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MCDONNELL DOUGLAS ALIVE AND WELL

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         MCDONNELL DOUGLAS: ALIVE AND WELL

      Christopher R. Hedican,* Jason M. Hedican,** & Mark P.A.
                             Hudson***



                                           TABLE OF CONTENTS

      I. Introduction ..............................................................................................384
     II. A Brief History of McDonnell Douglas and Proof of
         Discrimination..........................................................................................384
         A. McDonnell Douglas ...........................................................................385
         B. Texas Department of Community Affairs v. Burdine ........................386
         C. United States Postal Service Board of Governors v. Aikens ............387
         D. St. Mary’s Honor Center v. Hicks .....................................................388
         E. Reeves v. Sanderson Plumbing Products, Inc...................................390
    III. Desert Palace, Inc. v. Costa: McDonnell Douglas’s Silent
         Affirmation...............................................................................................392
    IV. What Does Costa Mean for McDonnell Douglas? .................................394
         A. Costa Itself Indicates It Does Not Apply to McDonnell Douglas....395
         B. Costa Is Consistent with McDonnell Douglas ..................................396
         C. The Supreme Court Recognizes McDonnell Douglas’s
             Continued Viability............................................................................399
     V. The Unnecessary and Unauthorized Elimination of the McDonnell
         Douglas Burden-Shifting Paradigm. .......................................................401


      *       Partner, Baird, Holm, McEachen, Pederson, Hamann & Strasheim, L.L.P.; J.D.,
M.B.A., Washington University, 1990; B.S., cum laude, Creighton University, 1986. I want
to thank my parents for providing me with my education.
     **       Partner, Briggs & Morgan, P.A.; J.D., with distinction, University of Iowa
College of Law, 1996; B.A., magna cum laude, St. John’s University, 1993. I want to thank
my parents for my education and my wife, Angela, for her sacrifices and support.
    ***       Associate, Baird, Holm, McEachen, Pederson, Hamann & Strasheim, L.L.P.;
J.D., with high honors, Drake University Law School, 2003; B.A., Cornell College, 1999. I
want to thank my parents for providing me with my education and Lisa for her constant
support and understanding.

                                                        383
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384                                        Drake Law Review                                              [Vol. 52


        A. Dare v. Wal-Mart Stores, Inc.: The Unauthorized Consequence
           of Costa ..............................................................................................404
           1. The Dare II Decision and Its Rationale.......................................405
           2. Dare II’s Analytical Flaws ..........................................................406
        B. Dunbar v. Pepsi-Cola General Bottlers of Iowa, Inc: A More,
           But Not Completely, Accurate Approach .........................................411
   VI. A Brief Response to The Quiet Demise of McDonnell Douglas ............415
   VII. Conclusion................................................................................................422


                                          I.       INTRODUCTION

      On June 9, 2003, the United States Supreme Court held that direct evidence
is not required for a plaintiff to obtain a mixed-motive jury instruction under
Title VII.1 Despite this straightforward holding, some courts and commentators
quickly declared2 that Desert Palace, Inc. v. Costa3 overruled McDonnell
Douglas Corp. v. Green,4 though Costa never so much as mentioned the case.5
In our opinion, Costa did nothing but clarify the quantum of evidence required to
obtain a mixed-motive instruction. We believe that the amendments to the 1991
Civil Rights Act, the numerous Supreme Court decisions interpreting and
applying McDonnell Douglas, and the decision in Costa itself amply demonstrate
that McDonnell Douglas is alive and well.
      We start our analysis in Part II by reviewing the history of McDonnell
Douglas because it illustrates how the scheme works as the backdrop for our
analysis. In Part III, we discuss the essence of Costa. Part IV analyzes what
Costa really means for McDonnell Douglas. Part V critiques the federal courts’
post-Costa decisions. Lastly, Part VI provides a brief response to Professor Van
Detta’s article, which argued that Costa overruled McDonnell Douglas by
implication.6

           II.     A BRIEF HISTORY OF MCDONNELL DOUGLAS AND PROOF OF


      1.       Desert Palace, Inc. v. Costa, 539 U.S. 90, 90 (2003).
      2.       E.g., William R. Corbett, Note, McDonnell Douglas, 1973-2003: May You Rest
in Peace?, 6 U. PA . J. L AB . & E MP . L. 199 (2003); Jeffrey A. Van Detta, “Le roi est mort;
vive le roi!”: An Essay on the Quiet Demise of McDonnell Douglas and the Transformation
of Every Title VII Case After Desert Palace, Inc. v. Costa into a “Mixed-Motives” Case, 52
DRAKE L. REV. 71 (2003).
      3.       Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003).
      4.       McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
      5.       See generally Desert Palace, Inc. v. Costa, 539 U.S. 90.
      6.       Van Detta, supra note 2, at 76.
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2004]                     McDonnell Douglas: Alive and Well                                385


                                     DISCRIMINATION

                                 A. McDonnell Douglas

      Deciding what Costa means must start with a discussion of McDonnell
Douglas itself and the Supreme Court’s subsequent explanations. According to
the Supreme Court, McDonnell Douglas “raise[d] significant questions as to the
proper order and nature of proof in actions under Title VII.”7 The Court decided
to undertake the case because of the “notable lack of harmony” in the opinions of
the lower courts regarding the allocation of burdens.8 Accordingly, it set out the
now famous three-part framework under which employees may prove disparate
treatment discrimination.9 First, the plaintiff must establish a prima facie case of
discrimination.10 Specifically, this burden may be achieved

        by showing (i) that he belongs to a racial minority; (ii) that he applied and
        was qualified for a job for which the employer was seeking applicants; (iii)
        that, despite his qualifications, he was rejected; and (iv) that, after his
        rejection, the position remained open and the employer continued to seek
        applicants from persons of complainant’s qualifications.11

      After the plaintiff has made a prima facie case of discrimination, “the
burden then must shift to the employer to articulate some legitimate,
nondiscriminatory reason for the employee’s rejection.”12 The Court noted,
however, that the proof scheme could not end once an employer provided a
legitimate, nondiscriminatory reason because an employer should not be allowed
to use an otherwise legitimate reason as camouflage for discrimination.13
Therefore, once the employer has produced a legitimate, nondiscriminatory


      7.       McDonnell Douglas Corp. v. Green, 411 U.S. at 793. Since McDonnell
Douglas, the Court has applied this method of proof to other discrimination statutes, including
the Age Discrimination in Employment Act (ADEA), see, e.g., Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 142 (2000) (assuming without deciding that this method of proof
applied); O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 311 (1996) (same), the
Americans with Disabilities Act (ADA), see, e.g., Raytheon Co. v. Hernandez, 124 S. Ct. 513,
517-20 (2003) (applying McDonnell Douglas to an ADA discriminatory treatment case), and
42 U.S.C. § 1983, see, e.g., St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 n.1 (1993)
(applying McDonnell Douglas to a § 1983 discriminatory treatment case).
      8.       McDonnell Douglas Corp. v. Green, 411 U.S. at 801.
      9.       Id. at 802-04.
     10.       Id. at 802.
     11.       Id. The Court noted that the proof required for a prima facie case must be
flexible and might vary from case to case. Id. at n.13.
     12.       Id. at 802.
     13.       Id. at 804.
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386                                Drake Law Review                                 [Vol. 52


reason, the employee must be given “a fair opportunity to show that [the
employer’s] stated reason for [the employee’s] rejection was in fact pretext.”14 It
is this mechanism that some courts and commentators declare has been abolished
or at least changed.15

                 B. Texas Department of Community Affairs v. Burdine

       Five years later, the Supreme Court revisited McDonnell Douglas in three
cases to explain the respective burdens of proof.16 In Texas Department of
Community Affairs v. Burdine,17 the Court framed the issue as “whether, after the
plaintiff has proved a prima facie case of discriminatory treatment, the burden
shifts to the defendant to persuade the court by a preponderance of the evidence
that legitimate, nondiscriminatory reasons for the challenged employment action
existed.”18 Stated another way, Burdine decided whether employers have the
ultimate burden of disproving discrimination or whether employees have the
obligation to prove bias. Burdine would prove to be the first case of many in
which the Court declared that the ultimate burden of proving discrimination stays
with the plaintiff, not the employer.19
      In reaching its decision, the Supreme Court first analyzed the decision of
the Fifth Circuit Court of Appeals.20 The Fifth Circuit held that the defendant
must prove by a preponderance of the evidence that there was a legitimate,
nondiscriminatory reason for the discharge.21 The Fifth Circuit went a step
further and required the employer to prove that the person it hired instead of the
plaintiff was better qualified than the plaintiff.22 The Court faulted the Fifth
Circuit’s interpretation, holding that the employer’s burden is met if it simply


      14.     Id.
      15.     See discussion infra Part V.
      16.     Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981); Bd. of Trs. of
Keene State Coll. v. Sweeney, 439 U.S. 24 (1978); Furnco Constr. Corp. v. Waters, 438 U.S.
567 (1978).
     17.      Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981).
     18.      Id. at 250.
     19.      See, e.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)
(holding that the burden of persuasion remains with the plaintiff) (quoting Tex. Dep’t of
Cmty. Affairs v. Burdine, 450 U.S. at 253); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507
(1993) (same) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. at 253); U.S. Postal
Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983) (same) (quoting Tex. Dep’t of
Cmty. Affairs v. Burdine, 450 U.S. at 256).
     20.      Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. at 251-52.
     21.      Id. at 256 (citing Burdine v. Tex. Dep’t of Cmty. Affairs, 608 F.2d 563, 567
(5th Cir. 1979)).
     22.      Id. (citing Burdine v. Tex. Dep’t of Cmty. Affairs, 608 F.2d at 567).
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2004]                    McDonnell Douglas: Alive and Well                                  387


articulates a legitimate, nondiscriminatory reason—explains why it did what it
did.23 Conversely, the court of appeals had required much more by placing “on
the defendant the burden of persuading the court that it had convincing, objective
reasons for preferring the chosen applicant above the plaintiff.”24
       The Supreme Court reiterated that, as in all civil cases, “[t]he ultimate
burden of persuading the trier of fact that the defendant intentionally
discriminated against the plaintiff remains at all times with the plaintiff.”25
Because the Fifth Circuit erroneously placed the burden of proof on the
defendant, the Supreme Court vacated the Fifth Circuit’s decision and remanded
the case.26 While courts most often cite Burdine for this proposition,27 even
before Burdine, in Board of Trustees of Keene State College v. Sweeney28 and
Furnco Construction Corp. v. Waters,29 the Supreme Court reversed the First and
Seventh Circuit Courts of Appeals for imposing upon the employer the burden to
disprove discrimination after the plaintiff made a prima facie case, rather than
just articulate a legitimate, nondiscriminatory reason.30

            C. United States Postal Service Board of Governors v. Aikens31

      The Supreme Court further elaborated on the McDonnell Douglas proof
standards in United States Postal Service Board of Governors v. Aikens.32 In
contrast to Burdine, in Aikens, the Court ruled that the lower court had imposed
too high of a burden of proof on the plaintiff, rather than the employer.33 The
Court repeated its declaration in Burdine that the plaintiff bears the ultimate
burden of proof.34 It again cautioned that McDonnell Douglas was never meant
to be rigid and mechanized, but was simply “‘a sensible, orderly way to evaluate
the evidence in light of common experience as it bears on the critical question of


     23.       Id.
     24.       Id. at 257 (footnote omitted).
     25.       Id. at 253 (citing, inter alia, Bd. of Trs. of Keene State Coll. v. Sweeney, 439
U.S. 24, 25 & n.2 (1978) (per curiam)).
    26.        Id. at 260.
    27.        See supra note 19 and accompanying text.
    28.        Bd. of Trs. of Keene State Coll. v. Sweeney, 439 U.S. 24 (1978) (per curiam).
    29.        Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978).
    30.        See Bd. of Trs. of Keene State Coll. v. Sweeney, 439 U.S. at 24-25 (reversing
the decision of the Fourth Circuit); Furnco Constr. Corp. v. Waters, 438 U.S. at 580-81 n.9
(reversing the decision of the Seventh Circuit).
    31.        U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711 (1983).
    32.        Id. at 714-15.
    33.        Id. at 717.
    34.        Id. at 716 (citing Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256
(1981)).
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388                                  Drake Law Review                                 [Vol. 52


discrimination.’”35 Reiterating the rationale of Burdine, the Court stated that if
the employer meets its burden to produce evidence of a legitimate,
nondiscriminatory reason for the employment action, the presumption of
discrimination established in McDonnell Douglas “‘drops from the case.’”36 The
Court advised that, once the presumption disappears, district courts should
resolve the ultimate question of discrimination “just as district courts decide
disputed questions of fact in other civil litigation.”37
      Further, the Court held that the district court erred in requiring the plaintiff
to prove discrimination by direct evidence.38 “As in any lawsuit, the plaintiff
may prove his case by direct or circumstantial evidence. The trier of fact should
consider all the evidence, giving it whatever weight and credence it deserves.”39
The district court had also unnecessarily focused on the prima facie case.40 Once
the plaintiff raised the prima facie case and the employer rebutted it, the
presumption was irrelevant, and the issue was simply whether or not the
employer discriminated.41

                           D. St. Mary’s Honor Center v. Hicks42

      Despite the consistent message of McDonnell Douglas, Burdine, Aikens,
and other cases that the ultimate burden of proof stays with the plaintiff, the
Supreme Court again had to resolve the circuits’ disparate interpretations of the
proof standards under McDonnell Douglas.43 In St. Mary’s Honor Center v.
Hicks, the Court reversed the Eighth Circuit and held that the trier of fact’s
rejection of the employer’s stated reasons for its actions does not require a
verdict for the plaintiff.44 The greatest significance of Hicks may be the
majority’s noticeable irritation in having to again explain the McDonnell Douglas
mechanism.45 The words and tone of the majority show that the Justices felt this


      35.        Id. at 715 (quoting Furnco Constr. Corp. v. Waters, 438 U.S. at 577).
      36.        Id. at 714-15 (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. at 255
n.10).
      37.     Id. at 715-16.
      38.     Id. at 717.
      39.     Id. at 714 n.3.
      40.     Id. at 717.
      41.     Id. at 715.
      42.     St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
      43.     Id. at 512 (discussing the split among circuits on whether a finding of pretext
mandates a finding of unlawful discrimination) (citations omitted).
    44.       Id. at 511, 525.
    45.       See id. at 507 (“Our cases make clear that at that point the shifted burden of
production became irrelevant: ‘If the defendant carries this burden of production, the
presumption raised by the prima facie case is rebutted[.]’”) (quoting Tex. Dep’t of Cmty.
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2004]                     McDonnell Douglas: Alive and Well                                    389


question had been answered before.46
      Citing Burdine, the Court held that the prima facie case, coupled with a
disbelief of the defendant’s reasons, may prove intentional discrimination, but
that rejection of the employer’s reasons alone does not “compel” a finding of
discrimination, as the Eighth Circuit Court of Appeals had ruled.47 The majority
faulted the Eighth Circuit for several reasons.48 First, it reiterated that the
McDonnell Douglas mechanism operates

        like all presumptions, as described in Federal Rule of Evidence 301: . . .
        “[A] presumption imposes upon the party against whom it is directed the
        burden of going forward with evidence to rebut or meet the presumption, but
        does not shift to such party the burden of proof in the sense of the risk of
        nonpersuasion, which remains throughout the trial upon the party on whom
        it was originally cast.”49

