In a reminder to employers of the importance of thorough investigations and consistent policy, in Ismael v. Roundtree et al, the Eleventh Circuit Court of Appeals found that even where a plaintiff in a retaliation or discrimination claim is unable to establish a prima facie case and pretext under the traditional McDonnell-Douglas framework, application of the “convincing mosaic” standard may save the plaintiff from dismissal of their claims on summary judgment.
The plaintiff, Ahmed Ismael (“Ismael”) was a deputy sheriff of Arabic descent at defendant Rosco County Sheriff’s Office (RCSO). He was assigned to a special, off-duty security position at a local business, Urban Air. His supervisor for the special assignment, Lieutenant Jenkins (“Jenkins”), also led the RCSO’s SWAT team which Ismael hoped to join. Jenkins repeatedly used racial slurs, telling Ismael to “play in the sand,” telling colleagues he “may have a bomb,” and admittedly referring to Ismael as a “terrorist.” Witnesses at Urban Air confirmed Jenkins’s remarks occurred regularly.
Ismael later failed the SWAT exam. Shortly thereafter, Ismael filed complaint of harassment against Jenkins. During the subsequent investigation of Ismael’s complaint, it was discovered Ismael had used his squad to inquire about a job at another county’s sheriff’s office. However, the investigator never spoke with employees at Urban Air who witnessed and could confirm Jenkin’s conduct. Ismael’s complaint was not sustained and RCSO terminated Ismael for using his patrol vehicle for non-patrol purposes.
To demonstrate the basis for his termination was pretextual, Ismael presented evidence that other deputies had made personal use of squads without discipline and stated his termination was in retaliation for his complaint against Jenkins.
The district court applied the McDonnell-Douglas burden shifting analysis to the case finding Ismael had established a prima facie case by showing he had (1) engaged in a protected activity, (2) suffered an adverse employment action and (3) shown a causal connection between protected activity and the termination. The district court found RCSO’s explanation for termination was legitimate and as Ismael had not shown it was pretext, granted summary judgement in RCSO’s favor.
The Eleventh Circuit reversed, concluding the application of McDonnell-Douglas to grant summary judgment did not accurately evaluate the facts in this case. The Court applied the broader “convincing mosaic” approach, which allows a plaintiff to avoid summary judgment where circumstantial evidence can create an issue of fact with respect to retaliatory intent, “even if pretext cannot be conclusively shown.” The court explained that while a showing of pretext may be relevant as “an avenue to demonstrating” the employer’s “illicit motives,” such a showing is not necessary where there is other circumstantial evidence that tends to show an inference of discrimination. The court noted the same analysis was true with respect to a plaintiff’s inability to establish a prima facie case, noting that a failure to establish a prima facie case simply placed a greater burden on a plaintiff to “produce enough evidence, on her own, without any helpful evidentiary burdens or presumptions, to demonstrate a material issue of triable fact.”
The court stated, “summary judgment should not be granted for failure to demonstrate pretext unless it also ‘reflects a failure to put forward enough evidence for a jury to find for the plaintiff on the ultimate question of discrimination’ or retaliation.” The court found the lower court evaluated Ismael’s evidence in terms of whether it provided proof of pretext, which is the job of the jury, as opposed to whether “circumstantial evidence, when artfully adhered together and viewed as one, allows a reasonable juror to envision an image of retaliation and find in Ismael’s favor.”
This is an important distinction because it clarifies a plaintiff is not required to prove their case at summary judgment and that circumstantial evidence can be considered at both the prima facie and final stages of the analysis. What this means for employers is to be sure investigations are thorough and policies are adhered to consistently. Showing a legitimate, non-discriminatory reason is not the end of the inquiry where there is relevant circumstantial evidence. Our firm specializes in workplace investigations of all shapes and sizes, if you or your organization need assistance investigating or evaluating claims of retaliation or discrimination, call Wiley Reber Law for legal advice that works.