                    United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 03-3266
                                    ___________

David Griffith,                          *
                                         *
      Plaintiff - Appellant,             *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Southern District of Iowa.
City of Des Moines, et al.,              *
                                         *
      Defendants - Appellees.            *
                                    ___________

                               Submitted: April 15, 2004
                                  Filed: October 15, 2004
                                   ___________

Before LOKEN, Chief Judge, BYE, Circuit Judge, and MAGNUSON,* District Judge.
                                ___________

LOKEN, Chief Judge.

      David Griffith, who is Hispanic, joined the Des Moines Fire Department in
1989. He commenced this action in August 2001, alleging on-going disparate
treatment and retaliation by the City of Des Moines, Fire Chief Ronald Wakeham, and
Assistant Fire Chief Jerry Cohoon in violation of Title VII, 42 U.S.C. § 2000e-2; 42
U.S.C. §§ 1981 and 1983; and the Iowa Human Rights Act, Iowa Code § 216.6. The




      *
       The HONORABLE PAUL A. MAGNUSON, United States District Judge for
the District of Minnesota, sitting by designation.
district court1 granted summary judgment dismissing Griffith’s Third Amended
Complaint. Griffith appeals. Reviewing the grant of summary judgment de novo,
and viewing the summary judgment record in the light most favorable to Griffith, the
nonmoving party, we affirm. See Putman v. Unity Health Sys., 348 F.3d 732, 733
(8th Cir. 2003) (standard of review).

                           I. A Threshold Issue of Law.

       Title VII and the Iowa Human Rights Act prohibit an employer from
discriminating against an employee with respect to his compensation, terms, or
conditions of employment on account of his race, color, religion, sex, or national
origin. Griffith complains that he was suspended and then denied retraining, unfairly
disciplined, and harassed by co-workers because of his Hispanic background.

       Griffith urges us to conclude, as some district courts have concluded, that the
Supreme Court in Desert Palace, Inc. v. Costa, 123 S. Ct. 2148 (2003), implicitly
directed us to modify our Circuit’s use of the familiar framework established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), at the summary
judgment stage of an employment discrimination lawsuit. Griffith’s brief does not
explain how our summary judgment analysis must be modified. But he relies on
Dunbar v. Pepsi Cola General Bottlers of Iowa, Inc., 285 F. Supp. 2d 1180, 1197
(N.D. Iowa 2003), where the court concluded that, at the summary judgment stage,
the third step in the McDonnell Douglas analysis must be modified “so that it is
framed in terms of whether the plaintiff can meet his or her ‘ultimate burden’ to prove
intentional discrimination, rather than in terms of whether the plaintiff can prove
‘pretext.’” We do not agree that Desert Palace affected controlling Eighth Circuit
precedents in this fashion.


      1
       The HONORABLE RONALD E. LONGSTAFF, Chief Judge of the United
States District Court for the Southern District of Iowa.

                                         -2-
       Desert Palace involved the post-trial issue of when the trial court should give
a “mixed motive” jury instruction under 1991 Title VII amendments codified at 42
U.S.C. §§ 2000e-2(m) and 2000e-5(g)(2)(B). The Court’s opinion did not even cite
McDonnell Douglas, much less discuss how those statutes impact our prior summary
judgment decisions. While in general the standard for granting summary judgment
“mirrors” the standard for judgment as a matter of law, Reeves v. Sanderson
Plumbing Products, Inc. 530 U.S. 133, 150 (2000), the contexts of the two inquiries
are significantly different. At the summary judgment stage, the issue is whether the
plaintiff has sufficient evidence that unlawful discrimination was a motivating factor
in the defendant’s adverse employment action. If so, the presence of additional
legitimate motives will not entitle the defendant to summary judgment. Therefore,
evidence of additional motives, and the question whether the presence of mixed
motives defeats all or some part of plaintiff’s claim, are trial issues, not summary
judgment issues. Thus, Desert Palace, a decision in which the Supreme Court decided
only a mixed motive jury instruction issue, is an inherently unreliable basis for district
courts to begin ignoring this Circuit’s controlling summary judgment precedents. For
concrete evidence confirming that Desert Palace did not forecast a sea change in the
Court’s thinking, we need look no further than Raytheon Co. v. Hernandez, 124 S.
Ct. 513, 517-18 & n.3 (2003), a post-Desert Palace decision in which the Court
approved use of the McDonnell Douglas analysis at the summary judgment stage.

