The Florida Bar

Florida Bar Journal

Desert Palace, Inc. v. Costa—Does McDonnell Douglas Survive?

November, 2004 Labor And Employment Law

I n the nearly 40 years of history of Title VII of the 1964 Civil Rights Act1, lawyers and courts have devoted a large portion of their efforts to arguing and deciding what proofs are required to establish an “unlawful employment practice,” the term that the statute uses to describe violations of its provisions.2 A significant new chapter has been written in the evolution of the methods of proving discrimination in the recent unanimous Supreme Court decision of Desert Palace, Inc. v. Costa, 123 S. Ct. 2148 (2003). The opinion, written by Justice Thomas, picks up where Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), left off. While providing an answer to one important question, it opens the floodgates to questions as to how to apply that answer.

Price Waterhouse was a four-justice plurality decision which formulated a method of proof for cases in which there is evidence of both discriminatory and neutral reasons for an adverse employment action. In such cases, there is a “mixed motive” for the employer’s decision. The plurality decision held that “once a plaintiff in a Title VII case shows that gender played a motivating part in an employment decision, the defendant may avoid a finding of liability only by proving that it would have made the same decision even if it had not allowed gender to play such a role” (footnote omitted).3 T he Court further found that where a “discriminatory impulse played a motivating part in an employment decision” the employer must prove “that it would have made the same decision in the absence of discrimination. . . by a preponderance of the evidence.”4

Before moving forward, a look back at the various means of allocating parties’ burdens of proof in discrimination cases will be helpful. The early Supreme Court decision of Griggs v. Duke Power Co., 401 U.S. 424 (1971), established the disparate impact scheme of proofs, a way of proving that a discriminatory policy that is facially neutral may violate Title VII.5 A n employment practice that disparately excludes those in a protected category of individuals must be shown by the employer to be related to job performance. In International Brotherhood of Teamsters v. United States, 431 U.S. 394 (1977), the Supreme Court held that statistics showing disparities in the employment of those in protected categories could establish a prima facie case of intentional discrimination.

In 1973 the Supreme Court decision in McDonnell Douglas v. Green, 411 U.S. 792 (1973), established a burden-shifting method of proofs. This method is applied where a plaintiff undertakes to prove intentional discrimination by means of circumstantial evidence. The McDonnell Douglas order and allocation of proofs has been the most commonly invoked manner of determining the existence or nonexistence of unlawful discrimination, at least at the summary judgment stage. This is significant as motions for summary judgment are routinely filed by defendants in discrimination cases. As the McDonnell Douglas doctrine has evolved through cases such as Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), the initial burdens of the parties are light. To establish a prima facie case of discrimination a plaintiff needs merely to establish membership in a protected group, possession of the fundamental criteria for a job in question, that there is an adverse action such as discharge, demotion, denial of a promotion and replacement by or better treatment of someone outside of the protected group.6

The defense also has a light burden in rebutting a prima facie case . It is required merely to produce evidence of a “legitimate, nondiscriminatory reason” for its actions.7 T he McDonnell Douglas Court explains that “the defendant need not persuade the court that it was actually motivated by the proffered reason. It is sufficient if the defendant’s evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff.”).8

The defendant’s burden at this point has been described as “a burden of production.”9 T he burden of persuasion remains always with the plaintiff.10 I f the defendant meets its burden, the plaintiff must then prove that the defendant’s stated reason is not the true reason for its actions.11 T his may be accomplished either “directly by showing the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.”12 B ecause this is often a formidable burden, the majority of discrimination cases are dismissed without getting to trial.

Price Waterhouse permits a plaintiff to obtain a helpful advantage where evidence can be produced that establishes the existence of a discriminatory motive for an employer’s adverse action. In such cases, if the evidence is credited by the trier of fact, the burden of proof shifts to the employer to establish that it would have made the same decision in the absence of a discriminatory motive. This makes the defendant’s job far more difficult than merely articulating a nondiscriminatory basis for its decision as would be its much lighter burden if the plaintiff’s proofs were limited to circumstantial evidence.

