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Intensifying Split Among Appellate Courts, Sixth Circuit Makes It Easier for Employees to Get Jury Trials in Title VII Mixed-Motive Bias Cases
August 28, 2008
In its recent ruling in White v. Baxter Healthcare Corp., No. 07-1626 (July 3, 2008), the U.S. Court of Appeals for the Sixth Circuit has significantly lightened the evidentiary burden on an employee to defeat an employer’s motion for summary judgment in a “mixed-motive” case – that is, a case in which the employee alleges that an adverse action taken against him or her was motivated, at least in part, by unlawful bias. The Sixth Circuit’s ruling adds more confusion to a federal judiciary already split over this issue.
The plaintiff in Baxter Healthcare, Todd A. White, an African-American, was employed by the company as a sales representative for pharmaceutical products. In 2004, after six years with Baxter during which he received a promotion, generally high performance evaluations and various performance awards, White was assigned a new primary supervisor, Tim Phillips. According to White, Phillips repeatedly made racist remarks, including referring to a co-worker as “that black girl,” and telling White that "nobody wants to be around a black man." White further claimed that Phillips would occasionally answer White's calls by saying "White, Todd" instead of calling White by just his first name as he would with other employees.
Later in 2004, White applied for a Regional Manager’s position in a division of the company which had never hired any African-American managers. Of the four applicants interviewed for the position, White, the only African-American applicant, also was the only one with a master’s degree. All three interviewers, however, ranked him last of the four applicants, finding that he was “extremely aggressive” and “confrontational” during his interview, and that his performance reviews indicated that he was not a “team player.” Though there was some dispute over whether Phillips recommended White for the position, it was undisputed that Phillips played no role in deciding who should get the managerial position. Ultimately, the position was awarded to a white female applicant who all the interviewers had ranked as their first choice, even though she had no prior experience at Baxter as a sales representative.
Thus, at the end of 2004, when the time arrived for performance appraisals, Phillips was still White’s immediate supervisor. Phillips gave White a poor performance review, which affected the size of his salary increase. The company had recently revised its performance review criteria and White contended that Phillips applied a more stringent standard with regard to his appraisal than was appropriate.
Shortly after receiving this performance review, White filed a complaint with the Equal Employment Opportunity Commission (EEOC), alleging, among other things, racial bias in both the denial of the promotion and the poor performance evaluation, in violation of Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, as well as Michigan state law. After receiving a Right-To-Sue, White filed a lawsuit against the company in a federal district court in Michigan. Baxter moved for, and was granted, summary judgment on all of White’s claims. White then appealed to the U.S. Court of Appeals for the Sixth Circuit.
The Sixth Circuit first addressed the company’s refusal to promote White. Essentially, the issue here was whether White had offered enough evidence of bias concerning the denial of the promotion to warrant a trial. Typically, where a plaintiff offers only circumstantial, rather than direct, evidence of discrimination, the court determines whether the plaintiff’s proffered evidence is sufficient to warrant a trial based on what is called the “McDonnell Douglas/Burdine shifting-burden test.” Once the plaintiff establishes a prima facie case, the burden shifts to the employer to offer evidence of a legitimate, non-discriminatory reason for the adverse employment action. If the employer provides such evidence, the burden then shifts back to the plaintiff to show that the defendant's proffered reason was not its true reason, but merely a pretext for discrimination.
Here, Baxter conceded that White had established a prima facie case of race discrimination, but argued that it had a legitimate reason for denying him the promotion. The company contended that the applicant selected had extensive managerial experience and that White had not interviewed well. The court agreed that the company had met its burden of setting forth a facially legitimate and non-discriminatory explanation for not promoting White to the managerial position. Thus, under the McDonnell Douglas/Burdine test, the burden now shifted back to White to show that Baxter’s proffered explanation was pretextual.
The district court had found that White did not meet his burden of establishing pretext, but the appellate court disagreed. Evaluating the reasonableness of Baxter’s decision to select another applicant over White, the Sixth Circuit, quoting the D.C. Circuit Court, decided that “[i]f a factfinder can conclude that a reasonable employer would have found the plaintiff to be significantly better qualified for the job, but this employer did not, the factfinder can legitimately infer that the employer consciously selected a less-qualified candidate — something employers do not usually do, unless some other strong consideration, such as discrimination, enters into the picture.”
Specifically, the court concluded that, in comparison to the applicant selected, White’s superior education credentials, familiarity and success with selling the company’s products and prior managerial experience at another company could lead “a reasonable jury to infer that Baxter's proffered explanation for its hiring decision may be merely a pretext for unlawful discrimination,” and that “some other impermissible motivation - such as White's race - guided the employment decision.” Notably, the court further stressed the “inherently subjective” nature of Baxter’s interviewing process.
