replaced by another person not in her protected group, there is circumstantial evidence to support drawing the inference on the fact at issue, whether the employer discharged her because of an intent to discriminate.
12. 411 U.S. 792, 93 S. Ct. 1817 (1973).
13. Section 703(m), added to Title VII in the 1991 amendments, sets the "motivating factor" level of showing necessary to establish liability. Since the Civil Rights Act of 1991 amended Title VII but not the ADEA in setting the "motivating factor" threshold, it is not clear that this threshold applies in age discrimination cases. While the ADEA was not amended in this provision, the 1991 Act does nothing to foreclose courts from looking to Title VII in establishing the federal common law definition of "discrimination" for age discrimination cases brought under the ADEA.
14. Section 706(g)(2)(B) (2000).
15. If the provisions of the 1991 Act are not used by analogy in ADEA actions to establish the federal common law meaning of the term "discrimination," then presumably the original holding of Price Waterhouse applies in age discrimination cases, so the proof of the same decision defense is a complete bar to defendant's liability.
16. In McDonnell Douglas, a hiring case, plaintiff established a prima facie case by showing (i) that he belonged to a racial minority group; (ii) that he applied and was qualified for a job for which employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants. By showing this, plaintiff eliminated two nondiscriminatory reasons for not hiring him - that he wasn't qualified and that no job was open. 411 U.S. 792, 802, 93 S. Ct. 1817, 1826 (1973).
17. The presumption means defendant loses if it does nothing. What is problematic here can be most easily understood in the context of "reverse" discrimination cases. Does a showing by a white male that he was not hired despite being qualified for a job that was open, the facts of McDonnell, support an inference that he was discriminated against because of his race? By itself, the answer is no.
18. The burden on the defendant is a burden of production only. The employer need not carry the burden of persuasion that the nondiscriminatory reason it asserts actually was the basis of the action plaintiff challenges. According to United States District Judge Denny Chin, no defendant in any reported case has failed to come forward with evidence that it acted from a nondiscriminatory reason. See Denny Chin & Jodi Golinsky, Moving Beyond McDonnell Douglas: A Simplified Method for Assessing Evidence in Discrimination Cases, 64 Brook. L. Rev. 659 (1998) [hereinafter, Chin, Moving Beyond McDonnell Douglas].
19. Since the Supreme Court has not defined what "direct" evidence is, the lower courts, in patrolling the boundary between the Price Waterhouse and McDonnell Douglas methods of analyzing individual disparate treatment cases, have adopted a variety of approaches as to what constitutes "direct" evidence sufficient to trigger the Price Waterhouse approach. The interaction between and within these competing analyses give the courts enormous discretion in their treatment of cases. There is little uniformity among the circuit courts of appeal. See Zimmer, Chaos or Coherence, supra note 8, at 3.
20. 197 F.3d 688 (5th Cir. 1999), rev'd, 530 U.S. 133, 120 S. Ct. 2097 (2000). The decision was originally issued without published opinion, 180 F.3d 263 (5th Cir. 1999), but it was published and therefore became precedent once the Supreme Court decided to hear the case. Unpublished decisions, pursuant to the rules of the Fifth Circuit, are not precedent, see U.S.C.S. Ct. App. 5th Cir. § 47.5.4 (2000). The Eighth Circuit recently decided that its rule denying precedent status to unpublished opinions is unconstitutional, though that decision was vacated as moot Anastasoff v. United States, 223 F.3d 898 (8th Cir.), vacated as moot, No. 99-3917EM, 2000 U.S. App. LEXIS 32055 (8th Cir. Dec. 18, 2000).
21. 989 F.2d 858, 861 (5th Cir. 1993).
22. This classic definition of "direct" evidence lives on in individual disparate treatment law, having long since been rejected by the law of evidence. See Zimmer, Uniform Structure, supra note 8, at 3.
23. The McDonnell Douglas test that has been modified for age discrimination discharge cases in the Fifth Circuit comes from Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir. 1993): In age discrimination cases, the plaintiff is required to make a prima facie case, wherein he must demonstrate that: (1) he was discharged; (2) he was qualified for the position; (3) he was within the protected class at the time of discharge; and (4) he was either (i) replaced by someone outside the protected class, (ii) replaced by someone younger, or (iii) otherwise discharged because of his age. Defendant did not challenge that plaintiff was in fact (1) discharged, (2) was qualified, (3) was over age 40, and (4)(i) had been replaced by someone outside the protected class.
