*1 GRIFFITH, Appellant, David Plaintiff — al., MOINES, et
CITY OF DES Appellees.
Defendants —
No. 03-3266. Appeals, Court of
United States Circuit.
Eighth 15, 2004. April
Submitted:
Filed: Oct. Banc Rehearing En
Rehearing and Dec.
Denied *2 Foster-Smith, argued,
Danielle West Moines, (John Haraldson, Des IA on brief), for appellant. Lussier, Moines, argued, C. Steven Des (Chester Woodburn, III, IA on C. brief), appellee. for BYE, LOKEN, Before Judge, Chief MAGNUSON,* Judge, Circuit and District Judge.
LOKEN,
Judge.
Chief
Griffith,
joined
David
is Hispanic,
who
the Des
Fire Department
Moines
in 1989.
August
He commenced this action in
alleging
disparate
on-going
treatment
Moines,
City
retaliation
of Des
Fire
Wakeham,
Chief Ronald
and Assistant
Fire Chief Jerry Cohoon in violation of
VII,
§ 2000e-2;
Title
42 U.S.C.
42 U.S.C.
1983;
§§ 1981 and
and the Iowa Human
Act,
Iowa Code
216.6. The dis-
court1 granted summary judgment
trict
dismissing Griffith’s Third
Com-
Amended
plaint.
appeals. Reviewing
Griffith
novo,
grant of summary judgment de
viewing
summary judgment
record
light
Griffith,
most favorable to
nonmoving party,
See Putman
affirm.
we
Unity
Sys.,
Health
(8th Cir.2003) (standard
review).
I. A Threshold Issue of Law.
Title
VII and
Iowa
Human
prohibit
Act
from discriminat-
against
ing
an employee
respect
to his
terms,
compensation,
or conditions of em-
ployment
race, color,
account
his
sex,
religion,
origin.
or national
Griffith
complains
suspended
that he was
and then
retraining, unfairly disciplined,
denied
*
MAGNUSON,
The HONORABLE PAUL A.
1. The HONORABLE RONALD E. LONG-
STAFF,
Judge
United States District
District
Judge
Chief
of the United States Dis-
Minnesota,
by designation.
sitting
trict Court for the Southern
Iowa.
District of
of his His-
dence
unlawful
by co-workers because
harassed
motivating,
factor
defendant’s ad-
background.
panic
so,
If
pres-
verse
action.
conclude, as
us to
some
urges
Griffith
legitimate
ence of additional
motives will
concluded, that
have
courts
district
*3
summary judg-
the
not entitle
defendant
Palace,
v.
in
Inc.
Court
Desert
Supreme
Therefore,
ment.
evidence of additional
90,
2148, -
Costa,
156
539
123 S.Ct.
U.S.
motives,
question
and the
whether
(2003),
us to
implicitly
84
directed
L.Ed.2d
of
presence
mixed motives defeats all or
of the familiar
modify our Circuit’s use
claim,
are trial
part
plaintiffs
some
in
established
McDonnell
framework
issues,
summary
not
judgment
issues.
-
Green,
792,
411
v.
U.S.
802
Douglas Corp.
