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Determining the Meaning of “Direct Evidence” in Discrimination Cases Within the 11th Circuit Why Judge Tjoflat Was (W)right

Featured Article

Truly I tell you, no prophet is accepted in the prophet’s hometown.1

An employment discrimination plaintiff may establish a case of discrimination by using one of three alternative methods: 1) presenting evidence of discriminatory intent; 2) meeting the four-pronged test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981); or 3) through statistical proof of a pattern and practice of discrimination.2 These three methods are frequently described using the following respective short-hand labels: 1) “direct evidence” or more accurately “a mixed-motives case”; 2) “circumstantial evidence” or the presumption method; or 3) “statistical evidence.”3 This article focuses only on the type of evidence sufficient to establish a mixed-motives case. There is no question that an unlawful employment practice is established when an illegitimate criterion “was a motivating factor for any employment practice, even though other factors also motivated the practice.”4 The crucial unresolved question has been what evidence sufficed to establish that an illegitimate criterion was “a motivating factor.”

The crux of the conflict concerns the type of evidence which a plaintiff can use to establish a mixed-motives case. One standard permits a plaintiff to rely on any type of evidence—direct or circumstantial; the other standard restricts a plaintiff to using only direct evidence to establish a mixed-motives case. This conflict originates from the failure of a majority of the justices of the Supreme Court in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), to agree on what evidence would establish a mixed-motives case. Additionally, the indiscriminate description of a mixed-motives case as a “direct evidence” case by Justice O’Connor’s concurrence in Price Waterhouse led some lower courts to conclude that only evidence meeting the dictionary definition of direct evidence would suffice in a mixed-motives case. Last term in Desert Palace v. Costa, 123 S. Ct. 2148, 2150 (2003), the Supreme Court finally addressed this issue in Title VII cases and unanimously concluded that “direct evidence was not required” in order for a plaintiff “to obtain a mixed-motive instruction.”

The Supreme Court’s recent Costa opinion,however, did not finally resolve all the issues concerning the level of evidence sufficient to warrant a mixed-motives instruction. The Costa opinion focused exclusively on the language of the 1991 amendments to Title VII, which were passed in response to Price Waterhouse, to reach the conclusion that a mixed-motives case may be proven by direct and/or circumstantial evidence. As a result, the holding Costa opinion is limited to cases under Title VII and arguably does not apply other discrimination statutes, such as the Age Discrimination in Employment Act (ADEA), the Pregnancy Discrimination Act (PDA), or even the retaliation provisions of Title VII, which were not similarly amended after Price Waterhouse.

Moreover, the brief opinion in Costa provides little guidance as to what evidence will suffice to constitute a mixed-motives case.

Yet, the unresolved issues were addressed four years ago, by 11th Circuit Judge Tjoflat in Wright v. Southland Corporation. 187 F.3d 1287 (11th Cir. 1999). In that opinion —in which the other judges only concurred in the judgment or result, thereby depriving the opinion of any precedential value—Judge Tjoflat not only rejected the “dictionary definition of direct evidence,” but also set forth a three-prong “preponderance standard” for evaluating whether the evidence warranted a mixed-motives instruction. While the 11th Circuit ignored this discussion in Wright and district courts in the 11th Circuit rejected Wright’s “direct evidence” analysis as mere dicta, the standard for evaluating mixed-motives cases has remained mired in ambiguity and inconsistency.

In light of the issues left unresolved by the Costa decision, this article suggests that an examination of Judge Tjoflat’s analysis is warranted. First, this article outlines the scope of the Costa decision and identifies the issues left unresolved by Costa. Next, this article examines Judge Tjoflat’s analysis in reaching the three-prong standard, and, finally, this article explains that this three-prong standard should be adopted by the 11th Circuit in all mixed-motives discrimination cases because it is the only permissible method of evaluating a mixed-motives case consistent with Supreme Court guidance, 11th Circuit precedent and logic.

The Supreme Court Opinion in Desert Palace v. Costa

In Costa, the Supreme Court addressed “whether a plaintiff must present direct evidence of discrimination in order to obtain a mixed-motive instruction” under Title VII.5 While recognizing that this conflict arose out of the disagreement in Price Waterhouse, the Costa court resolved this question by focusing nearly exclusively on the language of Title VII’s 1991 amendments, which were explicitly amended to provide that “an unlawful employment practice is established when [a plaintiff] demonstrates that [an illegitimate criterion] was a factor even though other factors also motivated the practice.”6 Relying on Title VII’s express definition of the term “demonstrates” as “to meet the burden of production and persuasion,” the Costa court concluded that Congress did not intend to require a heightened showing to obtain a mixed-motives instruction under Title VII.7 Based on this language, the Supreme Court concluded that Title VII did not depart from the conventional rule of civil litigation allowing a plaintiff to prove a case “using ‘direct or circumstantial evidence.’”8

While this reasoning might suggest application to any of the discrimination statutes, unlike Title VII (or the ADA, which expressly adopts the procedures set forth in Title VII),9 other statutes, such as the ADEA still contains the same “because of” language as the pre-1991 Title VII statute.10 This language suggests then that the holding of Price Waterhouse might still apply to non-Title VII statutes.11 Indeed, Justice O’Connor’s concurrence in Costa explicitly states that the decision was based solely on the 1991 Amendments codification of “a new evidentiary rule for mixed-motive cases arising under Title VII.”12 Thus, a question remains as to whether direct evidence is required in non-Title VII mixed-motives cases. Additionally, the Supreme Court explicitly declined to address or provide any guidance as to the amount of evidence required to establish a mixed-motives case.13 As counsel for defendant in Costa commented after issuance of the opinion, “the lower courts are going to have to grapple with the definition of what is or isn’t a mixed-motive case.”14 Accordingly, a question also remains as to what constitutes sufficient evidence in a mixed-motives case.