It further repeated that once the defendant carries the burden of producing a
legitimate, nondiscriminatory reason, the presumption “drops from the case,” and
the case proceeds to the ultimate question of whether the plaintiff proved
intentional discrimination.50
      Second, the burden to prove that the employer’s stated reason for its action
is not true is significantly less onerous than proving the employer discriminated


Affairs v. Burdine, 450 U.S. 248, 255 (1981)); id. at 510 (“To resurrect [the McDonnell
Douglas framework], after the trier of fact has determined that what was ‘produced’ to meet
the burden of production is not credible, flies in the face of our holding in Burdine that to
rebut the presumption ‘[t]he defendant need not persuade the court that it was actually
motivated by the proffered reasons.’”) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450
U.S. at 254); id. at 511 (“But the Court of Appeals’ holding that rejection of the defendant’s
proffered reasons compels judgment for the plaintiff disregards the fundamental principle of
Rule 301 that a presumption does not shift the burden of proof, and ignores our repeated
admonition that the Title VII plaintiff at all times bears the ‘ultimate burden of persuasion.’”)
(citations omitted); id. at 512 (“Only one unfamiliar with our case law will be upset by the
dissent’s alarum that we are today setting aside ‘settled precedent’ . . . .”) (quoting id. at 525
(Souter, J., dissenting)).
     46.        See supra note 45 and accompanying text.
     47.        St. Mary’s Honor Ctr. v. Hicks, 509 U.S. at 511. The court of appeals reasoned
that, once the plaintiff discredited the employer’s reason for its actions, the employer was in
the same position it would have been in if it had never offered any explanation at all. Id. at
509, 511.
     48.        Id. at 502-03.
     49.        Id. at 507 (quoting FED. R. EVID. 301).
     50.        Id.; see also id. at 510-11 (“The presumption, having fulfilled its role of forcing
the defendant to come forward with some response, simply drops out of the picture.”) (citing
Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. at 255).
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390                                 Drake Law Review                                   [Vol. 52


against the employee.51 The Court noted that “nothing in law would permit us to
substitute” this lesser burden for the burden to prove discrimination.52 The
majority further reasoned that “Title VII does not award damages against
employers who cannot prove a nondiscriminatory reason.”53 Only employees
who can prove that discrimination occurred are entitled to a judgment.54
Moreover, proving an employer lied about the reason for its employment action
does not necessarily prove discrimination.55 The factfinder still must decide if
the employer lied as a pretext to hide intentional discrimination.56
        The Court concluded by stating:

        “[T]he question facing triers of fact in discrimination cases is both sensitive
        and difficult . . . . But none of this means that trial courts or reviewing
        courts should treat discrimination differently from other ultimate questions
        of fact. Nor should they make their inquiry even more difficult by applying
        legal rules which were devised to govern ‘the basic allocation of burdens
        and order of presentation of proof,’ Burdine, 450 U.S., at 252 . . . , in
        deciding this ultimate question.”57

                   E. Reeves v. Sanderson Plumbing Products, Inc.58

      Most recently, in Reeves v. Sanderson Plumbing Products, Inc., the
Supreme Court expanded upon its holding in Hicks to answer “whether a
defendant is entitled to judgment as a matter of law when the plaintiff’s case
consists exclusively of a prima facie case” and proof that the employer’s reason
is not true.59 Importantly, the Court framed the issue as determining what “kind
and amount of evidence [is] necessary to sustain a jury’s verdict that an employer
unlawfully discriminated on the basis of age.”60
        The Court began its analysis by repeating that McDonnell Douglas and its


      51.      Id. at 514-15.
      52.      Id. at 514.
      53.      Id. at 523.
      54.      Id. at 523-24.
      55.      See id. at 524 (“That the employer’s proffered reason is unpersuasive, or even
obviously contrived, does not necessarily establish that the plaintiff’s proffered reason of race
is correct.”).
     56.       Id.
     57.       Id. (quoting U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716
(1983)).
     58.       Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000).
     59.       Id. at 137.
     60.       Id.
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2004]                       McDonnell Douglas: Alive and Well                                391


subsequent cases created a scheme for “‘the burden of production and an order
for the presentation of proof in . . . discriminatory-treatment cases.’”61 Once the
employer meets its burden, the McDonnell Douglas framework disappears,62
“and the sole remaining issue [i]s ‘discrimination vel non.’”63 Quoting Hicks, the
Court stated that the factfinder cannot simply disbelieve the employer’s reason
for its actions; rather, “‘the factfinder must believe the plaintiff’s explanation of
intentional discrimination.’”64 The Court advised that, although the McDonnell
Douglas scheme drops from the case once the employer meets its burden of
producing a legitimate, nondiscriminatory reason, evidence of the “prima facie
case, combined with sufficient evidence to find that the employer’s asserted
justification is false, may permit the trier of fact to conclude that the employer
unlawfully discriminated.”65
      The Court warned, however, that this will not always be enough to prove
discrimination; there will be times when, despite the evidence of pretext, no
reasonable jury could find for the plaintiff.66 Two such possible instances are
when the record conclusively establishes a nondiscriminatory reason for the
employment action67 and when there is weak evidence of pretext coupled with
abundant evidence that no discrimination occurred.68
       Ultimately, the Supreme Court reversed the Fifth Circuit holding that the
district court properly denied the employer’s motion for judgment as a matter of
law.69 The Court reasoned that not only was the plaintiff’s evidence of pretext
sufficient to support the jury’s verdict,70 but he also had “introduced additional
evidence [that the decision] was motivated by age-based animus.”71


     61.         Id. at 142 (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. at 506).
     62.         Id. at 142-43 (citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. at 510).
     63.         Id. at 143 (quoting U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711,
714 (1983)).
     64.       Id. at 147 (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. at 519).
     65.       Id. at 148.
     66.       Id. (citing Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1291-92 (D.C. Cir. 1998)
(en banc)); see also Fisher v. Vassar Coll., 114 F.3d 1332, 1338 (2d Cir. 1997) (holding that
the combined effect of a prima facie case and the finding of pretext “is not always sufficient to
sustain an ultimate finding of intentional discrimination”) (citations omitted).
     67.       See, e.g., Rothmeier v. Inv. Advisers, Inc., 85 F.3d 1328, 1337 (8th Cir. 1996)
(stating that the evidence was inconsistent as a matter of law with a finding of age
discrimination when the employee admitted he was terminated for opposing the employer’s
desire to cover up violations of securities laws, which, standing alone, completely refuted the
employee’s claim of age discrimination).
     68.       Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 148.
     69.       Id. at 153-54.
     70.       Id. at 146.
     71.       Id. at 151. In Ryther v. KARE 11, the Eighth Circuit, in analyzing McDonnell
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392                                 Drake Law Review                                   [Vol. 52


      III.   DESERT PALACE, INC. V. COSTA72: MCDONNELL DOUGLAS’S SILENT
                                   AFFIRMATION

             “This case does not require us to decide when, if ever, § 107 applies
                        outside of the mixed-motive context.”73
      In 1991, Congress amended the Civil Rights Act of 1964.74 Section 107(a)
of the 1991 Act75 addressed the standards applicable to so-called mixed-motive
cases, in which an illegal criterion actually played a role in the adverse
employment action.76 This provision, passed in partial response77 to the Supreme
Court’s decision in Price Waterhouse v. Hopkins,78 provided an alternative
method79 for proving an “unlawful employment practice”: “Except as otherwise
provided in this subchapter, an unlawful employment practice is established
when the complaining party demonstrates that race, color, religion, sex, or
national origin was a motivating factor for any employment practice, even though
other factors also motivated the practice.”80
      If the employee successfully establishes that an illegal criterion was a
“motivating factor” in the unlawful employment practice, under section 107(b) of
the 1991 Act,81 the employer can establish a limited defense by showing that it


Douglas and the appropriate proof necessary to prove a discrimination claim, discussed
numerous types of circumstantial evidence that, combined with pretext, supported the
plaintiff’s claim and the resulting jury verdict. Ryther v. KARE 11, 108 F.3d 832, 838-44
(8th Cir. 1997) (en banc) (citations omitted). Ryther contains an excellent discussion of how
evidence of pretext in conjunction with other circumstantial evidence has long been sufficient
to carry the plaintiff’s burden of proving intentional discrimination. See id.
     72.        Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003).
     73.        Id. at 91 n.1.
     74.        Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 (1991) (codified
in scattered sections of 42 U.S.C.).
     75.        Civil Rights Act of 1991 § 107(a), 42 U.S.C. § 2000e-2(m) (2000).
     76.        See id. (stating that regardless of whether the employment practice was
motivated by other factors, it is an unlawful practice when “the complaining party
demonstrates that race, color, religion, sex, or national origin was a motivating factor”).
     77.        See Landgraf v. USI Film Prods., 511 U.S. 244, 250-51 (1994) (noting that
Congress passed the 1991 Act “in large part [as] a response to a series of decisions of this
Court interpreting the Civil Rights Acts of 1866 and 1964,” including Price Waterhouse v.
Hopkins, 490 U.S. 228 (1989)).
     78.        Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
     79.        Before the 1991 Act, the statute only prohibited discrimination “because of” an
illegitimate criterion. See 42 U.S.C. § 2000e-2(a)(1) (stating that it is an “unlawful
employment practice for an employer . . . to discriminate against any individual . . . because of
such individual’s race, color, religion, sex, or national origin”) (emphasis added).
     80.        Id. § 2000e-2(m).
     81.        Id. § 2000e-5(g)(2)(B).
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2004]                        McDonnell Douglas: Alive and Well                                       393


would have made the same decision despite the “impermissible motivating
factor.”82 That is, although the employer can not completely absolve itself from
liability, it can limit the available remedies to declaratory relief, certain types of
injunctive relief, attorney fees, and costs.83
      In Costa, the Supreme Court addressed a circuit split as to whether direct
evidence was a prerequisite for receiving a mixed-motive jury instruction under
42 U.S.C. § 2000e-2(m).84 Specifically, the Court addressed “whether a plaintiff
must present direct evidence of discrimination in order to obtain a mixed-motive
instruction under 42 U.S.C. § 2000e-2(m).”85
      In rejecting the petitioner’s argument that direct evidence was required to
obtain a mixed-motive instruction under § 2000e-2(m), the Court found that there
was no basis for concluding that a heightened burdened was required.86 First, the
Court observed the 1991 Act’s silence in this regard: “Section 2000e-2(m)
unambiguously states that a plaintiff need only ‘demonstrat[e]’ that an employer
used a forbidden consideration with respect to ‘any employment practice.’”87
        The Court concluded that this silence suggested that it was “not [to] depart



      82.         Id. That section provides:
        On a claim in which an individual proves a violation under section 2000e-2(m) of
        this title and a respondent demonstrates that the respondent would have taken the
        same action in the absence of the impermissible motivating factor, the court—
                 (i) may grant declaratory relief, injunctive relief (except as provided in clause
                 (ii)), and attorney’s fees and costs demonstrated to be directly attributable
                  only to the pursuit of a claim under section 2000e-2(m) of this title; and
                 (ii) shall not award damages or issue an order requiring any admission,
                 reinstatement, hiring, promotion, or payment, described in subparagraph (A).
Id.
      83.      Id.
      84.      See Desert Palace, Inc. v. Costa, 539 U.S. 90, 91 (2003) (“Since the passage of
the 1991 Act, the Courts of Appeals have divided over whether a plaintiff must prove by
direct evidence that an impermissible consideration was a ‘motivating factor’ in an adverse
employment action. Relying primarily on Justice O’Connor’s concurrence in Price
Waterhouse, a number of courts have held that direct evidence is required to establish liability
under § 2000e-2(m).”) (citing Mohr v. Dustrol, Inc., 306 F.3d 636, 640-41 (8th Cir. 2002);
Fernandes v. Costa Bros. Masonry, Inc., 199 F.3d 572, 580 (1st Cir. 1999); Trotter v. Bd. of
Trs. of Univ. of Ala., 91 F.3d 1449, 1453-54 (11th Cir. 1996); Fuller v. Phipps, 67 F.3d 1137,
1142 (4th Cir. 1995)); see also Costa v. Desert Palace, Inc., 299 F.3d 838, 859 (9th Cir. 2002)
(en banc) (holding that direct evidence is not required to obtain a mixed-motive jury
instruction), aff’d 539 U.S. 90 (2003).
     85.       Desert Palace, Inc. v. Costa, 539 U.S at 93.
     86.       Id. at 93-96.
     87.       Id. at 94. “Title VII defines the term “‘demonstrates”’ as to ‘mee[t] the burdens
of production and persuasion.’” Id. (quoting 42 U.S.C. § 2000e(m)).
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from the ‘[c]onventional rul[e] of civil litigation [that] generally appl[ies] in Title
VII cases.’”88 That is, a plaintiff must establish “his [or her] case ‘by a
preponderance of the evidence,’” whether direct or circumstantial.89 The Court
reasoned that “‘[c]ircumstantial evidence is not only sufficient, but may also be
more certain, satisfying and persuasive than direct evidence.’”90 Finally, the
Court determined that “[a]bsent some congressional indication to the contrary,
we decline to give the same term [demonstrates] in the same Act a different
meaning depending on whether the rights of the plaintiff or the defendant are at
issue.”91 Consequently, the Court unanimously held that direct evidence was
unnecessary to obtain a mixed-motive instruction under § 2000e-2(m):

        In order to obtain an instruction under § 2000e-2(m), a plaintiff need only
        present sufficient evidence for a reasonable jury to conclude, by a
        preponderance of the evidence, that “race, color, religion, sex, or national
        origin was a motivating factor for any employment practice.”92

             IV.   WHAT DOES COSTA MEAN FOR MCDONNELL DOUGLAS?

      The holding of Costa is narrow.93 Indeed, excluding the facts and
procedural history, the opinion is only two pages long.94 Nevertheless, some
court opinions95 and commentators96 have concluded that Costa tacitly overruled