Palace,
Thus,
in
Desert
a decision which
(1973),
1817,
at
04,
first of “direct evidence” of by is (direct) no strong evidence that racial or Direct discrimination. evidence this ethnic discrimination motivated al context not the of is converse circumstan- leged against adverse action evidence, many tial seem assume. presented him. he While co-worker testi Rather, direct evidence is evidence “show- mony that Chief Wakeham made insensi ing a link specific alleged between the tive remarks about African American and discriminatory challenged animus and the employees occasions, women on other Grif decision, by a support finding sufficient fith presented no evidence that Chief illegitimate fact finder that an reasonable Wakeham, Cohoon, Assistant Chief or any actually criterion motivated” the adverse City other decisionmaker ever uttered a employment action. Thomas v. First Nat’l single negative racial remark about Grif (8th Wynne, Bank 111 F.3d Cir. of Hispanic background. Thus, fith’s 1997). Thus, “direct” refers to the causal requisite causal link between remarks re strength proof, of not whether it is flecting gender racial or bias and actions A plaintiff “circumstantial” evidence. taken Griffith against lacking. is See Sim (direct) strong illegal dis- Inc., mons v. Oce-USA employer’s crimination motivated the ad- (8th Cir.1999). 915-16 In these circum verse action does not need the three-part stances, produce Griffith must sufficient Douglas analysis get McDonnell to the illegal circumstantial evidence discrimi jury, regardless of strong whether his evi- nation under the Douglas par dence if plain- is circumstantial. But adigm by presenting prima tiff facie clearly points case lacks evidence to the — motive, presence plus an intentional illegal he sufficient must summary judgment creating avoid evidence that one or City’s more that, 2. proof. Desert Palace held under the burden 2155. The amendments, presents if the meant, suffi- Court’s resolution of that issue "we cient evidence of intentional discrimination question need not address the second on solely by pretext or reason of other circum- granted which we 'What certiorari: are the evidence, pres- stantial and if the defendant appropriate standards for lower courts to fol- ents sufficient it evidence that would have making low direct evidence determina- " event, taken the same adverse action in tion in 'mixed-motive' cases.' 123 S.Ct. at party either is jury entitled to a mixed-motive Had the n. 3. Court addressed that sec- regard, instruction. this amendments question, might ond its answer have affected overruled Justice view O’Connor’s in Price defining our cases direct evidence for sum- Waterhouse must have "direct mary judgment purposes. discriminatory of a evidence” motive to shift dispute adequate and there is a whether nondiscriminatory reasons is proffered contention, training discrimination. was This provided. for unlawful too, employer’s is without merit. An de- II. The Merits. nial an for more employee’s request his specif- not, more, surrounds appeal, training On Griffith without adverse ranging attack ic a broad allegations with action. See Woodland v. Jo- and relations employee conditions Inc., work Son, seph Ryerson T. & F.3d Department. Fire We in the Des Moines Cir.2002). (8th Nor does the limit our dis- ignore polemic will permit record a reasonable inference that claims, stating specific cussion to Griffith’s race training Griffith’s was a factor in this pertinent fact's as each. relevant dispute. Discriminatory of Ab Leave Disciplinary Three Incidents. 1999, Griffith was sence. In December disciplined Griffith three times be- degree of third charged with three counts ,2002 January August tween 2000 and abuse, including charge abus sexual one claims unlawful discrimination retalia- day ing minor. the Des Moines On First, *5 tion in each instance. in August headlined, Register published story 2000, Chief informed Griffith Wakeham Abuse,” Alleged For Charged “Fireman hearing‘had pre-disciplinary that a been- an through attorney requested Griffith his scheduled because Griffith’s “abusive from the Fire unpaid leave of absence in a argumentative” and behavior heated grant Chief Department, which Wakeham exchange with Assistant Chief Cohoon May pleaded guilty ed. Griffith alleged training. lack of over Griffith’s given He was a sus lesser offenses. day, The next Griffith told the Iowa Civil probation on pended sentence and condi that he was victim Rights Commission avoiding contact with tions that included on of discrimination and retaliation account City then allowed Griffith victim. The background. pre-dis- The Hispanic of his he appeal, argues to return to work. On took two ciplinary hearing place weeks treat disparate he was the victim of that reprimand, an oral later. Griffith received City not take action ment because the did Employee Pro- a referral Assistance firefighter for nine months when white (EAP) and consulta- gram for evaluation in 1998. This charged with sex abuse was tion, firefighter training and additional' It is is merit. uncon contention without adequate to later admitted was that he requested the that Griffith leave tested emergency firefighting his skills. restore absence. jury that a appeal, argues On Griffith upon 2. Failure To Retrain and-discriminatory” “disparate find could re Return. When Griffith Griffith’s firefighter re- because white treatment May he turned to work believed discipline reprimand- the same ceived firefighting his skills had deteriorat that —a EAP —for more serious and referral .to de during ed his leave absence. He grant- court district insubordination. assign emergency one or more clined it is undis- summary judgment because ments, retraining, ed asked for additional anger and puted- that exhibited Griffith unlawfully City claims the discrimi no supervisor to a and there is disrespect refusing request. appeal, his On nated acted from racial evidence that Wakeham summary argues judgment Griffith discipline. After imposing animus improper on this claim because train was record, agree. we component job careful review necessary his ing is Second, July in late Des Moines pline product was the of race discrimina- investigators arson were about inter- agree. tion. We a minor at a view fire scene. Griffith Griffith further argues that the dis firefighter another
asked
within the hear-
trict court erred in granting summary
ing
parents
of the minor’s
whether “we
judgment
his claims
that each
these
question
allowed to
minors without a
were
disciplines
illegal
was
retaliation for the
kid,
...