In applying the same decision analysis courts have widely relied on a comment by Justice O’Connor in her concurring opinion in Price Waterhouse. Justice O’Connor wrote, “In my view, in order to justify shifting the burden on the issue of causation to the defendant, a disparate treatment plaintiff must show by direct evidence that an illegitimate criterion was a substantial factor in the decision.”13 A lthough Justice O’Connor was not joined in her opinion by any other member of the Court, the lower courts have almost universally required plaintiffs to present direct evidence before they will present the jury with a mixed motive instruction.14

Not surprisingly, plaintiffs have attempted to strengthen their position by shifting the burden to the defendant to prove the absence of discrimination, leading to a continuing controversy as to what constitutes direct evidence. This is a matter on which there is hardly universal agreement. As Judge Tjoflat stated in his opinion in Wright v. Southland, 187 F.3d 1287, 1288 (11th Cir. 1999), the question of what constitutes direct evidence is one “that has baffled the courts for some time.” In Rollins v. Techsouth, Inc., 833 F.2d 1525 (11th Cir. 1987) the court observed, citing Black’s Law Dictionary, that “direct evidence is ‘evidence which if believed, proves existence of fact in issue without inference or presumption. ’”15 J udge Tjoflat found that this definition was too restrictive for discrimination cases.16 H e defined direct evidence in the employment discrimination case context as “evidence from which a reasonable trier of fact could find, more probably than not, a causal link between an adverse employment action and a protected personal characteristic.”17

In Carter v. Three Springs Residential Treatment, 132 F. 3d 635, 642 (11th Cir. 1998), a Title VII race discrimination case, one of the employees involved in the decision not to promote the plaintiff purportedly stated that she had minimal experience with black employees and found difficulty in trusting and getting along with them. The 11th Circuit ruled that this was not direct evidence of discrimination. The court held that this statement made to a black coworker was capable of more than one interpretation. It could have been the expression of the speaker’s desire to overcome prejudice. The court noted that “statements that are open to more than one interpretation do not constitute evidence of racial discrimination.”18 T he court additionally gave weight to the fact that the context in which the statement was made did not relate to the decision not to promote the plaintiff.

contrast, in Febres v. Challenger Caribbean Corporation, 214 F. 3d 57 (1st Cir. 2000), an ADEA case, the First Circuit found testimony by a decisionmaker that one of three reasons for selecting persons to be laid off was age constituted direct evidence of discrimination. The evidence thereby required the court to grant plaintiff’s request for a mixed motive jury instruction. The court rejected as speculation the argument that age might have been a positive criteria used to benefit older employees. In doing so the court observed that “the mere fact that a fertile mind can conjure up some innocent explanation for such a comment does not undermine its standing as direct evidence.”19 T he court further observed that the statement was “made by a decision maker, pertained to the decisional process, bore squarely on the employment decisions at issue (or at least some of them), and straightforwardly conveyed age animus.”20

In Bass v. Board of County Commissioners, Orange County, Florida, 256 F. 3d 1095 (11th Cir. 2001), the 11th Circuit considered a statement by the chief of the fire and rescue division in which the plaintiff was employed that “we will continue to promote on the basis of color.”21 I n that case the plaintiff alleged that he was denied a promotion because he was not Hispanic. The court held that the chief’s statement was not direct evidence of discrimination because he was not involved in the promotion decision in question. The court further noted, however, that an affirmative action program could constitute direct evidence if it was considered in making a decision and if its purpose was other than curing an imbalance in the employment of persons in a protected group.22

With its decision in Desert Palace, the Supreme Court may have in many cases obviated the need to wrestle with the question of whether or not certain evidence is direct evidence. The Court ruled that it is not necessary to present “direct” evidence of a discriminatory reason for an adverse employment decision in order to raise the question of the existence of a mixed motive. In arriving at its decision the Court looked to the amendment to Title VII in the 1991 Civil Rights Act. It focused on 42 U.S.C. §2000e-2(m):

Except as otherwise provided in this subchapter, an unlawful employment practice is established when the complaining party demonstrates that race, color, sex, religion, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice. (Emphasis supplied.)

