The U.S. Court of Appeals for the Eleventh Circuit has spoken, and employers that once relied exclusively on McDonnell Douglas might need to rethink their litigation strategy in employment-discrimination cases.

On December 12, 2023, in Tynes v. Florida Department of Juvenile Justice, No. 21-13245 (11th Cir. Dec. 12, 2023), the Eleventh Circuit confirmed that McDonnell Douglas is not the be-all and end-all for Title VII cases and that the decades-long evidentiary framework is not a set of elements a plaintiff must prove to survive summary judgment or prevail at trial.  Rather, “the ultimate question in [a Title VII] discrimination case is whether there is enough evidence to show that the reason for an adverse employment action was illegal discrimination,” and McDonnell Douglas is just one way to make this showing. By resolving the “all-too-common” misunderstandings about McDonnell Douglas, Tynes provides insight into how employers should view and litigate federal discrimination cases in the Eleventh Circuit.

McDonnell Douglas & the Convincing-Mosaic Frameworks   

In McDonnell Douglas, the Supreme Court created a three-step burden-shifting framework designed to draw out the necessary evidence in employment-discrimination claims.  Under this framework, if a plaintiff can successfully establish a prima facie case by proving (1) “she belongs to a protected class;” (2) “she was subjected to an adverse employment action;” (3) “she was qualified to perform the job in question;” and (4) “her employer treated ‘similarly situated’ employees outside her class more favorably,” the plaintiff is entitled to a rebuttable presumption of intentional discrimination.  The defendant then has the burden of articulating a valid, non-discriminatory reason for the adverse employment action.  Once that reason is provided, the presumption is rebutted, and the plaintiff must show not only that the employer’s justification was pretextual but that the real reason for the adverse employment action was discrimination.

Over time, McDonnell Douglas became ubiquitous in Title VII cases, and its legacy carried on to cases under the Americans with Disabilities Act and the Age Discrimination in Employment Act, as well as state statutes mirroring Title VII.  Indeed, it has often been viewed as the exclusive framework for such claims, with litigants often relying exclusively on it when seeking summary judgment.  However, courts, including the Eleventh Circuit, have cautioned against this understanding and noted that McDonnell Douglas is “only one method by which [a] plaintiff can prove discrimination by circumstantial evidence.” A plaintiff can also overcome summary judgment by presenting a convincing mosaic of circumstantial evidence that would allow a factfinder to infer intentional discrimination by the decisionmaker. Despite several Eleventh Circuit decisions questioning litigants’ use of McDonnell Douglas, their misunderstandings have persisted – until now. The Tynes decision has put an end to any lingering doubt.

Tynes and the Eleventh Circuit’s Decision

In Tynes, the plaintiff was a detention center superintendent with the Florida Department of Juvenile Justice. One day, while the plaintiff was on medical leave, the detention center experienced an unusually high number of incidents that required an officer to call for back up.  As a result, Florida’s assistant secretary of detention services called for a review of staffing and personnel issues at the detention center.  After the team’s review was complete—but before its report was issued—the assistant secretary terminated the plaintiff’s employment, citing poor performance, negligence, inefficiency or inability to perform assigned duties, violation of law or agency rules, conduct unbecoming of a public employee, and misconduct.  The plaintiff, a 16-year employee of the Department with no prior discipline, filed a lawsuit in the Southern District of Florida alleging race and sex discrimination.

Ultimately, the jury found in the plaintiff’s favor, and the Department filed a renewed motion for judgment as a matter of law, or alternatively, for a new trial.  In its motion, the Department argued the plaintiff failed to present proper comparators who were “similarly situated in all material respects” and, therefore, failed to establish a prima facie case under McDonnell Douglas.

The district court denied the Department’s motion, and the matter eventually reached the Eleventh Circuit.  On appeal, the Eleventh Circuit affirmed the district court’s ruling, holding that a “plaintiff’s failure to produce a comparator does not necessarily doom the plaintiff’s case.”  In so finding, the court noted that McDonnell Douglas has been largely misunderstood as a strict elemental framework that must be established in every discrimination case, where, under the court’s view, McDonnell Douglas is merely an “evidentiary tool that functions as a ‘procedural device, designed only to establish an order of proof and production[;]’” it is not an “independent standard of liability.”  A plaintiff who cannot satisfy the McDonnell Douglas framework can still prove her case by presenting a “convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination by the decisionmaker.” 

What Should Employers Expect After Tynes?

Following Tynes, in evaluating the likelihood of success in discrimination claims, employers in the Eleventh Circuit must not focus exclusively on whether an employee will be able to meet the strict evidentiary framework set forth in McDonnell Douglas.  Instead, employers should consider the totality of the circumstances and ask themselves whether the events leading up to the adverse employment action are such that a reasonable fact finder might conclude discrimination was at play.  Employers should expect plaintiffs will begin to rely more heavily on the “convincing mosaic” test as an alternative to overcome summary judgment and reach a jury.  As a result, caselaw regarding the convincing mosaic test, which has lived largely in the shadows of McDonnell Douglas, will take on a more prominent role, with future decisions further refining what is required under this alternative test.

Tynes comes at a time when the Supreme Court is expected to redefine what it means for an employment action to be “adverse” under Title VII.  Employers should expect an uptick in litigation, and more than ever, should carefully analyze any employment decisions and consult with counsel to ensure proper risk mitigation.  But employers need not despair.  Tynes recognizes that “a failure in the prima facie case often … reflects a failure of the overall evidence.”  Thus, comparator evidence (or the lack thereof) remains relevant when analyzing discrimination claims.