       McDonnell Douglas and most subsequent cases in which the Supreme Court
has applied McDonnell Douglas came to the Court on a trial record, not a summary
judgment record. Prior to Desert Palace, in two recent cases involving the sufficiency
of the plaintiff’s evidence at trial, the Court held that a finding of pretext does not
compel judgment for the plaintiff, St. Mary’s Honor Center v. Hicks, 509 U.S. 502,
511 (1993), but conversely, that the plaintiff’s prima facie case combined with
sufficient evidence of pretext may permit the jury to find unlawful discrimination,
Reeves, 530 U.S. at 148. Hicks and Reeves are far more pertinent to our summary
judgment analysis than Desert Palace, particularly because the Court reiterated the

                                           -3-
principle that the McDonnell Douglas burden-shifting analysis is not the only way for
a plaintiff to prove unlawful discrimination: “Proof that the defendant’s explanation
is unworthy of credence [i.e., pretextual] is simply one form of circumstantial
evidence that is probative of intentional discrimination, and it may be quite
persuasive.” Reeves, 530 U.S. at 147.

       We have long recognized and followed this principle in applying McDonnell
Douglas by holding that a plaintiff may survive the defendant’s motion for summary
judgment in one of two ways. The first is by proof of “direct evidence” of
discrimination. Direct evidence in this context is not the converse of circumstantial
evidence, as many seem to assume. Rather, direct evidence is evidence “showing a
specific link between the alleged discriminatory animus and the challenged decision,
sufficient to support a finding by a reasonable fact finder that an illegitimate criterion
actually motivated” the adverse employment action. Thomas v. First Nat’l Bank of
Wynne, 111 F.3d 64, 66 (8th Cir. 1997). Thus, “direct” refers to the causal strength
of the proof, not whether it is “circumstantial” evidence. A plaintiff with strong
(direct) evidence that illegal discrimination motivated the employer’s adverse action
does not need the three-part McDonnell Douglas analysis to get to the jury, regardless
of whether his strong evidence is circumstantial. But if the plaintiff lacks evidence
that clearly points to the presence of an illegal motive, he must avoid summary
judgment by creating the requisite inference of unlawful discrimination through the
McDonnell Douglas analysis, including sufficient evidence of pretext. See, e.g.,
Harvey v. Anheuser-Busch, Inc., 38 F.3d 968, 971 (8th Cir. 1994). This formulation
is entirely consistent with Desert Palace. Thus, we conclude that Desert Palace had
no impact on prior Eighth Circuit summary judgment decisions.2

      2
        Desert Palace held that, under the 1991 amendments, if the plaintiff presents
sufficient evidence of intentional discrimination solely by reason of pretext or other
circumstantial evidence, and if the defendant presents sufficient evidence that it
would have taken the same adverse action in any event, either party is entitled to a
mixed-motive jury instruction. In this regard, the amendments overruled Justice

                                           -4-
       In this case, Griffith has produced no strong (direct) evidence that racial or
ethnic discrimination motivated any alleged adverse employment action against him.
While he presented co-worker testimony that Chief Wakeham made insensitive
remarks about African American and women employees on other occasions, Griffith
presented no evidence that Chief Wakeham, Assistant Chief Cohoon, or any other
City decisionmaker ever uttered a single negative racial remark about Griffith’s
Hispanic background. Thus, the requisite causal link between remarks reflecting
racial or gender bias and actions taken against Griffith is lacking. See Simmons v.
OCE-USA, Inc., 174 F.3d 913, 915-16 (8th Cir. 1999). In these circumstances,
Griffith must produce sufficient circumstantial evidence of illegal discrimination
under the McDonnell Douglas paradigm -- by presenting a prima facie case of
intentional discrimination plus sufficient evidence that one or more of the City’s
proffered nondiscriminatory reasons is a pretext for unlawful discrimination.

