Since its 1994, decision in Troupe v. May Department Stores Co., 20 F.3d 734 (7th Cir. 1994), the Seventh Circuit has instructed the district courts within its boundaries (including those in Illinois) to look for evidence that creates “a convincing mosaic of discrimination” in considering summary judgment motions in employment discrimination cases. After more than a decade of inconsistencies and criticisms of this approach, the Seventh Circuit has now abandoned this approach with its decision in the case Ortiz v. Werner Enterprises, Inc., decided August 19, 2016. The Seventh Circuit ruled that the sole test that should be applied in considering summary judgment motions in employment discrimination cases, “is simply whether the evidence would permit a reasonable fact finder to conclude that the Plaintiff’s race, ethnicity, sex, religion or other prescribed factor caused the discharge or other adverse employment action.” The Seventh Circuit’s ruling appears to be an attempt to bring some certainty to the summary judgment process in employment discrimination claims by abandoning the vague and inconsistent “convincing mosaic” approach.
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Werner Enterprises is a shipping company that provides freight brokerage services to its customers. Brokers for Werner would be responsible for finding a carrier for any customer’s load and then putting that shipment into the proprietary system maintained by Werner. Brokers were compensated through a base salary but would also earn a commission if they could generate a profit for Werner, i.e., locating carriers for the load who would charge less than Werner would charge the customer for moving the freight.
Henry Ortiz was employed as one of the brokers for Werner. Given some inequities in its commission system, Werner revamped its process and assigned various brokers to certain regions. Ortiz was assigned to the “West Region,” which may have been less profitable than the other regions due to some region-specific factors.
Ortiz alleged that his branch’s assistant manager would book “unprofitable” loads under his name so that he would be penalized under the commission system. Ortiz claimed that he was not notified of these bookings by the assistant branch manager nor did he have time to locate a cheaper carrier for the booked loads. After he learned about these bookings, he updated the system to either remove his name as being the broker for the unprofitable loads or made notes that the carriers had agreed to cheaper rates. He then left on vacation and when he returned, he was informed that he was being terminated for falsifying Werner’s records.
Ortiz claimed that it was common among Werner’s brokers to notify each other when they were booking “unprofitable loads” in another broker’s name and that they would sometimes remove their names as having booked such loads to avoid being penalized under the commission system. Ortiz also claimed that the assistant branch manager and the branch manager frequently called him racial slurs and that his termination was racially motivated rather than the stated reason for falsifying records.
The district court granted Werner’s motion for summary judgment after applying the “convincing mosaic” approach. Under this approach, the district court was supposed to look at both direct and indirect evidence of discrimination and determine whether Ortiz had produced sufficient evidence to create “a convincing mosaic of discrimination.” In granting Werner’s summary judgment, the district court found that Ortiz had not met his burden and concluded that the link between his termination and the alleged racial epithets by his supervisors were too attenuated.
In abandoning the “convincing mosaic” approach, the Seventh Circuit found that “the use of disparate methods and the search for illusive mosaics has complicated and sidetracked employment-discrimination litigation for many years.” It noted that over the last decade, the Seventh Circuit had repeatedly cautioned and criticized the lower court’s use of this approach, especially those courts that interpreted the Troupe decision to require a new “test” in employment discrimination cases. The Seventh Circuit conclude that the “convincing mosaic” approach “instead of simplifying analysis, [had] produced a form of legal kudzu.” The Seventh Circuit ruled that the “convincing mosaic” is not a legal requirement in employment discrimination cases and overruled all of its prior opinions to the extent that they suggested it as a governing legal standard.
The Seventh Circuit returned to the basic notion that the sole issue to be determined on summary judgment in employment discrimination cases is “whether the evidence would permit a reasonable fact finder to conclude that the plaintiff’s race … or other prescribed factor caused the discharge or other adverse employment action.” The Seventh Circuit cautioned the lower courts to treat all evidence the same, whether it be direct or indirect. The Seventh Circuit also reasoned that abandoning the “convincing mosaic” approach would bring its decisions more in line with the burden-shifting factors set forth in the McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973) case.
In turning to Ortiz’s claims, the Seventh Circuit found that his testimony, plus the deposition testimony of other brokers that they would be provided notice when booking a loss in another broker’s name and that they would sometimes remove their name from unprofitable loads, was sufficient to defeat Werner’s summary judgment motion. The Seventh Circuit held that “a reasonable juror could infer that [Ortiz’s supervisors] didn’t much like Hispanics … and tried to pin heavy losses on Ortiz to force him out the door” and that “a juror also might infer that because of Ortiz’s ethnicity, Werner’s managers fired him for using techniques that were tolerated when practiced by other brokers.” Because of the conflict in evidence presented by Ortiz and Werner, the Seventh Circuit held that summary judgment was improper and Ortiz’s claim should proceed to trial.
It remains to be seen what impact the Ortiz decision will have on employers in the Seventh Circuit in defending against employment discrimination cases. One potential result may be that such litigation becomes more predictable in that the McDonnell-Douglas burden shifting test will likely resume its prominence so that employers can defend such cases accordingly.