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Kinzel v. Discovery Drilling6/25/2004
ts to the employer on this point. The employer must show that it would have made the same decision even absent considerations of gender. Although the plaintiff may pursue mixed-motive and pretext claims simultaneously, if the jury finds no direct evidence of discrimination, it must find the defendant liable, if at all, under a pretext framework.
As the above language makes clear, there must be "direct evidence" that the employer's conduct was motivated, at least in part, by a prohibited reason - in Era gender discrimination, in the present case retaliation because the employee filed an OSH claim or a worker's compensation claim. Kinzel argues that he met this requirement and Discovery argues that he did not.
The term "direct evidence" in the context of the mixed-motive methodology comes from the decision of the United States Supreme Court in Price Waterhouse v. Hopkins. Courts subsequent to Price Waterhouse have struggled with the meaning of the term "direct." The Second Circuit has observed that "direct" should not be understood in its sense as antonym of "circumstantial," for that type of "direct" evidence as to a mental state is usually impossible to obtain:
"Direct evidence," it seems, is an unfortunate choice of terminology for the sort of proof needed to establish a "mixed-motives" case. "Direct" and "indirect" describe not the quality of the evidence presented, but the manner in which the plaintiff proves his case. Strictly speaking, the only "direct evidence" that a decision was made "because of" an impermissible factor would be an admission by the decisionmaker such as "I fired him because he was too old." Even a highly-probative statement like "You're fired, old man" still requires the factfinder to draw the inference that the plaintiff"s age had a causal relationship to the decision. But juries have always been allowed to draw such inferences.
The Second Circuit takes the position that a plaintiff may prove that a forbidden animus was a motivating factor through either direct or circumstantial evidence so long as the circumstantial evidence is sufficiently strong. Mere statistical evidence would not warrant a mixed-motive charge, "nor would 'stray' remarks in the workplace by persons who are not involved in the pertinent decisionmaking process."
The Second Circuit court in Ostrowski summarized its approach to mixed-motive cases as follows:
In sum, if the plaintiff presents evidence of conduct or statements by persons involved in the decisionmaking process that may be viewed as directly reflecting the alleged discriminatory attitude, and that evidence is sufficient to permit the factfinder to infer that that attitude was more likely than not a motivating factor in the employer's decision, the jury should be instructed that if it does draw that inference the plaintiff is entitled to recover unless the employer has established by a preponderance of the evidence that the employer would have taken the same action without consideration of the impermissible factor. The jury should also be instructed, in substance, that the "employer may not meet its burden in [a mixed-motives] case by merely showing that at the time of the decision it was motivated only in part by a legitimate reason. . . . The employer instead must show that its legitimate reason, standing alone, would have induced it to make the same decision."
We agree with the Second Circuit's approach to the quantum of proof required in order to justify a mixed-motive instruction. We align ourselves with these views in recognition of the difficulty of proving that an unlawful motive impelled any particular employment decision and the desirability of implementing the st
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