As of the writing of this article, no published decision in the 11th Circuit had cited Costa nor decided a mixed-motives case after Costa. Recent cases from other circuits suggest that the lower courts are not readily applying the reasoning of Costa to non-Title VII cases, such as the ADEA or the PDA.15 Indeed, the 11th Circuit has held that the relevant sections of the 1991 amendments did not apply to mixed-motive retaliation claims under the ADEA or Title VII.16 Additionally, even in Title VII cases, courts outside this circuit have continued to explain that evidence is analyzed under the presumption method when only circumstantial evidence is available, thus suggesting courts’ reticence in abandoning the “direct evidence” requirement for mixed-motive cases.17 Accordingly, these unresolved issues suggest that a thorough and thoughtful consideration of the Judge Tjoflat’s analysis in Wright is warranted.

Analysis of “Direct Evidence”

In conducting the analysis in Wright, Judge Tjoflat first summarized the basic principles of employment law, namely that every employment decision involves discrimination, but only those impermissible bases, such as race, sex, and age, are prohibited by law.18 From that premise, Judge Tjoflat posited that the essential question in an employment discrimination case, then, is “what caused the adverse employment decision about which plaintiff complains?”or “Did an impermissible basis cause the employer to make the decision about which the plaintiff complains?”19

As Judge Tjoflat explained, answering that question requires the plaintiff to prove the state of mind of the person making the employment decision.20 Unlike some torts, intent may not be inferred merely from performing the forbidden act; rather, an employment discrimination plaintiff must undertake the difficult task of proving the motivation of the act.21 Recognizing the difficulty of proving intent, Judge Tjoflat explained that the Supreme Court developed an alternative method of proof in McDonnell Douglas by which an employee could establish discrimination even in the absence of evidence establishing a mixed-motives case. This alternative method affords a plaintiff with a presumption that the employer has discriminated if a plaintiff establishes certain predicate facts.22 This “presumption” permits a factfinder to infer intentional discrimination by the employer based on the establishment of a prima facie case.23 In short, a jury may conclude the existence of intentional discrimination in the absence of a contrary explanation by the employer.24

Of course, a plaintiff need not rely on the McDonnell Douglas presumption methodif there is sufficient evidence establishing intentional discrimination—i.e., a mixed-motives case.25 Usage of the colloquialism “direct evidence” had led 11th Circuit panels and district courts to equate the mixed-motives method with direct evidence and to equate circumstantial evidence with the presumption method. Judge Tjoflat suggested that such equivalency erroneously confused the methods of proof in an employment discrimination case with the well-established meanings of these terms in the law of evidence: “Direct evidence” traditionally is defined as “evidence that is based on personal knowledge or observation and that, if true, proves a fact without inference or presumption;”and correspondingly “circumstantial evidence” is defined as “evidence based on inference and not on personal knowledge or observation.”26

To evaluate what evidence constituted sufficient evidence in a mixed-motives case under 11th Circuit precedent, Judge Tjoflat examined nearly every prior 11th Circuit mixed-motives discrimination case to determine which definition was consistent with the actual decision of whether the plaintiff had presented “direct evidence.”27 Judge Tjoflat first classified prior circuit decisions’ description of a plaintiff’s burden in establishing a mixed-motives cases as falling into one of two categories: decisions articulating a “dictionary definition of direct evidence” or decisions utilizing what Judge Tjoflat labeled as the “preponderance definition.”28 Under the dictionary definition, the discriminatory statement “can be interpreted only as an admission of improper discrimination” about the employment decision if “no inference or presumption is required” to conclude that discrimination has occurred.29 contrast, the preponderance definition permitted presentation of all, direct or circumstantial, evidence that “relates to actions or statements of an employer reflecting a discriminatory attitude correlating to the discrimination or retaliation complained of by the employee.”30 Judge Tjoflat explained that the evidence needed to contain three elements in order to permit the trier of fact to conclude by a preponderance of the evidence that an employment decision was based on impermissible discrimination: 1) a statement by the employer or decisionmaker 2) reflecting a discriminatory attitude 3) related to the employment decision.31 Under this three-prong standard, Judge Tjoflat determined that the holdings of all of the examined cases, regardless of the definition actually articulated by the court, of those cases were consistent with the three-prong standard, not the traditional “dictionary definition.”32 Accordingly, Judge Tjoflat concluded that the three-prong preponderance standard was “the only logical way to understand the. . . concept of ‘direct evidence.’”33

Finally, Judge Tjoflat explained why the laws of evidence and the intent of the anti-discrimination laws supported adoption of this three-prong standard. In an analysis similar to the one engaged in by Justice Thomas writing for the Costa court, Judge Tjoflat explained that like all “other questions of fact,” courts may not distinguish between direct or circumstantial evidence in evaluating the sufficiency of evidence in discrimination cases.34 Indeed, restricting a plaintiff to only direct evidence, and excluding circumstantial evidence, to establish a mixed-motives case would prevent a plaintiff, who could not establish the predicate facts to obtain the McDonnell Douglas presumption, from presenting a case even though the preponderance of evidence proved illegal discrimination occurred.35 contrast, the three-prong standard would permit such a case because it does not distinguish between the type of evidence—direct or circumstantial—that may be presented to prove a mixed-motives case. Accordingly, Judge Tjoflat concluded that the three-prong standard was the appropriate measure of evaluating the evidence in a mixed-motives case.