      88.      Id. (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 253 (1989)).
      89.      Id. (quoting Price Waterhouse v. Hopkins, 490 U.S. at 253).
      90.      Id. (quoting Rogers v. Mo. Pac. R.R. Co., 352 U.S. 500, 508 n.17 (1957)).
      91.      Id. at 95 (citing Comm’r v. Lundy, 516 U.S. 235, 250 (1996)).
      92.      Id. at 95-96 (quoting 42 U.S.C. § 2000e-2(m)).
      93.      See supra note 92 and accompanying text.
      94.      Desert Palace, Inc. v. Costa, 539 U.S. at 94-96.
      95.      See, e.g., Picha v. CCS Enters., LLC, No. CIV. 02-3826(PAM/RLE), 2004 WL
212866, at *2 (D. Minn. Jan. 30, 2004) (“[T]he Supreme Court’s decision in Desert Palace,
Inc. v. Costa eliminated the McDonnell Douglas burden-shifting scheme for ADA claims.”)
(citation omitted); Veeder v. Cargill, Inc., No. CIV. 02-1711 PAM/RLE, 2003 WL 23018824,
at *6 (D. Minn. Dec. 23, 2003) (“Pursuant to the U.S. Supreme Court’s ruling in Desert
Palace, Inc. v. Costa, the burden-shifting pretext analysis of McDonnell Douglas Corporation
v. Green does not apply.”) (citing Desert Palace, Inc. v. Costa, 539 U.S. at 94-96; Dare v.
Wal-Mart Stores, Inc., 267 F. Supp. 2d 987 (D. Minn. 2003)); Jackson v. Catholic Charities,
No. CIV. 02-0122PAMRLE, 2003 WL 22533330, at *2 n.1 (D. Minn. Nov. 3, 2003) (“As this
Court explained in Dare v. Wal-Mart Stores, Inc., the only logical reading of Desert Palace is
that its holding applies to both mixed-motive and single-motive cases, and the burden-shifting
of McDonnell Douglas is no longer good law.”); Griffith v. City of Des Moines, No. 4:01-
CV-10537, 2003 WL 21976027, at *12 (S.D. Iowa July 3, 2003) (“This Court agrees with the
well-reasoned opinion in Dare and finds that a plaintiff may bring his Title VII claim
‘according to the burdens articulated in [the] Civil Rights Act of 1991,’ without being
confined to the strictures of the McDonnell Douglas burden-shifting framework.”) (quoting
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2004]                     McDonnell Douglas: Alive and Well                                 395


McDonnell Douglas. With all due respect to the opinions of the judges and
commentators who have concluded otherwise, Costa did not overrule McDonnell
Douglas. The decision itself, as well as the Supreme Court’s precedent, makes
this clear.

          A. Costa Itself Indicates It Does Not Apply to McDonnell Douglas

      In Costa, Justice Thomas noted that if Congress wanted to require direct
evidence to prove discrimination, it would have said so in the statute.97
Similarly, had the Supreme Court intended to overrule McDonnell Douglas, it
would have said as much, especially given its use of the foregoing reasoning.98
Instead, the Court never mentioned McDonnell Douglas at all.99 Significantly,
Costa favorably cited Reeves, which held that evidence of the prima facie case of
discrimination and pretext under McDonnell Douglas could be sufficient proof to
sustain a jury verdict.100 Had the Court intended to abrogate the McDonnell


Dare v. Wal-Mart Stores, Inc., 267 F. Supp. 2d at 991) (additional citation omitted); Gonzalez
v. City of Minneapolis, 267 F. Supp. 2d 1004, 1010 (D. Minn. 2003) (same); Skomsky v.
Speedway SuperAmerica, L.L.C., 267 F. Supp. 2d 995, 1000 (D. Minn. 2003) (“Pursuant to
the Supreme Court’s decision in [Costa], the case must be analyzed according to the
provisions of 42 U.S.C. § 2000e-2(m) and § 2000e-5(g)(2)(B).”); Dare v. Wal-Mart Stores,
Inc., 267 F. Supp. 2d at 991-92 (“The Court does not see the efficacy in perpetuating th[e]
legal fiction [of McDonnell Douglas] implicitly exposed by the Supreme Court’s ruling in
Desert Palace.”).
     96.       See, e.g., Corbett, supra note 2, at 200 (“[T]he old McDonnell Douglas proof
structure is as dead as a doornail.”); Van Detta, supra note 2, at 72 (arguing that after Costa,
McDonnell Douglas is dead); Steven Andrew Smith, The Death of Summary Judgment,
HENNEPIN LAW., Nov./Dec. 2003, at 18 (“[S]ummary judgment as we knew it before Desert
Palace, is dead.”); Direct Evidence of Bias Need Not Be Submitted to Obtain Mixed-Motive
Jury Instruction, 172 Lab. Rel. Rep. (BNA) 248, 251-52 (June 16, 2003) (discussing the
significance of Costa); Experts Discuss Implications of Desert Palace, Inc. v. Costa,
[Employment Practices] Lab. L. Rep. (CCH), at 4 (Aug. 7, 2003) (noting Professor William
Corbett’s opinion that “‘[t]he holding that direct evidence is not required for mixed-motives
analysis implicitly renders the pretext analysis of McDonnell Douglas irrelevant to disparate
treatment cases’”); Supreme Court: High Court’s Ruling in Mixed-Motive Case Did Not
Clear Up Confusion, Attorneys Say, Daily Lab. Rep. (BNA), at 94 (July 18, 2003) (noting the
opinion of Carolyn Wheeler, assistant general counsel for the EEOC, that “[s]ome judges
want to drop the McDonnell Douglas approach entirely”); USSCT: Direct Evidence Is Not
Required, [Insight] Lab. L. Rep. (CCH), at 3 (July 23, 2003) (noting Professor Corbett’s
opinion that McDonnell Douglas is dead).
     97.       Desert Palace, Inc. v. Costa, 539 U.S. at 94.
     98.       Cf. id. (explaining that if Congress required a showing of direct evidence, it
would have stated such a requirement in the statute).
     99.       See generally id.
    100.       See id. at 94 (“[I]n Reeves v. Sanderson Plumbing Products, Inc., we recognized
that evidence that a defendant’s explanation for an employment practice is ‘unworthy of
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396                                  Drake Law Review                                   [Vol. 52


Douglas scheme, it would have been illogical for the Court to reference that
methodology to support the result in Costa. Justice Thomas also specifically
expressed doubt in a footnote as to whether § 2000e-2(m) ever applies to single-
motive cases.101 Such a footnote would have been pointless if Costa overruled
McDonnell Douglas.

                    B. Costa Is Consistent with McDonnell Douglas

      Most importantly, Costa’s holding is fully consistent with McDonnell
Douglas and its progeny.102 Costa only comes into play after the plaintiff has
proved discrimination.103 A plaintiff is not entitled to a mixed-motive instruction
unless he or she can produce enough evidence to enable a reasonable jury to find
discrimination was a motivating factor in the employment decision.104 The
corollary of this is that the jury does not even get to address the affirmative
defense105 unless the plaintiff can carry his burden of proving intentional


credence’ is ‘one form of circumstantial evidence that is probative of intentional
discrimination.’”) (emphasis by the Costa Court) (quoting Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 147 (2000)).
    101.       See id. at 91 n.1 (“This case does not require us to decide when, if ever, § 107
applies outside of the mixed-motive context.”).
    102.       The definition contained in the 1991 Civil Rights Act also shows that Congress
intended that McDonnell Douglas survive the 1991 Act despite the codification of the mixed-
motive instruction. See 42 U.S.C. § 2000e(m) (2000) (defining “demonstrates”). Section
2000e-2(m) states that “an unlawful employment practice is established when the complaining
party demonstrates that race, color, religion, sex, or national origin was a motivating factor for
any employment practice . . . .” Id. § 2000e-2(m). The statute also states: “The term
‘demonstrates’ means meets the burdens of production and persuasion.” Id. § 2000e(m).
Given that McDonnell Douglas’s proof standard contemplates intermediate burdens of
production and an ultimate burden of persuasion on the plaintiff, see Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. at 143 (discussing the burdens of production and persuasion
under McDonnell Douglas and its progeny), the definition squarely contemplates the use of
McDonnell Douglas to prove discrimination. Otherwise, there would have been no reason to
include the word “production”; it simply could have mentioned persuasion. Indeed, Congress
may have found it unnecessary to even use the term “demonstrates” in the Act.
    103.       Desert Palace, Inc. v. Costa, 539 U.S. at 92 (noting that the plaintiff’s sex
discrimination claim had survived summary judgment and a motion for judgment as a matter
of law before the jury instruction issue arose).
    104.       Id. at 95-96. The district court in Costa instructed that “‘“the plaintiff has the
burden of proving . . . by a preponderance of the evidence” that she “suffered adverse work
conditions” and that her sex “was a motivating factor in any such work conditions imposed
upon her.”’” Id. at 92 (quoting Costa v. Desert Palace, Inc., 299 F.3d 838, 858 (9th Cir. 2002)
(en banc)). There was no assigned error in this instruction. See id. (noting that the employer
“unsuccessfully objected to this instruction”).
    105.       Section 2000e-5(g)(2)(B) provides a limited affirmative defense for employers
who considered an illegitimate motivating factor in an employment decision but would have
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2004]                      McDonnell Douglas: Alive and Well                                      397


discrimination.106 Costa does not purport to relieve the plaintiff of the ultimate
burden of proof. Nor does Costa address or alter the means by which plaintiffs
may prove discrimination.
      A plaintiff may continue to prove discrimination under the McDonnell
Douglas methodology; Costa has not changed that at all.107 Under the
McDonnell Douglas proof scheme, once the plaintiff has made a prima facie
case, if the employer articulates a legitimate, nondiscriminatory reason, the entire
presumption drops from the case.108 The only issue then remaining is whether the
employer intentionally discriminated,109 and the burden to prove that rests solely
with the plaintiff.110 The plaintiff may prove intentional discrimination with (1)
sufficient evidence of the prima facie case and pretext;111 (2) other circumstantial



made the same decision even in the absence of the illegitimate consideration. 42 U.S.C. §
2000e-5(g)(2)(B). The defense “does not absolve [the employer] of liability, but restricts the
remedies available to the plaintiff . . . [to] declaratory relief, certain types of injunctive relief,
and attorney’s fees and costs.” Desert Palace, Inc. v. Costa, 539 U.S. at 91 (citing 42 U.S.C. §
2000e-5(g)(2)(B)).
   106.       See 42 U.S.C. § 2000e-5(g)(2)(B) (stating that the limited affirmative defense
applies “[o]n a claim in which an individual proves a violation under section 2000e-2(m)”)
(emphasis added). This was also the holding in Price Waterhouse:
        [S]ince we hold that the plaintiff retains the burden of persuasion on the issue
        whether gender played a part in the employment decision, the situation before us is
        not the one of “shifting burdens” that we addressed in Burdine. Instead, the
        employer’s burden is most appropriately deemed an affirmative defense: the plaintiff
        must persuade the factfinder on one point, and then the employer, if it wishes to
        prevail, must persuade it on another.
Price Waterhouse v. Hopkins, 490 U.S. 228, 246 (1989) (citation and footnote omitted); see
id. at n.11 (“[B]oth the plaintiff and defendant bear a burden of proof in cases such as this one
. . . .”). The 1991 Act simply codified the affirmative defense and precluded employers from
escaping all liability upon meeting its burden of persuasion, as Price Waterhouse had allowed.
42 U.S.C. § 2000e-5(g)(2)(B).
     107.       See generally Raytheon Co. v. Hernandez, 124 S. Ct. 513 (2003) (applying the
McDonnell Douglas framework to a disparate treatment claim under the ADA).
     108.       See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)
(“[T]he presumption of discrimination ‘drops out of the picture’ once the defendant meets its
burden of production.”) (citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993)).
     109.       See id. at 142-43 (explaining that once the employer articulates a legitimate,
nondiscriminatory reason, “the sole remaining issue [i]s ‘discrimination vel non.’”) (quoting
U.S. Postal Serv. Bd. of Governors v. Aiken, 460 U.S. 711, 714 (1983)).
     110.       See id. at 143 (“‘[T]he ultimate burden of persuading the trier of fact that the
defendant intentionally discriminated against the plaintiff remains at all times with the
plaintiff.’”) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).
     111.       See id. at 149 (stating that “a prima facie case and sufficient evidence to reject
the employer’s explanation may permit a finding of liability”).
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398                                  Drake Law Review                                   [Vol. 52


evidence of discrimination;112 (3) a combination of the prima facie case, pretext,
and other circumstantial evidence;113 or (4) direct evidence.114 If the plaintiff has
no such evidence, then the plaintiff’s case will not advance to the jury.115 If,
however, the plaintiff can make a submissible case using McDonnell Douglas,
then he or she is entitled to the mixed-motive instruction.116 In short, Costa in no
way alters a plaintiff’s obligation to prove he or she was the victim of intentional
discrimination. Costa does not shift the burden of disproving discrimination to
the employer until the plaintiff meets his or her ultimate burden of proof, at
which point the employer bears the burden of proving the limited affirmative
defense.117 Because McDonnell Douglas solely concerns the plaintiff’s burden


    112.        See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. at 714 n.3 (“[T]he
plaintiff may prove his case by direct or circumstantial evidence.”).
    113.        See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 151 (“[T]he court
should review the record as a whole . . . .”) (citation omitted); Troupe v. May Dep’t Stores
Co., 20 F.3d 734, 736 (7th Cir. 1994) (“Different kinds and combinations of evidence can
create a triable issue of intentional discrimination . . . .”).
    114.        See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. at 714 n.3 (stating
that direct evidence is one method of proof of discriminatory intent); Price Waterhouse v.
Hopkins, 490 U.S. 228, 276 (1989) (“[A] disparate treatment plaintiff must show by direct
evidence that an illegitimate criterion was a substantial factor in the decision.”) (O’Connor, J.,
concurring in the judgment).
    115.        See, e.g., Taylor v. QHG of Springdale, Inc., 218 F.3d 898, 900-01 (8th Cir.
2000) (“Reeves [will] only help[] [a plaintiff] if [the plaintiff] has [made a prima facie case
and] produced sufficient evidence to reject the [employer’s] legitimate explanation.”); see also
Price v. Fed. Express Corp., 283 F.3d 715, 721 n.4 (5th Cir. 2002) (“Reeves does not relieve a
plaintiff of his burden to present evidence that will permit a rational factfinder to infer
intentional discrimination.”) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at
153); Windham v. Time Warner, Inc., 275 F.3d 179, 187 (2d Cir. 2001) (“After Reeves, the
court must examine each case to ‘determine whether the plaintiff could satisfy his ultimate
burden of persuading the trier of fact that the defendant intentionally discriminated against the
plaintiff.’”) (quoting Schnable v. Abramson, 232 F.3d 83, 90 (2d Cir. 2000)).
    116.        See Desert Palace, Inc. v. Costa, 539 U.S. 90, 95-96 (2003) (“In order to obtain
an instruction under § 2000e-2(m), a plaintiff need only present sufficient evidence . . . that
‘race, color, religion, sex, or national origin was a motivating factor for any employment
practice.’”) (quoting 42 U.S.C. § 2000e-2(m) (2000)).
    117.        The Costa decision itself states that the affirmative defense is only available in
“‘a claim in which an individual proves a violation under section 2000e-2(m).’” Id. at 91
(quoting 42 U.S.C. § 2000e-5(g)(2)(B)). Significantly, the statute specifically states that the
affirmative defense applies in a case “in which an individual proves a violation under section
2000e-2(m).” 42 U.S.C. § 2000e-5(g)(2)(B) (emphasis added). This is completely consistent
with the pronouncements in McDonnell Douglas and is an affirmation that Congress did not
intend to relieve plaintiffs of the burden to first establish discrimination. See McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 800 (1973) (“‘Congress did not intend by Title VII . . .
to guarantee a job to every person regardless of qualifications . . . . Discriminatory preference
. . . is precisely and only what Congress has proscribed.’”) (quoting Griggs v. Duke Power
Co., 401 U.S. 424, 430-31 (1971)).
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2004]                     McDonnell Douglas: Alive and Well                                 399


and means of proving discrimination, Costa did not affect it. The Appendix to
this Article illustrates the interaction between Costa, McDonnell Douglas, and
the cases that interpreted McDonnell Douglas. It is clear from this flowchart that
Costa has not changed McDonnell Douglas.
      Indeed, prior to Costa, courts recognized that proving pretext under
McDonnell Douglas was just one form of circumstantial evidence that employees
could use to prove intentional discrimination.118 Judge Posner articulated three
types of circumstantial evidence:

        The first consists of suspicious timing, ambiguous statements oral or written,
        behavior toward or comments directed at other employees in the protected
        group, and other bits and pieces from which an inference of discriminatory
        intent might be drawn. . . . Second is evidence, whether or not rigorously
        statistical, that employees similarly situated to the plaintiff other than in the
        characteristic (pregnancy, sex, race, or whatever) on which an employer is
        forbidden to base a difference in treatment received systematically better
        treatment. And third is evidence that the plaintiff was qualified for the job
        in question but passed over in favor of (or replaced by) a person not having
        the forbidden characteristic and that the employer’s stated reason for the
        difference in treatment is unworthy of belief, a mere pretext for
        discrimination. Each type of evidence is sufficient by itself (depending of
        course on its strength in relation to whatever other evidence is in the case) to
        support a judgment for the plaintiff; or they can be used together.119

Judge Posner stated that any of this evidence could meet the ultimate burden of
proving discrimination.120

   C. The Supreme Court Recognizes McDonnell Douglas’s Continued Viability

       Raytheon Co. v. Hernandez, 121 the Supreme Court’s most recent
employment decision after Costa, directly confirmed that McDonnell Douglas is
alive.122 On December 2, 2003, Justice Thomas addressed another appeal from



    118.      See, e.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 143 (“[T]he
plaintiff may attempt to establish that he was the victim of intentional discrimination ‘by
showing that the employer’s proffered explanation is unworthy of credence.’”) (emphasis
added) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981)); Troupe
v. May Dep’t Stores Co., 20 F.3d 734, 736 (7th Cir. 1994) (“Different kinds and combinations
of evidence can create a triable issue of intentional discrimination . . . .”).
    119.      Troupe v. May Dep’t Stores Co., 20 F.3d at 736 (citations omitted).
    120.      Id.
    121.      Raytheon Co. v. Hernandez, 124 S. Ct. 513 (2003).
    122.      See generally id. (applying the McDonnell Douglas burden-shifting analysis).
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400                                 Drake Law Review                                  [Vol. 52


the Ninth Circuit Court of Appeals.123 The Court noted that the Ninth Circuit
analyzed the plaintiff’s ADA124 disparate treatment claim “under the familiar
burden-shifting approach first adopted by this Court in McDonnell Douglas
Corp. v. Green.”125 It further observed that “[t]he Courts of Appeals have
consistently utilized this burden-shifting approach when reviewing motions for
summary judgment in disparate-treatment cases.”126 Holding that the Ninth
Circuit had not properly applied the McDonnell Douglas scheme, the Supreme
Court reversed and remanded the case.127
      If the Court—and in particular Justice Thomas—had opined that Costa
overruled McDonnell Douglas, then Raytheon presented an excellent opportunity
for the Court to say so.128 It is inconceivable that not even one Justice wrote a
dissenting opinion to declare that Costa had abrogated, or at least neutralized,
McDonnell Douglas, if that were the case. Indeed, the Court would have been
compelled to reverse the Ninth Circuit on the grounds that it had erred in
applying the McDonnell Douglas scheme at all if Costa had abrogated
McDonnell Douglas. Instead, the Court acknowledged the viability of the
scheme and reversed the Court of Appeals for failing to apply it correctly.129 As
one district court aptly put it:



   123.         Id. at 515.
   124.         Judge Magnuson has applied his interpretation of Costa in Dare to ADA claims.
E.g., Skomsky v. SuperAmerica, L.L.C., 267 F. Supp. 2d 995, 1000 (D. Minn. 2003); see also
Curry v. HON Co., No. 4:02-CV-10233, 2004 U.S. Dist. LEXIS 3329, at *12-13 (S.D. Iowa
Feb. 26, 2004) (following Skomsky); LeClair v. Wells Fargo Bank Iowa N.A., 291 F. Supp. 2d
873, 880 (S.D. Iowa 2003) (same). Accordingly, Professor Van Detta’s assertion that
Raytheon is distinguishable because it is an ADA case is not persuasive.
    125.        Raytheon Co. v. Hernandez, 124 S. Ct. at 517 (citation and footnote omitted).
    126.        Id. at n.3 (citing Pugh v. Attica, 259 F.3d 619, 626 (7th Cir. 2001)).
    127.        See id. at 520-21 (stating that after the employer articulated a legitimate,
nondiscriminatory reason, the only issue was “whether there was sufficient evidence from
which a jury could conclude that [the employer] did make its employment decision based on
[the employee’s] status as a disabled despite [the employer’s] proffered explanation”).
    128.        See, e.g., Lloyd v. City of Bethlehem, No. Civ.A. 02-CV-00830, 2004 WL
540452, at *5 (E.D. Pa. Mar. 3, 2004) (“[T]he Supreme Court applied the McDonnell Douglas
framework to a post-Desert Palace case, and indeed, did not mention Desert Palace in its
opinion. Thus, contrary to the district court determination in Dare, we conclude that
McDonnell Douglas is still valid precedent.”). In Lloyd, the court ultimately agreed with
Judge Bennett’s rationale in Dunbar. Id.
    129.        Id. at 520-21. Raytheon did not qualify its holding to suggest that the issue of
whether McDonnell Douglas remained valid had not been raised as an issue or need not be
decided as it has in other cases. Cf. Toyota Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184,
200 (2002) (“Because of the conceptual difficulties inherent in the argument that working
could be a major life activity, we have been hesitant to hold as much, and we need not decide
this difficult question today.”).
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2004]                     McDonnell Douglas: Alive and Well                                401


        As an initial matter the court declines to accept [the plaintiff’s] suggestion
        that the McDonnell Douglas burden-shifting paradigm no longer exists after
        Desert Palace. This would not be an evolution but a revolution in
        employment discrimination law. If the Supreme Court were going to make a
        draconian departure from 30 years of well-established employment
        discrimination precedent, it would have done so with unmistakable clarity.
        In Desert Palace, the Supreme Court does not even intimate that it is
        overruling, restricting or clarifying McDonnell Douglas.130

      Admittedly, the McDonnell Douglas mechanism is far more subtle and
complex than it appears to be; numerous district courts and appellate courts have
struggled to apply it correctly over more than two decades.131 It should not,
therefore, be surprising that there is disagreement over what Costa means for
McDonnell Douglas.132 Based on the foregoing discussion, we feel the answer is
clear. Nevertheless, the decisions of the courts that have expressed their opinion
on Costa will be analyzed. This analysis shows that the law does not support
these decisions.

        V.       THE UNNECESSARY AND UNAUTHORIZED ELIMINATION OF THE
                  MCDONNELL DOUGLAS BURDEN-SHIFTING PARADIGM.

      Although Costa arose during trial, and the Supreme Court declined to
address the impact of the 1991 Act to single-motive claims,133 commentators134
and courts have struggled with Costa’s perceived effect on summary judgment
and the traditional McDonnell Douglas analysis. Generally, the courts’ responses
fall within five categories: (1) those courts that believe Costa overturned
McDonnell Douglas;135 (2) those courts that have declined to address the issue
directly or have concluded that McDonnell Douglas remains viable;136 (3) those


    130.       Winter v. Bank of Am., N.A., No. CIV. A.3:02-CV-1591-L, 2003 WL
23200278, at *3 (N.D. Tex. Dec. 12, 2003).
    131.       See discussion supra Part II.B-E. (discussing cases in which the Supreme Court
reversed lower court applications of the McDonnell Douglas standard).
    132.       See discussion infra Part V.
    133.       Desert Palace, Inc. v. Costa, 539 U.S. 90, 91 n.1 (2003).
    134.       See supra note 96.
    135.       See supra note 95.
    136.       See, e.g., DiCarlo v. Potter, 358 F.3d 408, 414 (6th Cir. 2004) (recognizing the
difference between direct and circumstantial evidence without even citing Costa); Love-Lane
v. Martin, 355 F.3d 766, 786-87 (4th Cir. 2004) (“To the extent that the Supreme Court’s
recent decision in Desert Palace, Inc. v. Costa might change the role that the McDonnell
Douglas burden-shifting framework plays in race discrimination cases, any change would not
prevent the entry of summary judgment against [the plaintiff] on her race discrimination
claims.”) (citations omitted); Kozlowski v. Hampton Sch. Bd., 77 Fed. Appx. 133, 138 (4th
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courts that have applied McDonnell Douglas and a mixed-motive analysis;137 (4)
those courts that opine that Costa’s interpretation of § 2000e-2(m) is a trial




Cir. 2003) (“In this case we are not asked to address—and do not address—whether Desert
Palace, a Title VII case, also applies to age discrimination cases under the ADEA.”); Allen v.
City of Pocahontas, 340 F.3d 551, 557-58 n.5 (8th Cir. 2003) (declining to address the issue of
whether the burden-shifting analysis of McDonnell Douglas had been altered by the Supreme
Court’s “refocus on the statutory language of the Civil Rights Act of 1991” and finding that
the petitioner had “provided no evidence direct or circumstantial, from which a reasonable
jury could logically infer that age or gender was a motivating factor in her termination”)
(citing Desert Palace, Inc. v. Costa, 539 U.S. at 95); Rowland v. Am. Gen. Fin., Inc., 340 F.3d
187, 192 n.4 (4th Cir. 2003) (declining to address the application of § 2000e-2(m) to single-
motive claims in light of the Supreme Court’s refusal to do so); Trammel v. Simmons First
Bank of Searcy, 345 F.3d 611, 615 (8th Cir. 2003) (assuming without deciding that Costa
applied to ADEA claims, the court found insufficient evidence demonstrating that petitioner’s
age was a motivating factor in his termination); Winter v. Bank of Am., N.A., No. CIV.
A.3:02-CV-1591-L, 2003 WL 23200278, at *3 (N.D. Tex. Dec. 12, 2003) (“The court
declines to accept [the plaintiff’s] suggestion that the McDonnell Douglas burden-shifting
paradigm no longer exists after Desert Palace.”); Vogan v. US Oncology, Inc., No. 02-4207-
CV-C-NKL, 2003 WL 23200384, at *4 (W.D. Mo. Oct. 30, 2003) (“While this Court
seriously questions the continued viability of the McDonnell Douglas burden-shifting
paradigm, it will use it to analyze this case because the outcome would be the same whether it
is used or not used at the summary judgment stage.”); Bolander v. BP Oil Co., No.
3:02CV7341, 2003 WL 22060351, at *3 (N.D. Ohio Aug. 6, 2003) (“The mixed motives
rationale and Desert Palace do not apply to age discrimination cases.”); Gover v. Speedway
Super Am., LLC, 284 F. Supp. 2d 858, 865 n.1 (S.D. Ohio 2003) (“Plaintiff has not asserted
that this is a mixed-motive case, nor is this litigation at the jury instruction stage. Moreover,
this Court has not required Plaintiff to present direct evidence in order to avoid summary
judgment. Accordingly, Desert Palace, is inapposite.”); Davis v. Emery Worldwide Corp.,
267 F. Supp. 2d 109, 120 n.2 (D. Me. 2003) (“Because no possibility of a mixed motive . . . is
raised by the evidence in the summary judgment record, the recent decision of the Supreme
Court in Desert Palace, Inc. v. Costa does not apply.”) (citation omitted).
    137.        See Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 284-85 (4th
Cir. 2004) (applying McDonnell Douglas and a mixed-motive analysis); Hillstrom v. Best W.
TLC Hotel, 354 F.3d 27, 31 (1st Cir. 2003) (“[E]ven assuming the issue were preserved, it
would make no difference here: even in mixed-motive cases, plaintiffs must present enough
evidence to permit a finding that there was differential treatment in an employment action and
that the adverse employment decision was caused at least in part by a forbidden type of bias.
Hillstrom’s evidence does not meet that test.”); Estades-Negroni v. Assoc. Corp. of N. Am.,
345 F.3d 25, 30-32 (1st Cir. 2003) (same); Bethel v. Porterfield, 293 F. Supp. 2d 1307, 1320
(S.D. Ga. 2003) (“Although Plaintiff herein does not clearly articulate whether she is seeking
relief under a pretext or mixed-motive claim, out of caution I will address both.”); Woodman
v. WWOR-TV, Inc., 293 F. Supp. 2d 381, 389 (S.D.N.Y. 2003) (noting that the Second
Circuit has previously followed the rule in Costa, but noting that plaintiff failed to meet her
burden under a mixed-motive analysis); Thompson v. Proviso Township High Sch. Dist. 209,
No. 01 C 5743, 2003 WL 21638808, at *8 (N.D. Ill. July 10, 2003) (denying summary
judgment based on circumstantial evidence in light of Costa).
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issue;138 and (5) those courts holding that, under the proper circumstances,
McDonnell Douglas must be modified at the pretext stage to provide the
employee an alternative method to avoid summary judgment.139 Below we


