Title VII Plaintiff Need Not Prove Discrimination Was “Sole Reason” for Adverse Employment Action

The D.C. Circuit took a self-contradictory jury instruction as an occasion to clarify that a Title VII plaintiff can prevail on a pretext claim by proving discrimination was a but-for cause of the adverse employment action.  He does not have to prove it was the sole cause to recover damages.  [Slip op. pdf.]

Jorge Ponce alleged that the Library of Congress rejected his job application in favor of a less-qualified candidate on the basis of race, sex, and national origin.  The district court issued a jury instruction that appeared to impose a sole-cause standard that the Supreme Court has rejected, but the district court immediately explained the instruction in “but for” terms: “Mr. Ponce must prove that illegal discrimination . . . was the sole reason for his non selection.  That is he must prove that but for his [protected characteristics] he would have been hired.”

The D.C. Circuit held that this “clear definition of ‘sole reason,’ . . . fairly and adequately conveyed the law to the jury.”  But the court unambiguously rejected the “sole reason” language, suggesting that its use in future cases may be an abuse of discretion:

[T]he Supreme Court expressly held in McDonald v. Santa Fe Trail Transportation Co. that nothing in Title VII requires a plaintiff to “show that he would have in any event been rejected or discharged solely on the basis of” a protected characteristic. Instead, “no more is required to be shown than that [a protected characteristic] was a ‘but for’ cause.”

. . .

[I]n Ginger [v. District of Columbia, 527 F.3d 1340 (D.C. Cir. 2008)] we used “sole motive” as shorthand for but-for cause, suggesting that in a “single-motive case,” a plaintiff “argues race (or another prohibited criterion) was the sole reason for an adverse employment action.” Understandably, then, the district court here read Ginger as requiring that the jury instruction include “sole reason.” We thus take this opportunity to clarify: nothing in Title VII requires a plaintiff to show that illegal discrimination was the sole cause of an adverse employment action. And mindful that “our words from loose using have lost their edge,” we hereby banish the word “sole” from our Title VII lexicon.

Judge Tatel’s unanimous opinion also rejected Ponce’s argument that the district court should have let the jury see a report by the GAO’s Personnel Appeals Board, which concluded that Ponce “was the subject of unlawful discrimination.”  The Library of Congress had delegated its investigation of Ponce’s administrative complaint to the Board but then rejected the Board’s conclusion.  Ponce argued that such recommendations of administrative bodies should be per se admissible.  The court rejected that view: “As the Seventh Circuit explained: ‘A rule of per se admissibility . . . would clearly undercut the district court’s function as an independent fact-finder.’ ”  Because there was no clear error in the district court’s finding that the report was “extraordinarily weak” and “unduly prejudicial,” the D.C. Circuit affirmed.

Ponce v. Billington, No. 11-5117 (Apr. 9, 2012) (Tatel, J., joined by Garland, J., & Silberman, S.J.)

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