Subsequent Treatment of Judge Tjoflat’s Analysis

Despite the force of Judge Tjoflat’s cogent analysis, subsequent panels of the 11th Circuit ignored this discussion in Wright. In fact, not one subsequent published 11th Circuit decision has ever discussed his 12-page critique of the contrary definitions of mixed-motives evidence of discrimination.36 The few district courts which have considered Judge Tjoflat’s analysis generally have rejected it out-of-hand as “mere obiter dictum.”37 Meanwhile, even prior to the Supreme Court decision in Costa, an overwhelming majority of other circuits had recognized that either direct or circumstantial evidence could establish a mixed-motives case.38 Indeed, the Ninth Circuit’s en banc opinion in Costa relied in part on Judge Tjoflat’s analysis in Wright, as have other courts.39 As counsel for plaintiffs commented on the Supreme Court’s decision in Costa: “This has been the law of D.C. [Circuit] since 1997.”40

contrast, the 11th Circuit has overwhelmingly articulated the dictionary definition of direct evidence as the standard for mixed-motives case since the Price Waterhouse decision in 1989. Disturbingly, every 11th Circuit case which only articulated the dictionary definition was followed by the conclusion that plaintiff had not presented sufficient “direct evidence.” In fact, only three published 11th Circuit cases since 1990 have concluded that a plaintiff presented sufficient “direct evidence” of discrimination.41 This suggests that the 11th Circuit needs to establish a clear standard for evaluating the sufficiency of mixed-motives evidence.

Correct Standard for Mixed-Motives Evidence

Dictionary Definition Confuses the Method of Proof with the Type of Evidence

The language employed by the Supreme Court in the Costa decision conspicuously avoids the use of, and suggests that lower courts likewise should abandon, the confusing short-hand labels of “direct evidence” and “circumstantial evidence” when referring respectively to mixed-motive cases and presumption-method cases. This misleading nature of these labels is exposed by recognizing that statistical evidence is a form of circumstantial evidence. Because statistical evidence, which allows establishing a case of a pattern or practice of discrimination through a showing of “gross statistical disparities,”42 requires an “inference of discriminatory intent,”43 this method uses circumstantial evidence. Equating the method of proof with the type of evidence required—specifically, that a mixed-motives case requires direct evidence and that purely circumstantial evidence relegates plaintiff to the presumption method—would erroneously require the conclusion that there are only two methods of proof: direct or circumstantial. Accordingly, use of such colloquial terms then should be abandoned to avoid such confusion.

Three-Prong Preponderance Standard Comports With Supreme Court Guidance as to What Constitutes Sufficient “Mixed-motives” Evidence

The reasoning of the recent Costa decision suggests the correctness of Judge Tjoflat’s opinion in Wright, at least that either direct or circumstantial evidence can establish a valid mixed-motives case. Echoing the reasoning of Wright, Justice Thomas, writing for the Costa court, explained that a statute’s “silence with respect to the type of evidence required in mixed-motives cases also suggest[ed]” that “the conventional rule of civil litigation” by which a plaintiff could use both “direct or circumstantial evidence” to prove his case by the preponderance of the evidence.44 Indeed, the Costa court emphasized the value of circumstantial evidence and the well-established lack of distinction between “the weight and value of” circumstantial evidence and direct evidence: “Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.”45 Similarly, none of the other discrimination statutes expressly restrict a litigant to presenting “direct evidence.” In fact, the 11th Circuit has generally applied the legal standards developed in Title VII to other discrimination cases interchangeably.46 Accordingly, the similar lack of any heightened proof requirement in non-Title VII statutes and the general principle of interchangeability between Title VII and other discrimination statutes suggests the reasoning of Costa should be applied to the other statutes.

Even if the language of the 1991 amendments to Title VII limits the holding of Costa and, as the 11th Circuit has previously concluded, distinguishes Title VII from the other discrimination statutes, the pre-Costa seminal Supreme Court case on mixed-motives discrimination cases, Price Waterhouse v. Hopkins,47 supports the validity of the three-prong preponderance standard. Most courts, including the Eleventh Circuit, have acknowledged that Justice O’Connor’s concurrence in Price Waterhouse furnishes the best road map for distinguishing a mixed-motives case from a presumption case.48 Indeed, lower courts must construe a Supreme Court plurality decision on the narrowest ground upon which a majority would agree.49 And there can be no dispute that whether the evidence presented by plaintiff Hopkins sufficed to shift the burden was a question necessarily considered, and not merely dicta espoused, by a majority.50

The Price Waterhouse plurality explained that a mixed-motives case would exist if “a forbidden characteristic played a part in the employment decision:” Sufficient evidence would consist of “a truthful response” by the employer “at the moment of the decision” that one of the reasons for the adverse decision was the consideration of an impermissible characteristic.51 The plurality recognized that “remarks at work” based on stereotypes would not “inevitably prove” that an impermissible characteristic motivated the employer, but nevertheless suggested that such stereotyped remarks could “certainly be evidence” constituting a mixed-motives case, so long as the remarks were tied to the ultimate decision.52

Justice O’Connor’s concurrence also addressed what constituted sufficient evidence in a mixed-motives case to shift the burden of proof: “[T]he plaintiff must produce evidence sufficient to show an illegitimate criterion was a substantial factor in the employment decision such that a reasonable factfinder could draw an inference that the decision was made ‘because of’ the plaintiff’s protected status.”53

Then Justice O’Connor explained what would not constitute sufficient evidence: stray remarks in the workplace, statements by nondecision-makers, statements by decision makers unrelated to the decision-making process, and benign (“perfectly neutral and nondiscriminatory”) statements.54 A comparison of the plurality’s elucidation of sufficient mixed-motives evidence with Justice O’Connor’s explanations and limitations on such evidence produces the analysis set forth in the table above.