    138.     See EEOC v. Minn. Beef Indus., Inc., No. CIV. 02-810DSDSRN, 2003 WL
22956445, at *3 n.2 (D. Minn. Dec. 11, 2003) (stating that Costa did not change the “analysis
at the summary judgment stage”). According to Judge David S. Doty:
        The McDonnell Douglas standard serves to balance “employee rights and employer
        prerogatives” under Title VII and to recognize employers’ “legitimate, non-
        discriminatory” bases for employment decisions. Price Waterhouse, 490 U.S. at 243
        (citing McDonnell Douglas, 411 U.S. at 802; Burdine, 450 U.S. at 248). It enables
        courts to determine whether a plaintiff’s claim raises a material fact question of
        impermissible bias in light of the defendant’s proffered non-discriminatory reason
        for its actions. The shifting burdens analysis is not for juries to apply at trial. See St.
        Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510 (1993); Desert Palace, 299 F.3d at
        856.
        Conversely, the Price Waterhouse analysis arises during and after trial. See Price
        Waterhouse, 490 U.S. at 279 (O’Connor, J., concurring); Desert Palace, 299 F.3d at
        856-57. Previously, if the court found that direct evidence of discrimination had
        been presented during trial, the “mixed-motive” instruction was appropriate. See
        Price Waterhouse, 490 U.S. at 270-71 (O’Connor, J., concurring). Since Desert
        Palace, district courts may now give jurors the “mixed-motive” instruction when a
        plaintiff presents only circumstantial evidence of discrimination at trial. See Desert
        Palace, 123 S. Ct. at 2155. Nonetheless, on a defendant’s motion for summary
        judgment, the court must still determine whether a plaintiff has made the necessary
        prima facie showing and, if so, whether the claim raises a material question in light
        of the defendant’s proffered justification. See Hicks, 509 U.S. at 510 n.3; Hossaini v.
        W. Mo. Med. Ctr., 97 F.3d 1085, 1088 (8th Cir. 1996) (to avoid summary judgment,
        plaintiff must present evidence of prima facie claim and show existence of material
        fact question as to pretext). In that case, plaintiff is permitted to proceed to trial and
        present all admissible evidence of discrimination, whether direct or circumstantial.
        The jury will then decide the ultimate issue of whether plaintiff has proven by a
        preponderance of the evidence that defendant discriminated against her because of
        her gender. See 42 U.S.C. § 2000e-2(a) & (m).
Id.
    139.       See, e.g., Lloyd v. City of Bethlehem, No. Civ.A. 02-CV-00830, 2004 WL
540452, at *5 (E.D. Pa. Mar. 3, 2004) (“[W]e find persuasive the comprehensive analysis and
reasoning of the district court in Dunbar. Thus, we apply the modified McDonnell Douglas
test enunciated in Dunbar . . . .”); Ordahl v. Forward Tech. Indus., Inc., No. CIV.02-1014
JRT/FLN, 2004 WL 213189, at *3 (D. Minn. Feb. 4, 2004) (“[T]his Court believes that Desert
Palace necessitates modifying the third step of the McDonnell Douglas framework ‘so that it
is framed in terms of whether the plaintiff can meet his or her ultimate burden to prove
intentional discrimination, rather than in terms of whether the plaintiff can prove pretext.’”)
(quoting Brown v. Westaff (USA), Inc., No. CIV. 02-1696 JRTJSM, 2004 WL 67654, at *4-5
(D. Minn. Jan. 12, 2004)); Torlowei v. Target, No. CIV. 02-933 (MJD/JGL), 2004 WL
229081, at *4 (D. Minn. Feb. 3, 2004) (“Even if the employer’s non-discriminatory reason is
true—it is not pretext—the employee’s claim can survive if he has presented sufficient
evidence to raise a genuine issue of material fact as to whether his protected characteristic
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discuss why the cases supporting abrogation are incorrect and the case that has
best analyzed Costa.

   A. Dare v. Wal-Mart Stores, Inc.:140 The Unauthorized Consequence of Costa

     The first court to address Costa’s impact on McDonnell Douglas was the
United States District Court for the District of Minnesota, the Honorable Judge
Magnuson, Senior Judge.141 On June 13, 2003, Judge Magnuson issued a trilogy
of opinions142 that, according to Judge Magnuson, euthanized McDonnell
Douglas.143


was, at least, a motivating factor in the employer’s decision.”) (citing Dunbar v. Pepsi-Cola
Gen. Bottlers of Iowa, Inc., 285 F. Supp. 2d 1180, 1198-99 (N.D. Iowa 2003)); Walker v.
Northwest Airlines, Inc., No. CIV. 00-2604 (MJD/JGL), 2004 WL 114977, at *5 (D. Minn.
Jan 14, 2004) (same); Brown v. Westaff (USA), Inc., 2004 WL 67654, at *5 (D. Minn. Jan.
12, 2004) (“The third McDonnell Douglas step must . . . be modified ‘so that it is framed in
terms of whether the plaintiff can meet his or her ultimate burden to prove intentional
discrimination, rather then in terms of whether the plaintiff can prove pretext.’”) (quoting
Dunbar v. Pepsi-Cola Gen. Bottlers of Iowa, Inc., 285 F. Supp. 2d at 1196); Rishel v.
Nationwide Mut. Ins. Co., 297 F. Supp. 2d 854, 865 (M.D.N.C. 2003) (“[T]he Court must
only modify the final stage of the McDonnell Douglas scheme to accommodate Desert
Palace, by framing the final stage ‘in terms of whether the plaintiff can meet his or her
“ultimate burden” to prove intentional discrimination, rather than in terms of whether the
plaintiff can prove “pretext”’”) (quoting Dunbar v. Pepsi-Cola Gen. Bottlers of Iowa, Inc., 285
F. Supp. 2d at 1197); Dunbar v. Pepsi-Cola Gen. Bottlers of Iowa, Inc., 285 F. Supp. 2d at
1197 (“[T]he McDonnell Douglas burden-shifting paradigm must only be modified in light of
Desert Palace, § 2000e-2(m), and only in its final stage, so that it is framed in terms of
whether the plaintiff can meet his or her ‘ultimate burden’ to prove intentional discrimination,
rather than in terms of whether the plaintiff can prove ‘pretext.’”).
    140.       Dare v. Wal-Mart Stores, Inc. (Dare II), 267 F. Supp. 2d 987 (D. Minn. 2003).
Jason Hedican represented the defendant in Dare II. Id. at 988.
    141.       Id.
    142.       Gonzalez v. City of Minneapolis, 267 F. Supp. 2d 1004 (D. Minn. 2003);
Skomsky v. Speedway SuperAmerica., L.L.C., 267 F. Supp. 2d 995 (D. Minn. 2003); Dare II,
267 F. Supp. 2d 987. Because Dare II is the most frequently cited opinion, we address its
analysis only.
    143.       See Dare II, 267 F. Supp. 2d at 994.
       The unambiguous language of the Civil Rights Act of 1991 directly conflicts with the
       practice of following the direct/indirect evidence distinction to determine whether to
       evaluate a discrimination claim under the McDonnell Douglas burden-shifting
       paradigm or the allocations of burdens set forth in the Civil Rights Act of 1991. In
       addition, the plain meaning of the Civil Rights Act of 1991, the false dichotomy
       produced by the McDonnell Douglas framework, the fact that when a defendant
       prevails under the McDonnell Douglas paradigm the Court is left with a classic
       mixed-motive scenario, and the usefulness of the same decision test all support this
       Court’s decision to apply the Civil Rights Act of 1991 to single-motive claims.
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2004]                    McDonnell Douglas: Alive and Well                                 405


      Plaintiff Lois Dare alleged that Wal-Mart discriminated against her on the
basis of race when it failed to hire her at two of its stores.144 After disposing of
some of her claims,145 Judge Magnuson concluded that Ms. Dare raised a
question of fact as to her prima facie case with respect to one of the stores.146
Because Ms. Dare lacked direct evidence of discriminatory motive, the court
indicated that it would normally apply McDonnell Douglas,147 but it stayed its
ruling pending the outcome in Costa, reasoning:

        The court anticipates that, in the face of the plain language of the Civil
        Rights Act of 1991, the Supreme Court will limit the effect of or do away
        with entirely the single/mixed-motive distinction and the direct/indirect
        evidence distinction. Therefore, the Court stays Wal-Mart’s Motion pending
        the outcome of Costa.148

1.      The Dare II Decision and Its Rationale
      Four days after the Supreme Court decided Costa, Judge Magnuson ruled
on the stayed portions of Wal-Mart’s motion.149 Without requesting or
considering arguments from the parties,150 the court held that the 1991 Act
applied to single-motive cases.151 By implication, Judge Magnuson purported to
overturn the Supreme Court’s 1973 decision in McDonnell Douglas152 based on


Id.; Gonzalez v. City of Minneapolis, 267 F. Supp. 2d at 1010 (“Pursuant to the Supreme
Court’s decision in Desert Palace, the case must be analyzed according to the provisions of 42
U.S.C. § 2000e-2(m) and § 2000e-5(g)(2)(B).”); Skomsky v. Speedway SuperAmerica.,
L.L.C., 267 F. Supp. 2d at 1000 (same).
    144.        Dare v. Wal-Mart Stores, Inc. (Dare I), No. CIV. 02-0001 (PAMRLE), 2003
WL 21147657, at *2 (D. Minn. May 8, 2003).
    145.        See id. at *3 (holding that the Title VII claims against one store were barred
because they were not included in the EEOC charge).
    146.        Id. at *4.
    147.        Id. at *9.
    148.        Id.
    149.        Dare II, 267 F. Supp. 2d 987, 993-94 (D. Minn. 2003).
    150.        Defendant’s counsel had no opportunity to submit any of the analysis contained
in this Article to the court and was given no subsequent opportunity to do so.
    151.        Id. at 991.
    152.        Id. at 990-91. While some interpreted Judge Magnuson’s Dare II decision as
the death of McDonnell Douglas, see, e.g., Van Detta, supra note 2, at 141-42 & n.344, Judge
Magnuson, in subsequent opinions, left no doubt that McDonnell Douglas, in his opinion, was
dead. For example, in Veeder v. Cargill, Inc., the court identified its perception as to the
appropriate analysis applicable to plaintiff’s claims for gender discrimination and retaliation
under Title VII. Veeder v. Cargill, Inc., No. 02-1711 PAM/RLE, 2003 WL 23018824, at *6
(D. Minn. Dec. 23, 2003) (citing Desert Palace, Inc. v. Costa, 539 U.S. 90, 94-96 (2003); Dare
II, 267 F. Supp. 2d at 992). Judge Magnuson reiterated his previous holding that “[p]ursuant
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                  the
four factors: (1) 1991 Act is unambiguous and not expressly limited to
                     153
mixed-motive cases; (2) “the interests of clarity and accuracy support”
allowing “plaintiffs to bring single-motive claims according to the allocations of
                                     154
                                          Act;
burdens articulated in” the 1991 (3) “evaluating single-motive claims
under the McDonnell Douglas burden-shifting scheme inevitably and
                                                       155
                                                           and
paradoxically leads to a classic mixed-motive scenario”; (4)“the process
dictated by the Civil Rights Act of 1991 is more useful than the analysis required
by McDonnell Douglas.”156
      Because the court determined that Ms. Dare had at least raised genuine
issues of material fact as to her prima facie case, it essentially concluded that Ms.
Dare similarly established a genuine issue as to whether her race was a
motivating factor in her non-hire.157 Therefore, the court afforded Wal-Mart the
“opportunity to file a motion for summary judgment on its affirmative defense to
damages according to 42 U.S.C. § 2000e-5(g)(2)(B).”158 Judge Magnuson has
not deviated from this analysis since Dare II.159

2.     Dare II’s Analytical Flaws
       Dare II represents the most extreme interpretation of Costa. As discussed


to the U.S. Supreme Court’s ruling in Desert Palace, Inc. v. Costa, the burden-shifting pretext
analysis of McDonnell Douglas Corporation v. Green does not apply.” Id. (citing Desert
Palace, Inc. v. Costa, 539 U.S. at 90-96; Dare II, 267 F. Supp. 2d at 987-94). Thereafter,
Judge Magnuson identified his view of the proper test: “To proceed with these claims, Veeder
must set forth facts establishing prima facie cases of gender and retaliation. The burden then
shifts to Cargill to prove that it would have made the same decision regardless of the improper
motive.” Id. (citing Desert Palace, Inc. v. Costa, 539 U.S. at 94-96; Dare II, 267 F. Supp. 2d
at 992); see also Picha v. CCS Enters., LLC, No. CIV. 02-3826(PAM/RLE), 2004 WL
212866, at *2 (D. Minn. Jan. 30, 2004) (“[T]o avoid summary judgment, Picha must raise a
genuine issue of material fact as to the elements of a prima facie case of disability
discrimination.”).
    153.       Dare II, 267 F. Supp. 2d at 990-91.
    154.       Id. at 991.
    155.       Id.
    156.       Id.
    157.       See id. at 993 (holding that questions of fact regarding each element of Dare’s
prima facie case precluded summary judgment on her Title VII claim).
    158.       Id.
    159.       See, e.g., Picha v. CCS Enters., LLC, No. CIV. 02-3826(PAM/RLE), 2004 WL
212866, at *2 (D. Minn. Jan. 30, 2004) (stating that Desert Palace eliminated the McDonnell
Douglas burden-shifting analysis); Veeder v. Cargill, Inc., No. CIV. 02-1711 PAM/RLE,
2003 WL 23018824, at *6 (D. Minn. Dec. 23, 2003) (same); Jackson v. Catholic Charities,
No. CIV. 02-122PAMRLE, 2003 WL 22533330, at *2 & n.1 (D. Minn. Nov. 3, 2003) (stating
that Desert Palace applies to single-motive cases and that McDonnell Douglas is not good
law).
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2004]                       McDonnell Douglas: Alive and Well                                      407


above, Costa did not overrule McDonnell Douglas, and Judge Magnuson in Dare
II erred in concluding so. Dare II’s fundamental flaw is its conclusion that the
establishment of a prima facie case meets the plaintiff’s ultimate burden to prove
intentional discrimination, thereby converting the case into a mixed-motive case
under § 2000e-2(m).160 This approach is flawed for several reasons. First, as


    160.         See Dare II, 267 F. Supp. 2d at 991-92. Specifically, the court reasoned as
follows:
        Under McDonnell Douglas, and assuming that a plaintiff establishes a prima facie
        case, or at least creates questions of fact on each of the elements of that prima facie
        case, the defendant then must present a legitimate, nondiscriminatory reason for the
        employment action. In a single-motive case, the dichotomy is complete: either the
        plaintiff is correct in alleging that an illegitimate factor alone motivated the
        defendant or the defendant’s legitimate nondiscriminatory reason was the only
        reason for the decision. The Court must decide which factor was the sole basis for
        the employment decision. To do so, McDonnell Douglas requires that the plaintiff
        challenge the defendant’s proffered reason. A plaintiff must show that the proffered
        reason is false, and that it is a pretext for the discriminatory motive proposed by the
        plaintiff. In considering the parties’ mutually exclusive reasons for the employment
        decision, only two scenarios are possible: either defendant’s proffered reason is (a)
        true and valid; or it is (b) false and invalid. Under the second scenario, the plaintiff
        would prevail. However, under scenario “(a),” McDonnell Douglas would result in a
        victory for the defendant. The Court is concerned that the analysis in scenario “(a)”
        is incomplete, illogical, and prohibited by the Civil Rights Act of 1991.