parent
my
because if it
I
complaint
he filed with the
somebody
want
The par-
would
there.”
Rights Commission,
Iowa Civil
for the fil
interview,
interrupted
then
ents
ing
lawsuit,
of this
and for his letters to
investigators
complained
the arson
City’s
Chief
and to
August
Equal
On
Wakeham
Chief Wakeham.
Wakeham
Employment
advising
pre-disci-
Opportunity
Griffith
him of a
Officer com
wrote
plinary hearing regarding
plaining
“possible inter-
discrimination. To establish a
investigation.”
with an official
prima
ference
fire
facie case of retaliation under 42
later,
days
2000e-3,
Six
Griffith filed this suit. Af- U.S.C.
Griffith must show that
August
pre-disciplinary hearing,
ter an
conduct,
“he
engaged
protected
that he
Wakeham issued a
repri-
Chief
written
an
action,
suffered
adverse employment
suspended
pay
mand
Griffith without
and that the
causally
adverse action was
duty
24-hour
for one
shift
“conduct
protected
linked
conduct.” Put-
disrupted
investigation
of a fire of man,
F.3d
argues
at 737. Griffith
origin.”
appeal,
unknown
On
Griffith ar-
temporal
proximity
his com
between
summary judgment
gues
plaints of
disciplines
discrimination and the
whether he
because
interfered
a fire
is sufficient circumstantial
re
*6
investigation
disputed
is a
issue of fact.
taliation. The district
disagreed,
court
The district court
there
concluded
was no and
we.
so do
evidence that Wakeham
not
did
believe
guilty
was
Again,
“Generally,
Griffith
misconduct.
tempo
more than a
agree.
we
ral connection
protected
between the
con
duct and the
adverse
action is
Third,
2, 2001,
on October
Griffith failed
present
to
required
genuine
factual issue
sign an equipment
to
checklist. When
on retaliation.”
Artificials,
Kiel v. Select
sign,
stated,
to
“I
sign
asked
Griffith
would
Inc.,
(8th
1131,
Cir.) (en
1136
so,
if I am required
sheet
to do
if I
banc),
denied,
818,
cert.
528 U.S.
120 S.Ct.
so,
required
am not
to
prefer
do
I would
to
59,
(1999).
case,
tive.” MAGNUSON, Judge, District Environ
4. The Hostile Work
concurring specially.
dis
argued in the
ment Claim. Griffith
co
negative
on
appeal
trict court and
I
concur
conclusion that Griffith’s
Hispanic
comments
back
about his
worker
However,
claims fail as a
of law.
I
matter
work
subjected him to
hostile
ground
separately
express my
to
views
write
three
testified to
Griffith
environment.
Palace,
Costa,
how
Inc. v.
Desert
U.S.
by two co
derogatory comments
scattered
(2003),
respect
dignity.”
clarify
for human
“to
President
the standards
governing
Lyndon B. Johnson’s Radio and Television disposition of
action
em-
challenging
an
Upon Signing
Remarks
the Civil Rights
ployment discrimination.” The Court dis-
Bill,
Lyndon
Papers
Pub.
B.
ever,
Johnson
employers
covered
rarely,
if
(1965).