Two observations follow from this analysis. First, neither the plurality nor Justice O’Connor limited the evidence in a mixed-motives case to the dictionary definition of “direct evidence.” Indeed, Justice O’Connor expressly contemplated that the factfinder would “draw an inference” from the evidence presented—something contrary to the dictionary definition. Second, the definition expounded by Justice O’Connor is essentially identical to the one articulated by Judge Tjoflat in Wright: 1) a statement by a decisionmaker 2) about the employment decision 3) which reflects a discriminatory attitude or shows that an illegitimate criterion was relied upon.55 Accordingly, even the guidance in Price Waterhouse contradicts limiting proof of a mixed-motives case to the dictionary definition of direct evidence for under any discrimination statute.

Three-prong “Preponderance” Standard Consistent With Earlier 11th Circuit Prior Precedent Than the “Dictionary Definition”

Even disregarding any Supreme Court guidance on the issue, 11th Circuit precedent itself establishes that the three-prong “preponderance” standard is correct. Unquestionably, the three-prong standard is broader than and, therefore, inconsistent with the “dictionary definition.” When two panels of the 11th Circuit issue conflicting decisions, the law of the earlier decision on the issue is binding law in the circuit until either the en banc 11th Circuit or a subsequent Supreme Court decision overrules the earlier panel decision.56 Accordingly, determination of the correct standard in the 11th Circuit depends merely on which standard is consistent with the earliest decision on the matter.

The three-prong standard advocated by Judge Tjoflat did not originate in Wright. Rather, numerous 11th Circuit cases prior to Wright articulated a remarkably similar definition: “Direct evidence relates to actions or statements [1] of an employer [2] reflecting a discriminatory or retaliatory attitude [3] correlating to the discrimination or retaliation complained of by the employee.”57

More importantly, the 11th Circuit has applied this standard since at least 1983,58the year after this circuit resolved, consistent with Price Waterhouse (as well as Costa), that a mixed-motives case—i.e., when a plaintiff had evidence of discriminatory intent—did not need to fit into and a plaintiff need not rely on the McDonnell Douglas presumption.59

contrast, no 11th Circuit case articulated the dictionary definition until 1987 and, according to Judge Tjoflat, no case actually had applied the dictionary definition as of 1999. The first time that an 11th Circuit panel equated the “dictionary definition” with the standard required to prove a mixed-motives case occurred in Rollins v. TechSouth, Inc., 833 F.2d 1525 (11th Cir. 1987). In a footnote, the Rollins court cited only Black’s Law Dictionary for its definition of direct evidence.60 choosing to rely solely on the dictionary definition, the Rollins panel ignored binding precedent articulating and applying a broader standard in employment discrimination cases. And every subsequent case relying on the dictionary definition can be traced back to Rollins.

Applying the 11th Circuit rule on conflicting panel decisions leads to two conclusions. First, as the preponderance standard precedes the dictionary definition by four years and as no en banc decision has reversed the three-prong preponderance standard (and it is, in fact, consistent with both Costa and Price Waterhouse), the preponderance standard remains the correct standard to apply in the 11th Circuit. Second, articulation of the dictionary definitionpreceded the Supreme Court decision in Price Waterhouse. As the dictionary definition is inconsistent with the Supreme Court decision, it must be rejected. Accordingly, courts in the 11th Circuit must apply the three-prong standard, not the dictionary definition, in all mixed-motive cases.

Applying Dictionary Definition

Aside from any precedential arguments, there is a more compelling reason for rejecting the dictionary definition: Requiring a plaintiff to meet the dictionary definition makes no sense because no plaintiff will or ever can produce such evidence. In a discrimination case, a plaintiff must prove that the defendant utilized an illegal criterion or relied on a stereotype, at least in part, in making an employment decision.61 The crucial question then is whether the decisionmaker based the employment decision on a discriminatory motive or intent.62 The Supreme Court, in an opinion by Chief Justice Rehnquist, has recognized both that proof of discriminatory intent requires evidence concerning the decisionmaker’s state of mind and that “eyewitness” testimony as to the employer’s mental processes cannot exist as it is as impossible to acquire direct evidence of a “man’s state of mind” as it is to ascertain “the state of his digestion.”63

Yet, the traditional dictionary definition of direct evidence requires “testimony from a witness who actually saw, heard or touched the subject of interrogation” and “who can testify that they saw the acts done or heard the words spoken which constituted the precise fact to be proved.”64 To meet the dictionary definition, “direct evidence” of an employment decision would require an eyewitness who “saw or heard” the decisionmaker actually make the employment decision on an impermissible basis.65 In other words, a plaintiff would have to produce a testifying witness who saw or heard the decisionmaker decide that “I am firing or not hiring or demoting plaintiff based on an illegal criterion.”

Only one person, the decision-maker, can offer direct evidence of his own state of mind.66 Even the testimony of the decisionmaker’s out-of-court statements about the decisional process would be circumstantial evidence of illegal discrimination.67 Utilizing the dictionary definition, then, would relegate mixed-motives cases to situations in which the decisionmaker admitted in sworn testimony that he made an adverse employment decision against the plaintiff based on a protected characteristic. As the Seventh Circuit has explained, requiring this type of evidence would effectively prohibit any plaintiff from ever producing sufficient mixed-motives evidence:

[D]irect evidence does not require “a virtual admission of illegality.” It would cripple enforcement of the employment discrimination laws to insist that direct evidence take the form of an employer’s statement to the effect that “I’m firing you because you’re in a protected group.”68

As this is what the dictionary definition requires, applying this standard would eviscerate mixed-motives cases.

