by Michael Fox
Staking out its position in a debate that seems to be picking up steam, the 8th Circuit makes it quite clear that it does not find the Supreme Court's decision in Desert Palace, Inc. v. Costa, 123 S. Ct. 2148 (2003) requires it to alter its existing body of summary judgment law. Other courts, including some district courts in the 8th Circuit had dared to venture otherwise.
Here is the money quote from the Court:
We have long recognized and followed this principle in applying McDonnellDouglas by holding that a plaintiff may survive the defendant’s motion for summary judgment in one of two ways. The first is by proof of “direct evidence” of discrimination. Direct evidence in this context is not the converse of circumstantial evidence, as many seem to assume. Rather, direct evidence is evidence “showing a specific link between the alleged discriminatory animus and the challenged decision, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated” the adverse employment action. Thomas v. First Nat’l Bank of Wynne, 111 F.3d 64, 66 (8th Cir. 1997). Thus, “direct” refers to the causal strength of the proof, not whether it is “circumstantial” evidence. A plaintiff with strong (direct) evidence that illegal discrimination motivated the employer’s adverse action does not need the three-part McDonnell Douglas analysis to get to the jury, regardless of whether his strong evidence is circumstantial. But if the plaintiff lacks evidence that clearly points to the presence of an illegal motive, he must avoid summary judgment by creating the requisite inference of unlawful discrimination through the McDonnell Douglas analysis, including sufficient evidence of pretext. See, e.g., Harvey v. Anheuser-Busch, Inc., 38 F.3d 968, 971 (8th Cir. 1994). This formulation is entirely consistent with Desert Palace. Thus, we conclude that Desert Palace had no impact on prior Eighth Circuit summary judgment decisions.
The court notes the danger of using a case decided after a trial on the merits (Desert Palace)to alter well established rules on summary judgment. Given the threat to summary judgment many had felt would be based on the Desert Palace decision, this opinion provides a good rationale for those who still seek summary judgment.