Ortiz v. Werner Enterprises, Inc.: New Standard for Discrimination Claims
In August 2016, the U.S. Court of Appeals for the Seventh Circuit issued a decision in Ortiz v. Werner Enterprises, Inc., 834 F.3d 760 (7th Cir. 2016), clarifying the standard it applies to discrimination claims on a motion for summary judgment. The court rejected previous caselaw, which required a plaintiff to present a “convincing mosaic” of evidence — under either the direct or indirect method — of discrimination in order to defeat a motion for summary judgment. Prior to Ortiz, district courts had long considered evidence in two separate categories: (1) direct evidence of the “smoking gun” variety; and (2) indirect evidence, which was more circumstantial and that allowed an inference of discrimination.
Under the direct method, a plaintiff had to establish that (1) he or she belonged to a protected class or engaged in a protected activity, (2) he or she suffered an adverse employment action, and (3) there was a causal link between the protected class or activity and the adverse employment action. See, e.g., Coleman v. Donahoe, 667 F.3d 835 (7th Cir. 2012). Under the indirect method, a plaintiff had to establish that (1) he or she belonged to a protected class or engaged in a protected activity, (2) he or she was qualified for the job in question, (3) he or she suffered an adverse employment action; and (4) he or she received less favorable treatment than similarly situated individuals that were not in the plaintiff’s protected class or did not engage in the plaintiff’s protected activity. 667 F.3d at 845. If the plaintiff made this initial showing, the burden shifted to the employer, who was then tasked with proffering a legitimate, nondiscriminatory reason for the employment decision. Id. If the employer met this requirement, then the burden shifted back to the plaintiff, who was then required to show the employer’s reasons were pretextual. Id. After analysis under either method, courts would then determine whether a plaintiff was able to present a “convincing mosaic of discrimination” without considering all evidence as a whole. Ortiz, supra, 834 F.3d at 763.
In Ortiz, the Seventh Circuit’s primary conclusion was that the previous method did not allow courts to focus on 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.” 834 F.3d at 765. Rather than focusing on a “convincing mosaic of discrimination,” the court emphasized:
Evidence 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. Evidence is evidence. Relevant evidence must be considered and irrelevant evidence disregarded, but no evidence should be treated differently from other evidence because it can be labeled “direct” or “indirect.” Id.
The Seventh Circuit made clear, however, that Ortiz did not change the burden-shifting framework created by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L.Ed.2d 668, 93 S.Ct. 1817 (1973), which is sometimes referred to as an “indirect” means of proving employment discrimination. 834 F.3d at 766. Since Ortiz was decided in August 2016, the district courts have been tasked with interpreting this new framework, while reconciling it with the McDonnell Douglas burden-shifting frameworkthe courts have used for decades. This burden-shifting framework is often irrelevant in practice, however, because in most cases the plaintiffs include evidence of pretext in their initial pleadings, making the McDonnell Douglas burden-shifting framework unnecessary. Thus, the new framework under Ortiz is helpful.
With Ortiz, it seems the Seventh Circuit sought to streamline the analysis for discrimination claims at the summary judgment stage. Now, courts and parties should continue to use discriminatory or retaliatory evidence but should not focus on whether this evidence fits squarely into the “direct evidence” or “indirect evidence” categories. Instead, courts and parties should consider whether the evidence, taken as a whole, would lead a reasonable juror to conclude that the adverse employment action was caused by the plaintiff’s protected class or activity.
Since Ortiz was decided in 2016, the Seventh Circuit has consistently evaluated discrimination and retaliation claims using this more straightforward inquiry: “Does the record contain sufficient evidence to permit a reasonable fact finder to conclude that the [discriminatory or] retaliatory motive caused the discharge?” Lord v. High Voltage Software, Inc., 839 F.3d 556, 563 (7th Cir. 2016). See also Memon v. Western Technical College, 673 Fed.Appx. 529, 531 (7th Cir. 2016); Abdel-Ghaffar v. Illinois Tool Works, Inc., 706 Fed.Appx. 871, 874 (7th Cir. 2017); Barbera v. Pearson Education, Inc., 906 F.3d 621 (7th Cir. 2018); Johnson v. Advocate Health & Hospitals Corp., 892 F.3d 887, 894 (7th Cir. 2018).
District courts have also embraced this new framework. See, e.g., Johnson v. Advocate Health & Hospitals Corp, 2016 WL 5871489, *5 (N.D.Ill. Oct. 7, 2016) (ignoring old “convincing mosaic” language and cutting straight to “bottom line” to determine whether there was “evidence from which a reasonable trier of fact could infer discrimination from [the defendant’s] actions”); Cannon v. General Supply & Services, Inc., No. 15-cv-06982, 2016 WL 7339151, *7 (N.D.Ill. Dec. 19, 2016) (“In employment discrimination cases, courts must evaluate the evidence ‘as a whole’ to determine whether such 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.’ . . . In other words, the ‘fundamental question at the summary judgment stage is simply whether a reasonable jury could find prohibited discrimination.’ ”); Nelson v. Union Pacific R.R., No. 16 C 11637, 2019 WL 2137380 (N.D.Ill. May 16, 2019) (holding that plaintiff must demonstrate that evidence, wholly considered, would permit reasonable fact-finder to conclude that his or her race, gender, and age caused adverse employment action).
So far, Ortiz seems to have hit its target — courts in the Seventh Circuit consistently simplify their analysis on summary judgment for discrimination claims according to the new standard. Employers defending these claims should be wary that the determination regarding whether employees satisfy their burden of proof at the summary judgment stage has now been simplified and should adjust their strategies accordingly.
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