Gossett, Baxter, and Staub: The Dilemma of Multiple Motivations in the Employment Law Case - Articles

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Posted by: Justin Gilbert on Aug 19, 2011

Journal Issue Date: Jun 2011

Journal Name: June 2011 - Vol. 47, No. 6

In psychology, famed professor Abraham Maslow in Theory of Human Motivation wrote: “Typically, an act has more than one motivation.”

In medicine, physicians describe multiple causes of a disease as multifactorial. Type 2 diabetes, for example, may be caused by genetic factors plus environmental factors like obesity. Obesity, in turn, also may be caused by multiple factors.

In law, too, courts recognize that multiple factors often shape human behavior. With the notable exception of the Tennessee Public Protection Act, Tennessee retaliatory discharge law does not ask whether an illegal motive was the sole cause. Rather, it asks whether an illegal motive was a “significant motivating factor.”[1] Recognizing multiple motivating factors is not unique to law. But creating a summary judgment standard to test the presence of multiple factors — some legal, some not — is surely a lawyer’s chore alone. Gossett is the first Tennessee Supreme Court case to wrestle with the reality of multiple motivations. Before Gossett, the Sixth Circuit considered multiple motivations in White v. Baxter Healthcare Corp.[2] And, after Gossett, just recently, the U.S. Supreme Court addressed multiple motivations in Staub v. Proctor Hospital.[3] These cases all reinforce the need for a summary judgment standard that accounts for more than one motivation for a given employer action.

Tennessee Considers Multiple Motivations

Gossett v. Tractor Supply Inc. is a common law retaliatory discharge case involving a liability standard of “significant motivating factor.” As most now know, Gossett rejects the McDonnell Douglas test for proving discrimination. Since 1973, McDonnell Douglas had been the gold standard to test an employer’s motivations. It consisted of three shifting phases: (1) a plaintiff offering prima facie evidence of discrimination, (2) the defendant offering a nondiscriminatory alternative, and (3) the plaintiff being put to the test of showing the defendant’s nondiscriminatory alternative to be a pretext for an illegal motivation.

For two reasons, one procedural and one arguably substantive, the Tennessee Supreme Court in Gossett could not endorse McDonnell Douglas. Procedurally, at the summary judgment stage, McDonnell Douglas places the initial burden of proof (the prima facie case) upon the plaintiff, not the defendant. That is not in keeping with Tennessee summary judgment standards under Hannan v. Alltell Publishing Co.[4] Thus, the Court realistically could not carve out employment law cases to be treated differently than all other cases at summary judgment.

The dissenting opinions in Gossett by Justices Clark and Koch argue for the retention of McDonnell Douglas. However, even these justices would not place an initial summary judgment burden of proving a prima facie case upon the plaintiff. Instead, Justices Clark and Koch propose a new, two-part analysis: (1) the defendant putting forth evidence of a nondiscriminatory reason, and (2) the plaintiff being put to arguing pretext.[5] By removing the first third of McDonnell Douglas, this two-pronged approach is actually much closer to the Gossett majority’s analysis than to the traditional McDonnell Douglas analysis.[6]

The second reason McDonnell Douglas could not be accepted in Gossett is an arguably substantive one, and far more interesting: the dilemma of multiple motivations. Under McDonnell Douglas, even if the defendant’s nondiscriminatory reason is accepted as true (i.e., not pretextual), it does not automatically follow that an illegal motive might not also be present.[7] Here, the Tennessee Supreme Court is grappling with the difficult issue of multiple motivations.

The Sixth Circuit and Multiple Motivations

Contrary to some early reaction to Gossett, the Tennessee Supreme Court did not break entirely new ground in rejecting McDonnell Douglas in cases of multiple motivations. Even before Gossett, the Sixth Circuit Court of Appeals found that McDonnell Douglas is only useful in “single motive” cases.[8] As the Sixth Circuit puts it, McDonnell Douglas was only designed to “smoke out” a single motive.[9]

Both Tennessee, in Gossett, and the Sixth Circuit, in Baxter Healthcare, rely upon the U.S. Supreme Court’s decision in Desert Palace v. Costa to reject McDonnell Douglas.[10]  In Desert Palace, a Title VII case, the U.S. Supreme Court held that circumstantial evidence is sufficient, and not disfavored, to invoke what is known as a “mixed motive” paradigm.

Is there a meaningful distinction between an employer’s “significant motivating factor,” in Gossett, and an employer’s “mixed motive,” in Baxter Healthcare and Desert Palace? One would be hard pressed to find one. Under the amendments to Title VII, a “mixed motive” is actually defined as “a motivating factor for any employment practice, even though other factors also motivated the practice.”[11]

Given the common use of “motivating factor” terminology, it makes sense that both Gossett and Baxter Healthcare cite Desert Palace in rejecting McDonnell Douglas. The end result of both of these cases, at summary judgment, is therefore quite similar. Just as Gossett does not place an onerous burden on a plaintiff at summary judgment in a significant motivating factor case, neither does the Sixth Circuit under a Title VII mixed motive case:

The plaintiff’s burden of producing evidence to support a mixed-motive claim is not onerous and should preclude sending the case to the jury only where the record is devoid of evidence that could reasonably be construed to support the plaintiff’s claim.[12]

The U.S. Supreme Court and Multiple Minds

Adding a further wrinkle to the multiple motivation quilt is the new U.S. Supreme Court case of Staub v. Proctor Hospital.[13] Staub recognizes that one person’s illegal motivation may, in some circumstances, be imputed to another person who lacks any discriminatory animus whatsoever. In other words, by relying upon others, a decision-maker can act with an illegal motivation without even knowing it.