1963-64,
2
par-
vol.
at 842-844
In
openly
against
discriminated
employ-
their
ticular,
“eliminate,
sought
Title VII
ees, and absent such blatant
proof,
through the utilization
formal and infor-
aggrieved plaintiff
summary
would
at
lose
procedures,
mal remedial
judgment. Acknowledging that
VII
Title
race, color,
employment
religion,
based
discrimination,
“tolerates no
[]
subtle
88-352,
origin.” H.R.Rep.
or national
No.
otherwise,” the Court devised a burden-
26,
2391,
in 1964
reprinted
U.S.C.C.A.N.
shifting
scheme to allow a
infer-
expressly rejected
Congress
no-
entially prove intentional discrimination.
liability
only
tion that Title VII
attached
801,
See id. at
the
fortable with the notion that defendants
1989,
was
with a case
the Court
presented
cases,
or cases
which a
mixed-motive
that both
indicated
in which the evidence
discriminatory
played a less-than-
motive
nondiscriminatory
rea
discriminatory
decision,
employment
but-for role in an
the
deci
employment
to
sons contributed
respect
proof
the burden of
to
bore
sion,
Hopkins,
Price
Waterhouse
result,
As a
she concurred with
causation.
1775,
In amended Civil “contributing” discrimination was or Congress Act of clarified factor the employment “causative” deci- plaintiff establishes an unlawful em- 102-40(1) Rep. sion. H.R. at 46-48. Con- ployment practice when he or she “demon- gress did not a heightened discuss level of race, color, religion, sex, or strates proof but rather intended to restore the motivating origin national factor for law consistent the legislative purpose practice, any employment though even oth- Title VII. Id. addition, by making practice.” er factors also motivated the same decision test affirmative defense 2000e-2(m). plain meaning U.S.C. damages liability, but not 42 U.S.C. liability imposes of the statute on an em- § 2000e-5(g)(2)(B), Congress modified the ployer when an consideration ais motivating factor originally set factor, if motivating regardless other fac- forth in Price Waterhouse. See H.R. Rep. tors also existed. Absent from this clear 40(1) (“[2000e-2(m) at 48 would clari- ] 102— language requirement is the that discrimi- fy proof that an would have factor, nation be a “substantial” “but-for” made employment the same decision in the factor, necessary or and sufficient of discriminatory absence reasons is rele- cause of the decision. In- liability vant to determine not the stead, dis- Congress unambiguously required criminatory practices, be motivating “a” fac- Any tor in the only appropriate ana- remedy.”). Although legislative history 102-40(11) Rep. addresses decision. H.R. at 18. Con- statements, evidence such as conduct or sought gress prevent "thoughts” mere from reference does not indicate intent to dis- being actionable under Title VII. As is with all tinguish direct between and circumstantial evidence, be there must a causal connection Rather, Congress evidence. commented that support intentional discrimination. Al- although such evidence is relevant in an in- though history the text and statute do claim, tentional discrimination “mere dis- require proximate thoughts” criminatory alone are not action- heightened cause some other level of cau- Instead, may able. conduct and remarks be sation, bears the nonetheless bur- sufficient if the can show "nexus” degree den to some of causation. between the evidence and the
743 distinction, el, persuasion the remains on burden evidence The direct/indirect Gagnon, plaintiff. Id. since Price applied have Wa- which courts into disuse terhouse, have fallen should Alternatively, Gagnon proceed can un- amended the Civil Congress after der the mixed-motive standard set forth Nevertheless, since Price inAct Hopkins, in Price v. 490 Waterhouse the Civil despite Waterhouse 228, 1775, 104 U.S. 109 S.Ct. L.Ed.2d 1991, Eighth including courts Act of (1989), if produce 268 he is able to “di- duly followed O’Connor’s evi- have Circuit an illegitimate rect evidence that criteri- dentiary between the burden- distinction ‘played motivating part on... a in [the] ” single in framework on causation shifting Cronquist v. employment' decision.’ in example, For 920, and mixed-motive cases. City Minneapolis, 237 F.3d Dustrol, Inc., 636, (alterations (8th Cir.2001) 306 F.3d Mohr v. original) (8th Cir.2002), “The Waterhouse, observed: Court (quoting Price 490 U.S. 1775). a Title dis- evaluating 258, framework for VII Gagnon 109 S.Ct. Once es- type evidence, on the depends crimination claim such direct the bur- tablishes support of the claim. presented Sprint den shifts to PCS demonstrate cir- primarily by preponderance relies a of the evidence that Where evidence, apply employ- courts a tri- it would have reached the same cumstantial ment decision absent discrimination. analysis as set forth McDonnell partite at 924. modified Cronquist, As Similarly, Douglas Corp. v. Green.” Rights Act of 839, by section 107 of the Civil F.3d Gagnon Sprint Corp., § (8th Cir.2002), 2000e-5(g)(2), 42 U.S.C. the Court made the 847-48 model allows for declara- mixed-motive analy- a mixed-motive distinction between relief, relief, Waterhouse, injunctive attorney’s tory single- a Price sis under Gagnon meets his fees and costs once Douglas: analysis motive under McDonnell regarding direct evidence. initial burden claims of Gagnon pursuing Plaintiffs like 2000e-5(g)(2)(B)(i). 42 U.S.C. Title have two under VII Waterhouse, as Mohr and Price Since they may proceed. under which models illustrate, Gagnon appropriate First, proceed can under the stage depended summary judgment at the three-stage, burden-shifting standard evidentiary distinction made Jus- on the Douglas Corp. v. set forth in McDonnell tice O’Connor. Green, 1817, 36 411 U.S. 93 S.Ct. (1973). Supreme Court abro- In June this stan- L.Ed.2d 668 Under that whether dard, gated proposition pri- must first establish Gagnon Douglas or a apply McDonnell Once courts ma facie case of discrimination. established, analysis depends on the the mixed-motive facie case is prima of direct or indirect evidence. presentation to articulate Sprint PCS burden shifts 98-99, 101, Palace, ad- Desert 539 U.S. non-discriminatory reason for the concluded that 2148. The Court Mary’s action. St. S.Ct. verse Hicks, 502, 507, require height- Rights Act did not Civil Honor Ctr. v. U.S. (1993). un- evidentiary proceed standard to ened 125 L.Ed.2d mixed-motive Id. Desert reason, analysis. der Sprint If PCS articulates such un- key issue admonished that sufficient ev- Palace Gagnon respond must dis- intentional der Title VII is whether proffered reason was idence that occurred, inten- instead of how crimination really a for intentional discrimi- Absent proved. mod- tional discrimination At all times under this nation. Id. *11 and mixed-motive single-motive direct and indirect tween the distinction between evidence, statutory interpre- cases, principles plaintiff prevails a under either Congress compel tation the conclusion theory the same relief for a defen- obtains dichotomy a sin- never envisioned between liability dant’s under Title VII. -There is in- Congress cases. gle and mixed-motive the more plaintiff no need for a to employers liable when dis- tended to hold case, all that single-motive onerous when contributing a factor in crimination was prove is requires plaintiff Title VII a to action, even if other mo- employment a fac- motivating that discrimination was 2.000e-2(m); § See U.S.C. tives existed. tor 102-40(1) 48; Rep. at H.R. 102- Rep. H.R. 2000e-2(m). § U.S.C. Courts insist 40(11) claim plaintiffs a is at Whether improperly that two frameworks still exist mixed-motive is not single motive or dichotomy create a fictional of “first de- language legislative in or the evinced the. gree degree discrimination” and “second statute; history imposes Title VII plain language discrimination.” The liability discrimination “a motivat- when require plaintiff the statute does not a ing factor” for adverse prove that discrimination was the “but- 2000e-2(m).7 § action. U.S.C. decision, for” cause of the requires rather to demonstrate There is no rational connection between motivating” “a fac- discrimination was type presented plain- aby evidence that Congress tor. There is no evidence single tiff and whether a case involves degrees intended to create different language legisla- mixed-motives. The Although discrimination under Title VII.8 history tive of the Civil Act of 1991 damages the statute entitles support a distinction between di- do not § beyond that articulated 2000e- rect and indirect evidence. Circumstan- 5(g)(2)(B), damages only these are award- equally persuasive tial is as as evidence employer ed if the defendant fails proving direct discrimination. its affirmative defense that it would have Moreover, maintaining distinction be- made the same decision the absence tween direct and indirect evidence creates discriminatory motive. This burden al- legal assuming fiction. that Con- Even dichotomy gress intended to create a be- lows the defendant to limit the Amendment, impossible Douglas analysis 7. With the 1991 it is a McDonnell or the alterna- imposing Instead, to construe the Civil Act as analysis. tive mixed-motive this Cir- 2000e-2(a)(l) liability §§ under cling 2000e- Majority appear