The McDonnell Douglas Avoidance Doctrine

In an earlier post, I explained the McDonnell Douglas framework in employment law with a focus on so-called Reverse Discrimination cases. If you are unfamiliar with this legal standard, I encourage you to review that post before proceeding.

In that post, I mentioned that the Sixth, Seventh, Eight, Tenth, and D.C. Circuits still require a heightened showing for so-called Reverse Discrimination cases. Yet, courts within those circuits often find ways to sidestep applying the heightened standard. A phenomenon I have termed, the McDonnell Douglas Avoidance Doctrine.

Two cases from the Seventh Circuit illustrate two different ways that courts avoid this issue. In Hueramo v. Wells, the plaintiff, a white probationary police officer, alleged that his termination by the Village of Robbins, led by its African American police chief, was based on racial bias. Hueramo had a brief tenure marked by multiple complaints of misconduct from citizens. Despite being named Officer of the Month early in his employment, he was terminated before an internal investigation into his conduct was completed. Hueramo claimed his race was the reason for his termination, while the Village cited legitimate, non-discriminatory reasons, including complaints and performance issues​.

The district court, following a common approach seen in the Second Circuit, determined that the defendants submission of an alleged legitimate, non-discriminatory reason for the adverse employment act obviated the need for the first two steps of the McDonnell Douglas and allows the court to proceed directly to the third prong of the test. After applying the third prong of the test, the plaintiff lost. However, he lost because of the third prong making the heightened standard used in reverse discrimination cases irrelevant to the decision on this case.

In Miller v. O’Malley, the plaintiff, a white male employee of the Social Security Administration, alleged sex discrimination and retaliation after being denied telework opportunities. Miller had previously been placed on performance improvement plans due to unsatisfactory job performance. Despite receiving a satisfactory performance rating later, his telework requests were denied twice. Miller claimed that similarly situated female employees with comparable performance issues were allowed to telework, arguing that the denials were motivated by sex discrimination and retaliation​.

At Footnote 2 of that decision, the district court noted the heightened standard that applies to reverse discrimination claims, but noted that the defense waived the argument by failing to raise it in their papers. This plaintiff’s case will move forward on the discrimination claims but not on the retaliation claims.

The handling of these cases highlights the impact that attorney’s fees have on the decision-making process in employment litigation. In Hueramo v. Wells, had the court decided the issue on the first prong it likely would not have ruled on the second or third prong. Thus, the plaintiff could appeal and the circuit court could conclude that the heightened standard was inappropriate and send the case back down to the district court. Then the district court would rule on steps two and three resulting in a dismissal of the case. Thus, the plaintiff and or his attorney would bear the costs and fees associated with winning the appeal.

Miller v. O’Malley shows how the incentives can change and elucidates why it was a smart move for the Social Security Administration not to raise the issue. First, it’s possible that Miller meets the test factually since he pointed to similarly situated comparators outside of his protected category. Second, let us assume that the district court applies the heightened burden and dismisses on that ground. Again, assume an appeal that overturns the heightened burden analysis. When this case comes back to the district court it moves forward on the discrimination claim. Thus, if the plaintiff is successful than the fees and costs associated with that appeal would be borne by the defendant. This eventuality is likely in the event of a settlement and definitely in the event of a verdict.

Although it may seem distasteful to scrutinize attorney’s fees and costs, it’s a critical factor driven by the statutory framework and heavily influences the decisions made by both parties in such litigation.