This section must also be considered in conjunction with §2000-e(5)(g)(2)(B):

In a case in which an individual proves a violation under section 2000e-2(m) of this title and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court –
(i) may grant declaratory relief, injunctive relief. .. and attorney’s fees and costs demonstrated to be attributable only to the pursuit a claim under section 2000e-2(m) of this title and
(ii) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion or payment described in subparagraph (A). (Emphasis supplied.)

The plaintiff, CatharinaCosta, was the only woman employed in her work area as a warehouse worker and a heavy equipment operator. She alleged a plethora of discriminatory acts based on her gender. These included intense scrutiny by her supervisor, receiving disparately harsher discipline than male coworkers for comparable infractions, less favorable treatment in the assignment of overtime, and gender-based negative comments by her supervisors.23 Ultimately she was dismissed because of a physical altercation with a male coworker. The coworker received only a five-day suspension as he did not have an extensive disciplinary history like the plaintiff. The jury found for the plaintiff after being given a mixed motive instruction. The employer argued that in the absence of direct evidence she was not entitled to a mixed motive instruction.

In rejecting the employer’s argument, the Court reasoned that 42 U.S.C. §2000e-2(m) merely required the plaintiff to “demonstrate” that the employer made use of a prohibited factor in making an employment decision. The statute does not require that showing to be made by direct evidence. It does not restrict the use of circumstantial evidence to demonstrate that a prohibited consideration entered into the employer’s decision-making process. The Court summarized its ruling stating that “In order to obtain an instruction under §2000e-2(m), a plaintiff need only present sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that ‘race, color, religion, sex, or national origin was a motivating factor for any employment practice.’”24

In reaching its decision in Desert Palace, the Court commented on the value of circumstantial evidence in proving a discrimination case.

We have often acknowledged the utility of circumstantial evidence in discrimination cases. For instance, in Reeves v. Sanderson Plumbing Products, Inc.,. . . we recognized that evidence of a defendant’s explanation for an employment practice is “unworthy of credence” is “one form of circumstantial evidence that is probative of intentional discrimination. . . . ” (emphasis added) The reason for treating circumstantial and direct evidence alike is both clear and deep rooted: “circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence” (emphasis in the original, some internal citations omitted).25

The questions raised in the wake of Desert Palace are manifold. The opinion relies heavily on the wording of the 1991 Civil Rights Act, which is applicable only to discrimination in violation of Title VII. Therefore it is yet to be determined whether the reasoning of the case is applicable only to mixed motive actions alleging discrimination in violation of Title VII. Further is the perplexing question of what quantum of circumstantial evidence is required to place the burden on the employer to show that its motives for an act or a practice are neutral? Finally, will that quantum be so small that it will entirely, or at least partially, obliterate resort to the McDonnell Douglas burden shifting order and allocation of proofs in the categories of discrimination cases to which the Desert Palace decision applies? While the answers to these questions are by no means certain, useful insights may be gained by looking at some of the few lower court decisions applying the Desert Palace decision.