While Judge Tjoflat suggested four years ago that the 11th Circuit only articulated, but did not actually apply, the dictionary definition, subsequent to Wright, as the following cases demonstrate, courts in the 11th Circuit have rejected valid mixed-motives cases by applying the “dictionary definition” even when all the requirements of the three-prong standard were met:

Bonham v. Regions Mortgage, Inc., 129 F. Supp 2d 1315 (M.D. Ala. 2001) (Thompson, J.): concluded that statement 1) by decisionmaker 2) that plaintiff was “getting real old” 3) made during plaintiff’s interview was not direct evidence because a further
inference was required that decisionmaker actually relied on the expressed bias.

Gullatte v. Westpoint Sevens, Inc., 100 F. Supp. 2d 1315 (M.D. Ala. 2000) (Albritton, C.J.): concluded that statement 1) by decision maker 2) that “if you are late again, n, I’ll fire your ass” 3) made one day before plaintiff was fired was insufficient because a further inference was required that plaintiff was fired based on race and not tardiness.

Copley v. Bax Global, Inc., 80 F. Supp. 2d 1342 (S.D. Fla. 2000): concluded that statement 1) by decisionmaker 2) that he “wanted to have a Hispanic in plaintiff’s position” because he “didn’t think that a blue-eyed blond-haired fellow would ever get along well in Latin America” and the company “needed a Latin manager. . . to achieve any level of success” 3) concerning the position for which plaintiff was rejected did not constitute direct evidence because an inference was required that “management acted on, or were motivated by, their desire to have a Hispanic” in plaintiff’s position.

Shook v. St. Bede School, 74 F. Supp. 2d 1172 (M.D. Ala. 1999) (Thompson, J): concluded that statement 1) by decisionmaker 2) that plaintiff was fired because he was “old and set in his ways” 3) which was made in response to why plaintiff was fired “did not constitute evidence that [plaintiff] was fired because he was too old.”


The recent Supreme Court decision in Costa validates the reasoning which Judge Tjoflat employed to develop the three-prong preponderance standard in Wright. Not only is this standard consistent with Supreme Court guidance and 11th Circuit precedent, but it will ensure that the district courts employ a uniform standard in evaluating whether a plaintiff has presented sufficient mixed-motives evidence. More importantly, adoption of this standard will avoid, as the Ninth Circuit observed about the inconsistent application of the “dictionary definition,” the danger of providing courts with “a veiled excuse to substitute their own judgment for that of the jury.”69 Accordingly, courts in the 11th Circuit should adopt, as the 11th Circuit previously did in an unpublished decision,70 the three-prong preponderance standard set forth by Judge Tjoflat in Wright for all mixed-motives discrimination cases.

1 Luke 4:21.

2 Standard v. A.B.E.L. Serv., Inc., 161 F.3d 1318, 1330 (11th Cir.1998); Carter v. City of Miami, 870 F.2d 578, 580-81 (11th Cir.1989).

3 Standard, 161 F.3d at 1330; Zaben v. Air Prods. & Chems., Inc., 129 F.3d 1453, 1457 (11th Cir. 1997).

4 42 U.S.C.A. §2000e-2(m) (emphasis added); Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

5 Costa, 123 S.Ct. at 2150.

6 42 U.S.C. §2000e-2(m) (emphasis added); see Costa, 123 S. Ct. at 2153-55.

7 Id. at 2154.

8 Id. (quoting Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714 n.3 (1983)).

9 See 42 U.S.C. §12117(a).

10 29 U.S.C. §623(a).

11 Lisa J. Banks & Debra S. Katz, A Pre-Employee Trend, Nat’l. L.J., Aug. 4, 2003, at S7 (explaining that whether Costa applies to the ADEA or the retaliation provisions is still an open question).

12 Costa, 123 S. Ct. at 2155 (O’Connor, J. concurring).

13 Id. at 2155 n.3.

14 Marcia Coyle, High Court Gives Workers A Win, Nat’l L.J., Jun.16, 2003, at 13; see Banks & Katz, supra note 11, at S7.

15 E.g., Read v. BT Alex Brown, Inc., No. 02-10191, 2003 WL 21754966,*6 (5th Cir. Jul. 30, 2003) (requiring the evidence to be “direct and unambiguous, allowing a reasonable jury to conclude without any inferences or presumptions that age was an impermissible factor in the decision to terminate the employee”) Brown v. Packaging Corp. of America, No. 01-5864, 2003 WL 21738975, *3 (6th Cir. Jul. 29, 2003) (concluding that circumstantial evidence was insufficient mixed-motives evidence in a ADEA case); Venturelli v. ARC Community Servs., Inc., No. 02-2294, 2003 WL 21659465 (7th Cir. Jul. 16, 2003) (concluding that a “direct evidence” case under the PDA must be “without reliance on inference or presumption” and “essentially requires an admission by the decision-maker that his actions were based upon the prohibited animus”); Creason v. Seaboard Corp., 263 F. Supp. 2d 1297, 1306 (D. Kan. 2003) (rejecting circumstantial evidence as sufficient evidence for a mixed-motives case under the ADEA). But see Knutson v. AG Processing, Inc., No. C01-3015-MWB, 2003 WL 21748610, *23-24 (N.D. Iowa Jul. 28, 2003) (applying the rationale of Costa to a mixed-motives case under the ADA).

16 Pennington v. City of Huntsville, 261 F.3d 1262, 1269 (11th Cir. 2001) (Title VII retaliation claims); Lewis v. YMCA, 208 F.3d 1303, 1305 (11th Cir. 2000) (ADEA retaliation claims).