                                  II. The Merits.

       On appeal, Griffith surrounds his specific allegations with a broad ranging
attack on work conditions and employee relations in the Des Moines Fire Department.
We will ignore this polemic and limit our discussion to Griffith’s specific claims,
stating the relevant facts as pertinent to each.

      1. Discriminatory Leave of Absence. In December 1999, Griffith was
charged with three counts of third degree sexual abuse, including one charge of


O'Connor’s view in Price Waterhouse that a plaintiff must have “direct evidence” of
a discriminatory motive to shift the burden of proof. 123 S. Ct. at 2155. The Court's
resolution of that issue meant, “we need not address the second question on which we
granted certiorari: ‘What are the appropriate standards for lower courts to follow in
making a direct evidence determination in ‘mixed-motive’ cases.’” 123 S. Ct. at 2155
n.3. Had the Court addressed that second question, its answer might have affected
our cases defining direct evidence for summary judgment purposes.

                                         -5-
abusing a minor. On the day the Des Moines Register published a story headlined,
“Fireman Charged For Alleged Abuse,” Griffith through his attorney requested an
unpaid leave of absence from the Fire Department, which Chief Wakeham granted.
In May 2000, Griffith pleaded guilty to lesser offenses. He was given a suspended
sentence and probation on conditions that included avoiding contact with the victim.
The City then allowed Griffith to return to work. On appeal, he argues that he was
the victim of disparate treatment because the City did not take action for nine months
when a white firefighter was charged with sex abuse in 1998. This contention is
without merit. It is uncontested that Griffith requested the leave of absence.

       2. Failure To Retrain upon Griffith’s Return. When Griffith returned to
work in May 2000, he believed that his firefighting skills had deteriorated during his
leave of absence. He declined one or more emergency assignments, asked for
additional retraining, and claims the City unlawfully discriminated in refusing his
request. On appeal, Griffith argues that summary judgment was improper on this
claim because training is a necessary component of his job and there is a dispute
whether adequate training was provided. This contention, too, is without merit. An
employer’s denial of an employee’s request for more training is not, without more,
an adverse employment action. See Woodland v. Joseph T. Ryerson & Son, Inc., 302
F.3d 839, 845 (8th Cir. 2002). Nor does the record permit a reasonable inference that
Griffith’s race was a factor in this training dispute.

       3. Three Disciplinary Incidents. Griffith was disciplined three times between
August 2000 and January 2002 and claims unlawful discrimination and retaliation in
each instance. First, in August 2000, Chief Wakeham informed Griffith that a pre-
disciplinary hearing had been scheduled because of Griffith’s “abusive and
argumentative” behavior in a heated exchange with Assistant Chief Cohoon over
Griffith’s alleged lack of training. The next day, Griffith told the Iowa Civil Rights
Commission that he was the victim of discrimination and retaliation on account of his
Hispanic background. The pre-disciplinary hearing took place two weeks later.

                                         -6-
Griffith received an oral reprimand, a referral to the Employee Assistance Program
(EAP) for evaluation and consultation, and additional firefighter training that he later
admitted was adequate to restore his emergency firefighting skills.

       On appeal, Griffith argues that a jury could find “disparate and discriminatory”
treatment because a white firefighter received the same discipline -- a reprimand and
referral to EAP – for more serious insubordination. The district court granted
summary judgment because it is undisputed that Griffith exhibited anger and
disrespect to a supervisor and there is no evidence that Wakeham acted from racial
animus in imposing the discipline. After careful review of the record, we agree.

       Second, in late July 2001, Des Moines arson investigators were about to
interview a minor at a fire scene. Griffith asked another firefighter within the hearing
of the minor’s parents whether “we were allowed to question minors without a parent
. . . because if it was my kid, I would want somebody there.” The parents then
interrupted the interview, and the arson investigators complained to Chief Wakeham.
On August 16, Wakeham wrote Griffith advising him of a pre-disciplinary hearing
regarding “possible interference with an official fire investigation.” Six days later,
Griffith filed this suit. After an August 24 pre-disciplinary hearing, Chief Wakeham
issued a written reprimand and suspended Griffith without pay for one 24-hour duty
shift for “conduct that disrupted an investigation of a fire of unknown origin.” On
appeal, Griffith argues that summary judgment is improper because whether he
interfered with a fire investigation is a disputed issue of fact. The district court
concluded there was no evidence that Wakeham did not believe Griffith was guilty
of misconduct. Again, we agree.