Two opinions written by Judge Magnuson of the U.S. District Court in Minnesota carry Desert Palace about as far as it seems to be able to go by apparently nullifying the McDonnell Douglas paradigm in federal discrimination cases. Dare v. Wal-Mart Stores, Inc., 267 F. Supp. 2d 987 (D. Minn. 1993), was a race discrimination refusal to hire case brought under Title VII and the Minnesota Human Rights Act, (the “MHRA”).26 The court held that the amendment in the 1991 Civil Act required the employer to prove a nondiscriminatory reason for its actions by a preponderance of the evidence even where the plaintiff is unsuccessful in proving pretext.27 Judge Magnuson reasoned that the McDonnell Douglas paradigm put an unreasonable burden on a plaintiff and that it was properly done away with by §2000e-2(m). He observed that “a plaintiff’s unsuccessful challenge to the defendant’s non-discriminatory rationale should not automatically allow the defendant to escape liability. It should merely subject the defendant to the mixed motive analysis.”28He further observed that “the ‘same decision test’ that the Civil Rights Act requires defendants to pass as part of a limited affirmative defense functions just as effectively when applied to single motive claims as it does when applied to mixed motive claims.”29

In Dare the court reasoned that all employment decisions are made for a mixture of reasons. Following the court’s reasoning to its logical conclusion, any plaintiff who makes a prima facie case is entitled to a mixed motive instruction. This reasoning permits the fact finder in any Title VII discrimination case to conclude that the defendant acted pursuant to a discriminatory motive but would have acted in the same manner for a legitimate reason or reasons. It follows that in any Title VII case that goes to trial the defendant would be subject to an injunction and payment of the plaintiff’s attorney’s fees pursuant to §2000-e(5)(g)(2)(B)(i) even if the plaintiff is barred by §2000-e(5)(g)(2)(B)(ii) from obtaining monetary relief or an improvement in employment status.30

Notwithstanding the Dare court’s disdain for McDonnell Douglas, it applied that case’s order and allocation of proofs to the plaintiff’s claim under the MHRA, quite appropriately observing that Minnesota has not adopted Price Waterhouse or the 1991 Civil Rights Act.31

The reasoning in Dare found approval in Griffith v. City of Des Moines, 4:01 – CV – 10537 (S.D. Iowa 7/3/2003), a Title VII case in which the court found the Dare decision to be “well-reasoned.”32In Griffith the court agreed that “in light of the 1991 amendments to Title VII and the Supreme Court’s decision in Desert Palace, courts are no longer obliged to apply the McDonnell Douglas framework when considering a motion for summary judgment on a ‘single motive’ Title VII claim.”33

Judge Magnuson carried his reasoning in Dare a step further in Skomsky v. Speedway SuperAmerica, 267 F. Supp. 2d 995 (D. Minn. 2003), in which he applied Desert Palace to an action brought under the Americans With Disabilities Act (the “ADA”). The court held that Skomsky had pled a mixed motive case as he originally had included a claim of age discrimination in violation of the Age Discrimination in Employment Act, (the “ADEA”)34, although he dropped that claim. The court held that since the ADA was patterned after Title VII the same burdens of proof should apply in each statute. Judge Magnuson did not seem to be concerned that 42 U.S.C. §2000e-2(m) by its terms limits its applicability to Title VII and is not specifically incorporated into the ADA in 42 U.S.C. §2117(a). In Judge Magnuson’s view “the Supreme Court abrogated the direct/indirect evidence distinction articulated in Justice O’Connor’s Price Waterhouse concurrence.”35

It is questionable whether the Supreme Court would agree with Judge Magnuson’s view in Skomsky. In Raytheon Co. v. Hernandez, 124 S. Ct. 513 (2003), a post Desert Palace decision, the Court found that the McDonnell Douglas method of proofs was applicable in that particular ADA case. However, the issue of whether §2000e-2(m) as interpreted in Desert Palace is applicable in an ADA case does not appear to have been argued in that case.

Other district court judges have rejected Judge Magnuson’s reasoning, finding that Desert Palace was not intended to rewrite McDonnell Douglas. In Rozkowiak v. Village of Arlington Heights, 01 C 5414 (N.D. ILL 03/24/2004), the court expressly rejected the ruling in Dare. In granting the employer’s motion for summary judgment the court opined that McDonnell Douglas is still a viable framework for evaluating Title VII cases and, therefore, analyzed the case under burden shifting.

