LAWANNA TYNES v. FLORIDA DEPARTMENT OF JUVENILE JUSTICE
No. 21-13245
United States Court of Appeals, Eleventh Circuit
December 12, 2023
D.C. Docket No. 0:18-cv-62891-WPD
In the United States Court of Appeals For the Eleventh Circuit
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No. 21-13245
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LAWANNA TYNES,
Plaintiff-Appellee,
versus
FLORIDA DEPARTMENT OF JUVENILE JUSTICE,
Defendant-Appellant.
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Appeal from the United States District Court for the Southern District of Florida
D.C. Docket No. 0:18-cv-62891-WPD
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GRANT, Circuit Judge:
This appeal results from an all-too-common confusion in employment discrimination suits: whether the evidentiary framework set out in McDonnell Douglas is a stand-in for the ultimate question of liability in Title VII discrimination cases. We repeat today what our precedents have already made clear: It is not. Properly understood, McDonnell Douglas is an evidentiary framework that shifts the burden of production between the parties to figure out if the true reason for an adverse employment action was the employee’s race. It is not a set of elements that the employee must prove—either to survive summary judgment or prevail at trial.
To be sure, in some cases a lack of success in establishing a prima facie case will also reflect a lack of success in showing employment discrimination. But, as both this Court and the Supreme Court have explained, the ultimate question in a discrimination case is whether there is enough evidence to show that the reason for an adverse employment action was illegal discrimination. The prima facie case in the McDonnell Douglas framework can help answer that question—but it cannot replace it.
Here, the Florida Department of Juvenile Justice is distracted by a perceived failure on the part of its former employee, Lawanna Tynes, to meet her initial burden of production at the prima facie stage of McDonnell Douglas. But that distraction comes with a price—a lack of focus on whether Tynes put forward
The Department also argues that Tynes did not adequately plead a claim for race discrimination under
I.
Tynes was employed by the Florida Department of Juvenile Justice for sixteen years. At the time of her termination, she was the superintendent of the Broward Regional Juvenile Detention Center. The superintendent’s responsibilities include overseeing the facility’s operations and ensuring that both juvenile detainees and staff are in a safe environment.
One Sunday, while Tynes was off for medical leave, an unusually high number of incidents required an officer to call for back up. The assistant secretary of detention services, Dixie Fosler,
Tynes sued, alleging race and sex discrimination. Her complaint unambiguously alleged two violations of Title VII of the Civil Rights Act of 1964, which prohibits employers from terminating employees because of their race or sex.
The basis of Tynes’s discrimination case was that similarly situated white and male employees were treated differently and that the Department’s stated reasons for her termination were pretextual. For comparator evidence, Tynes pointed to Joseph Seeber, a white male, and Daryl Wolf, a white female, who were both superintendents of juvenile detention centers with incidents that reflected a lack of control or failure to abide by the Department’s policies.1 But, unlike Tynes, neither was terminated.
As for pretext, Tynes presented evidence of Fosler’s personal bias against her. Gladys Negron, Tynes’s direct supervisor, testified that she believed Tynes’s termination was based on Fosler’s personal feelings rather than professional concerns. She said that Fosler’s written report “contained several inaccuracies,” and even characterized the technical assistance team’s efforts as a “search-and-kill mission” against Tynes. At trial, Fosler faltered in her testimony; she could not recall the basis for her conclusion that Tynes had engaged in “conduct unbecoming as a public employee,” nor could she point to another employee fired without negative performance reviews or prior reprimands.
The jury returned its verdict in favor of Tynes and made specific findings in a special verdict form: (1) “race or sex was a motivating factor”; (2) the Department would not have discharged Tynes if it had not taken into account her race or sex; and (3) Tynes’s race was a but-for cause of her termination. The jury awarded $424,600 in compensatory damages and $500,000 in damages for emotional pain and mental anguish. The district court ordered the Department to reinstate Tynes to a similar position—but not under Fosler’s supervision.