       Third, on October 2, 2001, Griffith failed to sign an equipment checklist.
When asked to sign, Griffith stated, “I would sign the sheet if I am required to do so,
but if I am not required to do so, I would prefer to not sign the sheet.” The
Department scheduled a pre-disciplinary hearing that day. Two days later, Griffith

                                          -7-
complained to the City’s EEO Officer that he “perceived [the incident] as
discrimination and harassment.” On October 23, Chief Wakeham suspended Griffith
without pay for forty-eight hours for violating Fire Department policy. Griffith
argues that summary judgment was improper because whether he was ordered to sign
the checklist is a disputed issue of fact. Again, the district court concluded there was
no evidence creating an inference that this discipline was the product of race
discrimination. We agree.

       Griffith further argues that the district court erred in granting summary
judgment on his claims that each of these disciplines was illegal retaliation for the
discrimination complaint he filed with the Iowa Civil Rights Commission, for the
filing of this lawsuit, and for his letters to Chief Wakeham and to the City’s Equal
Employment Opportunity Officer complaining of discrimination. To establish a
prima facie case of retaliation under 42 U.S.C. § 2000e-3, Griffith must show that “he
engaged in protected conduct, that he suffered an adverse employment action, and
that the adverse action was causally linked to the protected conduct.” Putman, 348
F.3d at 737. Griffith argues that the temporal proximity between his complaints of
discrimination and the disciplines is sufficient circumstantial evidence of retaliation.
The district court disagreed, and so do we.

       “Generally, more than a temporal connection between the protected conduct
and the adverse employment action is required to present a genuine factual issue on
retaliation.” Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir.) (en banc),
cert. denied, 528 U.S. 818 (1999). In this case, Griffith lodged complaints of
discrimination days after receiving notices of the pre-disciplinary hearings that led
to the three disciplines. His post-hoc complaints did not without more raise a
retaliation bar to the proposed discipline because “the anti-discrimination statutes do
not insulate an employee from discipline for violating the employer’s rules or
disrupting the workplace.” Kiel, 169 F.3d at 1136. Indeed, complaining of
discrimination in response to a charge of workplace misconduct is an abuse of the

                                          -8-
anti-retaliation remedy. In these circumstances, we agree with the district court that
the temporal proximity between Griffith’s complaints and the subsequent adverse
decisions “is insufficient to allow an inference of a retaliatory motive.”

       4. The Hostile Work Environment Claim. Griffith argued in the district
court and on appeal that negative co-worker comments about his Hispanic
background subjected him to a hostile work environment. Griffith testified to three
scattered derogatory comments by two co-workers. The comments were not directed
to Griffith, and one co-worker apologized when Griffith overheard one remark.
Griffith did not complain to his superiors about any of these comments. Another
firefighter testified that co-workers mocked Griffith during his leave of absence and,
in discussing the sexual abuse charges, said “he’s getting what he deserves, and it’s
his own fault” and called him a “stupid Mexican.” In addition to these incidents,
Griffith alleges more generally that the Fire Department is a “racially tense
environment” in which “racial comments and racially derogatory names” are frequent.
The district court concluded that Griffith failed to show harassment pervasive or
severe enough to affect a term, condition, or privilege of his employment. See, e.g.,
Woodland, 302 F.3d at 843. We agree. The record contains evidence that Griffith
suffers from depression in large part because he perceives that his co-workers
ridiculed and ostracized him as a “child molester.” That is unfortunate, but
discrimination on this ground is not prohibited by Title VII or by the Iowa Civil
Rights Act.

       Griffith asserted other claims in the district court but has not briefed them on
appeal. We therefore deem those issues abandoned. See Hays v. Hoffman, 325 F.3d
982, 986 n.2 (8th Cir.), cert. denied, 124 S.Ct. 277 (2003). The judgment of the
district court is affirmed.




                                         -9-
MAGNUSON, District Judge, concurring specially.