The court in Herawi v. State of Alabama Department of Forensic Sciences, Civil Action No.2:02civ1360 – T (M.D. Ala. 04/05/2004), paraphrased Mark Twain in declaring that reports of the death of McDonnell Douglas are greatly exaggerated. The court opined that McDonnell Douglas is still a viable framework for analyzing Title VII claims. The employer’s motion for summary judgment was denied using burden shifting based on numerous negative references made to the plaintiff’s national origin.

Perhaps many courts will agree with the reasoning of Owens v. Excel Management Services, Inc., Civil Action No. 3:02-CV-0835-L (N.D.Tex. 02/13/2004), in which the court rejected any suggestion that Desert Palace abrogated McDonnell Douglas burden shifting. The court reasoned that if the Supreme Court had intended such a dramatic revision of employment discrimination law it would have done so in unmistakable terms. In granting the defendant’s motion for summary judgment the court held that plaintiff had not met her burden under the third McDonnell Douglas step as she failed to show that her being dismissed in a general reduction in force was pretextual.

Another district court proposed a way of applying Desert Palace to the McDonnell Douglas analysis. In Dunbar v. Pepsi-Cola General Bottlers of Iowa, 285 F. Supp. 2d 1180 (N. D. Ia. 2003), a Title VII race discrimination case, the court reasoned that to accommodate Desert Palace the McDonnell Douglas burden shifting paradigm must be changed only in the third step. Once the defendant states a neutral reason for its decision the plaintiff may proceed in two different ways. He may prove that the stated reason is a pretext. Alternatively he may prove that the plaintiff’s protected status was a reason for the defendant’s actions even if there was a valid neutral basis for the employer’s decision. The latter “mixed motive” method of proving discrimination may be accomplished with either direct or circumstantial evidence. If the plaintiff succeeds in showing that his or her protected status played a role in the defendant’s decision, the burden then shifts back to the defendant to prove that it would have taken the same action in the absence of discriminatory motives in order to avoid liability for damages. The court denied summary judgment using both burden shifting and mixed motive analysis. Its decision was based primarily on evidence of the plaintiff’s receiving disparately harsher discipline than white employees who engaged in comparable conduct. This approach was also followed in Brown v. Westaff (USA) Inc., Civil No. 02-1696 (JRT/JSM) (D. Minn. 01/12/04).

Since the Desert Palace decision there have been decisions that have cited the case as the basis for allowing actions to proceed on a mixed motive theory, but it is not entirely certain that the results would have differed under Price Waterhouse. In Campetti v. Career Education Corporation d/b/a Allentown Business School, No. 02-CV-1349 (E.D. Pa. 6/25/2003, the court denied the defendant’s motion for summary judgment finding that two statements allowed the case to proceed under a mixed motive standard. According to the plaintiff the employer’s director of human resources allegedly told him that “with women like me around, men like you will never make it in corporate America.”36 Since she denied making this statement the court found that it was for the jury to decide whether she did so. If the jury believed the plaintiff it could find that gender was a motivating factor in the decision to dismiss the plaintiff. The court also considered a note written in an inspirational book given to the plaintiff by the employer’s president. The note stated: “Tony, it’s tough to be our only male manager!! We women are ruthless and you are often the brunt of all our frustrations. Thanks for being secure enough to handle all us crazy broads!!”37 The court determined that it was for the jury to decide if the note was evidence of discrimination. While the Campetti court indicated that it was applying the Desert Palace decision it is not unlikely that the evidence, at least the statement by the human resource director, would have been sufficient as direct evidence to support proceeding as a mixed motive case under the view expressed by Justice O’Connor in Price Waterhouse.