17 E.g. Bituin v. Supervalu, Holdings, Inc., No. 01-CV-2276, 2003 WL 21757852, *2 (C.D. Ill. Jul. 28, 2003) (explaining in a Title VII case, that “[d]irect evidence of discrimination is evidence [consisting of] an acknowledgment of the employer’s discriminatory intent without relying on any inference”); Donelson v. City of Chicago, No. 02 C 2939, 2003 WL 21544238, * 5 (N.D. Ill. Jul. 8, 2003) (explaining that when there is “no direct evidence of discrimination” then “the burden-shifting methodology” is used); Addison v. Wal-Mart Stores, Inc., No. Civ.1:02CV00333, 2003 WL 21479182, *2 (M.D.N.C. Jun. 23, 2003) (explaining that because plaintiff “lacked direct evidence” evaluation of her Title VII claims “must satisfy” the presumption method); Sweet v. Mulberry Lutheran Home, No. IP02-0320-C-H/K, 2003 WL 21525058, *3 (S.D. Ind. Jun. 17, 2003) (explaining plaintiff “could prove his discrimination claim under Title VII either by presenting direct evidence of prohibited discrimination or by relying on the indirect, ‘burden-shifting’ method of proof”).

18 Wright, 187 F.3d at 1289.

19 See id.

20 Id. at 1290.

21 Id.

22 Id. at 1291; see also St. Mary’s Honor Cent. v. Hicks, 509 U.S. 502, 506 (1993) (“Establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee.”). These elements consist of evidence that 1) an adverse employment action was taken against plaintiff, 2) plaintiff was qualified for the position, and 3) different treatment was given to someone else who does not have the relevant personal characteristic (i.e., race, sex, age). While the McDonnell Douglas court expressed that a plaintiff “must be a member of” a protected class, Title VII’s protections have been extended to all persons and the ADEA now protects all persons over 40. Id. at 1290 n.3 (citing McDonald v. Sante Fe Trail Transp. Co., 427 U.S. 273, 278-80 (1976), and O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312 (1996)).

23 Swierkiewicz v. Sorema N. A., 534 U.S. 506, 510 (2002) (explaining that the prima facie case raises “an inference of discrimination”); Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 n.7 (1981) (explaining that the prima facie case permits the trier of fact “to infer the fact at issue”).

24 Hicks, 509 U.S. at 506 (citing 1 D. Louisell & C. Mueller, Federal Evidence §67, at 536 (1977)).

25 Wright, 187 F.3d at 1293.

26 Id. at 1293–94.

27 Id. at 1295-1300. While Judge Tjoflat expressly stated that he did not discuss “every case discussing ‘direct evidence’” and merely attempted to cover “a substantial and representative portion” of those cases, he listed the additional cases and noted that they were consistent with his conclusion. Id. at 1295 n.10.

28 Id. at 1294.

29 Id.

30 Id. (quoting Carter v. Three Springs Residential Treatment, 132 F.3d 635, 641 (11th Cir. 1998) and citing Caban-Wheeler v. Elsea, 904 F.2d 1549, 1555 (11th Cir. 1990)).

31 Id. at 1294.

32 Id. at 1298, 1300.

33 Id. at 1300.

34 Compare 1301 (quoting United States Postal Serv. v. Aikens, 460 U.S. 711, 716 (1983), and citing Holland v. United States, 348 U.S. 121, 139–40 (1954)), with Costa, 123 S. Ct. at 1253–54.

35 Id. at 1300–01, 1302.

36 Subsequent to Wright, 11th Circuit cases have generally only cited only the dictionary definition. E.g., EEOC v. Joe’s Stone Crabs, 296 F.3d 1265, 1272 (11th Cir. 2002) (articulating the dictionary definition). Some cases have articulated the preponderance definition, but have still applied the dictionary definition. For example, the court in Damon v. Fleming Supermarkets of Florida, Inc., 196 F.3d 1354 (11th Cir. 1999), defined direct evidence as “evidence which reflects ‘a discriminatory. . . attitude correlating to the discrimination. . . complained of by the employee.’” Id. at 1358 (quoting Three Springs Residential Treatment, 132 F.3d at 641). However, the Damon court actually applied the dictionary definition and rejected plaintiffs’ “direct evidence” by explaining that the evidence is merely “probative circumstantial evidence” because “it does not directly establish that [the supervisor’s] termination were motivated by age bias.” Id. at 1359 n.1. Likewise, in Bass v. Board of County Commissioners, 256 F.3d 1095 (11th Cir. 2001), an entirely different panel concluded, consistent with Wright, that an affirmative action plan “constitutes direct evidence of discrimination if there is sufficient circumstantial evidence to permit a jury reasonably to conclude the employer acted pursuant to the plan.” Id. at 1111. Yet, in evaluating another piece of direct evidence, the Bass court required direct evidence to consist of evidence “without inference or presumption.” Id. at 1105.

37 80 F. Supp. 2d 1342, 1348 (S.D. Fla. 2000); see Bates v. Variable Annuity Life Ins. Co., 200 F. Supp. 2d 1375, 1381 n.3 (N.D. Ga. 2002) (rejecting “Judge Tjoflat’s opinion” because it was “not the law of the Eleventh Circuit” and “subsequent decisions have not followed it”); Ferrell v. Masland Carpets, Inc., 97 F. Supp. 2d 1114, 1122 n.11 (S.D. Ala. 2000) (quoting Copley and rejecting Wright’s analysis).