The Department filed a renewed motion for judgment as a matter of law or, alternatively, for a new trial. It argued that the
The district court denied the motion on both issues. It rejected the Department’s Title VII arguments because “the circumstantial evidence regarding the two comparators was sufficient to establish the discrimination claims,” and “[c]redibility was for the jury to decide.” The court also rejected the
The Department now appeals the district court’s denial of its renewed motion for judgment as a matter of law.
II.
Judgment as a matter of law is appropriate when “the facts and inferences point so overwhelmingly in favor of one party that reasonable people could not arrive at a contrary verdict.” Brown v. Alabama Dep’t of Transp., 597 F.3d 1160, 1173 (11th Cir. 2010)
III.
A.
Title VII of the Civil Rights Act of 1964 outlaws employment discrimination because of “race, color, religion, sex, or national origin.”
Early on, though, it became clear that when only circumstantial evidence was available, figuring out whether the actual reason that an employer fired or disciplined an employee was illegal discrimination was difficult and “elusive.” Texas Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 255 n.8 (1981). After all, an employer can generally fire or discipline an employee for “a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all,” so long as that action “is not for a discriminatory reason.’” Flowers v. Troup Cnty. Sch. Dist., 803 F.3d 1327, 1338 (11th Cir. 2015) (quoting Nix v. WLCY Radio/Rahall Commc’ns, 738 F.2d 1181, 1187 (11th Cir. 1984)).
To deal with the difficulties encountered by both parties and courts, the Supreme Court in McDonnell Douglas set out a burden
To be fair, the McDonnell Douglas court’s terminology likely bears some responsibility for the continuing confusion on this point. When the Supreme Court uses the term “prima facie case” in this context, it does so “in a special sense.” Wells v. Colorado Dep’t of Transp., 325 F.3d 1205, 1223 (10th Cir. 2003) (Hartz, J., writing separately). The Court itself has explained that although that phrase may sometimes “describe the plaintiff’s burden of producing enough evidence to permit the trier of fact to infer the fact at issue,” within the McDonnell Douglas framework the term “prima facie case” has a different meaning—it marks “the establishment of a legally mandatory, rebuttable presumption.” Burdine, 450 U.S. at 254 n.7 (citing 9 J. Wigmore, Evidence § 2494 (3d ed. 1940)).
But once the prima facie case has “fulfilled its role of forcing the defendant to come forward with some response,” it no longer has any work to do. Hicks, 509 U.S. at 510–11. Where “the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant.” Aikens, 460 U.S. at 715 (emphasis added). This is so because the “district court has before it all the evidence it needs to decide whether the defendant intentionally discriminated against the plaintiff.” Id. (quotation omitted). So when the
Another reason for the confusion? A failure in the prima facie case often also reflects a failure of the overall evidence. Even though we do not dwell on whether the technical requirements of the prima facie case are met once the defendant has met its burden of production, we keep in mind that the questions the plaintiff must answer to make a prima facie case are relevant to the ultimate question of discrimination. A plaintiff who fails to prove that she was a member of a protected class, for example, or that she suffered an adverse employment action, will be unable to prove that she was unlawfully discriminated against. See Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1327–28 (11th Cir. 1998); Kidd v. Mando Am. Corp., 731 F.3d 1196, 1202–04 (11th Cir. 2013). We’ll admit that we have at times framed that analysis in terms of whether the plaintiff has established a prima facie case, but the more fundamental problem with such a failure of evidence is that it means the plaintiff cannot prove a necessary element for his employment discrimination case. See, e.g., Kidd, 731 F.3d at 1202–04.
This distinction is important because the components of a prima facie case are not necessarily coextensive with the evidence needed to prove an employment discrimination claim. That is why
It is also why “the plaintiff’s failure to produce a comparator does not necessarily doom the plaintiff’s case.” Smith, 644 F.3d at 1328. Indeed, “the plaintiff will always survive summary judgment if he presents circumstantial evidence that creates a triable issue concerning the employer’s discriminatory intent.” Id. at 1328. That is because McDonnell Douglas is “only one method by which the plaintiff can prove discrimination by circumstantial evidence.” Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 768 n.3 (11th Cir. 2005). A plaintiff who cannot satisfy this framework may still be able to prove her case with what we have sometimes called a “convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination by the decisionmaker.” Smith, 644 F.3d at 1327–28 (footnote and quotation omitted); see also Lewis v. City of Union City, 934 F.3d 1169, 1185 (11th Cir. 2019) (Lewis II).