24. Given the determinative influence standard of proof, the fact finder can find that the defendant's reason, or some other reason, did play some role in its decision and can still find for plaintiff as long as it finds that the impermissible characteristic was the determinative or "but for" reason for the defendant's action. See Miller v. CIGNA Corp., 47 F.3d 586 (3d Cir. 1995) (en banc) (rejects rule that plaintiff must prove that discrimination was the sole cause of the defendant's action).
25. Reeves v. Sanderson Plumbing Prods., Inc., 197 F.3d 688, 691 (5th Cir. 1999). The court further explicated its standard of review on appeal: A motion for judgment as a matter of law . . . in an action tried by jury is a challenge to the legal sufficiency of the evidence supporting the jury's verdict. We review the denial of such motions de novo, applying the same standard as the district court. A JML is appropriate if the "facts and inferences point so strongly and overwhelmingly in favor of one party that a reasonable jury could not have concluded" as the jury did. Applying this standard to the instant case, the district court's judgment should be reversed only if "there is no legally sufficient evidentiary basis for a reasonable jury to find" that Sanderson discharged Reeves because of his age. Id.
26. Id. at 692.
27. Id. at 693.
28. Id. at 692.
29. In Kline v. Tennessee Valley Authority, 128 F.3d 337, 343 (6th Cir. 1997), the court described the "pretext-plus" rule this way: "The plaintiff must not only demonstrate that the employer's asserted reasons were pretextual, but the plaintiff also must introduce additional evidence of discrimination."
30. Reeves, 197 F.3d at 692 (quoting Brown v. CSC Logic, Inc., 82 F.3d 651, 654 (5th Cir. 1996)). While somewhat broader than the classic definition of "direct" evidence that the Fifth Circuit uses as the threshold to the application of Price Waterhouse, this definition of when evidence of age-related comments is circumstantial evidence supporting a finding of intent to discriminate is the definition several other circuits use to describe evidence that is sufficiently "direct" to trigger the application of Price Waterhouse. See Ostrowski v. Atlantic Mut. Ins. Cos., 968 F.2d 171 (2d Cir. 1992); Griffiths v. CIGNA Corp., 988 F.2d 457, 470 (3d Cir. 1993) (following Ostrowski), overruled on other grounds, Miller v. CIGNA Corp., 47 F.3d 586 (1995) (en banc).
31. The court does not say this but it may be that it thought that the jury should not have found that these age related statements even occurred. Plaintiff's testimony as to the time, place and circumstance of these statements by Chesnut were vague and Chesnut denied ever making them.
32. Reeves, 197 F.3d at 693-94.
33. Id. at 692.
34. Brown v. East Miss. Elec. Power Ass'n, 989 F.2d 858, 861 (5th Cir. 1993).
35. Certiorari was granted on three questions: 1. Under the Age Discrimination in Employment Act, is direct evidence of discriminatory intent required to avoid judgment as a matter of law? 2. In determining whether to grant judgment as a matter of law under Fed. R. Civ. P. 50, should a district judge weigh all of the evidence or consider only the evidence favoring the nonmoving party? 3. Is the standard for granting judgment as a matter of law under Fed. R. Civ. P. 56 the same as the standard for granting judgment as a matter of law under Fed. R. Civ. P. 50? Answering the first question no, the Court found the answer to the second question to be an easy yes. Describing the conflict among the circuits as "more semantic than real," the Court concluded that "in entertaining a motion for judgment as a matter of law, the court should review all of the evidence in the record." 530 U.S. 133, 150, 120 S. Ct. 2097, 2110 (2000). Thus, the Fifth Circuit rule on what evidence is to be reviewed in deciding a judgment as a matter of law was affirmed. The third question was not answered directly; instead the Court relied on the authority under Rule 56 "that the court must review the record 'taken as a whole'" to support its conclusion that "the standard for granting summary judgment 'mirrors' the standard for judgment as a matter of law. . . ." Id. The main thrust, then, of the procedural section of the opinion focused on the.way in which the Fifth Circuit had in this particular case erroneously applied its rule that all the evidence in the record is reviewed in deciding a judgment as a matter of law.
36. 509 U.S. 502, 113 S. Ct. 2742 (1993).
