Seyfarth Synopsis: In a recent decision, the Seventh Circuit clarifies that plaintiffs need not present a “convincing mosaic” of direct or indirect evidence of discrimination to withstand summary judgment. Rather, the evidence considered as a whole must permit a reasonable factfinder to find that discrimination caused the adverse employment action.
On August 19, 2016, the U.S. Court of Appeals for the Seventh Circuit issued a decision in Ortiz v. Werner Enterprises, Case No. 15-2574, which clarifies the standard it applies to discrimination claims on a motion for summary judgment.
In the decision, Judge Easterbrook takes aim at a line of case law which required a plaintiff to present a “convincing mosaic” of either direct or indirect evidence of discrimination in order to withstand summary judgment. Under this standard, district courts had previously separated the two “types” of evidence, assigning “[a]dmissions of culpability and smoking-gun evidence” to the “direct” category, while assigning “suspicious circumstances that might allow an inference of discrimination” to the “indirect” category, before determining that the plaintiff was unable to present a “convincing mosaic of discrimination” with respect to each category and without consideration of the evidence as a whole.
Judge Easterbrook concluded that the district courts’ concern with categorizing evidence distracted courts from the key issue: “whether the evidence would permit a reasonable factfinder to conclude that the plaintiff’s race, ethnicity, sex, religion, or other proscribed factor caused the discharge or other adverse employment action.” Instead, Judge Easterbrook emphasized that “[e]vidence must be considered as a whole, rather than asking whether any particular piece of evidence proves the case by itself—or whether just the ‘direct’ evidence does so, or the ‘indirect’ evidence.”
The opinion blames district courts for seizing on dicta [non-precedential statements by the Court] contained in the Seventh Circuit’s 1994 decision in Troupe v. May Department Stores, Inc., 20 F.3d 734 (7th Cir. 1994) to create the “convincing mosaic” analysis that was never intended to be a “test,” but rather a helpful “mental picture.” The decision notes that more recent Seventh Circuit decisions attempted to clean up the confusion while others contributed to it by treating “convincing mosaic” as a legal requirement. As a bit of legal housekeeping, the opinion overrules a number of the Seventh Circuit’s prior decisions to the extent that they either applied “convincing mosaic” as a legal standard or separated evidence into “direct” and “indirect” categories.
However, despite using language that will likely confuse many summary judgment briefs in the future, the Seventh Circuit made clear that its “decision does not concern” “[t]he burden-shifting framework created by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), [that] sometimes is referred to as an ‘indirect’ means of proving employment discrimination.” And although the Seventh Circuit’s decision is intended to streamline the analysis, it remains to be seen whether it will, in fact, simplify summary judgment on discrimination claims, particularly where parties may attempt to rely on the still-valid holdings of its prior decisions, which performed the now defunct analysis.