      I concur in the conclusion that Griffith’s claims fail as a matter of law.
However, I write separately to express my views on how Desert Palace, Inc. v. Costa,
539 U.S. 90 (2003), affects the analysis used at the summary judgment stage of an
employment discrimination lawsuit.3 In 1991, Congress extended the protection of
the Civil Rights Act, which until that point only prohibited employment decisions
motivated primarily by an improper characteristic such as race or gender. In
amending the Civil Rights Act in 1991, Congress sought to prohibit any consideration
of race or other improper characteristic, no matter how slight, in employment
decisions. Despite this clear language, courts continued to apply a test that
determined whether a discriminatory motive was the necessary and sufficient cause
of an employment decision, not one to determine whether a discriminatory motive
played a lesser role in the employment decision. Courts ignored the Civil Rights Act
of 1991 in 1991, and they continue to ignore this congressional mandate today.
Desert Palace exposes the legal fiction for what it is, and in its wake, I can no longer
adhere to or apply an arbitrary and antiquated test that has been superceded by
Congress.

      On July 2, 1964, the Civil Rights Act of 1964 was enacted “to promote a more
abiding commitment to freedom, a more constant pursuit of justice, and a deeper
respect for human dignity.” President Lyndon B. Johnson’s Radio and Television
Remarks Upon Signing the Civil Rights Bill, Pub. Papers of Lyndon B. Johnson
1963-64, vol. 2 at 842-844 (1965). In particular, Title VII sought to “eliminate,
through the utilization of formal and informal remedial procedures, discrimination in
employment based on race, color, religion, or national origin.” H.R. Rep. No. 88-352,


      3
         Because Mr. Griffith fails to present any evidence to support a claim for
intentional discrimination, the Majority’s discussion of Desert Palace is unnecessary.


                                         -10-
at 26, reprinted in 1964 U.S.C.C.A.N. 2391, 2401. Congress expressly rejected the
notion that Title VII liability attached only when discrimination was the sole cause
of the employment action.4 As the Supreme Court commented, “[w]hat is required
by Congress is the removal of artificial, arbitrary, and unnecessary barriers to
employment when the barriers operate invidiously to discriminate on the basis of
racial or other impermissible classification.” Griggs v. Duke Power Co., 401 U.S.
424, 429 (1971). Title VII imposed liability when discrimination motivated the
employment decision.

       In 1973, the Supreme Court adopted a tripartite analytical paradigm in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800 (1973), “to clarify the
standards governing the disposition of an action challenging employment
discrimination.” The Court discovered that employers rarely, if ever, openly
discriminated against their employees, and absent such blatant proof, an aggrieved
plaintiff would lose at summary judgment. Acknowledging that Title VII “tolerates
no [] discrimination, subtle or otherwise,” the Court devised a burden-shifting scheme
to allow a plaintiff to inferentially prove intentional discrimination. See id. at 801.
Under McDonnell Douglas, the plaintiff bears the burden of proof throughout and the
defendant only bears the burden of production. The plaintiff must first prove a prima


      4
        Both the House and the Senate rejected amendments that proposed to insert
the word “solely” in the text of the statute. One senator commented:

      The difficulty with this amendment is that it would render Title VII
      totally nugatory. If anyone ever had an action that was motivated by a
      single cause, he is a different kind of animal from any I know of. But
      beyond that difficulty, this amendment would place upon persons
      attempting to prove a violation of this section, no matter how clear the
      violation was, an obstacle so great as to make the title completely
      worthless.

110 Cong. Rec. 13,837-38 (1964).

                                         -11-
facie case of discrimination, and then the burden shifts to the employer to articulate
a legitimate nondiscriminatory reason for the employment decision. To determine
causation, the plaintiff must prove that the single legitimate nondiscriminatory reason
given by the employer is a pretext for the actual, discriminatory, but-for cause of the
employment decision. See id. at 802-03. Absent from this opinion was any
justification or authority for this scheme.5