While significant in itself, however, the Sixth Circuit’s generous determination as to White’s showing of pretext concerning the “single-motive” promotion claim was not the court’s most newsworthy ruling. That distinction goes to the court’s decision on White’s claim that the poor performance rating he received from Phillips was motivated, at least in part, by his race. On this “mixed-motive” issue, the court focused on the 1991 amendment to Title VII which permits a plaintiff to show that the employer has engaged in an unlawful employment practice by "demonstrat[ing] that race, color, religion, sex, or national origin was a motivating factor for [the] employment practice, even though other factors also motivated the practice." 42 U.S.C. § 2000e-2(m).
Observing that the Sixth Circuit had not yet determined the proper summary judgment framework to apply to a Title VII mixed-motive claim supported by circumstantial evidence, the court sought guidance from the Supreme Court’s decision in Desert Place, Inc. v. Costa, 539 U.S. 90 (2003). In Desert Palace, the Court held that a plaintiff may prove a Title VII mixed-motive case by either direct or circumstantial evidence, and that to obtain a mixed-motive jury instruction, "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.'" Desert Palace, however, concerned a jury-instruction challenge, and subsequent to that decision, the appellate courts have disagreed over whether Desert Palace also applies to a summary judgment analysis of a mixed-motive case based on circumstantial evidence, or whether the McDonnell Douglas/Burdine burden-shifting framework should be used. As the Sixth Circuit observed, “[s]ince Desert Palace, the federal courts of appeals have, without much, if any, consideration of the issue, developed widely differing approaches to the question of how to analyze summary judgment challenges in Title VII mixed-motive cases.” For example, the Eighth Circuit has explicitly, and the Eleventh Circuit has apparently, held that, notwithstanding Desert Palace, the McDonnell Douglas/Burdine burden-shifting framework applies to the summary judgment analysis of mixed-motive claims.
In contrast, the Fifth Circuit has adopted what the Sixth Circuit termed a "modified McDonnell Douglas" approach, under which a plaintiff in a mixed-motive case can rebut the employer's legitimate non-discriminatory reason not only through evidence of pretext (the traditional McDonnell Douglas /Burdine burden), but also with evidence that the disputed decision is based on a "mixture of legitimate and illegitimate motives," and that the illegitimate motive was a motivating factor in the decision.
Against this backdrop of wide-ranging approaches, the Sixth Circuit flatly rejected the position taken by the Eighth and Eleventh Circuits and held that “the McDonnell Douglas /Burdine burden-shifting framework does not apply to the summary judgment analysis of Title VII mixed-motive claims (emphasis in original).” The court reasoned that the shifting-burden test is inapplicable to mixed-motive claims because, in such cases, “[i]n order to reach a jury, the plaintiff is not required to eliminate or rebut all the possible legitimate motivations of the defendant as long as the plaintiff can demonstrate that an illegitimate discriminatory animus factored into the defendant's decision to take the adverse employment action.”
Thus, the court concluded that to defeat an employer's motion for summary judgment, a Title VII 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) ‘race, color, religion, sex, or national origin was a motivating factor’ for the defendant's adverse employment action” (emphasis added by court).
Significantly, the court further held that this summary judgment analysis, rather than the McDonnell Douglas / Burdine burden-shifting framework, should be applied “in all Title VII mixed-motive cases regardless of the type of proof presented by the plaintiff.” In other words, in considering an employer’s motion for summary judgment in a mixed-motive case, the trial court need only decide “whether there are any genuine issues of material fact concerning the defendant's motivation for its adverse employment decision.” As the court itself readily conceded, because "’[i]nquiries regarding what actually motivated an employer's decision are very fact intensive,’" such issues "’will generally be difficult to determine at the summary judgment stage’ and thus will typically require sending the case to the jury.”
Applying this lenient standard to the case before it, the Sixth Circuit found that White had satisfied his burden of providing sufficient evidence from which a jury could reasonably conclude that: (1) an adverse action was taken against him (the poor performance evaluation which resulted in a lower salary increase); and (2) race was a motivating factor (White’s supervisor, Phillips, “harbor[ed] a discriminatory animus toward African-Americans” and this bias was arguably, at least in part, the reason White received a downgraded evaluation).
Accordingly, the Sixth Circuit returned the case to the district court for trial on both of White’s claims. Baxter, however, has asked the Sixth Circuit for an en banc rehearing.
The disagreement among the circuit courts over the proper method of evaluating mixed-motive claims for summary judgment purposes may prompt the Supreme Court to finally resolve the issue, especially now that the Sixth Circuit has weighed in on the matter. In the meantime, employers covered by Title VII should ensure that they understand the law of all the jurisdictions in which they have operations.
Moreover, the court’s decision provides yet another reason for employers to ensure that all adverse employment decisions are based, to the extent possible, on objective criteria and made for legitimate, well-documented business reasons. In this regard, it is worth noting that the employee in this case prevailed on his “single-motive” promotion claim as well, even though that claim was evaluated under the more exacting McDonnell Douglas/Burdine shifting-burden test. A majority of the Sixth circuit panel apparently placed significant weight on its conclusion that the interviewing process was highly subjective, and that, in its view, White was a qualified candidate.