This rearticulation of the summary judgment standard arose in large part because of widespread misunderstandings about the limits of McDonnell Douglas—the same misunderstandings that persist today. A “convincing mosaic” of circumstantial evidence is simply enough evidence for a reasonable factfinder to infer
All that to say, in deciding motions for summary judgment or judgment as a matter of law, parties already understand that, when we use what we have called the convincing mosaic standard,
For these reasons, we have repeatedly emphasized that after a trial we “should not revisit whether the plaintiff established a prima facie case.” Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 1194 (11th Cir. 2004); see also, e.g., Holland v. Gee, 677 F.3d 1047, 1056 (11th Cir. 2012); Collado v. United Parcel Serv., Co., 419 F.3d 1143, 1150 (11th Cir. 2005); Tidwell v. Carter Prods., 135 F.3d 1422, 1426 n.1 (11th Cir. 1998); Richardson v. Leeds Police Dep’t, 71 F.3d 801, 806 (11th Cir. 1995); Carmichael v. Birmingham Saw Works, 738 F.2d 1126, 1129 (11th Cir. 1984). Instead, we ask only one question: whether there is a sufficient evidentiary basis for the jury to find that the defendant intentionally discriminated against the plaintiff. Cleveland, 369 F.3d at 1194.
That analysis solves this case. The Department’s only argument is that the comparator employees that Tynes offered were not adequate to establish a prima facie case of discrimination under McDonnell Douglas. That may be true; under our precedent a comparator employee must be “similarly situated in all material respects”—a high bar to meet. Lewis, 918 F.3d at 1218. But the jury’s factual inquiry was whether the Department intentionally discriminated against Tynes, and its answer was “yes.” The Department does not contend that the evidence, taken as a whole, could not support the jury’s verdict. By focusing exclusively on Tynes’s comparator evidence, the Department has forfeited any challenge to the ultimate finding of discrimination.
Of course, the strength of Tynes’s comparator evidence is relevant to the ultimate question of intentional discrimination. Holland, 677 F.3d at 1056–57. But to the extent that there are material differences between Tynes and her comparators at this stage of the case, it is the jury’s role—not ours—to determine how much weight the comparator evidence should be given. In other words, it is possible that her comparators were insufficient to establish a prima facie case yet still relevant to the ultimate question of intentional discrimination. See Lewis II, 934 F.3d at 1187–88. To win after trial, the Department would have needed to explain why the evidence, taken as a whole, was insufficient to support the jury’s verdict. Because it failed to do so, we affirm the judgment of the district court denying the Department’s renewed motion for judgment as a matter of law on the Title VII claims.
The Department also challenges the jury’s verdict on Tynes’s
The Department is right about one thing—Tynes’s complaint may not have set out a separate claim under
The Department does not challenge the district court’s authority under
The Department’s second
* * *
After a full trial on the merits, a defendant cannot successfully challenge the jury’s verdict by arguing only that the plaintiff’s comparators were inadequate or that the prima facie case was otherwise insufficient. Here, the Department was required to demonstrate why the record evidence could not support the jury’s verdict and failed to do so. Because the Department also failed to adequately challenge the grounds upon which the district court denied its motion with respect to Tynes’s
LAWANNA TYNES v. FLORIDA DEPARTMENT OF JUVENILE JUSTICE
No. 21-13245
United States Court of Appeals, Eleventh Circuit
NEWSOM, J., Concurring
Today’s majority opinion offers an important critique of the role that McDonnell Douglas’s burden-shifting analysis has come to play in deciding Title VII cases. In particular, the majority explains that McDonnell Douglas (1) provides only an “evidentiary framework” and (2) was never meant to establish “an independent standard of liability” or specify a “set of elements that the employee must prove—either to survive summary judgment or prevail at trial.” Maj. Op. at 2, 9. Unfortunately, as the majority notes, “parties (and sometimes courts)” often “miss this fundamental point and wrongly treat” McDonnell Douglas, and in particular its initial prima-facie-case step, “as a substantive standard of liability.” Id. at 9. And although this case doesn’t arise on summary judgment, the majority correctly observes that the overreading of—and consequent overemphasis on—McDonnell Douglas has become particularly acute at the Rule 56 stage, where courts have increasingly taken to treating the test’s prima-facie-evidence benchmark “as a substitute standard necessary to survive summary judgment.” Id. at 11; see also id. at 9–12 (detailing the problems with courts’ applications of McDonnell Douglas at summary judgment).
