23 Feb Eleventh Circuit Clarifies Standard for Mixed-Motive Discrimination Cases.
Written by: Don Benson and Phil Friduss
On February 22, 2016, the Eleventh Circuit Court of Appeals clarified the standard to be used in considering motions for summary judgment in allegations of mixed motive discrimination based on circumstantial evidence. Quigg v. Thomas County School District, No. 14-14530 (11th Cir. 2016). The McDonnell Douglas shifting burden analysis is not to be applied.
Linda Quigg claims that the Thomas County School District (School District) and five individual members of the School District’s governing board (School Board) discriminated and retaliated against her, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1983, by refusing to renew her employment contract and filing an ethics complaint against her.
The Eleventh Circuit reversed the trial court’s entry of summary judgment for the employer school board finding that:
to survive a defendant’s motion for summary judgment, a . . . plaintiff asserting a mixed-motive claim need only produce evidence sufficient to convince a jury that: (1) the defendant took an adverse employment action against the plaintiff; and (2) [a protected characteristic] was a motivating factor for the defendant’s adverse employment action.
An employee can succeed on a mixed-motive claim by showing that illegal bias, such as bias based on sex or gender, “was a motivating factor for” an adverse employment action, “even though other factors also motivated” the action.
In considering a single-motive allegation based on circumstantial evidence, the three-part burden shifting analysis of McDonnell Douglas can be applied:
First, the employee must show a prima facie case of discrimination. Then, the employer must articulate a legitimate, nondiscriminatory reason for the adverse employment action. Third, the employee has to show that the proffered reason is mere pretext.
However, this three part shifting burden analysis should not be applied in a mixed-motive case based on circumstantial evidence, because the employee is only alleging that the discriminatory motive was a motive, not that the employer’s articulated reason is a pretext for the one, true reason behind the decision.
In a mixed motive case, there may be circumstances where the employee cannot prove pretext of the articulated legitimate, nondiscriminatory reason for the adverse decision; but the plaintiff employee survives summary judgment because plaintiff has shown:
[E]vidence sufficient to convince a jury that: (1) the defendant took an adverse employment action against the plaintiff; and (2) [a protected characteristic] was a motivating factor for the defendant’s adverse employment action.
The Eleventh Circuit’s ruling joins the Second, Third, Fifth and Tenth Circuits.
This case replaces a more rigid standard with a more flexible standard. It doesn’t mean that an employer always loses a motion for summary judgment in a mixed-motive case based on circumstantial evidence. The employer’s focus just needs to be more sophisticated than the McDonnell Douglas three-part shifting burden standard. The employer must focus its pleadings on whether the actual circumstantial evidence offered by a plaintiff raises a jury question about whether a discriminatory motive was a reason for the adverse decision.
Stressing that the plaintiff cannot show pretext is not enough. Particular attention to who are the decision makers, when the decision was made, stray comments, etc. may show that the offered circumstantial evidence is not proof that a discriminatory motive was a reason for the adverse decision and that no issue exists for the jury to decide.