For the unfamiliar, the McDonnell Douglas test is an evidentiary framework used in discrimination cases, which lack direct evidence of discrimination, to determine whether an employee’s claim should survive summary judgment and proceed to trial. (For the familiar, skip down the next paragraph.) It first asks whether the plaintiff can establish a prima facie case of discrimination—(i) s/he belongs to a protected class; (ii) s/he was qualified for the position; (iii) though qualified, s/he suffered some adverse action; and (iv) the employer treated similarly situated people outside of his/her protected class differently. If the plaintiff satisfies this showing, the burden shifts to the employer to articulate a legitimate non-discriminatory reason for the adverse action. Once the employer makes this articulation, the burden shifts again, back to the plaintiff to show that the employer’s reason is a pretext for discrimination. This test is engrained in the hearts and minds of anyone who practices employment litigation.
Early this month, in Coleman v. Donahoe, the 7th Circuit (albeit in a concurring opinion), asked whether the McDonnell Douglas test still has any utility:
Perhaps McDonnell Douglas was necessary nearly 40 years ago, when Title VII litigation was still relatively new in the federal courts. By now, however, … the various tests that we insist lawyers use have lost their utility. Courts manage tort litigation every day without the ins and outs of these methods of proof, and I see no reason why employment discrimination litigation (including cases alleging retaliation) could not be handled in the same straightforward way. In order to defeat summary judgment, the plaintiff one way or the other must present evidence showing that she is in a class protected by the statute, that she suffered the requisite adverse action (depending on her theory), and that a rational jury could conclude that the employer took that adverse action on account of her protected class, not for any non-invidious reason. Put differently, it seems to me that the time has come to collapse all these tests into one.
Yesterday, the 6th Circuit, in Donald v. Sybra, Inc. [pdf], helped prove the 7th Circuit’s point. Sybra, which owns Arby’s franchises, terminated Gwendolyn Donald’s employment after it concluded she had been intentionally mis-ringing customer orders to steal from her cash register. Among other issues, she claimed that Sybra terminated her employment both in retaliation for, and to interfere with, her rights under the FMLA. After concluding that the McDonnell Douglas framework applied to both her retaliation and interference claims, the court ignored McDonnell Douglas, and affirmed the district court’s grant of summary judgment to the employer:
The district court effectively gave Donald the benefit of the doubt and assumed that she could establish both prima facie cases. This boon notwithstanding, the district court determined that Donald produced insufficient evidence to prove that Sybra’s stated reasons, cash register and order irregularities, were pretextual….
Donald’s claims fundamentally rest on the timing of Sybra’s decision to terminate her employment [the day after she returned from her FMLA leave], which, we admit, gives us pause. But that alone is not enough, and her other arguments are no more persuasive. Whether Sybra followed its own protocol, or its decision not to prosecute Donald, or even Donald’s history of employment, provides neither us, nor a rational juror, with a basis to believe that Sybra’s decision was improper. The district court therefore correctly dismissed Donald’s FMLA claims.
If courts skip the first two steps of the McDonnell Douglas test and go right to the heart of the matter—whether a rational jury could conclude that the employer took that adverse action on account of her protected class—does it make sense to continue the charade of pretending that McDonnell Douglas remains useful? As a management-side litigator, I like the ability to have more than one evidentiary bite at the apple in trying to get a case dismissed on summary judgment. As a pragmatist, however, I’m afraid that the concurring opinion in Coleman v. Donahoe might be correct, that “the time has come to collapse all these tests into one.”