The Fourth Circuit cited Desert Palace as the basis for its decision in Rowland v. American General Finance Inc., 340 F.3d 187 (4th Cir. 2003), a Title VII gender discrimination case in which the plaintiff complained of being denied a promotion to district manager. In that case the court ruled that the trial court had erred in refusing to give a mixed motive jury instruction where a decisionmaker had allegedly told the plaintiff that he did not need another woman in the position of district manager. The same individual had allegedly told another woman “that’s just life at American General. That’s the way it is. The men run the company, and you just have to do what they say.”38

Rowland, like Campetti,does not afford clear guidance on the important question of what quantum of evidence is needed to obtain a mixed motive instruction after Desert Palace. The decisionmaker’s statement that he did not need another woman in the district manager position would likely have been sufficient direct evidence to justify a mixed motive instruction even prior to the 1991 Civil Right Act. The question may be moot if the courts adopt Judge Magnuson’s view that essentially does away with McDonnell Douglas and requires a mixed motive instruction in every discrimination case, or at least those brought under Title VII and the ADA.

The Fourth Circuit en banc decision in Hill v. Lockheed Martin Logistics Management, No. 01-1359, (4th Cir. en banc 1/5/2004), pointed out one factor that remains the same after Desert Palace. Whether a plaintiff attempts to prove a case under McDonnell Douglas or under a mixed motive theory, acts or statements by one not involved in the decision-making process that results in an adverse action do not constitute evidence of discrimination.

A further important unanswered question is in what type of discrimination cases will the reasoning in Desert Palace be applied? Will it find acceptance under various state discrimination cases, or discrimination cases brought under such statutes as the Family and Medical Leave Act, the Fair Labor Standards Act, or the Employee Retirement Income Security Act?

A clue to the future of the finding in Desert Palace may be found in some courts’ reluctance to apply the 42 U.S.C. §2000e-2(m) to anything other than Title VII discrimination cases. In Pennington v. City of Huntsville, 261 F.3d 1212 (11th Cir. 2001), the 11th Circuit found that section inapplicable to Title VII retaliation cases as well as cases brought under 42 U.S.C. §1983.39

The court looked back to its decision in Lewis v. Young Men’s Christian Association, 208 F.3d 1303 (11th Cir. 2000), in which it held that §2000e-2(m) does not state that an unfair employment practice exists where retaliation for filing an age discrimination action is a motivating factor in an adverse employment decision along with neutral motivating factors. Motivation only on the basis of “race, color, religion or national origin” brings the section into play.

Lower courts so far are mixed on the application of Desert Palace to other statutes. In Bolander v. BP Oil Company, No. 3:01CV7341 (N.D. Ohio 8/6/2003), the court ruled that “the mixed motives rationale and Desert Palace does not apply to age discrimination cases.”40 While the court did not state the basis for the finding, it would not be unreasonable to infer that the court took into account that the applicable language of the 1991 Civil Rights Act does not apply to the ADEA.

Ballatore Fairmont Hotel & Resorts, Inc., No. 02 C 4807 (02/23/2004 N.D. Ill.), was an ADEA action in which the court cited Desert Palace as the basis for denying the employer’s motion for summary judgment in the plaintiff’s claim of disparate work assignment. In referring to a supervisor’s reference to the plaintiff as “that old man” when declining to let him substitute for another employee the court reasoned that Desert Palace sanctioned circumstantial evidence as proof of discrimination in an ADEA case. The court made no mention of the fact that 42 U.S.C. §2000e-2(m) is limited in its application to Title VII.

contrast, summary judgment was denied in Beckman v. KGB Telecommunications, Inc., Civ. No. 02-1261 (D. Minn. 03/16/2004), where the court declined to apply Desert Palace to an age discrimination action brought under both the ADEA and the Minnesota Human Rights Act. The plaintiff’s evidence was at best circumstantial. It consisted of two occasions in which he was referred to as an old man and one on which he was referred to as an “old F—er.” The court observed that the Eighth Circuit has not ruled on whether Desert Palace applies to ADEA claims and the Minnesota Supreme Court has rejected the mixed motive analysis for claims under the state statute.41

In Lloyd v. City of Bethlehem, Civil Action No. 02-civ-00830 (E.D. Pa. 03/01/2004), the court granted the defendant’s motion for summary judgment stating that it was applying the McDonnell Douglas burden shifting analysis as modified by Desert Palace. However, the discussion was not pertinent to its ultimate finding that the plaintiff had not made out a prima faciecase under the ADEA under any theory.

