Heyl Royster

Direct-Indirect Test Eliminated by Seventh Circuit

october 4, 2016

By: Doug Heise

On August 19, 2016, the Seventh Circuit overruled over a dozen of its previous employment law decisions in Ortiz v. Werner Enterprises, Inc., No. 15-2574 2016 U.S. App. LEXIS 15284 (7th Cir. Aug. 19, 2016), by eliminating the requirement that plaintiff’s prove discrimination through either “direct” or “indirect” evidence to establish a “convincing mosaic of discrimination.”

Mr. Ortiz was a freight broker for Werner Enterprises, Inc. Werner is a shipping company that also offers freight brokerage: customers pay a fee and Werner finds transportation for their loads. Ortiz was a regional broker that was required to match every load in his region to a carrier whether the load would generate a profit or a loss. He was assigned to the West region which was not a lucrative region in late spring when transporting produce drove carrier’s rates up due to high demand. In June, 2012, Krikava, the branch’s assistant manager, booked or directed another broker to book six unprofitable loads in Ortiz’s name. Krikava did not notify Ortiz of any of these unprofitable transactions. When Ortiz learned of these hauls, it was too late to change to a cheaper carrier. Ortiz later changed the records to show that he did not book the loads or to show lower rates that he thought the carriers had agreed to charge. He then left for a planned vacation. He returned to learn that he had been fired for allegedly falsifying records.

During discovery, Ortiz produced testimony from other brokers and managers would notify one another when booking an unprofitable load in someone else’s name and that it was atypical for someone else to book so many unprofitable loads without so much as a courtesy email or phone call. When Ortiz questioned Krikava about the unprofitable loads he refused to answer until saying: “Why won’t you just quit already?” Ortiz, 2016 U.S. LEXIS 15284, *4. Ortiz produced evidence that he updated 3 records to reflect that he had spoken with three carriers that had accepted lower rates because they had not picked up the goods on time. He argued that this represented standard practice in the industry. Other brokers offered similar testimony. As to the other three loads, Ortiz provided evidence that branch managers allowed brokers to delete their names from unprofitable loads, a process other brokers described as “spacing,” as in sending the unprofitable load into cyberspace.

Ortiz was fired by his branch manager, Kip Lass. Lass would not listen to Ortiz’s explanations as to the six loads and the allegation of falsifying records.

Ortiz also provided his testimony, and the testimony of others, that Krikava and Lass directed ethnic slurs at Ortiz frequently using such slurs as “beaner,” “taco eater,” “f’ing beaner,” “dumb Mexican,” and many other epithets. This was not enough for Ortiz to survive summary judgment in the district court. The judge looked at the evidence through the “direct” and “indirect” methods often used in employment-discrimination cases. Admissions of culpability and smoking gun evidence were considered “direct” evidence. None was found. Evidence of suspicious circumstances that can allow for an inference of discrimination was considered “indirect” evidence. The 7th Circuit noted that the district court did not try to aggregate the evidence to find an overall likelihood of discrimination.

In reversing the summary judgment, the 7th Circuit criticized the district courts for trying to shoehorn all evidence into two “methods” then insisting that that either method be implemented by looking for a “convincing mosaic.” This, held the court, detracted from the question that matters: whether a reasonable juror could conclude that Ortiz would have kept his job if he had a different ethnicity, and everything else had remained the same. “The use of disparate methods and the search for elusive mosaics has complicated and sidetracked employment-discrimination litigation for many years. …The time has come to jettison these diversions and refocus analysis on the substantive legal issue.” Id. at *8.The court explained that the “convincing mosaic” phrase was designed as a metaphor to illustrate why courts should not try to differentiate between direct and indirect evidence. All evidence should be considered together to the pattern it reveals. The court admitted it, too, occasionally treated “convincing mosaic” as a legal requirement, even while cautioning in other opinions that it must not be so understood. The “mosaic” metaphor, the court noted, had produced a form of legal kudzu. It overruled a list of cases that had used “convincing mosaic” as a governing legal standard.

In assessing an employment-discrimination case, the legal standard is simply whether the evidence would permit a reasonable fact finder 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 piece of evidence proves the case by itself -or whether just the direct evidence does so or the indirect evidence. Evidence said the court, is evidence.

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