      5
          As one commentator has noted:

      The McDonnell Douglas Court gave no justification or authority for its
      establishment of this structure for proof of illegal discrimination. The
      Court did not cite or discuss any passage from Title VII or any other part
      of the Civil Rights Act of 1964. Nor did the Court argue that any
      legislative history from the Act lent support to, or even suggested, such
      a set of rules. The Court did not explain how proof of a prima facie case
      had any logical or inferential relationship to proof of the employer’s
      intent itself. The Court did not expound upon shifting burdens of proof,
      presumptions, or any other procedural rules used in any other cause of
      action, whether statutory or common law, from which it had drawn this
      scheme. The Court did not cite any power a court might possess to
      structure the presentation of evidence in a way most conducive to
      accurate fact-finding. The Court’s pronunciation of the prima facie case
      and the shift in burden to the employer stands starkly naked, without the
      armor of congressional support, common-law authority, or reasoning.
      The opinion is unanimous. No Justice bothered to concur and explain
      his own rationale for the holding of the case, let alone dissent from the
      creation, without explanation, defense, or justification, of the elements
      of a cause of action purportedly created by Congress. The rules laid
      down in McDonnell Douglas are an audacious and arbitrary exercise of
      power. In this way, the establishment of the structure of proof is closer
      to a legislative creation of policy than a judicial expression of the law
      under authority and reason.

Mark A. Schuman, The Politics of Presumption: St. Mary’s Honor Center v. Hicks
and the Burdens of Proof in Employment Discrimination Cases, 9 St. John’s J. Legal

                                         -12-
       Following McDonnell Douglas, the Court scrambled to provide guidance to
confused courts across the nation. See, e.g., Texas Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248 (1981). Despite the Court’s efforts, courts continued to struggle with
the McDonnell Douglas paradigm. In 1989, the Court was presented with a case in
which the evidence indicated that both discriminatory and nondiscriminatory reasons
contributed to the employment decision, Price Waterhouse v. Hopkins, 490 U.S. 228
(1989). The Court discovered that the traditional McDonnell Douglas scheme was
ineffective to analyze such claims. Specifically, the plurality in Price Waterhouse
concluded that Title VII’s use of the words “because of” did not require plaintiffs to
prove that a discriminatory motive was the but-for cause of the adverse employment
decision. Id. at 240. Rather, the plurality held that the words “because of” obligated
a plaintiff “to prove that the employer relied upon [an improper characteristic] when
coming to its decision.” Id. at 242. For cases in which a discriminatory motive
affected the employment decision, the plurality further held that a defendant could
escape liability when it “can prove that, even if it had not taken [an improper
characteristic] into account, it would have come to the same decision regarding a
particular person.” Id. For cases in which a discriminatory motive played a less-than-
decisive role in the employment decision, the Price Waterhouse plurality completely
shifted the burden of persuasion off of plaintiffs and onto defendants, creating a
defense to liability where the defendant could meet the “same decision test.” Id. at
244-45.

      Justice O’Connor, however, was uncomfortable with the notion that defendants
in mixed-motive cases, or cases in which a discriminatory motive played a less-than-
but-for role in an employment decision, bore the burden of proof with respect to
causation. As a result, she concurred with the plurality, holding that courts should
break from the McDonnell Douglas requirement that plaintiffs prove causation
through the pretext test and instead require defendants to disprove causation through


Comment. 67, 70 (1993).

                                        -13-
the same decision test only when a plaintiff first offered direct evidence that a
discriminatory motive played a substantial role in the employment action. Id. at 276
(“In my view, in order to justify shifting the burden on the issue of causation to the
defendant, a disparate treatment plaintiff must show by direct evidence that an
illegitimate criterion was a substantial factor in the decision.”).

       O’Connor described how lower courts should approach cases after Price
Waterhouse, deftly distinguishing between the McDonnell Douglas framework and
her Price Waterhouse framework:

             Once all the evidence has been received, the court should
             determine whether the McDonnell Douglas or Price
             Waterhouse framework properly applies to the evidence
             before it. If the plaintiff has failed to satisfy the Price
             Waterhouse threshold, the case should be decided under
             the principles enunciated in McDonnell Douglas and
             Burdine, with the plaintiff bearing the burden of persuasion
             on the ultimate issue whether the employment action was
             taken because of discrimination. In my view, such a
             system is both fair and workable, and it calibrates the
             evidentiary requirements demanded of the parties to the
             goals behind the statute itself.

Id. at 278-79. Price Waterhouse thus created a capricious distinction between direct
and indirect evidence and single-motive and mixed-motive cases.