37. 450 U.S. 248, 101 S. Ct. 1089 (1981).
38. 509 U.S. at 512, 113 S. Ct. at 2746 (quoting the court of appeals decision, 970 F.2d 487 (8th Cir. 1992)). The language in Burdine supporting that interpretation was that, "placing this burden of production on the defendant thus serves . . . to frame the factual issue with sufficient clarity so that the plaintiff will have a full and fair opportunity to demonstrate pretext." 450 U.S. at 255-56, 101 S. Ct. at 1095.
39. 509 U.S. at 511, 113 S. Ct. at 2749.
40. In a footnote, he said that: there is nothing whatever inconsistent between this statement [of the holding] and our later statements that (1) the plaintiff must show "both that the reason was false, and that discrimination was the real reason" and (2) "it is not enough . . . to disbelieve the employer." Even though (as we say here) rejection of the defendant's proffered reasons is enough at law to sustain a finding of discrimination, there must be a finding of discrimination. 509 U.S. 502, 511 n.4, 113 S. Ct. 2742, 2749 n.4 (1993).
41. See Fisher v. Vassar College, 114 F.3d 1332 (2d Cir. 1997) (en banc); Isenbergh v. Knight-Ridder Newpaper Sales, Inc., 97 F.3d 436 (11th Cir. 1996); Theard v. Glaxo, Inc., 47 F.3d 676 (4th Cir. 1995); Woods v. Friction Materials, Inc., 30 F.3d 255 (1st Cir. 1994).
42. Rhodes v. Guiberson Oil Tools, 75 F.3d 989 (5th Cir.1996) (en banc).
43. 509 U.S. at 515, 113 S. Ct. at 2752.
44. Thus, reversing the Fifth Circuit's holding that a defendant is entitled to judgment as a matter of law when "the plaintiff's case consists exclusively of a prima facie case of discrimination and sufficient evidence for the trier of fact to disbelieve the defendant's legitimate, nondiscriminatory explanation of its action." 530 U.S. 133, 137, 120 S. Ct. 2097, 2103 (2000).
45. Id. at 148, 120 S. Ct. at 2109. Justice O'Connor explained Hicks as holding "that the rejection of the employer's legitimate, nondiscriminatory reason for its action does not compel judgment for the plaintiff . . . [but] it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation." Id. at 146-47, 120 S. Ct. at 2108.
46. 509 U.S. at 511, 113 S. Ct. at 2749.
47. 530 US. at 143, 120 S. Ct. at 2106.
48. Id. at 147, 120 S. Ct. at 2108.
49. Id. at 147-48, 120 S. Ct. at 2108-09 (citing Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577, 98 S. Ct. 2943, 2950 (1978) ("[W]hen all legitimate reasons for rejecting an applicant have been eliminated as possible reasons for the employer's actions, it is more likely than not the employer, who we generally assume acts with some reason, based his decision on an impermissible consideration.").
50. Id. at 148, 120 S. Ct. at 2109. This holding merely aligns discrimination law with how litigation in general is treated. Thus, Justice O'Connor said: "To hold otherwise would be effectively to insulate an entire category of employment discrimination cases from review under Rule 50, and we have reiterated that trial courts should not 'treat discrimination differently from other questions of fact.'" Id. at 148, 120 S. Ct. at 2109.
51. Id. Justice O'Connor describes several scenarios where judgment as a matter of law would be appropriate. For instance, an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred. Id. Surprisingly, Justice O'Connor appeared to leave one type of evidence off the list, evidence supporting drawing the inference of discrimination even though it neither proves the elements of plaintiff's barebones prima facie case as set forth in McDonnell Douglas nor proves that defendant's reason is false. She may, however, be using the term "prima facie case" in the more general sense of the ultimate burden the plaintiff has to prove that she was a victim of defendant's discrimination. As she said earlier in her opinion: "The ultimate question is whether the employer intentionally discriminated." Id. at 146, 120 S. Ct. at 2108. That interpretation is bolstered by the next section of the opinion which looks at all the evidence supporting plaintiff's case.
