Desert Palace, Inc. v. Costa, Catharina (06/09/2003)

Questions presented: 1. Did the 9th Circuit err in holding that direct evidence is not required in Title VII cases to trigger the application of the "mixed-motive" analysis set out in Price Waterhouse v. Hopkins? 2. What are the appropriate standards for lower courts to follow in making a direct evidence determination in "mixed-motive" cases under Title VII?

BY: ESTHER YOON-JI KANG, MEDILL NEWS SERVICE

For many years, Catharina Costa was just "one of the guys."

She had worked for most of her life in a male-dominated environment, operating heavy equipment and driving trucks. She was the only female in her Teamsters Local 995 bargaining unit. She also was the only woman operating the forklifts and pallet jacks in a warehouse at Caesars Palace Hotel in Las Vegas, Nevada, when she was fired from her job in 1994.

Caesars, formerly Desert Palace, purported that the basis for Costas termination was a fight in the warehouse elevator with co-worker Herb Gerber.

Costa said her firing was the culmination of years of sex discrimination by Caesars management. She said that before the firing, there had been incidents of informal rebukes, suspensions, and denial of privileges accorded her male co-workers all of which led her to believe that she ultimately was fired for being a woman.

Costa filed a federal suit, claiming gender discrimination in violation of Title VII of the 1964 Civil Rights Act. During the trial, U.S. District Judge David Hagen gave jurors a "mixed motive" instruction to find for Costa if they believed that "sex was a motivating factor in [Caesars] treatment of the plaintiff ... even if you find that [Caesars] conduct was also motivated by a lawful reason."

The trial court jury found in favor of Costa, awarding her $364,377, including back pay, compensatory damages and punitive damages.

A 9th Circuit Court of Appeals panel reversed the jury award, stating that the lower courts "mixed motive" instruction prejudiced the casino by shifting the burden of proof to the employer.

Costas lawyer requested that the 9th Circuit rehear the case en banc by 11 appeals judges instead of three. In en banc hearings, the larger group of judges rehears a case because the court believes there is a particularly significant issue at stake.

The 11-judge panel affirmed, referring to the 1989 Supreme Court opinion in Price Waterhouse v. Hopkins, from which the "mixed-motive" method of proving Title VII violations originated. In Price Waterhouse, the justices decided that if a plaintiff proved that gender played a part in an employment decision, the burden shifted to the defendant to prove by a preponderance of the evidence that it would have made the same decision even without taking into account the plaintiffs gender.

Concerned about this burden shift to the defendant, Justice Sandra Day OConnor wrote in her concurring opinion for Price Waterhouse that the plaintiff had to demonstrate by "direct evidence" that an illegitimate factor played a role in a particular employment decision.

Justice Margaret McKeown, who wrote the 9th Circuits majority opinion, said OConnors passing reference to "direct evidence" spawned "a virtual cottage industry of litigation over the effect and meaning of the phrase."

Costa thought she had plenty of evidence. She testified that she often was reprimanded for infractions for which the men went unpunished. She said she was given fewer overtime hours than her male co-workers. Her supervisors frequently used or tolerated verbal slurs that were sex-based or tinged with sexual overtones, she said. In one episode, one co-worker called Costa a "fucking cunt." When she wrote a letter to management about the incident, she received a three-day suspension in response for "engaging in verbal confrontation with co-worker in the warehouse."

This was more than enough evidence for the 9th Circuit, which ruled that despite the lack of direct evidence, Costa had made her case. Sex indeed was a motivating factor in the job termination.

Caesars appealed, claiming that none of the plaintiffs evidence was direct, that it was circumstantial or inferential.

"They're trying to use the strictest definition of direct evidence when they clearly know that all civil cases allow circumstantial and inferential evidence," said Robert N. Peccole, Costas attorney.

On Jan. 10, 2003, the U.S. Supreme Court accepted the case for review, and on June 9, the Court unanimously affirmed.

Writing for the Court, Justice Clarence Thomas said that direct evidence of discrimination is not required for a plaintiff to obtain a mixed-motive jury instruction under Title VII.

The Court looked to the statutory language, and concluded that the statute unambiguously states that a plaintiff need only demonstrate that an employer used a forbidden consideration with respect to any employment practice.