cuit and the to the 2(m) mutually exclusive. Title VII does distinction articulated in Price Waterhouse varying degrees liability. (cid:127)not create The abrogated by supra Desert Palace. See plain language forbids an invidi- of the statute 735; Ashcroft, see Plammer File No. 3-3259 motivating, ous consideration from (8th 2004) ("A Sept. Cir. who lacks way, decision. The 1991 may direct evidence of utilize clarify Amendment was intended to the stat- Doug- the framework set forth in McDonnell interpretation ute articu- from las”). Majority misunderstands the his- lated 2000e- in Price Waterhouse. Section tory dichotomy and context of the between 2(m) 2000e-2(a)(l), further defines and to- single-motive test articulated in McDon- gether these statutes form the standard for test, motivating nell and the factor Thus, liability. motivating Title VII factor adopted first variation of which was test controls. Supreme Court in Waterhouse. The Ma- Price acknowledge jority that Desert Pal- refuses evidentiary In the absence distinc- tion, prerequi- ace eliminated direct evidence as a provided this Circuit to date has not analysis. apply basis on which to determine whether to site for mixed-motive *12 negate Douglas lia- McDonnell should not be used remedy, does not plaintiffs analyze Thus, by courts to Title VII claims. The employer the has bility. whether burden-shifting sup- framework is not en- nondiscriminatory reasons which other statute, ported language in the nor wholly is employment the decision ter into impose liability does it under Title VII as liability under the irrelevant to Title VII Congress intended. Under McDonnell only rational Act of 1991. The Rights Civil Douglas, requiring employer the to articu- between conclusion is that no distinction nondiscriminatory for late reason the motives exists. single and mixed First, is worthless. employment decision 2000e-2(m) applies § to all individ- U.S.C. highly significant is not to a this element treatment cases.9 disparate ual in plaintiffs majori- claim because the vast have been thirty years, For courts cases, all, ty of if not the defendant em- Douglas burden slaves to the McDonnell ployer always deny chooses to claims of that is inconsistent with shifting paradigm discrimination and offers nondiscrimina- cannot be Douglas Title McDonnell VII. tory for the employment reason adverse Rights Act of reconciled with the Civil Moreover, mere articulation of a action. indignant it is to the clear text nondiscriminatory requir- reason without Douglas imper- the statute. McDonnell ing evidentiary proof is a useless ritual. on the cause of the missibly focuses but-for Second, successfully if plaintiff even the decision, all that the employment when nondiscriminato- disproves employer’s requires Act of 1991 is that Rights Civil reason, ry necessarily this does not result motivating be a factor judgment plaintiff. in favor of the See employment plaintiff decision. Because Prods., Plumbing Reeves v. Sanderson not that discrimination need demonstrate Inc., 2097, 147 530 U.S. 120 S.Ct. employment (2000) was the but-for cause (prima plus L.Ed.2d 105 facie case decision, Title all cases under VII should pretext may permit sufficient evidence discrimination); be evaluated to determine whether invidi- jury to find unlawful Hicks, any way influenced ous discrimination 509 U.S. (1993) (a finding motivated the decision. L.Ed.2d 407 always compel judgment plaintiff; fails to achieve does not for the record, result, even if motivating any factor test but that reason while the specifically articulated
consistently does. not asserts, Douglas paradigm Majority at Contrary to what the this is onerous McDonnell purposes giving summary judgment applying the simply an for the and then issue jury Although Rights instructions. the context of the Act of 1991 at trial is inconsistent Civil instructions, applied jury prac- impractical. approach requires decision This Palace nonetheless affects summary judgment tical effect of Desert plaintiff prove at summary judgment. used at was the but-for an invidious characteristic jury action, as the reasonable standard is the same but then cause of the summary judgment whether the standard: only requires prove that plaintiff trial plaintiff presented sufficient evidence has motivating factor in this characteristic was logically jury from which a reasonable could inconsistency This decision. infer that the adverse action re- the ultimate issue of further interferes with consideration of a sulted from supports whether there is protected characteristic. the em- finding that discrimination motivated