Second Circuit clarifies how to win a mixed-motive case under Title VII

For now, this is the most significant employment discrimination case of the year from the Second Circuit, which clarifies what it takes for Title VII plaintiffs to win their cases. The Court holds that the district court improperly granted summary judgment for the employer where (1) the record revealed some performance deficiencies but (2) a manager who played an important role in plaintiff's termination said that women were not suited to hold her position.

The case is Bart v. Golub Corp., issued on March 26. Plaintiff was a supermarket manager who worked in the deli and was admonished for failure to maintain food logs, for which she admitted responsibility in August 2016. In summer 2017, plaintiff was transferred to a new location, where her manager, Pappas, called one of her female coworkers a "ding dong," said another woman "shouldn't have a job," and called yet another female employee an "idiot." Apart from these rude comments, Pappas said "he didn't think women should be managers" and that being a manager was too "stressful" for women and that women were "too sensitive to be managers." That comments was made in June 2018. That year, plaintiff was frequently disciplined for poor performance. Plaintiff admitted some of the performance criticisms were true. She was ultimately fired.

What do we do with a case like this? On one hand, Pappas made some blatantly sexist comments about plaintiff's ability to perform her duties as manager. But we also have job performance issues. The district court granted defendant's motion for summary judgment on the basis of plaintiff's admissions "that the reason provided for her termination are factually accurate and valid under Defendant's policies and procedures." As the district court held these admissions were "dispositive of the pretext issue," her case was dismissed.

The Court of Appeals reverses and the case returns to the docket for trial. The Court reviews its precedents since the 1990's on pretext and direct evidence, noting that the cases are not always clear about when cases like this should go to trial. Normally, without direct evidence, plaintiffs use the McDonnell Douglas burden-shifting model, requiring them to prove the defendant's articulated reason for the adverse action is a pretext, or bad faith excuse. But the Second Circuit has also said, notably in Henry v. Wyeth Pharmaceuticals, Inc., 616 F.3d 134 (2d Cir. 2010), that a plaintiff is not required to prove the employer's articulated reason is false, and that the the plaintiff can prevail by showing that an unlawful factor (like sex, race, etc.) was a motivating factor, even "without proving that the employer's proffered explanation was not some part of the employer's motivation." 

Another puzzle followed the 1991 amendments to Title VII, which incorporated a motivating-factor causation standard, abandoning the "but-for" test that the Supreme Court had adopted a few years earlier. Even after 1991, "it became unclear whether mixed-motive cases should be analyzed under McDonnell Douglas. "The chasm between mixed-motives and single-motive cases persisted.," and the Second Circuit responded to the 1991 amendments by "applying different standards in mixed-motive and single-motive cases," though that distinction seemed to fall away over time, especially following the Supreme Court's ruling in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), which said direct evidence is not required to win a mixed-motive case.

What it all means is as follows: "a Title VII plaintiff need not prove that the employer's stated reason was false. A plaintiff instead need only show that the employer's stated reason -- even if true or factually accurate -- was not the 'real reason,' in the sense that it was not the entire reason due to a coexisting impermissible consideration." (Emphasis in original). In the end, the plaintiff must show that "the defendant's employment decision was more likely than not based in whole or in part on discrimination." A strong prima facie case may be enough to win the case, the Second Circuit (Nardini, Kearse and Lynch) adds. In sum, the Court says:

To satisfy the third-stage burden under McDonnell Douglas and survive summary judgment in a Title VII disparate treatment case, a plaintiff may, but need not, show that the employer’s stated reason was false, and merely a pretext for discrimination; a plaintiff may also satisfy this burden by producing other evidence indicating that the employer’s adverse action was motivated at least in part by the plaintiff’s membership in a protected class.

The plaintiff in this case benefits from this clarification. While the employer may have told the truth about plaintiff's performance deficiencies, there is also direct evidence of discriminatory intent -- Pappas's sexist comments about plaintiff's ability to perform as a manager. As the actor most involved her termination, Pappas's gender-based bias cannot be ignored. The Court reminds us in a footnote that, even if the ultimate decisionmaker did not harbor any discriminatory intent, the plaintiff can win if a sexist manager played a meaningful role in her termination. Summary judgment is therefore reversed for the following reason:

Bart testified that Pappas made several remarks to her, including close in time to the firing insinuating that he believed that a man would perform better in Bart’s role than a woman would. Pappas’s comments are therefore not “stray remarks” insufficiently tied to the adverse action as to lack probative value. Instead, “[t]he comments alleged were (1) made repeatedly, (2) drew a direct link between gender stereotypes and the conclusion that [Bart is ill-suited for her position as a manager], and (3) were made by [a] supervisor[] who played a substantial role in the decision to terminate [Bart]. As such, they are sufficient to support a finding of discriminatory motive.”