The recent decision of the 11thCircuit Court of Appeals in Lewis v. Union City departs from long-standing Supreme Court precedent, with the result that it is harder to get discrimination cases decided by juries.
This 100-page opinion raises two important issues. This blog post will focus on the first issue– how the majority has raised the bar for a “prima facie” case that can be decided by a jury and our next blog post will focus on how the Court’s majority is making it harder to use evidence of comparable employees who have been treated more favorably.
Union City, Georgia, is a suburb of Atlanta with about 20,000 mostly Black residents. In 2001, the Police Department there hired Jacqueline Lewis, an African-American woman, as a patrol officer. In 2009, as a detective, Lewis suffered a heart attack but was cleared to return to work without any restrictions in 2010.
That same year, then-Police Chief Charles Odom decided that as part of Taser training, every officer had to receive a five-second Taser shock. This exercise was supposed to convince officers that a Taser shock is survivable, and provide them with a basis to testify about the effects of a Taser, In fact, Tasers can cause fatal injuries, including cardiac arrests, and fires. Amnesty International has listed over 500 deaths after Taser use.
Lewis’ doctor wrote that her exposure to a Taser or even pepper spray was not recommended due to “several chronic conditions including a heart condition.” Chief Odom responded by placing Lewis on unpaid leave until she was released to “return to full and active duty.” When Lewis exhausted her accrued leave, Chief Odom fired her.
Lewis sued, claiming discrimination. She noted that at least two white men, Sergeant Cliff McClure and Officer Walker Heard, were given 90 days of unpaid administrative leave to meet physical requirements.
On Union City’s motion for summary judgment, the trial judge ruled in favor of the City, saying that McClure and Heard were not “comparators,” i.e. their circumstances were not similar to Lewis. The initial three-judge panel of the 11th Circuit disagreed. In a 2-1 decision, the panel said she should get a trial where a jury could decide if Union City had discriminated against her. The other judges of the court, however, decided to take up the case en banc and vacated the panel’s decision.
A party is entitled to a trial only if important facts are in dispute; if the important facts are not in dispute, there is no need for a trial and the claim can be decided on “summary judgment,” based on the parties’ arguments. To survive summary judgment, a plaintiff alleging intentional discrimination must present sufficient facts to permit a jury to rule in her favor. Most cases do not involve direct evidence of discrimination, for example statements revealing a supervisor’s bias. Instead, these cases can be decided from circumstantial evidence using the burden-shifting framework set out in McDonnell Douglas. In that case, which involved the failure to hire an applicant, the Supreme Court held that he had the initial burden of establishing a “prima facie case” of discrimination by showing (i) he belongs to a protected class; (ii) he applied and was qualified for a job the employer was trying to fill; (iii) though qualified, he was rejected; and (iv) thereafter the employer continued to seek applicants with his qualifications. An employee who establishes a prima facie case does not automatically win, but if she cannot meet that burden she is almost certain to lose.
The elements of a “prima facie case” have varied depending on the type of claim and the circumstances. According to the 11th Circuit, Lewis had to show: (1) that she belongs to a protected class, (2) that she was subjected to an adverse employment action, (3) that she was qualified to perform the job in question, and (4) that her employer treated “similarly situated” employees outside her class more favorably. If Lewis could make that showing, the burden would shift to Union City to articulate a legitimate, nondiscriminatory reason for its actions. Importantly, though, if Lewis could not make that showing, the case was over.
The judges on the 11thCircuit disagreed about the plaintiff’s need for comparator evidence in order to make out a prima facie case. The majority held that the McDonnell Douglas paradigm has always required the plaintiff to have comparator evidence as part of her prima facie case. As shown above, however, the Supreme Court did not require evidence of similarly situated comparators in McDonnell Douglas itself. (It was sufficient that McDonnell Douglas continued to search for other qualified applicants after it had declined to hire Green.)
The question raised in Lewis is more than hypothetical. The Supreme Court has made clear that the plaintiff’s initial burden, “is not onerous.” Tex. Dep’t of Cmty. Affairs v. Burdine(1981). In fact, it is “minimal” and a plaintiff needs to make only a generalized showing of the elements. St. Mary’s Honor Ctr. v. Hicks(1993). This burden is deliberately light because the employee typically lacks the information necessary to prove why her employer did or didn’t make a particular decision. If the employee succeeds in establishing a prima facie case, the employer has to explain its decision and the jury gets to decide which version is more likely to be true. If, however, the court increases what the plaintiff must demonstrate in order to create a prima facie case, the employer is never called upon to explain its decision and the jury never gets to decide,
The 11th Circuit majority held that its standard “serves the interest of sound judicial administration by allowing for summary judgment in appropriate cases–namely, where the comparators are simply too dissimilar to permit a valid inference that invidious discrimination is afoot.” That is not the point.
In Furnco Constr. Corp. v. Waters(1978) the Court explained that McDonnell Douglas was “never intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination.”
In Lewis,the 11th Circuit has created a new standard for discrimination cases, increasing the burden of the specificity at the prima facie stage, while ignoring Supreme Court precedent and making it easier for judges to block cases from ever getting to a jury.
In our next blog about Lewis, we take a close look at its new standard for comparator evidence, requiring that they be similar “in all material respects.”
The case is Lewis v. City of Union City, Georgia, No. 15-11362, 2019 WL 1285058 (11th Cir. Mar. 21, 2019).