require Moreover, ployment It is absurd to support prop- there is no for the higher plaintiff satisfy a burden at sum- Act of 1991 com- osition that the Civil mary judgment when the lesser burden is all analyses procedural pels at different different required statute. Applying that is under the stages of a Title VII case. the more reason, nondiscriminatory proper Regardless under Title if the as the VII. consideration). jury Finally, plain or that proves pretext discrimination was a of the statute lacks reference language factor, motivating is entitled to burden-shifting paradigm to a whatsoever damages liability. the same for Title VII In- Douglas. articulated in McDonnell A 2000e-5(g)(2)(B). U.S.C. stead, requires *13 Act of 1991 Civil damages beyond to is entitled those enu- prove to that discrimination plaintiff § 2000e-5(g)(2)(B) only merated in if the factor, motivating and then allows was a employer defendant cannot sustain its bur- affirmatively prove the defendant to other- den on its same-decision de- affirmative negate damages. wise to See U.S.C. fense. If the defendant employer cannot than 2000e-5(g)(2)(B). aiding Rather existing that there was an but-for in plaintiff proving discrimination cause that would have created the same motivating was a factor in the result, plaintiff then the decision, Douglas McDonnell focuses on Thus, greater to damages. entitled legitimacy employer’s proffered of the plaintiff is no worse off if he or she is considering reasons without whether dis- to prove pretext. unable Title VII is not played any part crimination in the adverse designed provide to to plaintiffs, windfall employment decision. put to plaintiff rather serves Rights The Civil Act of 1991 is intended position same he or she would have been to root out and deter discrimi- Rep. absent discrimination. See H.R. 102- provide public through nation and benefit 40(11) at (“complaining party may re- statutory the active enforcement of a only actually ceive relief for the harm that equality employ- scheme ensures illegal discriminatory results from the con- Although ment decisions. I acknowledge duct”). This is the purpose fundamental that Desert Palace confirms the demise of litigation system.10 behind our civil framework, I Douglas the McDonnell do ignore vitality not “pretext” —that inception, Since its McDonnell is, proffered by reason articulated time, has befuddled the Courts. Over employer proxy as a for discrimination— Supreme has gradually Court chiseled underlying and the that it provides value Douglas away original from its discrimination cases. Title failing framework to an that still liability requires plaintiff VII to show give fails to effect to language of the motivating discrimination was a factor Palace, Rights Civil Act. Since Desert employment, using either direct or cir- country courts all over this attempted have course, evidence. cumstantial Of understand, interpret, to give effect to may is circumstantial suffi- See, Rights the Civil Act of e.g., ciently demonstrate that an Box, Inc., Rachid v. Jack in the motivated an consideration. (5th 2000e-2(m) Cir.2004); However, § Dunbar v. require Pepsi-Cola does not Iowa, prove pretext prevail Inc., to to General Bottlers compensation I also understand the concern that inno- denied because the victims can- may plaintiffs. successfully prove pretext. cent defendants be liable to not The Civil However, Rights designed provide the same-decision test ensures that Act is to the victims no innocent defendant will owe a of discrimination with redress and to sanction damages. Doug- employers' discriminatory This differs from McDonnell conduct. See H.R. las, 102-40(1) longer guilty Rep. Requiring plaintiff because there are no defen- at 47. evading liability prove pretext objective. dants and innocent victims frustrates this 2003).11 (N.D.Iowa cumstances, power have the to in- courts F.Supp.2d congressional validate mandates that ex- However, thoroughly have failed to courts congressional scope power. statute and ceed the language examine Nonetheless, intent, have courts do not have unfet- and instead congressional and are not entitled to arbitrary paradigm tered discretion fought keep an they fit. legislation courts to ac- rewrite see imperative It is alive. and Civil Act of 1964 and the 1991 congressional mandate knowledge expressly prohibit any Amendments dis- express language of the give effect to the employment. crimination in Courts are adopt a modi- There is no need statute. impose arbitrary Douglas approach empowered when fied McDonnell effectively analytical scheme that contradicts the