It's the Single Pile
Since 1979, when hardly a man still alive recalls the onset of Board decisions, one continuing effort of many Board members and many more Board lawyers has been to define a factor analysis that administrative judges can understand and apply in determining whether an appealed personnel action is the product of discrimination under the civil rights statutes. Now, after decades and hundreds of decisions, we reach decisional purity and maturity in Gardner v. VA, ___MSPR___¶¶ 28-29, 2016 MSPB 36 (2016), where the Board latches onto a Seventh Circuit decision, eschews the earlier analysis in Savage, departs from the "convincing mosaic" analysis, and helpfully tells its administrative judges (and parties, and counsel struggling to understand what the Board is talking about), that "all evidence belongs in a single pile and must be evaluated as a whole":
...In Savage, we stated that, when an appellant asserts an affirmative defense of discrimination or retaliation under 42 U.S.C. § 2000e-16, the Board first will inquire whether the appellant has shown by preponderant evidence that the prohibited consideration was a motivating factor in the contested personnel action. Savage, 122 M.S.P.R. 612, ¶ 51. We further stated that, in making her initial showing, an appellant may rely on direct evidence or any of the three types of circumstantial evidence described in Troupe v. May Department Stores Co., 20 F.3d 734 (7th Cir. 1994), i.e., pretext, comparator or "convincing mosaic," either alone or in combination. Savage, 122 M.S.P.R. 612, ¶ 51. Savage overruled prior Board decisions, however, to the extent that they erroneously held that, to establish such a claim using circumstantial evidence, an appellant must provide evidence showing a "convincing mosaic" of discrimination or retaliation against her. Id., ¶¶ 42-43, 51.
Recently, the U.S. Court of Appeals for the Seventh Circuit further clarified its explanation in Troupe that the phrase "convincing mosaic" was not meant to impose a new, separate legal requirement or to serve as a legal test, but was instead "designed as a metaphor to illustrate why courts should not try to differentiate between direct and indirect evidence." Ortiz v. Werner Enterprises, Inc., No. 15-2574, 2016 WL 4411434, at *3 (7th Cir. Aug. 19, 2016). Noting that the phrase "convincing mosaic" continued to be misused as a governing legal standard in cases decided after Troupe, Ortiz again rejected the proposition that "evidence must be sorted into different piles, labeled 'direct' and 'indirect,' that are evaluated differently," instead holding that "all evidence belongs in a single pile and must be evaluated as a whole." Id. at *5.
To this, we say, AJs, parties, and lawyers are now relegated to the kitchen sink approach in EEO cases-listen to everything anyone offers and figure it out. And, perhaps, that is how it should be: most evidence involving EEO defenses and claims is circumstantial.