Staub was a USERRA case (protection against discrimination for military servicemen). But the high court made plain that the same reasoning applies under Title VII where, like USERRA, “motivating factor” is the liability standard.[14]

In Staub, the Supreme Court found that an employment decision made by a neutral human resources manager, who relied upon the biased agenda of a supervisor, has, himself, carried forward the supervisor’s discrimination. Writing for the unanimous court, Justice Scalia explained that employment law is no different than tort law, which “does not prevent the earlier agent’s action (and hence the earlier agent’s discriminatory animus) from being the proximate cause of the harm.”[15] The court’s holding reversed the Seventh Circuit’s conclusion that imputed motive is not proper where the neutral decision-maker was not “wholly” reliant upon the advice of the supervisor.[16]

Staub is much like Gossett in this sense: It recognizes the potential for multiple employer motivations, some legal, others perhaps not. Per Justice Scalia, writing for the court, this is hardly unusual in the law. “[I]t is common for injuries to have multiple proximate causes.”[17]

Conclusion

Multiple motivations are not easily addressed in employment law.

In crafting an appropriate evidentiary standard for the summary judgment stage, the policy question for Tennessee employment lawyers is not simply which paradigm is easier for a plaintiff or a defendant. Rather, the question is how best to account for the delicate equipoise of multiple motivations on an evidentiary basis. After all, Professor Maslow was surely right — most acts typically do have more than one motivation. The Tennessee Supreme Court, in Gossett, the Sixth Circuit Court of Appeals, in Baxter Healthcare, and the United States Supreme Court, in Staub, do not pretend otherwise.

Notes

  1. Gossett v. Tractor Supply Co. Inc., 320 S.W.3d 777, 781 (Tenn. 2010).
  2. White v. Baxter Healthcare Corp., 533 F.3d 381, 400–01 (6th Cir. 2008), cert denied, 129 S. Ct. 2380 (2009).
  3. Staub v. Proctor Hospital, __ U.S. __ , 131 S.Ct. 1186 (Mar. 1, 2011).
  4. Hannan v. Alltell Publishing Co., 270 S.W.3d 1 (Tenn. 2008) and Tenn. R. Civ. P. 56.01.
  5. Gossett, 320 S.W.3d at 791 (dissenting opinion).
  6. For a discussion of McDonnell Douglas and whether its three phases are even useful to courts and litigants, see Wells v. Colorado Dep’t of Trans., 325 F.3d 1205, 1225 (10th Cir. 2003). The Gossett majority cited Wells to illustrate problems with McDonnell Douglas. Gossett, 320 S.W. 3d at 783. Interestingly, in the Wells majority opinion, Judge Hartz utilizes the McDonnell Douglas test. But then, in a separate opinion he wrote, Judge Hartz disagrees with his own majority opinion and opines that the “artificiality of the [McDonnell Douglas] framework exacts a significant, unnecessary expense — in terms of both wasted judicial effort and greater opportunity for error.” Wells, 325 F.3d at 1221 (Hartz, J., concurring and writing separately).
  7. Gossett, 320 S.W.3d at 782–83.
  8. White v. Baxter Healthcare Corp., 533 F.3d 381, 400–01 (6th Cir. 2008), cert denied, 129 S. Ct. 2380 (2009).
  9. Baxter Healthcare, 533 F.3d at 400.
  10. See Gossett, 320 S.W. 3d at 782 (citing Desert Palace Inc. v. Costa, 539 U.S. 90 (2003)); Baxter Healthcare, 533 F.3d at 400–01 (citing Desert Palace).
  11. 42 U.S.C. § 2000e-2(m) (emphasis added). Although the definitions of Title VII’s “mixed motive” and Tennessee’s “significant motivating factor” may be nearly identical, the legal outcome may not be. Under Title VII, the defendant may lessen its liability to injunctive relief and statutory attorneys fees by proving that it would have reached the same decision in the absence of the impermissible motivating factor. 42 U.S.C. § 2000e-5(g)(2)(B).
  12. Spees v. James Marine Inc., 617 F.3d 380, 390 (6th Cir. 2010) (citing White v. Baxter Healthcare Corp., 533 F.3d 381, 396 (6th Cir. 2008)).
  13. Staub v. Proctor Hospital, __ U.S. __ , 131 S.Ct. 1186 (Mar. 1, 2011).
  14. Staub, 2011 U.S. LEXIS 1900 at *10–11.
  15. Id. at *14–15.
  16. Staub v. Proctor Hospital, 560 F.3d 647, 659 (7th Cir. 2009).
  17. Id. at 1192.

Justin S. Gilbert JUSTIN S. GILBERT is the founding partner of Gilbert, Russell, McWherter PLC with offices in Memphis, Jackson, Brentwood and (coming soon) in Chattanooga. He is a member of the Tennessee Employment Lawyers Association (TENNELA) and a former board member of the Tennessee Bar Association’s Labor and Employment Law Section. He received his law degrees from Southern Methodist University (J.D.) and the University of Edinburgh, Scotland (LL.M). Gilbert represents employees under federal and state employment discrimination laws with an emphasis on medical discrimination cases under the Americans with Disabilities Act, with Amendments (ADA-AA) and Family and Medical Leave Act (FMLA).