Yes, yes, and yes—I completely agree. I’ll confess, though, that I’ve developed an even deeper skepticism of McDonnell Douglas. The majority opinion seeks to put courts back on the right path in their application of McDonnell Douglas; I tend to think we might be better off on an altogether different path. Here’s what I mean: I’d
I
Title VII of the landmark Civil Rights Act of 1964 broadly prohibits workplace discrimination. In relevant part, its operative provision states that—
It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of
such individual’s race, color, religion, sex, or national origin . . . .
Many, if not most, Title VII cases are decided at summary judgment. The “ordinary rule[]” for evaluating the propriety of summary judgment, of course, is
The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.
But not all analytical frameworks hew closely to that question. Briefly, we assess employment-discrimination cases at summary judgment using one or more of three approaches. First, a reviewing court might consider whether the plaintiff has pointed to direct evidence of discrimination. If the case instead turns on circumstantial evidence, the court might ask—second—whether the plaintiff can survive McDonnell Douglas’s burden-shifting analysis or—third—whether she can assemble what we have called a “convincing mosaic” of evidence suggesting discrimination, Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011).
In terms of consistency with
I’ve concluded that I was wrong about that—as in 180° wrong. Upon reflection, it now seems to me that McDonnell Douglas is the interloper—it is the judge-concocted doctrine that obfuscates the critical inquiry. The convincing-mosaic standard, by contrast—despite its misleadingly florid label—is basically just
In the discussion that follows, I’ll explain briefly why I’ve come to believe (1) that McDonnell Douglas is the wrong framework to apply in deciding Title VII cases at summary judgment and (2) that our convincing-mosaic standard—which I’d rebrand slightly—
II
To start, why the loss of faith in McDonnell Douglas? In short, I fear that it doesn’t reliably get us to the result that
First, as a threshold matter, McDonnell Douglas seems (in retrospect) awfully made up. Here’s how the Supreme Court has described its handiwork:
In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), we set forth the basic allocation of burdens and order of presentation of proof in a Title VII case alleging discriminatory treatment. First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant “to articulate some legitimate, nondiscriminatory reason
for the employee’s rejection.” Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.
Texas Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 252–53 (1981) (internal citations and footnote omitted). There’s certainly no textual warrant in Title VII or the Federal Rules for so elaborate a scheme, and so far as I know, no one has ever even sought to justify it as rooted in either. Perhaps a product of its time, the whole thing is quite legislative, quite Miranda-esque—“set forth,” to use the Supreme Court’s own words. See also Maj. Op. at 7–8 (observing that McDonnell Douglas “set out” the burden-shifting framework). And for me, the framework’s made-up-ed-ness is a flashing red light—prima facie evidence, if you will, that something is amiss. Cf. Club Madonna Inc. v. City of Miami Beach, 42 F.4th 1231, 1261 (11th Cir. 2022) (Newsom, J., concurring) (“[U]nelected, unaccountable federal judges shouldn’t make stuff up.”).