        The dichotomy produced by the McDonnell Douglas framework is a false one. In
        practice, few employment decisions are made solely on basis of one rationale to the
        exclusion of all others. Instead, most employment decisions are the result of the
        interaction of various factors, legitimate and at times illegitimate, objective and
        subjective, rational and irrational. The Court does not see the efficacy in
        perpetuating this legal fiction implicitly exposed by the Supreme Court’s ruling in
        Desert Palace. When possible, this Court seeks to avoid those machinations of
        jurisprudence that do not comport with common sense and basic understandings of
        human interaction.

        Even putting the concerns of reality aside, however, a plaintiff’s unsuccessful
        challenge to the defendant’s non-discriminatory rationale should not automatically
        allow the defendant to escape liability. Instead, it should merely subject the
        defendant to the mixed-motive analysis dictated by the Civil Rights Act of 1991.
        The pretext phase of the McDonnell Douglas scheme sets one allegedly illegitimate
        rationale against a second, allegedly legitimate reason for the employment action.
        However, a defendant could have illegitimately considered a plaintiff’s race, gender,
        or other enumerated classification in making its employment decision and, at the
        same time, legitimately considered other factors, one of which it proffered to the
        court in satisfaction of its productive burden. Similarly, a plaintiff can fail to prove
        that the defendant’s proffered reason is false without automatically or necessarily
        failing to prove that another motivating factor was illegitimate. In other words, when
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408                                  Drake Law Review                                     [Vol. 52


discussed above, under McDonnell Douglas, as in all civil actions, “[t]he ultimate
burden of persuading the trier of fact that the defendant intentionally
discriminated against the plaintiff remains at all times with the plaintiff.”161 The
Supreme Court has repeatedly rejected any effort to impose upon the employer
the obligation to prove by a preponderance of the evidence that it did not
discriminate in the face of nothing more than the rebutted prima facie case.162
Dare II misread the legal effect of the presumption by concluding that the
establishment of the prima facie case requires, even if rebutted, the trier of fact to
find intentional discrimination.163 Accordingly, Dare II concluded that every
discrimination case is a mixed-motive case.164 But, contrary to Dare II’s
rationale, the Supreme Court has expressly recognized that the employer may
rebut the prima facie case:

       The phrase “prima facie case” not only may denote the establishment of a
       legally mandatory, rebuttable presumption, but also may be used by courts
       to describe the plaintiff’s burden of producing enough evidence to permit the
       trier of fact to infer the fact at issue. McDonnell Douglas should have made
       it apparent that in the Title VII context we use “prima facie case” in the
       former sense.165


       a defendant prevails under the McDonnell Douglas scheme, the court is left with a
       classic mixed-motive scenario, in which both alleged motives could have factored
       into the defendant’s ultimate employment decision. This is clearly impermissible
       under the Civil Rights Act of 1991, which holds an employer liable for considering a
       discriminatory motive, even when other legitimate and sufficient motives were also
       considered.
Id. (citation omitted).
   161.        Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
   162.        See discussion supra Part II.B-E.
   163.        See supra note 160 and accompanying text.
   164.        Dare II, 267 F. Supp. 2d at 991.
   165.        Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. at 254 n.7 (citation omitted).
In addition, the Court in St. Mary’s Honor Center v. Hicks stated:
       We have no authority to impose liability upon an employer for alleged
       discriminatory employment practices unless an appropriate factfinder determines,
       according to proper procedures, that the employer has unlawfully discriminated. We
       may, according to traditional practice, establish certain modes and orders of proof,
       including an initial rebuttable presumption of the sort we described earlier in this
       opinion, which we believe McDonnell Douglas represents. But nothing in law would
       permit us to substitute for the required finding that the employer’s action was the
       product of unlawful discrimination, the much different (and much lesser) finding that
       the employer’s explanation of its action was not believable. The dissent’s position
       amounts to precisely this, unless what is required to establish the McDonnell
       Douglas prima facie case is a degree of proof so high that it would, in the absence of
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2004]                      McDonnell Douglas: Alive and Well                                   409


     A rebutted prima facie case cannot demonstrate that an illegal criterion
motivated the adverse employment action at issue. Several courts have
recognized, unlike Dare II, that following Costa, a rebutted prima facie case
remains insufficient to prove discrimination or shift the burden of proof to the
employer.166
      Second, it bears repeating from the discussion above that § 2000e-2(m)
only shifts the burden to the employer to prove by a preponderance of the
evidence that it would have reached the same result if the plaintiff first proves
discrimination, not just states a prima facie case.167 Accordingly, the declaration
that Costa means the burden shifts to the employer to disprove discrimination
because the plaintiff made a prima facie case but does not prove discrimination
misstates the statute and three decades of law.168
      What is more, Dare II improperly creates a proof mechanism by selecting
the parts of McDonnell Douglas it likes and rejecting those it does not. While
“[t]he burden of establishing a prima facie case” was never intended to be
onerous,169 the employer’s burden to rebut is not taxing either.170 Accordingly,


        rebuttal, require a directed verdict for the plaintiff (for in that case proving the
        employer’s rebuttal noncredible would leave the plaintiff’s directed-verdict case in
        place, and compel judgment in his favor). Quite obviously, however, what is
        required to establish the McDonnell Douglas prima facie case is infinitely less than
        what a directed verdict demands.
St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 514-15 (1993).
    166.       See, e.g., Overall v. Univ. of Penn., No. CIV.A. 02-1628, 2003 WL 23095953,
at *6 (E.D. Pa. Dec. 19, 2003) (‘“To obtain the benefits under a mixed motive theory, the
employee must ‘offer stronger evidence . . . than that needed to establish a prima facie case
under McDonnell Douglas.’”) (quoting Campetti v. Career Educ. Corp., No. CIV.A. 02-CV-
1349, 2003 WL 21961438, at *7 (E.D. Pa. June 25, 2003)).
    167.       See supra note 106 and accompanying text.
    168.       Id.
    169.       Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. at 253; Calero-Cerezo v. U.S.
Dep’t of Justice, 355 F.3d 6, 26 (1st Cir. 2004) (citation omitted); Putman v. Unity Health
Sys., 348 F.3d 732, 735 (8th Cir. 2003) (citation omitted); Abbott v. Crown Motor Co., 348
F.3d 537, 542 (6th Cir. 2003) (citations omitted); Manning v. Chevron Chem. Co., 332 F.3d
874, 883 n.6 (5th Cir. 2003) (citations omitted); Hall v. Ala. Ass’n of Sch. Bds., 326 F.3d
1157, 1166 (11th Cir. 2003) (citation omitted); Foster v. AlliedSignal, Inc., 293 F.3d 1187,
1193 & n.3 (10th Cir. 2002) (citation omitted); Forman v. Small, 271 F.3d 285, 292 (D.C. Cir.
2001) (citation omitted); Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 467 (2d Cir.
2001) (citations omitted); Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 646
(3d Cir. 1998) (citations omitted); Runnebaum v. NationsBank of Md., N.A., 95 F.3d 1285,
1290 (4th Cir. 1996) (citation omitted); Johnson v. Artim Transp. Sys., Inc., 826 F.2d 538,
542 (7th Cir. 1987) (citation omitted); see Lyons v. England, 307 F.3d 1092, 1112 (9th Cir.
2002) (“At the summary judgment stage, the ‘requisite degree of proof necessary to establish
a prima facie case . . . is minimal and does not even need to rise to the level of a
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410                                 Drake Law Review                                  [Vol. 52


Dare II distorts McDonnell Douglas to enable plaintiffs to prove discrimination
in virtually any circumstance.171
      In short, if Costa overruled McDonnell Douglas, then it must have done so
in its entirety, and Dare II should not have taken the very light prima facie
burden from M c D o n n e l l D o u g l a s and ruled that it alone proves
discrimination—especially in the absence of express direction from the Supreme
Court. Consequently, Dare II erred by improperly weighting the prima facie
case, rather than evaluating the case in terms of the plaintiff’s ultimate burden in
a discrimination case, as the Supreme Court has repeatedly mandated.172
      One final flaw of Dare II’s analysis requires comment. The court
suggested that its interpretation was necessary because, otherwise, a plaintiff may
not be able to prove his or her case.173 However, this concern does not justify the
creation of a legally unsupported change to the traditional analysis, because this
concern exists in all civil actions. As the Supreme Court has previously noted:

       All courts have recognized that the question facing triers of fact in
       discrimination cases is both sensitive and difficult. The prohibitions against
       discrimination contained in the Civil Rights Act of 1964 reflect an important
       national policy. There will seldom be “eyewitness” testimony as to the
       employer’s mental processes. But none of this means that trial courts or
       reviewing courts should treat discrimination differently from other ultimate
       questions of fact. Nor should they make their inquiry even more difficult by
       applying legal rules which were devised to govern “the basic allocation of
       burdens and order of presentation of proof[]” in deciding this ultimate
       question.174



preponderance of the evidence.’”) (citation omitted) (alteration in original).
   170.        See, e.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000)
(noting that the defendant’s “burden is one of production, not persuasion; it ‘can involve no
credibility assessment’”) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993));
see also Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978) (stating that establishment
of a prima facie case “raises an inference of discrimination only because we presume these
acts, if otherwise unexplained, are more likely than not based on the consideration of
impermissible factors”).
   171.        Dare II, 267 F. Supp. 2d 987, 991-92 (D. Minn. 2003).
   172.        See, e.g., U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 717
(1983) (“The District Court . . . erroneously focused on the question of prima facie case rather
than directly on the question of discrimination.”).
   173.        See Dare II, 267 F. Supp. 2d at 992 (stating that “a plaintiff’s unsuccessful
challenge to the defendant’s non-discriminatory rationale should not automatically allow the
defendant to escape liability”).
   174.        U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. at 716 (citation
omitted).
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       Based on the provisions of Title VII and the opinions of the Supreme
Court, Dare II cannot stand. Notwithstanding Judge Magnuson’s concerns to the
contrary, we, like the Supreme Court, remain confident in McDonnell Douglas’s
ability to vindicate victims of discrimination.175

    B. Dunbar v. Pepsi-Cola General Bottlers of Iowa, Inc:176 A More, But Not
                        Completely, Accurate Approach

     While some commentators,177 and at least one court,178 have expressly
endorsed Dare II, the vast majority of courts (including the Eighth Circuit Court
of Appeals in which Judge Magnuson’s court sits)179 have either rejected the idea


    175.       See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 258 (1981) (“We
remain confident that the McDonnell Douglas framework permits the plaintiff meriting relief
to demonstrate intentional discrimination.”). For several years, Chris Hedican represented
plaintiffs in employment litigation. He never found McDonnell Douglas to present the proof
problems or other difficulties Dare II and commentators have claimed. Indeed, he found
establishing a fact question on pretext to be relatively easy. He does agree with those
commentators who decry the lack of competent representation of plaintiffs, because he found
that diligent discovery, creativity, and knowledge of the law enabled him to build cases in a
way he rarely sees from plaintiff’s counsel. The only significant problem he encountered was
judges who made fact determinations at summary judgment. However, in that instance, this
problem could be resolved at the appellate court level by arguing that numerous facts in
addition to pretext demonstrated a fact issue for trial. See, e.g., Widoe v. Dist. # 111 Otoe
County Sch., 147 F.3d 726, 732 (8th Cir. 1998) (finding that evidence of pretext and age bias
established a fact question precluding summary judgment).
    176.       Dunbar v. Pepsi-Cola Gen. Bottlers of Iowa, Inc., 285 F. Supp. 2d 1180 (N.D.
Iowa 2003).
    177.       See, e.g., Van Detta, supra note 2, at 139-42 (endorsing the Dare II approach);
see also Corbett, supra note 2, at 215 (discussing Dare II).
    178.       Griffith v. City of Des Moines, No. 4:01-CV-01537, 2003 WL 21976027, at
*12 (S.D. Iowa July 3, 2003) (citing Dare II, 267 F. Supp. 2d at 991). Despite this purported
agreement, Judge Longstaff granted summary judgment on the plaintiff’s Title VII claims,
concluding that the result would have been the same under McDonnell Douglas, because the
plaintiff had not established that the defendant’s legitimate, nondiscriminatory reasons were a
pretext. Id. at *17 n.18; see also Thomas v. Chrysler Fin., LLC, 278 F. Supp. 2d 922, 926
(N.D. Ill. 2003) (“It would seem to follow that if an employee can raise an inference of
discrimination by satisfying the initial elements of a prima facie case, an employer may not
necessarily escape liability altogether by offering an alternative explanation for its action.
Once the potential exists for the alleged discriminatory motive to be viewed reasonably as a
motivating factor at all, the employer’s proffer of a legitimate, nondiscriminatory justification
would arguably affect the scope of remedies available to the plaintiff, but not the employer’s
underlying liability (42 U.S.C. § 2000e-5(g)(2)(B)).”).
    179.       The Eighth Circuit Court of Appeals, which encompasses the United States
District Court for the District of Minnesota, has not directly addressed the issue; however, its
decisions reveal that Dare II’s approach is, at a minimum, inconsistent with Eighth Circuit
precedent. See Allen v. City of Pocahontas, 340 F.3d 551, 557 n.5 (8th Cir. 2003) (“Without
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of eliminating McDonnell Douglas, or have simply continued to apply
McDonnell Douglas either by itself or in conjunction with a mixed-motive
analysis.180 Those courts expressly addressing the issue have noted that the Costa
decision may, under appropriate circumstances, require a modification of the
pretext stage of the McDonnell Douglas analysis.181 However, a careful review
of this approach reveals that, in essence, these courts are merely articulating
previous observations made by the Supreme Court with respect to McDonnell
Douglas.182 As such, these cases also demonstrate McDonnell Douglas’ s
continued viability.
      The best approach in this regard came from the United States District Court
for the Northern District of Iowa. In Dunbar v. Pepsi-Cola General Bottlers of
Iowa, Inc., Judge Mark W. Bennett183 made a commendable effort to reconcile



reaching the issue as to whether the Supreme Court’s refocus on the statutory language of the
Civil Rights Act of 1991 alters the burden-shifting analysis of McDonnell Douglas, the result
in this case remains the same. Here, petitioner has provided no evidence, direct or
circumstantial, from which a reasonable jury could logically infer that age or gender was a
motivating factor in her termination.”) (citing Desert Palace, Inc. v. Costa, 539 U.S. 90, 95-96
(2003)); see also Preutt v. Vill. News, Inc., No. 03-1798EA, 2003 WL 22833376, at *1 n.2
(8th Cir. Dec. 1, 2003) (declining to address Costa’s application to summary judgment
because the issue was not properly raised before the courts). Subsequently, the Eighth Circuit
implicitly overruled Dare. In Trammel v. Simmons First Bank, the Eighth Circuit observed
that the defendant “d[id] not dispute that Mr. Trammel met his burden of establishing a prima
facie case.” Trammel v. Simmons First Bank, 345 F.3d 611, 614 (8th Cir. 2003). Despite this
concession, which, according to Judge Magnuson, triggered a mixed-motive analysis, the
Eighth Circuit affirmed summary judgment for the employer because the plaintiff failed to
meet his ultimate burden of proof. Id. at 616. The court explained that “even if we assume,
without deciding, that the holding in Costa applies to ADEA claims, we do not believe that
this helps Mr. Trammel because he has presented insufficient evidence to support a finding
that his age was a ‘motivating factor’ in the decision to discharge him.” Id. at 615. Moreover,
in Marquez v. Bridgestone/Firestone, Inc., the Eighth Circuit affirmed summary judgment for
the employer, holding that in the absence of direct evidence of discrimination, McDonnell
Douglas was the proper standard to apply. Marquez v. Bridgestone/Firestone, Inc., 353 F.3d
1037, 1038 (8th Cir. 2004). This analysis directly contradicts Judge Magnuson’s approach in
Dare I, in which he made an express finding that there was no direct evidence, but still denied
summary judgment on this finding alone. See Dare I, No. CIV. 02-0001 (PAMLRE), 2003
WL 21147657, at *9 (D. Minn. May 8, 2003) (staying Wal-Mart’s motion for summary
judgment to await the Supreme Court’s decision in Costa even though there was no direct
evidence).
    180.       See supra notes 136-37.
    181.       See supra note 137.
    182.       See supra notes 16-71 and accompanying text.
    183.       See generally BIOGRAPHICAL D IRECTORY OF THE F EDERAL JUDICIARY 1789-
2000, at 374 (Bernan 2001). It is worth noting that Judge Bennett was a reputed and
accomplished plaintiffs’ employment litigator prior to joining the bench.
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2004]                       McDonnell Douglas: Alive and Well                                      413