The Fifth Circuit allowed circumstantial evidence to invoke a mixed motive analysis to an ADEA case in Rachid v. Jack in the Box, Inc., No. 03-10803 (June 25, 2004). In that case a manager of two restaurants was discharged allegedly for violating a company policy regarding making changes on employees’ time cards. The court found factual issues that precluded summary judgment based on indirect negative comments relating to the plaintiff’s age by his supervisor and a factual dispute as to whether the policy in issue was in truth a company policy.

The court found that Desert Palace was precedent for not requiring direct evidence of discrimination as a prerequisite to applying a mixed motive analysis. The court reasoned that the language prohibiting discrimination on the basis of age in the ADEA parallels that prohibiting discrimination in Title VII, having been modeled on that language. It made no mention of the absence in the ADEA of the 1991 Civil Rights Act language that was central to the reasoning in Desert Palace. Neither did the court take notice of the comments in Desert Palace advancing the value of circumstantial evidence in proving discrimination.

The court modified McDonnell Douglas in the third step by allowing that once the defendant has stated a nondiscriminatory reason for its actions, the plaintiff must show either that the defendant’s reason is a pretext for discrimination or that the defendant’s reason though true the defendant was also motivated by discriminatory considerations. If the plaintiff makes the latter showing, the defendant must prove that it would have made the same decision in the absence of its discriminatory animus.

One court found Desert Palace applicable to claims under 42 U.S.C. §1981. Disher v. Wilson, No. 1:02CV00529 (M.D. N.C. 02/26/2004), was a race discrimination action brought under both Title VII and 42 U.S.C. §1981. The court found Desert Palace applicable based on plaintiff’s raising an issue of whether comparators were treated more leniently under like circumstances. In denying the defendant’s motion for summary judgment the court applied a mixed motive analysis to the claims under both statutes. The court reasoned that the statutes are analogous and like reasoning should apply to both.

While it is clear that the Desert Palace decision relates solely to the effect of §2000e-2(m) on burdens of proof in Title VII mixed motive cases, there is reasoning in the decision that might be applied to other cases. The opinion of Justice Thomas has dethroned direct evidence from its exalted perch in the scheme of proving discrimination cases. It is no longer in every case to be considered superior to circumstantial evidence. Justice Thomas observed that:

The adequacy of circumstantial evidence extends beyond civil cases; we have never questioned the sufficiency of circumstantial evidence in support of a criminal conviction, even though proof beyond a reasonable doubt is required. See Holland v. United States,42(observing that, in criminal cases circumstantial evidence is “intrinsically no different than testimonial evidence.”) And juries are routinely instructed that “[t]he law makes no distinction between the weight or value to be given to either direct or circumstantial evidence.”. . . It is not surprising, therefore, that neither petitioner nor amicus curiae can point to any other circumstance in which we have restricted a litigant to the presentation of direct to the presentation of direct evidence absent some affirmative directive in a statute.43

Considering the newly enhanced respectability of circumstantial evidence lower courts might well consider some measure of circumstantial evidence to be sufficient to create a mixed motive cases under statutes other than Title VII. It certainly will be interesting to see. q