38 Febres v. Challenger Caribbean Corp., 214 F.3d 57, 60-61 (1st Cir. 2000) (explaining the term direct evidence in an employment discrimination case refers to any comments that directly reflect discriminatory animus and bear squarely on the contested employment decision); Ostrowski v. Atl. Mut. Ins. Cos., 968 F.2d 171, 181–82 (2d Cir. 1992) (squarely rejecting a requirement that a mixed-motives case be proved only by noncircumstantial evidence); Hook v. Ernst & Young, 28 F.3d 366, 373 (3rd Cir. 1994) (recognizing a mixed-motives case can be based on circumstantial evidence); White v. Fed. Express Corp., 939 F.2d 157, 160 (4th Cir. 1991) (explaining that a plaintiff may carry its burden under Price Waterhouse “under ordinary principles of proof by any sufficiently probative direct or indirect evidence”); Miller v. Am. Family Mut. Ins., 203 F.3d 997, 1005 & n.5 (7th Cir. 2000) (concluding that “either direct or circumstantial” evidence could establish a mixed-motives case); Stacks v. Southwestern Bell Yellow Pages, 996 F.2d 200, 202 n.1 (8th Cir. 1993) (concluding “there is no restriction on the type of evidence”—direct or circumstantial—“a plaintiff may produce to demonstrate that an illegitimate criterion was a motivating factor in the challenged employment decision”); Kenworthy v. Conoco, Inc., 979 F.2d 1462, 1471 n.5 (10th Cir. 1992) (explaining that Price Waterhouse applies to circumstantial evidence which adequately demonstrates that an improper factor was a substantial motivation in the challenged decision); Thomas v. National Football League Players Ass’n, 131 F.3d 198, 204-05 (D.C. Cir. 1997) (noting that the evidence in Price Waterhouse was circumstantial and “the decision to shift the burden of persuasion properly rests upon the strength of the plaintiff’s evidence of discrimination, not the contingent methods by which that evidence is adduced”) vacated on other grounds, No. 96-7242, 1998 WL 1988451, *5-7 (D.C. Cir. 1998) (reaffirming that a mixed methods case does not require direct evidence and concluding that the “few circuits that have taken Justice O’Connor’s use of the word ‘direct’ to mean non-inferential or non-circumstantial have misread her concurring opinion and misconstrued the rule of law to be drawn from Price Waterhouse”).

39 E.g., Costa,299 F.3d at 853 (relying on Wright, among other cases), aff’d, 123 S.Ct. 2148 (2003); Hoffman v. Sebro Plastics, Inc., 108 F. Supp. 2d 757, 768–71 (E.D. Mich. 2000) (relying on Wright extensively to conclude that “purely circumstantial evidence [can] constitute sufficient ‘direct’ evidence of discrimination”). Cf. Wallace v. Methodist Hosp. Sys., 85 F. Supp. 2d 699, 710 (S.D. Tex. 2000) (describing Wright as engaging “in a thorough and scholarly analysis of the varying definitions of ‘direct evidence’ of employment discrimination”).

40 Coyle, supra note 14, at 13.

41 See Taylor v. Runyon, 175 F.3d 861 (11th Cir. 1999); Haynes v. W.C. Caye & Co., 52 F.3d 928 (11th Cir. 1995); Bass, 256 F.3d at 1104. The Bass court only found that an affirmative action plan, not the other statements constituted direct evidence. Bass, 256 F.3d at 1111. Interestingly, Judge Tjoflat was on the Haynes panel.

42 Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 307-308 (1977); see Bernard v. Gulf Oil Corp., 841 F.2d 547, 568 (5th Cir. 1988) (explaining that “[s]tatistics establishing a great disparity” between treatment of different races “may alone justify an inference of discriminatory motive”); see also Vill. of Arlington Heights v. Metro. Hous. Develop. Corp., 429 U.S. 252, 266 (1977) (explaining that intentional discrimination may be found based on statistical pattern).

43 Smith v. Horner, 839 F.2d 1530, 1537 (11th Cir. 1988); see Bernard, 841 F.2d at 568 (explaining that statistical proof allows the fact-finder to draw an inference of discriminatory intent).

44 Costa, 123 S.Ct. at 2154 (quoting in part Aikens, 460 U.S. at 714 n.3).

45 Id. (quoting Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 508 n.17 (1957)).

46 E.g. Chapman v. AI Transport, 229 F.3d 1012, 1024 (11th Cir.2000) (en banc) (applying standards of Title VII to the ADEA); see also Pennington v. City of Huntsville, 261 F.3d 1262, 1269 (11th Cir. 2001) (explaining that “the other all other circuits that have considered the issue” have likewise agreed).

47 490 U.S. 228 (1989).

48 Fernandes v. Costa Bros. Masonry, Inc., 199 F.3d 572, 580 (1st Cir. 1999) (making this observation); see Three Springs Residential Treatment, 132 F.3d at 641 (noting that the 11th Circuit adopted Justice O’Connor’s burden of proof analysis in Haynes, 52 F.3d at 931 n.8).

49 Marks v. United States, 430 U.S. 188, 193 (1977).

50 While defendant Price Waterhouse argued that the evidenced proffered by the plaintiff was merely “discrimination in the air,” a majority of the justices clearly rejected such a contention, and agreed that such evidence constituted “‘discrimination brought to the ground and visited upon’ an employee.” Price Waterhouse, 490 U.S. at 251.

51 Price Waterhouse, 490 U.S. at 247 n.12, 650.

52 Id. at 251.

53 Id. at 278 (O’Connor, J. concurring).

54 Id. at 277.

55 Compare Price Waterhouse, 490 U.S. at 277, 278 with Wright, 187 F.3d at 1293.

56 Local Union 48 Sheet Metal Workers v. S.L. Pappas & Co., 106 F.3d 970, 975 (11th Cir. 1997); United States v. Woodard, 938 F.2d 1255, 1258 (11th Cir. 1991) (“The law in this circuit is emphatic that only a decision by this court sitting en banc or the United States Supreme Court can overrule a prior panel decision”).

