Female Superintendent's Mixed-Motive Claims Revived

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By Patrick Dorrian

Feb. 22 — A former school superintendent in Georgia who alleges her contract wasn't renewed because of sex bias can go forward with some of her claims under the mixed-motive theory of discrimination, the U.S. Court of Appeals for the Eleventh Circuit ruled Feb. 22 in a case of first impression.

Setting the circuit's framework for analyzing mixed-motive claims based on circumstantial evidence of bias, the appeals court joined the Sixth Circuit in holding that a plaintiff in such cases only needs to show her protected characteristic—here, sex—was a motivating factor in an adverse employment action she experienced.

The court rejected application of the traditional McDonnell Douglas burden-shifting test in such cases, finding that framework—especially its pretext prong—“fatally inconsistent” with the mixed-motive theory because it requires proof of a single “true reason” for the employer's adverse action.

The decision is a tremendously important development for employees, Charles E. Guerrier of plaintiffs' firm Haynes & Haynes P.C. in Birmingham. Ala., told Bloomberg BNA Feb. 22.

In cases in which there's some evidence that more than one factor motivated an employment decision, it should be a lot harder for employers to prevail at summary judgment, and management law firms may be forced to change their focus—particularly their discovery efforts—more toward preparing for trial, he said.

Reed Russell of management-side firm Phelps Dunbar in Tampa, Fla., said the key takeaway from the ruling for employers is that they may need to broaden their investigations of internal bias complaints when there's some indication that more than one factor might have influenced a challenged employment decision.

Under the new standard, employers should “sweep out all of the corners” and not end their investigation of a worker's bias complaint upon identifying a legitimate justification for the employment action, he told Bloomberg BNA Feb. 22.

‘Same Decision' Defense Rejected

Judge Charles R. Wilson said Linda Quigg presented evidence that two of the school board members who voted against renewing her contract—Scott Morgan and Mark Nesmith—had proposed a reorganization plan calling for her to hire a man as assistant superintendent.

They also made various related comments, including regarding the need for gender balance in the school administration, which would enable a jury to find sex bias motivated their votes, Wilson said.

That's enough to raise triable mixed-motive claims against Morgan and Nesmith individually under the Civil Rights Act of 1871 (42 U.S.C. § 1983) and against the Thomas County School District under Section 1983 and Title VII of the 1964 Civil Rights Act, the appeals court ruled, reversing a lower court.

The court, however, upheld summary judgment against Quigg on her Section 1983 mixed-motive claims against the other three school board members who voted not to renew her contract, finding evidence that those board members would have voted the same way regardless of Quigg's sex.

The “same decision” defense is a complete bar to a claim under Section 1983, the court said. By contrast, under Title VII the same-decision defense only bars recovery of money damages and certain equitable relief, the court noted.

It also affirmed the dismissal of Quigg's Title VII retaliation claims against the school district. She argued that she was fired for opposing Morgan and Nesmith's reorganization plan, but she never told the school district or any of the board members that she thought their plan was discriminatory, the court found.

A second retaliation claim based on an ethics complaint the school district filed against Quigg a year after her contract nonrenewal likewise failed, the court added.

The school district had raised the concerns expressed in that complaint to Quigg well before she filed a bias charge with the Equal Employment Opportunity Commission, the ethics complaint wasn't actually filed until five months after Quigg's EEOC charge, and the Georgia Professional Standards Commission found probable cause supporting the ethics complaint, the court said.

Only Eighth Circuit Still Applies McDonnell Douglas

In adopting the Sixth Circuit's mixed-motive standard from White v. Baxter Healthcare Corp., 533 F.3d 381, 103 FEP Cases 1121 (6th Cir. 2008) , the Eleventh Circuit reviewed the evolution of the mixed-motive theory under Title VII, beginning with the U.S. Supreme Court's decision in Price Waterhouse v. Hopkins, 490 U.S. 228, 49 FEP Cases 954 (1989), and the passage of the Civil Rights Act of 1991, through to the justices' ruling in Desert Palace Inc. v. Costa, 539 U.S. 90, 91 FEP Cases 1569 (2003), that direct evidence of discrimination isn't needed to prove mixed-motive bias .

Wilson noted that in addition to the Sixth Circuit, the Second, Third, Fifth and Tenth circuits have all found that mixed-motive claims should be analyzed under a different standard than the McDonnell Douglas framework. The Fourth, Seventh, Ninth and D.C. circuits likewise “do not require the use of the McDonnell Douglas framework in mixed-motive cases involving circumstantial evidence,” he wrote.

Post-Desert Palace, he said, the Eighth Circuit is the only federal appeals court to hold that the McDonnell Douglas test applies in mixed-motive, circumstantial evidence cases.

Guerrier said the ruling here is the first time a panel of the Eleventh Circuit has reviewed the history of mixed-motive claims “and tried to understand where we are under Title VII.” The panel found that the law has changed significantly, he said.

Up until now, employers in the Eleventh Circuit typically have come up with a list of reasons to justify their employment actions and plaintiffs have been required to refute each of the reasons in order to survive summary judgment. That was a very difficult proof standard for employees to overcome, but under the mixed-motive test adopted here, more cases should make it to a jury, he said.

The decision also may make employers less inclined to pursue summary judgment where there's evidence of multiple motives, he added. It's expensive to prepare a summary judgment motion, and management may find in such cases that it's a better use of resources to prepare the case for trial rather than for summary judgment, Guerrier said.

There also may be more instances of judges cracking down on employers who seek summary judgment where the evidence indicates it's really not viable to do so, he said.

But Russell said it's unclear “how impactful” the Eleventh Circuit's decision will prove to be.

He said by rejecting Quigg's contention that Morgan's and Nesmith's remarks constituted direct proof of sex bias, the court kept the bar pretty high for establishing a direct evidence case. Moreover, the Eleventh Circuit may require proof of remarks similar to those attributed to Morgan and Nesmith in order to trigger the mixed-motive analysis it adopted today, Russell said.

Judges William H. Pryor and Ronald Lee Gilman joined the opinion.

Parks Chesin & Walbert P.C. and William Tinkler Jr. P.C. represented Quigg. Gregory Doyle Calhoun & Rogers LLC represented the school district. Coleman Talley LLP represented the individual defendants.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com