Second, whatever it was that the Supreme Court initially conjured, it seems to have taken on a life of its own. Perhaps most jarringly, McDonnell Douglas’s burden-shifting framework has become the presumptive means of resolving Title VII cases at summary judgment—despite the facts (1) that McDonnell Douglas itself arose not on summary judgment but out of a bench trial, see Green v. McDonnell Douglas Corp., 299 F. Supp. 1100, 1102 (E.D. Mo. 1969), and (2) that, so far as I can tell, the Supreme Court has
Finally, and perhaps worst of all, it now strikes me that the McDonnell Douglas three-step—particularly as supplemented by the first step’s constituent four-step—obscures the actual Title VII inquiry, especially at summary judgment. I’ll readily confess that others have beaten me to this conclusion, but they make for pretty good company. For instance, while a judge on the D.C. Circuit,
So, what’s my takeaway regarding McDonnell Douglas? From a case that didn’t even arise on summary judgment has emerged a purported “procedural device” that, in day-to-day operation, disregards the duly promulgated rules of summary-judgment procedure, that overrides the substance of Title VII, and whose multi-step burden-shifting formula obscures the decisive question: Does the summary-judgment record reveal a genuine dispute of material fact about whether an employer discriminated against its employee “because of ” a protected characteristic?
III
So, as it turns out, there’s plenty not to like about McDonnell Douglas as a summary-judgment tool. And what of the convincing-mosaic standard, which I’ve confessed to having long dismissed as a secondary corollary of sorts or, worse, a manipulable workaround? Turns out there’s a lot to like.
[T]he plaintiff will always survive summary judgment if he presents circumstantial evidence that creates a triable issue concerning the employer’s discriminatory intent. A triable issue of fact exists if the record, viewed in a light most favorable to the plaintiff, presents a convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination by the decisionmaker.
644 F.3d at 1328 (internal quotation marks, citations, and footnote omitted). Stripped of the rhetorical flourish—the superfluous “convincing mosaic of ” preface—that is, in essence, just a restatement of
What accounts, then, for the convincing-mosaic standard’s failure to launch? Well, inertia for starters. By the time the convincing-mosaic option came along, at least as a stand-alone test, parties, courts, and commentators had been debating and applying McDonnell Douglas for decades. Separately, I think the convincing-mosaic framework suffers from a branding problem of sorts, of which its rhetoric is a big part. The informal moniker—“convincing mosaic”—just sounds contrived, and thus sends formalists like me into a dither. It’s also a little misleading: Satisfying the test requires neither “convincing” a reviewing court
In any event, as between the two current contestants, it now strikes me that the convincing-mosaic standard—which I’d be inclined to re-brand as, perhaps, just the “Rule 56” standard, to denude it of its unnecessary ornamentation—comes much closer to capturing the essence of summary judgment than does McDonnell Douglas.
IV
Let me try, in closing, to anticipate and address a few likely objections.
A
First, does any of this really matter? I think it does. We shouldn’t perpetuate the existing regime by dint of its sheer existence. We should strive to get the cases right according to the governing law. And for present purposes, the “governing law” comprises (1) Title VII’s prohibition on employment discrimination perpetrated “because of ” an employee’s protected characteristics,
Moreover, I fear that our increasingly rigid application of McDonnell Douglas may actually be causing us to get cases wrong—in particular, to reject cases at summary judgment that should, under a straightforward application of
B
Second, wouldn’t a wholehearted embrace of the convincing-mosaic framework result in more cases going to trial and thereby overburden already busy district courts? Well, maybe. To the extent that McDonnell Douglas’s judge-created elements and sub-elements are currently causing courts to grant summary judgment in cases where, in
But inasmuch as that’s a problem, courts shouldn’t manufacture or jerry-rig doctrine to fix it. I’ve never thought that judges should decide cases in an effort to drive good outcomes or avoid bad ones, and now’s not the time to start. For good or ill, the facts are (1) that Title VII gives plaintiffs a right to a jury trial in appropriate circumstances, see
C
Finally, isn’t the idea of scrapping McDonnell Douglas in favor of something like the convincing-mosaic standard pretty radical? Not particularly. After all, we’ve been using (or at least incanting)
Interestingly, we borrowed the phrase “convincing mosaic” from the Seventh Circuit. See Smith, 644 F.3d at 1328 (quoting Silverman v. Board of Educ. of Chi., 637 F.3d 729, 734 (7th Cir. 2011)). That court has since (and wisely) jettisoned the “convincing mosaic” label, but not its substance. Instead, it has adopted what it calls a “direct method”—in effect, a merger of our direct-evidence and convincing-mosaic frameworks—which permits an employee to oppose her employer’s summary-judgment motion using any evidence, whether technically direct or circumstantial, so long as it creates a triable issue of discrimination. See Sylvester v. SOS Child.’s Vills. Ill., Inc., 453 F.3d 900, 902–03 (7th Cir. 2006). The court has described its approach in the following terms, which, to me, sound pretty convincing-mosaic-ish:
[The] legal standard . . . is simply 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. 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.”
Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016).
For its part, the D.C. Circuit has likewise taken steps to reorient McDonnell Douglas toward the ultimate question whether the plaintiff has presented a genuine factual dispute about intentional discrimination. By the time the employer files a summary-judgment motion, that court has explained, it “ordinarily will have asserted a legitimate, non-discriminatory reason for the challenged decision” at step two of McDonnell Douglas’s three-step analysis. Brady, 520 F.3d at 493. At that point, the D.C. Circuit continued, “whether the employee actually made out a prima facie case is ‘no longer relevant’ and thus ‘disappear[s]’ and ‘drops out of the picture.’” Id. (quoting Hicks, 509 U.S. at 510–11, and Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)). Rather, the reviewing court then “has before it all the evidence it needs to decide” the ultimate question—namely, “whether the defendant intentionally discriminated against the plaintiff.” Id. at 494 (quoting Aikens, 460 U.S. at 715). So, to avoid any “lingering uncertainty,” the D.C. Circuit concluded by emphasizing that in the mine-run summary-judgment case, where the employer has offered a non-discriminatory reason for its action, a reviewing court “should not . . . decide whether the plaintiff actually made out a prima facie case” under McDonnell Douglas but, rather, should resolve the “central question” whether the “employee [has] produced sufficient evidence for a reasonable jury to find” that “the
All of which is simply to say: It’s not quite as heretical as I once assumed to question whether McDonnell Douglas is the—or even an—appropriate means of deciding Title VII cases at summary judgment. And it wouldn’t be quite as radical as it once seemed to shift the focus away from McDonnell Douglas’s judge made formulation and toward
V
“Wisdom too often never comes, and so one ought not to reject it merely because it comes late.” Henslee v. Union Planters Nat’l Bank & Tr. Co., 335 U.S. 595, 600 (1949) (Frankfurter, J., dissenting). For a while now, I’ve uncritically accepted the McDonnell Douglas framework as the proper means of resolving Title VII cases on summary judgment, and I’ve long scorned the convincing-mosaic standard as a judge-made bypass. I repent. I had it backwards. Whereas McDonnell Douglas masks and muddles the critical
Notes
To be fair, the Court has utilized McDonnell Douglas to evaluate claims under other statutes at summary judgment. None of those decisions, though, has squarely addressed McDonnell Douglas’s consistency (or inconsistency) with
In Lewis, we noted that a Title VII plaintiff can respond to her employer’s summary-judgment motion in “a variety of ways”—“one of which,” we said, “is by navigating the now-familiar three-part burden-shifting framework established by the Supreme Court in McDonnell Douglas,” whose first part, of course, requires the plaintiff to make out a prima facie case of discrimination. Id. at 1217. We further noted the Supreme Court’s repeated directive that one of the ways—seemingly, the presumptive way—that the plaintiff can demonstrate a prima facie case is by satisfying a constituent four step test, one prong of which requires her to show “that she was treated differently from another ‘similarly situated’ individual—in court-speak, a ‘comparator.’” Id. (quoting Burdine, 450 U.S. at 258–59). Faced with an entrenched intra-circuit split, we granted en banc rehearing to answer a discrete question about the proper implementation of that McDonnell-Douglas related “comparator” element: “What standard does the phrase ‘similarly
I stand by Lewis’s answer to that operational question—one of the many such questions that lower courts, including ours, have taken to asking in the wake of McDonnell Douglas. I will confess, though, that the question that we confronted and answered in Lewis now strikes me as awfully weedsy—indicative, I worry, of an analysis that (to continue the botanical metaphor) risks missing the forest for the trees. Rather than getting tangled up in prima facie cases, four-step tests, similarly situated comparators, and the like, I’ve come to believe that we’d be better off cutting straight to the