57 Three-Springs Residential Treatment, 132 F.3d at 641; see Caban-Wheeler, 904 F.2d at 1555 (“[D]irect evidence relates to actions or statements of an employer reflecting a discriminatory intent relating to the discrimination or retaliation complained of by the employee”), abrogated on other grounds, St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993), and on appeal after remand, 71 F.3d 837, 843 (11th Cir. 1996) (determining the evidence constituted sufficient “direct evidence”); Hill v. Metropolitan Atlanta Rapid Transit Auth., 841 F.2d 1533, 1539 (11th Cir. 1988) (explaining direct evidence consists of “actions or remarks by the employer reflecting a discriminatory attitude”), amended on other grounds, 848 F.2d 1522 (11th Cir. 1988); Connor v. Fort Gordon Bus Co., 761 F.2d 1495, 1499 (11th Cir. 1985) (stating direct evidence consists of “discriminatory statements by the employer”); Bell v. Birmigham Linen Servs., 715 F.2d 1552 (11th Cir. 1983) (describing direct evidence as consisting of “testimony that the defendant acted with a discriminatory motive”). Even after Wright, another panel of the 11th Circuit defined direct evidence as “evidence which reflects ‘a discriminatory attitude correlating to the discrimination or retaliation complained of by the employee.’. . . In other words the evidence must indicate that the complained-of employment discrimination was motivated by the decisionmaker’s ageism.” Damon v. Fleming Supermarkets, 196 F.3d 1354, 1358–59 (11th Cir. 1999).

58 In Bell, the 11th Circuit explained that establishing a mixed-motives case required evidence “that the defendant acted with a discriminatory motive, and the trier of fact accepts this testimony.” 715 F.2d at 1557. The Bell court concluded that evidence consisting of testimony by the plaintiff and by the union representative that the decision maker stated that he made the adverse employment decision—forbidding a woman to be employed in the washroom—“because if she were allowed in, all women would want to enter” was “‘highly probative evidence’of illegal discrimination” and constituted a sufficient mixed-motives case. Id. Subsequent cases repeatedly—at least until the mis-introduction of the “dictionary definition” and afterwards intermittently—made similar findings. E.g., Sennello v. Reserve Life Ins. Co., 872 F.2d 393, 395 (11th Cir. 1989) (finding statements were “direct evidence” because they “were clearly made in an employment context and not “facially neutral”); Thompkins v. Morris Brown Coll., 752 F.2d 558, 563 n.11 (11th Cir. 1985) (finding employer’s statements based on an illegal criterion concerning the employment decision constituted “direct evidence”); Miles v. MNC Corp., 750 F.2d 867, 870 (11th Cir. 1985) (finding that discriminatory statements by the decisionmaker constituted direct evidence). In fact, the 11th Circuit held that direct evidence could consist of discriminatory attitudes unrelated to the particular employment decision. EEOC v. Beverage Canners, 897 F.2d 1067, 1071 (11th Cir. 1990).

59 Lee v. Russell County Bd. of Educ., 684 F.2d 769, 774 (11th Cir. 1982); Bell, 715 F.2d at 1556–57.

60 Id. at 1526 n.6.

61 Price Waterhouse, 490 U.S. at 251.

62 Id. All of the justices agreed on this point. See id. at 294 (Kennedy, J. dissenting, joined by Scalia, J. and Rehnquist, C.J.) (“The ultimate question in every individual disparate treatment case is whether discrimination caused the particular decision at issue.”); see also Aikens, 460 U.S. at 714 (explaining that the ultimate question is “whether the defendant intentionally discriminated against the plaintiff”).

63 Aikens, 460 U.S. at 716; see also Abilene Sheet Metal v. NLRB, 619 F.2d 332, 338 (5th Cir. 1980) (“The state of mind of company officials who make the [employment decision]. . . reflect the company’s motive to discharge.”).

64 Black’s Law Dictionary 414 (5th ed. 1979); John H. Wigmore, A Student’s Textbook of the Law of Evidence 38 (1935).

65 United States v. Henderson, 693 F.2d 1028, 1031 (11th Cir. 1983) (defining direct evidence “as when a witness testifies as to the fact being asserted on the basis of his or her personal knowledge of the fact”).
66 United States v. Garber, 589 F.2d 843, 849 n.8 (5th Cir. 1979) (explaining that another witness cannot offer direct evidence of another person’s state of mind; only that person can provide direct evidence of his own state of mind), rev’d on other grounds, 607 F.2d 92 (5th Cir. 1979) (en banc); e.g., Damon, 196 F.3d at 1359 (finding decisionmaker’s out-of-court statement concerning the employment decision was not direct evidence because it required an inference about the decisionmaker’s actual motivation).

67 Abiline Sheet Metal, 619 F.2d at 339 (explaining the only real direct evidence of defendant’s discriminatory motive is from the defendant’s own “probably self-serving testimony”); e.g., Damon, 196 F.3d at 1359 (concluding even an out-of-court admission did not qualify as direct evidence).

+ 68 Sheehan v. Donlen Corp., 173 F.3d 1039, 1044 (7th Cir. 1999).

69 Costa, 299 F.3d at 853.

70 Shelley v. Magic Living Homes, Nos. 99-14619 & 99-14888, slip. op. at 10-11 (11th Cir. Nov. 30, 2001) (per curiam) (available as D.E.# 235 in the Northern District of Florida, No. 98-CV-320).

R. Joseph Barton is an associate at the Washington, D.C., office of Cohen, Milstein, Hausfield & Toll, PLLC. He practices complex litigation primarily in the areas of antitrust, securities, and employee benefits. Mr. Barton previously served as law clerk to Judge Lenore C. Nesbitt of the U.S. District Court for the Southern District of Florida. He received a B.A. from the College of William & Mary and graduated Order of the Coif from the Marshall-Wythe School of Law where he served on the editorial board of the Law Review.