Evidence is Evidence:  Ortiz Clears the “Legal Kudzu” in Employment Discrimination Cases

By Laurie Martin, Hoover Hull Turner LLP

The Seventh Circuit has definitively clarified that establishing a “convincing mosaic of evidence” is not a legal standard a plaintiff must satisfy to survive summary judgment on a Title VII claim.  Ortiz v. Werner Enterprises, Inc., — F.3d — No. 15-2574, 2016 WL 441434 at *3 (7th Cir. August 19, 2016) (Easterbook, Posner, Hamilton, JJ.).  The court simultaneously rejected an analysis that focuses on categorizing evidence as either “direct” or “indirect” and analyzing each differently.  Rather, Judge Easterbrook’s opinion instructed that the analysis must focus on the evidence as a whole and the key question:  Whether a reasonable juror could conclude that the plaintiff would have kept his job if he had a different ethnicity, and everything else had remained the same.

That legal standard, to repeat what we wrote in Achor and many later cases, 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.” Id. at *4.

The court reversed two lines of cases to the extent those cases characterized “convincing mosaic” or “direct” or “indirect” evidence standards as a tests that must be satisfied, but made clear that it was “not saying that any of these decisions produced a victory for the wrong litigant.”  Id. at *4 -*5.  The burden shifting framework set forth in McDonnell Douglas remains intact.

The Seventh Circuit clarified this standard in an opinion reversing summary judgment for an employer.  The factual record included evidence that plaintiff’s bosses subjected him to a “barrage” of ethnic slurs of increasing frequency and intensity, and multiple co-workers of plaintiff’s offered evidence that the conduct for which Plaintiff was terminated was tolerated in others.  Id. at *1-*2.

The Seventh Circuit clearly expects district courts to engage in this “unified inquiry” going forward, but attorneys and commentators are not unified in their views on the potential impact of the Seventh Circuit’s decision.  Is this a game changer?  Will it make it harder for employers to obtain summary judgment?  Is it just different wording for essentially the same analysis?  These questions may not be answered in the immediate future.  In the short term, employment attorneys should take care to incorporate this clarified legal standard, updated case citations, and argument framework into their summary judgment briefing and continue to monitor for further developments from the Seventh Circuit.