United States: Seventh Circuit To Plaintiffs: Here's Your Burden Of Proof

Last Updated: September 7 2016
Article by Kevin M. Kraham and Amy Ryder Wentz

Most employees who file employment discrimination claims hope for one of two things – a really sympathetic jury or an employer that is willing to generously settle the lawsuit to avoid the risks and uncertainties of trial. Before either is a possibility in federal (and many state) courts, the employee must first clear the hurdle of surviving summary judgment. That is, when the employer files its motion for summary judgment requesting that the court dismiss the employee's discrimination claims on the merits, the employee must instead prove to the court that the employee has enough evidence from which a jury could render a verdict in his or her favor. The Seventh Circuit in Ortiz v. Werner Enterprises, Inc.1 may have simplified – but not eased – the determination of whether employees satisfy their burden of proof at the summary judgment stage.

A Primer on the Employee's Burden of Proof

McDonnell Douglas Corp. v. Green established an evidentiary framework for plaintiffs alleging employment discrimination.2 The U.S. Supreme Court reasoned that federal discrimination laws were not intended "to guarantee a job to every person regardless of qualifications." For that reason, it held that for a plaintiff to survive a summary judgment motion, the plaintiff must first demonstrate a rebuttable presumption of discrimination with evidence that shows the following: (1) the employee belonged to a protected class; (2) the employee was qualified for the position; (3) although qualified, the employee suffered an adverse employment action; and (4) the employer treated more favorably similarly-situated employees outside the protected class (or replaced the employee with an individual outside the protected class). If the plaintiff can satisfy this prima facie case, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse action. The burden then shifts back to the employee to come forward with evidence that this stated reason is a pretext for an unlawful discriminatory motive. Ultimately, the burden of proof always rests with the employee to "demonstrate by competent evidence that the presumptively valid reasons for [the adverse employment action] were in fact a coverup for [an unlawful] discriminatory decision."3 Notably, McDonnell Douglas does not specify the type of evidence (direct or circumstantial) with which an employee must satisfy these burdens of proof.

If a judge determines that an employee satisfied these burdens of proof, the matter can advance to trial. At that time, the parties present evidence to the fact-finder (generally a jury), and the fact-finder determines the ultimate question – whether an employee's protected class (e.g., race, age, disability, etc.) caused an adverse action (e.g., termination, failure to hire, etc.).4 But the jury does not look at evidence through the McDonnell Douglas burden-shifting framework – that role is reserved for the judge at the summary judgment stage only.5

Ortiz v. Werner – The Evidence

The plaintiff in Ortiz was employed as a freight broker from November 28, 2005 until his termination on June 19, 2012.6 The company terminated his employment for falsifying business records. Specifically, in order to improve his profit and increase his commission, the plaintiff removed his name as the broker from certain freight loads that were operating at a loss. When the plaintiff's branch manager – who also hired him – learned what he had done, the manager terminated his employment at the recommendation of the vice president of the division. The plaintiff filed a lawsuit alleging race discrimination (he is Hispanic) and a hostile work environment.

In discovery, the plaintiff admitted to changing the business records, but claimed that other brokers – whom he could not identify – did the same. The company produced records reflecting all of the loads brokered out of the plaintiff's branch for the relevant time period; of the 16,391 loads, brokers improperly removed their names from loads on six occasions. The plaintiff was responsible for four of those incidents. There was also testimony from "[s]everal brokers" that they and others sometimes removed their names from unprofitable loads (although it is unclear whether the company knew this occurred).

The company's Employee Handbook and Code of Conduct prohibited falsifying company records. In July 2012, another freight broker – who is not Hispanic – was terminated for falsifying records that resulted in a higher bonus potential. In that case, the broker cut the mileage due to a carrier.

In support of his claims, the plaintiff testified that his branch manager and an assistant manager used racial slurs towards him. The plaintiff maintained that he encountered these insults throughout his seven years of employment, but that the comments increased in frequency and intensity in the months preceding his termination.