1 2 U.S.C. §2000e et seq.
2 42 U.S.C. §2000e-2.
3 Price Waterhouse, 490 U.S. at 244–45.
4 Id. at 252.
5 The law delineating the burdens of parties in a disparate impact case was codified in the 1991 Civil Rights Act at 42 U.S.C. §2000e-2(k). While many of the leading cases deal with proving violations of Title VII, the decisions involving other protective statutes as well as comparable state statutes commonly apply like standards of proof.
6 The court recognized that facts will vary from case to case and that the formula that it set out was not rigid. McDonnell Douglas, 411 U.S. at 802 n.13.
7 450 U.S. at 216.
8 450 U.S. at p. 244. (Internal citation and footnote omitted).
9 Id. at 255–56.
10 Id. at 256.
11 Id.
12 Id.
13 490 U.S. at 276.
14 But see Thomas v. National League Football Players Association, 131 F.3d 198, 203 (D.C. Cir. 1997), holding that inferential evidence may permit giving a mixed motive jury instruction “when the plaintiff has shown by a preponderance of ‘any sufficiently probative direct or indirect evidence’ that unlawful discrimination was a substantial factor in the employment decision.” (Quoting White v. Express Corp., 939 F.2d 157, 160 (4th Cir. 1991).
15 Rollins, 833 F.2d 1525, 1528 n.6 (emphasis in original).
16 The two other members of the Wright panel concurred only in the result reached by Judge Tjoflat.
17 Wright, 187 F.3d at 1293.
18 Carter, 132 F.3d 635, 642.
19 Febres, 214 F.3d at 61.
20 Id.
21 Bass, 256 F.3d at 1101.
22 Id. at 1110.
23 Desert Palace, 123 S. Ct. at 2152.
24 Justice O’Connor concurred with the majority, reasoning that the 1991 Civil Rights Act “codified a new evidentiary rule for mixed motive case arising under Title VII.” (O’Connor, concurring opinion, 123 S. Ct. at 2155).
25 Id. at 2154.
26 Minn. Stat. §363.03.
27 Dare, 267 F. Supp. 2d at 992.
28 Id.
29 Id.
30 Judge Magnuson’s view is not universally accepted by the federal judges in Minnesota. In EEOC v. Minnesota Beef Industries, Inc. Civil No. 02-810 (D. Minn. 12/11/2003), Judge Doty wrote that he did not agree with the plaintiff’s contention that McDonnell Douglas was no longer applicable to Title VII cases.
31 Dare, 267 F. Supp. at 992–93.
32 Griffith, 4:01-CV-10537.
33 Id.
34 29 U.S.C. §623(a).
35 Skomsky, 267 F. Supp. at 1000.
36 Campetti, No. 02- cv-1349.
37 Id.
38 Rowland, 340 F.3d 187.
39 The Pennington court noted that its view was in accord with Matima v. Celli, 228 F.3d 68 (2d Cir. 2000); Norbeck v. Basin Electric Power Coop., 215 F.3d 848, 852 (8th Cir. 2000); Kubicko v. Ogden Logistics Services, 181 F.3d 534, 552 n.7, (4th Cir. 1999); McNutt v. Board of Trustees of the University of Illinois, 141 F.3d 706, 709(7th Cir. 1998); Woodson v. Scott Paper Co., 109 F.3d 913, 935 (3d Cir. 1997); and Tanca v. Nordberg, 98 F.3d 680, 684 (1st Cir. 1996).
40 Bolander, No. 3:01-CV-7341.
41 See also Rabe v. City of Bemidji, Minnesota, Civ. No. 02-1698 (D. Minn 03/17/2004), where the court also declined to apply the ruling in Desert Palace to an ADEA claim while denying the defendant’s motion for summary judgment.
42 348 U.S. 121, 140 (1954).
43 Desert Palace, 123 S. Ct. at 2154.

Donald J. Spero is a graduate of the University of Michigan Law School who has practiced labor and employment law for over 30 years, both in private practice and as in-house counsel for Sears, Roebuck and Co. from which he retired as senior employment counsel. He now devotes his time to serving as a mediator and an arbitrator. He is board certified in labor and employment law.
This column is submitted on behalf of the Labor and Employment Law Section, Susan L. Dolin, chair, and Frank E. Brown, editor.