52. Id. at 154-55, 120 S. Ct. at 2112.
53. Id. at 150, 120 S. Ct. at 2110.
54. Id. at 152, 120 S. Ct. at 2111.
55. Id.
56. Id. (quoting decision of the Fifth Circuit (citations omitted) (emphasis added)).
57. 517 U.S. 308, 116 S. Ct. 1307 (1996) (rejecting the Fourth Circuit's "safe harbor" rule foreclosing age discrimination discharge claim where employee replacing plaintiff is at least age 40).
58. Hazen Paper Co. v. Biggins, 507 U.S. 604, 113 S. Ct. 1701 (1993).
59. 530 US. at 140, 120 S. Ct. at 2104.
60. Professor Henry H. Hart, Jr., Foreword: The Time Chart of the Justices, 73 Harv. L. Rev. 84 (1959), criticized the Court for hearing and deciding too many Federal Employers' Liability Act cases to apply correctly the rules to those individual cases. Spending so much time doing that diverted the Court from its broader role in the development of federal statutory law by the federal judiciary: It will be seen that what matters about Supreme Court opinions is not their quantity but their quality. And it will be seen that the test of the quality of an opinion is the light it casts, outside the four corners of the particular lawsuit, in guiding the judgment of the hundreds of thousands of lawyer and government officials who have to deal at first hand with the problems of everyday life and of the thousands of judges who have to handle the great mass of the litigation which ultimately develops. Id. at 96.
61. In essence, Reeves adopts the approach suggested by Judge Denny Chin: The best approach is perhaps the most basic one: first, evaluating plaintiff's proof, direct or otherwise, of discrimination; second, evaluating defendant's proof that it did not discriminate, including evidence of defendant's explanation for its employment decision; and, third, evaluating the evidence as a whole. Courts should focus on the "ultimate issue" of whether the plaintiff has proven that it is more likely than not that the employer's decision was motivated at least in part by an impermissible or discriminatory reason. In a summary judgment context or on a motion for judgment as a matter of law following a verdict for the plaintiff, the court must evaluate the evidence as a whole resolving all conflicts in the proof and drawing all reasonable inferences in favor of the plaintiff. Chin & Golinsky, Moving Beyond McDonnell Douglas, supra note 16, at 673.
62. 218 F.3d 365, 373 (5th Cir. 2000) (overturning the denial of defendant's motion for judgment as a matter of law by district court after jury verdict for plaintiff because, other than proof of plaintiff's Iranian ancestry, "there is nothing probative anywhere in the record of the ultimate question of national origin discrimination.").
63. 75 F.3d 989 (5th Cir. 1996) (en banc).
64. 218 F.3d at 373 n.23. Similarly, the Second Circuit has so far concluded that Reeves is "wholly compatible and harmonious" with its pretext-plus decision. See Fisher v. Vassar College, 114 F.3d 1332 (2d Cir. 1997) (en banc); James v. New York Racing Ass'n & New York State Racing & Wagering Bd., 233 F.3d 149, 155 (2d Cir. 2000). See also Schnabel v. Abramson, 232 F.3d 83 (2d Cir. 2000).
65. 218 F.3d 392 (5th Cir. 2000) (affirming summary judgment for defendant on plaintiff's discrimination claim).
66. Id. at 400.
67. 82 F.3d 651 (5th Cir. 1996).
68. 218 F.3d at 401.
69. 235 F.3d 219 (5th Cir. 2000).
70. Id. at 223 n.4.
71. Id. at 226. Applying Reeves to the record, the court held that "[t]he remarks at issue in this case [frequent references to plaintiff as "old bitch"] because of their content indicates age animus and the speaker (Ciulla) was primarily responsible for Russell's termination." Id.
72. 224 F.3d 681 (7th Cir. 2000).
73. Id. at 683.
74. Id. at 684 (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147-48, 120 S. Ct. 2097, 2108-09 (2000)).
75. Id. at 685 (citing Reeves, 530 U.S. at 147, 120 S. Ct. at 2108).
76. 530 U.S. at 144, 120 S. Ct. at 2107. "Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence. . . ." Id. at 147, 120 S. Ct. at 2108.
77. Id.
78. Id. at 147, 120 S. Ct. at 2108-09.
79. Id. at 150, 120 S. Ct at 2110. In Reeves, the Court described grants of summary judgment under Rule 56 as "analogous" to the grant of a judgment as a matter of law under Rule 50. Thus, the "standard for granting summary judgment 'mirrors' the standard for judgment as a matter of law, such that 'the inquiry under each is the same.'" Id. (quoting Anderson v. Liberty Lobby Inc., 477 U.S. 242, 250-51, 106 S. Ct. 2505, 2511-12 (1986)).