Both of the plaintiff's claims were dismissed by the district court on summary judgment. The court looked at the evidentiary record through two lenses – direct evidence and indirect evidence, explaining that the two had different "methods of proof." The district court first determined that the plaintiff could not prove his discrimination claim through the direct method of proof because he did not have the required "convincing mosaic" of evidence. In reaching this conclusion, the court disregarded the alleged racial slurs because the comments did not relate to the plaintiff's termination. Next, following the McDonnell Douglas framework, the district court determined that the plaintiff did not satisfy his prima facie or pretext burdens and, therefore, could not prove his claims through the indirect method of proof. Specifically, the district court found that the plaintiff did not meet the company's legitimate expectations, and there was no evidence that similarly-situated employees outside his protected class were treated more favorably.7

The Seventh Circuit Simplifies – But Does Not Ease – the Plaintiff's Burden of Proof

In reversing the lower court, the Seventh Circuit stated that evidence should not be evaluated through dueling direct and indirect legal standards:

Evidence must be considered as a whole, rather than asking whether any particular piece of evidence proves the case by itself – or whether just the "direct" evidence does so, or the "indirect" evidence. Evidence is evidence. Relevant evidence must be considered and irrelevant evidence disregarded, but no evidence should be treated differently from other evidence because it can be labeled "direct" or "indirect."8

To this point, the court overturned the precedent in its jurisdiction that (1) requires plaintiffs to come forward with a "convincing mosaic" of evidence, treating this as an additional legal standard; and/or (2) separates "direct" from "indirect" evidence and subjects the two to different legal standards.9

Initial commentators on Ortiz speculate that the Seventh Circuit is attempting to abolish the McDonnell Douglas framework. But on this point, the appellate court explained:

The burden-shifting framework created by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), sometimes is referred to as an "indirect" means of proving employment discrimination. Today's decision does not concern McDonnell Douglas or any other burden-shifting framework, no matter what it is called as a shorthand. We are instead concerned about the proposition that evidence must be sorted into different piles, labeled "direct" and "indirect," that are evaluated differently. Instead, all evidence belongs in a single pile and must be evaluated as a whole. That conclusion is consistent with McDonnell Douglas and its successors.10

This makes sense, as McDonnell Douglas did not create separate legal standards for "direct" and "indirect" evidence, or even address differences between direct and indirect evidence.

Despite this nod to McDonnell Douglas, the Seventh Circuit did not evaluate the Ortiz evidentiary record under the burden-shifting framework. There was no discussion of whether the plaintiff proffered sufficient evidence – direct or indirect – to satisfy his prima facie or pretext burdens. Rather, the court simply listed what it deemed were disputed issues of fact and remanded the case to the district court for a trial. Even so, Ortiz does not state – nor imply – an intention to undo the 30-year precedent of McDonnell Douglas or its progeny.

Does Ortiz Affect Employers?

Some members of the plaintiffs' bar in the Seventh Circuit may erroneously champion Ortiz as the eradication of a plaintiff's burden of proof under McDonnell Douglas – the hurdle between asserting claims in a complaint and presenting them at trial. To that end, employers might see references to this case in summary judgment motions, and should be prepared to refute any overstatement of its holding.

Moreover, Ortiz does not affect employment-related decisions – such as hiring, discipline, or terminations – as employees alleging discrimination still bear the burden of proving those claims. To better position themselves to defend against meritless claims, employers should continue to document employment-related decisions, including the decision-making process and investigations; be honest with employees about the reasons for the employment action; and enforce employment policies and practices fairly and consistently.


1 Ortiz v. Werner Enterprises, Inc., No. 13 C 8270, 2016 U.S. App. LEXIS 15284 (7th Cir. Aug. 19, 2016).

2 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). This case focused on discrimination cases under Title VII of the Civil Rights Act of 1964, but has since been expanded to discrimination and retaliation cases asserted under a host of federal and state discrimination statutes.

3 McDonnell Douglas, 411 U.S. at 805.

4 Postal Service v. Aikens, 460 U.S. 711, 715 (1983); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).

5 Aikens, 460 U.S. at 715; Burdine, 450 U.S. at 256.

6 Ortiz v. Werner Enterprises, Inc., 2015 U.S. Dist. LEXIS 82952, *4 (N.D. Ill. June 25, 2015).

7 Ortiz, 2015 U.S. Dist. LEXIS 82952, at *15-16. The hostile work environment claim was dismissed because the plaintiff did not exhaust his administrative remedies – he did not appeal the dismissal of this claim.

8 Ortiz, 2016 U.S. App. LEXIS 15284, at *10-11.

9 Ortiz, 2016 U.S. App. LEXIS 15284, at *10, 12. The Seventh Circuit was particularly annoyed with the lower court's reference to a "convincing mosaic" of evidence, explaining that the phrase was "designed as a metaphor to illustrate why courts should not try to differentiate between direct and indirect evidence." Id. at *9.

10 Ortiz, 2016 U.S. App. LEXIS 15284, at *12-13.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Kevin M. Kraham
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.