Costa with McDonnell Douglas in the context of summary judgment.184 Initially,
Judge Bennett concluded that in light of the 1991 Act, “Congress has made plain
that an employment practice ‘because of’ a protected characteristic means that
the protected characteristic was ‘a motivating factor’ for that employment
practice, not that it was the sole motivating factor.”185 Judge Bennett determined
that Costa adopted the same standard required to avoid summary
judgment—whether a reasonable jury could conclude by a preponderance of the
evidence that an illegal criterion motivated an unlawful employment practice.186
While Judge Bennett shared Judge Magnuson’s belief “that Desert Palace and §
2000e-2(m) spell the demise of the ‘false dichotomy’ between” McDonnell
Douglas and Price Waterhouse, and might “spell the demise of the Price
Waterhouse framework,” Judge Bennett did not believe it signaled the demise of
McDonnell Douglas.187 Rather, he concluded that McDonnell Douglas was not
the flaw.188 Instead, the flaw was the conclusion drawn by some courts that “in
the absence of ‘direct evidence’ of discrimination there could be no ‘mixed-
motive’ case.”189
    From these observations, Judge Bennett concluded that once the
McDonnell Douglas presumption disappears, more than two possibilities exist.190


    184.       Dunbar v. Pepsi-Cola Gen. Bottlers of Iowa, Inc., 285 F. Supp. 2d 1180, 1195-
96 (N.D. Iowa 2003).
    185.       Id. at 1195.
    186.       Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
    187.       Id. at 1196.
    188.       Id.; see also Higareda v. Ford Motor Co., No. 01-1182-CV-W-HFS, 2003 WL
22110496, at *4 n.9 (W.D. Mo. Sept. 2, 2003) (declining to rely on the Supreme Court’s
Costa ruling in addressing summary judgment, but accepting “the criticism that some case law
may overemphasize McDonnell Douglas analysis”).
    189.       Dunbar v. Pepsi-Cola Gen. Bottlers of Iowa, Inc., 285 F. Supp. 2d at 1196.
Judge Bennett also observed that, before Costa, “the Supreme Court made clear that, after the
defendant offers a legitimate reason for its conduct, ‘the McDonnell Douglas
framework—with its presumptions and burdens—disappear[s], and the sole remaining issue
[i]s discrimination vel non.’” Id. (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 142-43 (2000)); see also Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d
277, 286 (4th Cir. 2004) (“Regardless of the type of evidence offered by a plaintiff as support
for her discrimination claim (direct, circumstantial, or evidence of pretext), or whether she
proceeds under a mixed-motive or single-motive theory, ‘[t]he ultimate question in every
employment discrimination case involving a claim of disparate treatment is whether the
plaintiff was the victim of intentional discrimination.’”) (quoting Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. at 153).
    190.       Dunbar v. Pepsi-Cola Gen. Bottlers of Iowa, Inc., 285 F. Supp. 2d at 1197.
Specifically, Judge Bennett noted:

        [I]f the defendant’s proffered reason is true, there are three possible scenarios, which
        might be described as the “mixed motive” scenarios:
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Therefore, he concluded that, in light of Costa, if the employee establishes a
prima facie case, and the employer proffers a legitimate, nondiscriminatory
reason, the McDonnell Douglas analysis need only be modified at its final stage
“in terms of whether the plaintiff can meet his or her ‘ultimate burden’ to prove
intentional discrimination, rather than in terms of whether the plaintiff can prove




                 (1) The defendant’s proffered reason is true, and it is the only reason (or, at
                 least, the only reason supported by the record). No “mixed motive” is shown,
                 and the defendant wins.
                 (2) The defendant’s reason is true, there are other reasons supported by the
                 record, but the plaintiff nevertheless fails to prove by the preponderance of
                 the evidence (or to generate a genuine issue of material fact) that another
                 “motivating factor” for the defendant’s conduct was the employee’s protected
                 characteristic. No adequate “mixed motive” showing has been made, and the
                 defendant wins.
                 (3) The defendant’s reason is true, there are other reasons supported by the
                 record, and the plaintiff proves by the preponderance of the evidence (or
                 generates a genuine issue of material fact) that another “motivating factor” for
                 the defendant’s conduct was the employee’s protected characteristic. An
                 adequate “mixed motive” showing has been made, and the plaintiff wins (or at
                 least defeats the defendant’s motion for summary judgment).

       Similarly, if the defendant’s proffered reason is false, the plaintiff must still make a
       showing that the plaintiff’s protected characteristic is the “real reason,” i.e., a
       showing of “pretext,” with the following possible scenarios:
                 (1) The defendant’s proffered reason is false, but no other reason is supported
                 by the record (which implies that the “real reason” was the employer’s right
                 to fire an at-will employee for no reason). “Pretext” has not been shown, and
                 the defendant wins.
                 (2) The defendant’s proffered reason is false, there are other reasons
                 supported by the record, but the plaintiff nevertheless fails to prove by the
                 preponderance of the evidence (or to generate a genuine issue of material
                 fact) that his or her protected characteristic was the real reason. “Pretext” has
                 not been shown, and the defendant wins.
                 (3) The defendant’s proffered reason is false, there are other reasons
                 supported by the record, and the plaintiff proves by the preponderance of the
                 evidence (or generates a genuine issue of material fact) that his or her
                 protected characteristic was the real reason. An adequate showing of
                 “pretext” has been made, and the plaintiff wins (or at least defeats the
                 defendant’s motion for summary judgment).

       Only two of these possible scenarios result in victory for the plaintiff, or at least,
       allow a plaintiff to defeat a defendant’s motion for summary judgment, because in
       only those two scenarios has the plaintiff made an adequate showing on his or her
       ultimate burden to prove intentional discrimination.
Id.
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2004]                     McDonnell Douglas: Alive and Well                                415


‘pretext.’”191 Consequently, Judge Bennett determined that the modified
paradigm was as follows:

        Under such a modified framework, to prevail after the defendant produces a
        legitimate, nondiscriminatory reason for its conduct the plaintiff must prove
        by the preponderance of the evidence either (1) that the defendant’s reason is
        not true, but is instead a pretext for discrimination (pretext alternative), see
        Reeves, 530 U.S. at 143, 120 S. Ct. 2097; or (2) that the defendant’s reason,
        while true, is only o n e of the reasons for its conduct, and another
        “motivating factor” is the plaintiff’s protected characteristic (mixed-motive
        alternative). 42 U.S.C. § 2000e-2(m). The latter showing may be made
        with either “direct” or “circumstantial” evidence. Desert Palace, 539 U.S.
        at [90], 123 S. Ct. 2155.192

      Judge Bennett’s approach, marked by his typical thoroughness, represents
an admirable attempt to reconcile Costa with previous decisions of the Supreme
Court. His conclusion, while legally sound, does not represent a new conclusion
compelled by Costa or the 1991 Act. Instead, it is completely consistent with
McDonnell Douglas and its progeny as to a plaintiff’s available methods of
carrying his or her ultimate burden. As the Supreme Court has noted, a plaintiff
may establish his or her case “either directly by persuading the court that a
discriminatory reason more likely motivated the employer or indirectly by
showing that the employer’s proffered explanation is unworthy of credence.”193
       The analysis adopted by Dunbar and those following it is completely
supported by previous Supreme Court decisions. Consequently, it does not
signal a departure. In short, McDonnell Douglas and the traditional analysis
available to the courts for evaluating summary judgment remains the same. That
is, the methods of proof discussed above and illustrated in the Appendix to this
Article have been, and continue to be, available to the plaintiff.

    VI.     A BRIEF RESPONSE TO THE QUIET DEMISE OF MCDONNELL DOUGLAS

     We have set forth our view that Costa in no way overruled McDonnell
Douglas and that those courts finding to the contrary are incorrect. Jeffrey A.
Van Detta, Associate Professor of Law and Associate Dean of Academic Affairs
at John Marshall Law School in Atlanta, Georgia, authored the most
comprehensive article to date, arguing that Costa indeed overruled McDonnell



   191.    Id. at 1197-98.
   192.    Id.
   193.    Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981) (citing
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804-05 (1973)).
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416                                 Drake Law Review                                   [Vol. 52


Douglas.194 Let us start by saying what we feel is positive about the article.
Professor Van Detta carefully synthesizes and weaves together three decades of
critical commentary on McDonnell Douglas. As a distillation of what
commentators have felt was wrong with McDonnell Douglas, the writing is
excellent. Professor Van Detta’s essay also is an illustration of the important role
that law schools and law reviews contribute to fostering the debate about what
our laws should and should not be in the United States. However, beyond this,
we disagree with him.
      Professor Van Detta acknowledges that his “tone . . . is not a neutral one”
in his writing, and that is amply apparent.195 He essentially endorses the
approach Judge Magnuson adopted in Dare II—that once a plaintiff proves a
prima facie case of discrimination, he or she has met the ultimate burden of
proving discrimination. At that point, the employer could only prevail if it
persuaded the fact finder “either: (a) that the protected status was not a causative
factor at all (a complete defense), or (b) that the defendant would have made the
same decision anyway in the plaintiff's case, even if the plaintiff was not a
member of a protected class (a partial defense).”196 What Professor Van Detta
did that Dare II did not is provide a rationale as to why this should be the law.197
Professor Van Detta follows up with why he believes that the Civil Rights Act of
1991 and Costa demonstrate that McDonnell Douglas has been overruled.198
Below, we outline some of our concerns.
     The central premise of Professor Van Detta’s argument is that McDonnell
Douglas and the courts have largely failed to accept that the United States is
permeated with unconscious discrimination and, in particular, racism.199 In
essence, he reasons that, because of the history of unconscious discrimination,



   194.        See generally Van Detta, supra note 2.
   195.        Id. at 79.
   196.        Id. at 77.
   197.        See id. at 108-19 (arguing that McDonnell Douglas is untenable due to the
phenomenon of unconscious racism).
   198.        See id. at 119-38 (arguing that the statutory language, legislative history, and
legislative purpose of the Civil Rights Act of 1991 and the Court’s holding in Costa have
overruled McDonnell Douglas).
   199.        Id. at 80, 109-110. Specifically, he reasons:

       Title VII is merely a tort—whose key question is causation, rather than intent. And
       the effect of establishing the prima facie case in the backdrop of “unconscious
       racism”—and sexism, colorism, national originism, and antireligionism, which I
       maintain follow naturally from our history of discrimination in those areas as
       well—is that causation is established.
Id. at 99.
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2004]                    McDonnell Douglas: Alive and Well                                 417


once a plaintiff establishes a prima facie case of discrimination, it is fair to
presume intent.200 The theory, as Professor Van Detta stated, may appear
“radical,” but he contends it is not.201 We agree that issues of unconscious racism
are appropriate for debate, but there is nothing within Title VII or any of the
antidiscrimination statutes that brands all employers as bigots until they can
prove otherwise.202 The legislative history to the antidiscrimination statutes does
not appear to support this view or recognize such a congressional finding.203
Moreover, in over three decades of analysis of the antidiscrimination laws by the
Supreme Court, it has never found such an “unconscious intent” to underpin the
statutes or even constitute a target of the laws.204 Had it been there, certainly a
judge or two would have pointed it out. Instead, the Court has reached the
opposite conclusion, repeatedly holding that the burden of proof does not shift to
the employer to disprove discrimination once a plaintiff makes a prima facie
case.205
       Professor Van Detta believes that Costa overruled McDonnell Douglas by
implication.206 We will not repeat the argument to the contrary here, but there are
a few additional points we want to make concerning Professor Van Detta’s view
of Costa. Professor Van Detta argues that the Supreme Court unwittingly and
irretrievably overruled McDonnell Douglas based on its interpretation of §
2000e-2(m) in Costa.207 In addition to the reasons we previously articulated, there