80. 224 F.3d 681, 684 (7th Cir. 2000).
81. 220 F.3d 16 (1st Cir. 2000).
82. Id. at 18.
83. Id.
84. Id.
85. Id.
86. 220 F.3d at 19 (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 144, 120 S. Ct. 2097, 2107 (2000)).
87. Id. (citing Reeves, 530 U.S. at 148, 120 S. Ct. at 2109).
88. The facts resemble those in Hicks where the bad blood between the supervisor and the plaintiff unquestionably existed, and the real issue was why the supervisor acted on that bad blood. The Court there upheld the fact finder's conclusion that plaintiff had not proved that the supervisor took the action because of race. 509 U.S. 502, 113 S. Ct. 2742 (1993).
89. 226 F.3d 922 (7th Cir. 2000).
90. Id. at 924.
91. Id.
92. Id.
93. Id. at 925 (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147-49, 120 S. Ct. 2097, 2108-09 (2000)) ("also emphasizing that the trier of fact is not required to find discrimination if it rejects the defendant's explanation").
94. Id.
95. Id. at 926.
96. No. 99-3629, 2000 U.S. App. LEXIS 16240 (7th Cir. July 11, 2000).
97. Id. at *6 n.1.
98. 111 F. Supp.2d 227 (W.D.N.Y. 2000).
99. Id.
100. In a law review article, Federal District Court Judge Denny Chin concluded that no reported case involves an employer having failed to come forward with a nondiscriminatory reason for its action. See Chin, supra note 16, at 665.
101. Professor Cass R. Sunstein advocates judicial minimalism as a preferred approach for the Court. See Cass R. Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court (1999). Minimalism is in tension with the leadership role of the Supreme Court in developing federal statutory law. Hart, supra note 58, at 96, articulated that leadership role. He states that: [the] test of the quality of an opinion is the light it casts, outside the four corners of the particular lawsuit, in guiding the judgment of the hundreds of thousands of lawyers and government officials who have to deal at first hand with the problems of everyday life and of the thousands of judges who have to handle the great mass of the litigation which ultimately develops.
102. Professor Deborah A. Galloway has demonstrated that the Hicks decision is based on the underlying assumption by federal judges that discrimination is much less of a problem than it was when McDonnell Douglas was first decided. Deborah A. Calloway, St Mary's Honor Center v. Hicks: Questioning the Basic Assumption, 26 Conn. L. Rev. 997 (1994).
103. See also Vicki Schultz, Telling Stories about Women and Work: Judicial Interpretation of Sex-Segregation in the Workplace in Title VII Cases Raising the Lack of Interest Argument, 103 Harv. L. Rev. 1749 (1990).
104. 114 F.3d 1332 (2d Cir. 1997) (en banc).
105. Id. at 1337.
106. Id. at 1338.
107. In arguing for the creation of a new national court of appeals, Professor Paul M. Bator, What is Wrong with the Supreme Court?, 51 Univ. of Pitt. L. Rev 673, 679-80 (1990), characterized the structure of review wherein the Supreme Court exercised the only national review by certiorari of all of the decisions of the lower federal courts as well as of the state courts deciding federal questions as a system that did not work. This is not a sensible system. It is a system that is jammed at the top. It is a system that breeds uncertainty, instability, and contradiction. And of course uncertainty and instability and contradiction feed on themselves. The more uncertainty and contradiction there is in the law, the greater there is incentive to litigate, and the more new cases there will be in the future. Thus, the jamming can only get worse.
108. The Supreme Court, 1999 Term, The Statistics, 114 Harv. L. Rev. 397, Table II (B) & (C) (2000).
109. Having attended the oral arguments in Reeves, it seemed clear to me that the Court would use the traditional judicial craft approach of deciding the case narrowly, making no more general statements than necessary to decide the case at hand. A review of the briefs of the parties and the amici suggests that the Court was not asked by anyone to do more. It maybe that the deeper meaning of Reeves is less the result of conscious choice of Justice O'Connor in drafting her opinion and more a consequence of her recognition of the faulty basis for the pretext-plus rule as well as her need to resolve the particular case through her careful application of Rule 50 as to judgments as a matter of law.