“Direct,” “Indirect,” and “Convincing Mosaic”: The Four Forbidden Words in Seventh Circuit Employment Discrimination Cases
The Seventh Circuit’s recent decision in Ortiz v. Werner Enterprises1 is the source of the title of this Article. Ortiz held that the evidentiary tests using the quoted words in deciding prior employment discrimination cases are no longer appropriate. Before addressing the Seventh Circuit’s treatment of these problematic words, however, a quick review of the burden of proof in employment discrimination cases under Title VII will be helpful.
Under the McDonnell Douglas Corp. v. Green2 framework,3 the plaintiff in an employment discrimination case bears the burden to produce evidence sufficient to support a finding that: (1) the person is a member of a protected class; (2) the person was meeting the employer’s legitimate expectations; (3) the person suffered an adverse employment action; and (4) similarly situated employees who were not members of the protected class were treated more favorably. If the plaintiff establishes those elements, the employer must then articulate legitimate and nondiscriminatory reasons for the allegedly discriminatory action. If that happens, the burden then shifts back to the plaintiff to show that the employer’s proffered reasons were mere pretext for its discriminatory motives. Pretext “means a dishonest explanation, a lie rather than an oddity or an error.”4
Because of confusion over who had the burden of production, the burden of proof, and what was considered to be proof, the Seventh Circuit in Ortiz did away with the evidentiary tests that the courts in the circuit had been using based on so-called “direct” and “indirect” evidence and a “convincing mosaic.” In making this change, however, the Ortiz court stated as follows:
One point of clarification may be helpful. The burden-shifting framework created by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), sometimes is referred to as an “indirect” means of proving employment discrimination. Today’s decision does not concern McDonnell Douglas or any other burden-shifting framework, no matter what it is called as a shorthand.5
The McDonnell Douglas method is not the only method to assess circumstantial evidence in employment discrimination cases. In deciding a summary judgment motion, for example, the question is whether the non-moving party has produced sufficient evident to support a jury finding of intentional discrimination. This method also remains viable after the Ortiz decision.6
While the McDonnell Douglas method has to do with the burden of proof concept, the Seventh Circuit was concerned that in employment discrimination cases, trial courts often looked at the evidence as either “direct” or “indirect.” “Admissions of culpability and smoking-gun evidence were assigned to the ‘direct’ method … while suspicious circumstances that might allow an inference of discrimination were assigned to the ‘indirect’ method.” 7 In assessing this evidence using these methods, the Ortiz court’s criticism was that the district “court did not try to aggregate the possibilities to find an overall likelihood of discrimination,” as it should have.8
In a prior attempt to eliminate the distinction between “direct” and “indirect” evidence, the Seventh Circuit, in Sylvester v. SOS Children’s Villages of Illinois, Inc., had come up with a concept called the “convincing mosaic.” The idea was that, like a visual piece of art that is made up of little pieces, a plaintiff in a discrimination suit could combine pieces of evidence to prove discrimination.9 The concept was meant to help people understand the process, but never to be a standard of proof.10 However, the Ortiz court found that using the disparate methods and the mosaic had complicated employment discrimination litigation, and decided that “[t]he time [had] come to jettison these diversions and refocus analysis on the substantive legal issue.”11
To do this, the Ortiz court overruled previous opinions to the extent those opinions relied on the “convincing mosaic” as the governing legal standard.12 The court went on to emphasize that it was not holding that the cases were wrongly decided; the court’s only concern was putting a stop to the use of the “convincing mosaic” as a legal test.
Warning to District Courts
To emphasize that “convincing mosaic” is no longer part of employment discrimination law in the Seventh Circuit, the Ortiz court said, “From now on, any decision of a district court that treats this phrase as a legal requirement in an employmentdiscrimination case is subject to summary reversal, so that the district court can evaluate the evidence under the correct standard.”13
The Correct Legal Test Is Still Not the “Direct” or “Indirect” Evidence Test, Either.
In putting an end to the “convincing mosaic,” the Seventh Circuit in Ortiz also repeated what it had written in prior cases, such as Sylvester, that the test 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.”14
Once again, the court overruled portions of cases that used the “direct” and “indirect” framework, while at the same time reiterating its position that it was not changing the results of those prior decisions.15 Because Ortiz overruled two lines of cases, the opinion was circulated to all judges in active service, and no judge favored a hearing en banc.
Counsel practicing in employment discrimination would be well-advised to carefully study the Ortiz decision, as it is now the law in the Seventh Circuit. Indeed, the Ortiz decision has already been the basis for a summary judgment decision in the Western District of Wisconsin.16
Impact on Lawyers
Before Ortiz, it would be fair to say that lawyers, and probably some judges, looked at the lack of so-called “direct evidence” in an employment discrimination case to mean that the plaintiff did not have the strongest case of discrimination. This left the plaintiff turning to so-called “indirect” evidence, or weak evidence, in trying to put together enough evidence to convince the trier-of-fact. Defense attorneys, among other things, would argue that the lack of “direct” evidence showed that the other evidence put forward by the plaintiff was not that reliable.
For example, often a plaintiff would put forward as evidence the fact that the employer took an adverse action after the plaintiff undertook a protected activity. This temporal relationship, without more, was considered a type of weak evidence, or “indirect evidence.” “But it is well established that ‘mere temporal proximity between [the statutorily protected activity] and the action alleged to have been taken in retaliation for that [activity] will rarely be sufficient in and of itself to create a triable issue.’”17
In this circumstance, a defendant would try to show the weakness of each piece of “indirect” evidence, that the various employer actions were isolated from each other, and that, once each item of “indirect” evidence was thrown out, there was nothing left to prove discrimination.