ex- Act of 1991 the Civil press, unambiguous language the stat- allows *14 If Congress and in- ute. intended Title YII invoking complexities without degrees liability, Douglas para- impose varying then sensibility of the McDonnell to amend Title to Congress no need to retain needs VII digm.12 simply There is simply impossible that intent. It is Douglas paradigm when reflect the McDonnell Doug- to ancient McDonnell effectively Act of 1991 reconcile the Rights the Civil paradigm language to with the clear analyze to the evidence las allows a court Act. Rights required a motivat- the Civil Courts are determine if discrimination was Douglas the law. McDonnell employment apply in the to ing factor Thus, apply Congress does not Title VII as envi- the Civil Act of 1991 suffi- express language In analysis place, that achieves sioned. its ciently provides an Rights Act of 1991 should always intended: of the Civil Congress what has emerge. elimination of discrimination absolute
employment decisions. Thus, adhere to the stat- courts should analyz- ute rather than divine standards jurists,
As courts have the insurmounta- party ing complaining as claims. must interpret apply “[T]he to the law ble task that discrimination was a con- by Congress. In limited dr- demonstrate prescribed further demonstrate the cognizant Supreme that the These inconsistencies 11. I am likewise Douglas acknowledged Douglas Court the McDonnell McDonnell creates. confusion that following shifting paradigm Moreover, Desert burden the Civil Act of 1991 it is Hernandez, Raytheon See Co. v. Palace. Douglas, overruled McDonnell 513, 3, L.Ed.2d U.S. 518 n. acknowledge Supreme Court’s failure to (2003). Raytheon, Supreme Court Douglas. McDonnell effect does not resurrect panel Ninth Circuit because the vacated the disparate impact improperly applied the stan Douglas ap- McDonnell 12. The modified disparate treatment case. In ac dard to Rachid, proach, in Dunbar and as advocated knowledging Douglas, McDonnell the Su degrees essentially varying of discrim- creates that, plaintiff preme Court stated "the can ination, allowing prove to Title disparate by, in prove still treatment demonstrating liability by that dis- VII either stance, offering demonstrating evidence (1) cause of the was the "but-for” crimination employer’s explanation pretextual.” Id decision, (2) motivating fac- employment added). Although Supreme (emphasis However, employment decision. tor in the acknowledged Douglas, it McDonnell Court only requires plain language statute did revisit the Ninth Circuit’s nor prove that discrimination Douglas applied discuss McDonnell did it motivating for courts factor. It is ridiculous Supreme Court to Title VII cases. Just as the provides plaintiff adopt a scheme that ignored in the Desert Pal something what option more than ig Supreme opinion, ace Court likewise liability. actually requires for Raytheon opinion. the statute nored Desert Palace in the employment deci- tributing factor America, UNITED i.e., STATES actually that discrimination con- sion— Appellee, employer’s to the decision with
tributed party.” H.R. complaining to the respect 102-40(11) plaintiff may at 18. The Rep. Wayne KIRCHOFF, Appellant. William prove liability. any type use of evidence No. 04-1135. The burden is on the to demon- motivating was a strate that discrimination Appeals, United States Court of factor in the action. If the Eighth Circuit. is sufficient for a rational factfin- May Submitted: 2004. conclude that discrimination was a der to ac- motivating factor Filed: Oct. tion, employer may then the rebut with Rehearing Rehearing En Banc not a evidence that discrimination was mo- Denied Dec. tivating factor for the deci- The defendant also sion. bears it would have
the burden
made the same decision ab- *15 discriminatory Judgment motive.
sent the
may against party either de- be entered sufficiency of
pending on the the evidence A
presented. plaintiffs claim will fail if
the evidence is insufficient for a rational
factfinder to find intentional discrimina- Eliminating tripartite
tion. framework
provides aggrieved plaintiff with re- plaintiff proves
dress when the that dis- role, played,
crimination not the but-for role
The distinction between the Civil
Act of 1991 and McDonnell can-
not be articulated this case. As a mat- law, regardless
ter of type what presented Mr. Griffith has
regardless of the standard utilized
Court, present Mr. Griffith fails suffi- support
cient evidence to his claim for Therefore,
intentional discrimination. I fail,
concur that Mr. Griffith’s claims
concur in the decision affirm the district
court.