   200.        Id. at 115.
   201.        Id. at 118.
   202.        See, e.g., 42 U.S.C. § 2000e-2(m) (2000) (stating that the plaintiff must
demonstrate that the employer considered an illegitimate criterion to establish an unlawful
employment practice).
    203.       See Price Waterhouse v. Hopkins, 490 U.S. 228, 262 (1989) (“The legislative
history [of Title VII] makes it clear that Congress was attempting to eradicate discriminatory
actions in the employment setting, not mere discriminatory thoughts.”).
    204.       See discussion supra Part II. Indeed, in Price Waterhouse, the Court stated:
“‘There must be some specific external act, more than a mental act. Only if he does the act
because of the grounds stated in the bill would there be any legal consequences.’” Price
Waterhouse v. Hopkins, 490 U.S. at 262 (quoting 100 CONG. REC. 7254 (1964) (remarks of
Sen. Case)).
    205.       See discussion supra Part II.
    206.       Van Detta, supra note 2, at 73, 130-34.
    207.       Id. at 136. Professor Van Detta also argues that footnote one in Costa was a
lame attempt to narrow a holding that he believes cannot be narrowed. Id. He likens the
footnote to a hypothetical declaration in Brown v. Board of Education, 347 U.S. 483 (1954),
that the holding is limited to outlaw segregation in schools but expresses no opinion on
segregation by the government in any other context. Id. at 136 n.322. Although dramatic, the
analogy does not follow. Costa simply defined the nature of proof required to obtain a mixed-
motive instruction. See Desert Palace, Inc. v. Costa, 539 U.S. 90, 95-96 (2003) (holding that
“direct evidence of discrimination is not required in mixed-motive cases”; the “plaintiff need
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418                                 Drake Law Review                                  [Vol. 52


are further reasons why this cannot be correct.
      First, it is difficult to imagine that the Justices accidentally overruled thirty
years of Supreme Court precedent, especially without mentioning the cases at
issue. Indeed, Justices Rehnquist, Scalia, and Kennedy all advocated for
McDonnell Douglas in their dissent in Price Waterhouse208 and certainly would
have made clear their reasons for departing from that scheme now if their votes
in Costa eliminated McDonnell Douglas. In any event, it is well within the
Court’s authority to change its mind if Professor Van Detta is correct. Second,
Professor Van Detta contends that the holding in Costa, coupled with the facts of
the case, demonstrates that all discrimination cases are mixed-motive cases.209
Specifically, he argues that because Costa involved “garden-variety”
discrimination facts that ordinarily would proceed under McDonnell Douglas, it
must mean that the scheme is dead.210 However, this again misses the point that
the district court in Costa had instructed the jury that it must first find intentional
discrimination before the burden shifted to the employer.211 Moreover, it ignores
Costa’s holding that the court may only give the instruction if the plaintiff has
sufficient evidence from which he or she can prove intentional discrimination.212
Neither Costa, nor any preceding Supreme Court decision says a plaintiff can
prove discrimination with nothing more than a prima facie case.213 Finally,
Professor Van Detta’s argument about what Costa means is based largely upon
inference, assumption, and other arguments about what Costa must mean for
McDonnell Douglas, not what it actually said.214 That alone proves the point that
McDonnell Douglas remains intact.
      This interpretation of Costa also suffers from the same problem as the
rationale in Dare II. Dare II chose to use the part of the McDonnell Douglas


only present sufficient evidence”). It did not address how discrimination is proved, the
standards for summary judgment, McDonnell Douglas, or judgment as a matter of law. See
id. at 91 n.1 (stating that the instant case did not require consideration of section 107’s
applicability “outside the mixed-motive context”). It did not reach a substantive constitutional
question like Brown.
    208.       Price Waterhouse v. Hopkins, 490 U.S. at 279 (Kennedy, J., dissenting).
    209.       Van Detta, supra note 2, at 136.
    210.       Id. at 134-35. We agree that the case involved garden-variety discrimination
facts, but we do not agree that the McDonnell Douglas scheme is dead.
    211.       Desert Palace, Inc. v. Costa, 539 U.S. at 92.
    212.       Id. at 95.
    213.       See generally id.; discussion supra Part II.
    214.       See, e.g., Van Detta, supra note 2, at 136 (“Without so stating, Justice Thomas
simply wrote the whole category of mixed-motive Title VII cases out of existence.”); id. at
137 (“[S]ometimes judicial actions speak louder than judicial words.”); id . at 138.
(“[S]ection 703(m) ‘does not mention, much less require . . . .’”) (quoting Desert Palace, Inc.
v. Costa, 539 U.S. at 94).
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2004]                       McDonnell Douglas: Alive and Well                                       419


framework it found favorable to plaintiffs—specifically, the prima facie case.215
However, it did not recognize that the prima facie case, when created, was not
meant to be an onerous burden given that the defendant’s rebuttal burden was not
heavy.216 Accordingly, Professor Van Detta, like Dare II, requires almost
nothing of the plaintiff to prove discrimination.
       The presumption of discriminatory intent also ignores the reality of the
statute. Title VII applies to persons of all races, genders, national origins, and
religions.217 Accordingly, under Professor Van Detta’s framework, a Caucasian
man who lost his job could prove a case of race discrimination simply by
showing treatment different than at least one nonwhite employee—or, in the case
of gender discrimination, treatment different than a woman.218
      In either circumstance, the employer would have to defend against the
Caucasian man’s discrimination claims by proving that gender or race had
nothing to do with the decision. Because Professor Van Detta himself
represented employers for over twelve years,219 his honest assessment must be
that the majority of plaintiffs’ claims, while believed to be legitimate by the



   215.        See supra note 166 and accompanying text.
   216.        See supra notes 169-70 and accompanying text.
   217.        See 42 U.S.C. § 2000-e(2)(a)(i) (2000) (prohibiting discrimination on the basis
of “race, color, religion, sex, or national origin”).
    218.       Professor Van Detta states:

        Obviously, the easiest way to [prove discrimination] is through prima facie cases that
        show treatment different from at least one other comparator, but this does not always
        have to be the case. The most readily identifiable hallmark of such a factual context
        will be comparative—i.e., specific examples of different treatment in similar
        circumstances—but it cannot, nor should it be, limited to those kinds of situations.
        Evidence in support of a prima facie case include imbalances in a workforce, lack of
        efforts to add qualified minority candidates to hiring pools, expressions of hostility
        toward protected groups in the workplace, statements formerly called “stray
        remarks” that evince an “us-them” view of the workplace by nonminority employees,
        atmospheres of unwelcomeness for minority employees, lack of advancement for
        minority employees, lower minority retention rates, failure to do more than give lip
        service in meeting the goals and timetables in affirmative action plans required for
        federal contractors and subcontractors, and ineffectual handling of complaints of
        harassment or discrimination by employees. Each and all . . . should be admissible,
        when factually present, in every Title VII case to permit the trier of fact to determine
        whether, in that case, to draw the inference that an employment decision at issue
        (even if that decision per se has no particular causal relationship with these indicia of
        bias) was caused in any part by the plaintiff’s membership in a protected class.
Van Detta, supra note 2, at 115-16 (citations omitted).
  219.        Id. at 79.
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420                                  Drake Law Review                                    [Vol. 52


plaintiffs, are legally meritless.220 Endorsing Professor Van Detta’s position
would simply hand a new weapon to a whole new group of plaintiffs to challenge
at-will employment221 decisions and extort settlements.222
      This problem would also extend to situations in which the courts have
recognized claims of race discrimination against lighter-skinned African
Americans by persons with darker skin, of gender-based homosexual
discrimination, or claims of discrimination by persons of Puerto Rican descent


    220.       Management practitioners are well aware that the majority of discrimination
claims have no legal merit. Indeed, the EEOC’s published statistics show that it found
reasonable cause to believe there was discrimination in only 5.7% of the 81,293 charges in
2003. E QUAL E MPLOYMENT O PPORTUNITY C OMM ’N , ALL STATUTES: FY 1992-2003,
available at http://www.eeoc.gov/stats/all.html (last modified Mar. 8, 2003). The statistics are
similar in other years, with the most reasonable-cause findings topping in 2001 at 9.9% of the
filed charges. Id. The agency has found no case in approximately 60% of the cases in the
past decade. Id. As the agency charged with investigating and eradicating discrimination, the
EEOC’s statistics amply support the view that the majority of plaintiffs’ claims are legally
meritless.
    221.       For an excellent discussion of how at-will employment fosters employment and
economic growth, see WALTER K. OLSON, THE EXCUSE FACTORY: HOW EMPLOYMENT LAW IS
PARALYZING THE AMERICAN WORKPLACE 287-88 (1997). Olson argues that the United States
economy produced many more jobs and enjoyed much greater productivity than its
counterparts in Europe, which has restrictive employment laws. Id. at 288. Professor Van
Detta’s approach to discrimination would effectively abolish at-will employment, given the
ease of establishing a prima facie case of discrimination.
    222.       It is well known that employers often pay to settle meritless cases to avoid
expensive litigation costs. E.g., Jonathan T. Molot, How U.S. Procedure Skews Tort Law
Incentives, 73 IND. L.J. 59, 95 (1997) (citing Avery Katz, The Effect of Frivolous Lawsuits on
the Settlement of Litigation, 10 IN T ’ L R EV . L. & E C O N . 3, 4 (1990); Robert G. Bone,
Modeling Frivolous Suits, 145 U. P A . L. R EV. 519, 524 (1997); David Rosenberg & Steven
Shavell, A Model in Which Suits Are Brought for Their Nuisance Value, 5 INT’L REV. L. &
E CON . 3 (1985)). Small employers also settle despite the merits of the plaintiff’s claim
because they are less able to finance the defense or survive an adverse verdict. Michael
Selmi, The Value of the EEOC: Reexamining the Agency’s Role in Employment
Discrimination Law, 57 OHIO S T . L.J. 1, 36 (1996). The prospect of a guaranteed recovery
will drive rational, profit-driven plaintiff’s counsel to sign up as many employees as possible.
Under Professor Van Detta’s approach, as long as plaintiff’s counsel can establish a prima
facie case—a virtual certainty—there is no chance of losing, because Title VII will mandate
that the employer pays attorney fees. See 42 U.S.C. § 200e-5(k) (allowing courts to award
attorney fees to the prevailing party in Title VII cases). This is the ultimate no-lose litigation,
with employers serving as “super-ATMs.” This observation is further supported by
commentators sympathetic to plaintiffs, who have noted that, in deciding to select an
employment case, the amount of damages available for successful litigation is less relevant to
the plaintiff’s lawyer than the lawyer’s ability to recover attorney fees under the statute.
Selmi, supra, at 29. Other commentators have noted that “most contingent-fee plaintiffs’
attorneys can earn their living by filing more suits than they have time to investigate.” Molot,
supra, at 97.
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2004]                    McDonnell Douglas: Alive and Well                               421


against those of Dominican descent.223 The point is, that if the premise for
presumed intent is that there is a history of unconscious discrimination, that
rationale falters when the statute itself must be applied in circumstances under
which there appears to be no recognized history of discriminatory bias.224
      One of the most obvious problems with the paradigm proposed by
Professor Van Detta is Title VII itself. He posits that an employer can either
entirely escape liability by proving it did not discriminate, or prove a partial
defense that if it did discriminate, it would have reached the same reason
legitimately anyway.225 However, if, as Professor Van Detta argues, every Title
VII cases is a mixed-motives case, his statement that an employer can entirely
escape liability is not supported by the very statute that Professor Van Detta
claims supports his view that Costa has overruled McDonnell Douglas. That
statute, at best, only allows employers that have been found to discriminate to
minimize their loss and limit liability to the plaintiff’s attorney fees and comply
with any injunctive relief.226 Nowhere does it allow an employer to entirely
escape liability in a mixed-motives case. Accordingly, Costa cannot mean that
the 1991 Civil Rights Act entirely changed the paradigm and put the burden on
employers to disprove liability upon proof of a prima facie case, as Professor Van
Detta urges. Under Professor Van Detta’s reasoning, once a plaintiff establishes
a prima facie case, the very best an employer can hope for is to simply pay the
plaintiff’s legal fees and comply with any injunctive relief. The only employers
that would not be liable for attorney fees would be those in the unusual case in
when the plaintiff cannot make a prima facie case. Attorneys representing both
employers and employees can easily recognize the recipe for blackmail under
this methodology. In essence, any employer who terminated an employee would
be forced to settle or pay attorney fees, because it is hardly difficult to make a
prima facie case and thereby shift the burden to the employer.227
        Finally, we must disagree with Professor Van Detta’s view that tort law


   223.        EEOC Commissioner Naomi Earp recently stated at an American Bar
Association meeting that “‘[m]any people don’t realize that color is a separate protected
category under Title VII.’” Charges of Color Bias Are on the Rise, Commissioner Earp Tells
Forum, Daily Lab. Rep. (BNA), at 226 (Apr. 5, 2004). Moreover, colorism is an ever-
increasing problem that reaches not only African Americans, but also individuals from India,
Pakistan, and South America. Id. Because of this new emerging problem, how can we
address the reality of colorism? Under Professor Van Detta’s proposal, we simply assume
racism and move on. However, colorism is not that simple.
   224.        Professor Van Detta cites little authority for the unconscious racism theory,
other than a few law review articles. Id. at 109 nn.193 & 196, 110 n.202.
   225.        Van Detta, supra note 2, at 77.
   226.        42 U.S.C. § 2000e-5(g)(2)(B).
   227.        See supra note 169 and accompanying text.
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422                                Drake Law Review                                 [Vol. 52


supports his approach.228 Whether discrimination claims should or should not be
treated as a tort is, in our view, essentially irrelevant. Under tort law, a plaintiff
still maintains the burden to prove the case by the preponderance of evidence.229
Except in unusual circumstances, the defendant is not presumed to have
committed the tort.230 For example, it is not the law that if a person can establish
that he or she was a patient of a physician who performed a surgery and there
was a bad outcome, the doctor is liable for malpractice unless he can prove
otherwise. However, that is precisely the easily manufactured presumption that
Professor Van Detta advocates in discrimination cases. To be sure, Professor
Van Detta’s article is well written, but until Congress or the Supreme Court says
otherwise, we believe his theory is not correct.

                                   VII. CONCLUSION

       Significantly, McDonnell Douglas has survived over thirty years of court
interpretation and analysis. Costa did not place a nail in the heart of McDonnell
Douglas. The 1991 Civil Rights Act, the numerous Supreme Court decisions
interpreting and applying McDonnell Douglas, and the decision in Costa itself
amply demonstrate that McDonnell Douglas is alive and well. While Professor
Van Detta proposes a sea change in the course of employment discrimination
litigation, Costa does not support this change.
      We hope that this Article assists practitioners in understanding the
implications of Costa and where the proof burdens lie. To our learned colleagues
in academia, we hope that this Article focuses the discussion on the inner
workings of McDonnell Douglas and its burden-shifting scheme. While radical
theories are intellectually stimulating, this issue is important enough to
practitioners to focus on its real, practical aspects.
       Professor Van Detta’s article and this Article are but two in a long line of
commentators and scholars addressing this critical issue in our society. We
encourage debate on this vital issue. Discrimination must be eliminated from our
society. The question is how. We believe that McDonnell Douglas provides a
fair and appropriate way to ferret out discrimination. If there are better ways, we
humbly call on others to show the way.




    228.        See Van Detta, supra note 2, at 81-83 (arguing that employment discrimination
is a tort and should be treated as such).
    229.        See DAN B. DOBBS, THE LAW OF TORTS § 150 (2000) (stating that the plaintiff
must prove each element of the case by a preponderance of the evidence).
    230.        See id. § 152 (stating that circumstantial evidence of a fact might shift the
burden of production or persuasion to the defendant).
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2004]            McDonnell Douglas: Alive and Well             423

								
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