The Ortiz court rejected these efforts to characterize evidence as “direct” or “indirect,” holding instead that “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.’”18 A few paragraphs later, the court said “all evidence belongs in a single pile and must be evaluated as a whole.”19
Despite its elimination of the “convincing mosaic” and the distinction between “direct” and “indirect” evidence, the Ortiz decision still leaves a number of unanswered questions. For example, can each piece of evidence be evaluated separately anymore? And, if so, when the evaluation is done, is the evidence pulled from or kept in the “pile?” Further, does the amount and “relevancy” of the evidence in the “pile” in and of itself determine the end result? Is the lack of a “smoking gun” to be considered “relevant” evidence, or even evidence at all? And, if the evidence is part of the “pile,” how is that evaluated or valued against the other evidence?
As the court said, “with the rat’s nest of the surplus ‘test’ removed from the law of the circuit, our analysis [of an employment discrimination case] is straightforward.”20 It will now be interesting to see if the court’s decision accomplishes its goal or simply creates another “nest,” or “pile,” to be cleaned up in the future. It will also be interesting to see whether Wisconsin’s Equal Rights Division or our state courts will adopt this new analysis.21
David R. Friedman is a solo practitioner in Madison who has been working with Wisconsin public schools and private employers on labor and employment law matters since 1973. He has made presentations on labor and employment law topics to the National Association of School Boards, NSBA’s Council of School Attorneys, Education Law Association, Wisconsin School Attorneys Association, State Bar of Wisconsin, and National Business Institute. For a number of years, he taught a course in collective bargaining and contract administration as an adjunct professor at the University of Wisconsin- Madison School of Education and at the University of Wisconsin-Whitewater in its School Business Manager program. David is listed in Best Lawyers in America® and also as a Wisconsin Super Lawyer. He is a member of WDC’s newly formed Employment Law Committee.
1 834 F. 3d 760 (7th Cir. 2016).
2 411 U.S. 792 (1973).
3 See Madlock v. WEC Energy Grp. Inc., No. 16-CV-332- JPS, 2017 U.S. Dist. LEXIS 5358, at *14-16 (E.D. Wis. Jan. 13, 2017) (unpublished decision).
4 Kulumani v. Blue Cross Blue Shield Ass’n., 224 F.3d 681, 685 (7th Cir. 2000).
5 Ortiz, 834 F.3d at 766.
6 See Celeste David v. Board of Trustees of Community College District No. 508, ___ F.3d ___ (7th Cir. 2017) (decided January 13, 2017).
7 Ortiz, 834 F.3d at 763.
9 Sylvester v. SOS Children’s Villages of Ill., Inc., 453 F.3d 900, 903 (7th Cir. 2006).
10 Ortiz, 834 F.3d at 764.
12 Hatcher v. Board of Trustees of Southern Illinois University, 829 F.3d 53 (7th Cir. 2016); Chaib v. State, 744 F.3d 974, 981 (7th Cir. 2014); Cloe v. Indianapolis, 712 F.3d 1171, 1180 (7th Cir. 2013); Smith v. Bray, 681 F.3d 888, 901 (7th Cir. 2012); Good v. Univ. of Chi. Med. Ctr., 673 F.3d 670, 674 (7th Cir. 2012); Silverman v. Board of Education of Chicago, 637 F.3d 729, 734 (7th Cir. 2011); Phelan v. Cook County, 463 F.3d 773, 779 (7th Cir. 2006); Koszola v. Board of Education of Chicago, 385 F.3d 1104, 1109 (7th Cir. 2004); Rhodes v. Illinois Dep’t of Transp., 359 F.3d 498, 504 (7th Cir. 2004); Cerutti v. BASF Corp., 349 F.3d 1055, 1061 (7th Cir. 2003); Robin v. Espo Engineering Corp., 200 F.3d 1081, 1088-89 (7th Cir. 2000).
13 Ortiz, 834 F.3d at 765.
15 Andrews v. CBOCS West, Inc., 743 F.3d 230 (7th Cir. 2014); Silverman v. Bd. of Ed. of Chi., 637 F.3d 729 (7th Cir. 2011); Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487 (7th Cir. 2007); Rhodes, 359 F.3d 498; Haywood v. Lucent Technologies, Inc., 323 F.3d 524 (7th Cir. 2003); Oest v. Illinois Department of Corrections, 240 F.3d 605 (7th Cir. 2001); Radue v. Kimberly-Clark Corp., 219 F.3d 612 (7th Cir. 2000); Chiaramonte v. Fashion Bed Group, Inc., 129 F.3d 391 (7th Cir. 1997); Mechnig v. Sears, Roebuck & Co., 864 F.2d 1359 (7th Cir. 1988); La Montagne v. American Convenience Products, Inc., 750 F.2d 1405 (7th Cir. 1984).
16 See Balele v. Olmanson, No. 13-cv-783-jdp, 2017 U.S. Dist. LEXIS 3258, at *19 (W.D. Wis. Jan. 10, 2017) (unpublished).
17 Ripberger v. Corizon, Inc., 773 F.3d 871, 883 (7th Cir. 2014) (quoting Stone v. City of Indianapolis Pub. Utils. Div., 281 F.3d 640, 644 (7th Cir. 2002)).
18 Ortiz, 834 F.3d at 765.
19 Id. at 766.
21 Because the question of the order and nature of proof in sex discrimination cases has not been addressed by the Wisconsin Supreme Court, the Wisconsin courts generally, and DILHR consistently, have applied the standards developed by the federal courts in Title VII actions as set forth in McDonnell Douglas. See, e.g., Waukesha Pub. Schools v. DILHR (Coulson) (Dane Co. Cir. Ct., 07/06/78).