The Seventh Circuit in Chicago has issued a remarkable decision,. In Ortiz v. Werner Enterprises, Inc., No. 15-2574, the three judge panel overturned a series of cases regarding a so-called “convincing mosaic” test. The decision starts as a normal three judge panel decision discussing Mr. Ortiz and his summary judgment. The lower court granted summary judgment finding that the evidence did not present a “convincing mosaic” of evidence to suggest discrimination. The lower court parsed the evidence, looking at the evidence separately as a direct evidence case and as a indirect evidence case. The lower court said the plaintiff’s evidence failed under either method of proof.
But, the higher court pointed out that it never intended the “convincing mosaic” test to even be a test. It intended the mosaic rationale to simply explain that all evidence is pertinent and that it was non-sensical to separate evidence into an indirect method of proof and a direct method of proof. “All the evidence,” said the court, “belongs in a single pile and must be evaluated as a whole.” Discrimination cases are inherently complicated. Simplistic rationales do not work.
In the opinion authored by Judge Easterbrook, joined by Posner and Hamilton, they correctly point out that the so-called indirect method of proof, forever enshrined in McDonnell-Douglas, is an artificial construct. The evidence, says the panel, should be reviewed in total. Indeed, in this case, Mr. Ortiz was subjected to the vilest anti-Hispanic slurs possible, “beaner,” “taco eater,” “dumb Mexican,” “Puerto Rican,” etc. The employer claimed he was fired for violating company policies. But, numerous co-workers testified via depositions and declarations that what Mr. Ortiz did was the company norm. And, the employer could not point to a written policy that supported its assertion.
Seriously, one has to wonder how a district court judge could grant summary judgment when the employee presents such clear displays of racial animus. The lower court apparently said the slurs had nothing to do with his discharge. But, one has to wonder how a judge could ever make such determination. If something ever cried out for jury assessment, it would be the use of such slurs.
The higher court, however, had a greater point. The district court should have looked at the evidence in total and not separate the inquiry into a direct evidence type of proof and an indirect type. Indeed, it expressly overruled several panel decisions that has used the “convincing mosaic” test incorrectly. Not being an en banc decision, the panel solicited the opinion of all the judges in active service before issuing the Ortiz decision. Normally, only an en banc court could overrule a panel decisions. The Oritiz court avoided this en banc requirement by soliciting the opinion of all the members of the Seventh Court. That is a remarkable approach. The Seventh Circuit has made a significant step toward clearing up the widespread confusion over the McDonnell-Douglas test. See the decision here.