       In 1991, Congress amended the Civil Rights Act of 1964. Congress clarified
that a plaintiff establishes an unlawful employment practice when he or she
“demonstrates that race, color, religion, sex, or national origin was a motivating factor
for any employment practice, even though other factors also motivated the practice.”
42 U.S.C. § 2000e-2(m). The plain meaning of the statute imposes liability on an
employer when an improper consideration is a motivating factor, regardless if other


                                          -14-
factors also existed. Absent from this clear language is the requirement that
discrimination be a “substantial” factor, a “but-for” factor, or the necessary and
sufficient cause of the employment decision. Instead, Congress unambiguously
required that discrimination be “a” motivating factor in the employment decision.
Any analytical paradigm that requires greater proof to prevail on liability contradicts
the express language of the statute.

       Even though the language of the statute is unambiguous, legislative history
reflects that Congress did not intend to require a heightened standard of evidentiary
proof. Indeed, the legislative history is void of any reference to different degrees of
evidentiary proof. See generally H.R. Rep. 102-40 (I) &( II), reprinted in 1991
U.S.C.C.A.N. 549.6 Noting that Price Waterhouse “severely undercut” Title VII’s
comprehensive ban on “all invidious consideration” in employment, Congress
clarified that Title VII imposed liability when discrimination was a “contributing” or
“causative” factor in the employment decision. H.R. Rep. 102-40 (I) at 46-48.
Congress did not discuss a heightened level of proof but rather intended to restore the
law consistent with the legislative purpose of Title VII. Id. In addition, by making
the same decision test an affirmative defense to damages but not liability, 42 U.S.C.
§ 2000e-5(g)(2)(B), Congress modified the motivating factor analysis originally set


      6
          Although the legislative history addresses evidence such as conduct or
statements, this reference does not indicate any intent to distinguish between direct
and circumstantial evidence. Rather, Congress commented that although such
evidence is relevant in an intentional discrimination claim, “mere discriminatory
thoughts” alone are not actionable. Instead, conduct and remarks may be sufficient
if the plaintiff can show a “nexus” between the evidence and the employment
decision. H.R. Rep. 102-40 (II) at 18. Congress sought to prevent mere “thoughts”
from being actionable under Title VII. As is with all evidence, there must be a causal
connection to support intentional discrimination. Although the text and history of the
statute do not require the plaintiff to prove proximate cause or some other heightened
level of causation, the plaintiff nonetheless bears the burden to prove some degree of
causation.

                                         -15-
forth in Price Waterhouse. See H.R. Rep. 102-40 (I) at 48 (“[2000e-2(m)] would
clarify that proof that an employer would have made the same employment decision
in the absence of discriminatory reasons is relevant to determine not the liability for
discriminatory employment practices, but only the appropriate remedy.”).

       The direct/indirect evidence distinction, which courts have applied since Price
Waterhouse, should have fallen into disuse after Congress amended the Civil Rights
Act in 1991. Nevertheless, since Price Waterhouse and despite the Civil Rights Act
of 1991, courts including the Eighth Circuit have duly followed O’Connor’s
evidentiary distinction between the burden-shifting framework on causation in single
and mixed-motive cases. For example, in Mohr v. Dustrol, Inc., 306 F.2d 636, 639
(8th Cir. 2002), the Court observed: “The framework for evaluating a Title VII
discrimination claim depends on the type of evidence presented in support of the
claim. Where the plaintiff relies primarily on circumstantial evidence, courts apply
a tripartite analysis as set forth in McDonnell Douglas Corp. v. Green.” Similarly,
in Gagnon v. Sprint Corp., 284 F.3d 839, 847-48 (8th Cir. 2002), the Court made the
distinction between a mixed-motive analysis under Price Waterhouse, and a single-
motive analysis under McDonnell Douglas:

             Plaintiffs like Gagnon pursuing claims of discrimination
             under Title VII have two models under which they may
             proceed. First, a plaintiff can proceed under the three-
             stage, burden-shifting standard set forth in McDonnell
             Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668,
             93 S. Ct. 1817 (1973). Under this standard, Gagnon must
             first establish a prima facie case of discrimination. Once
             the prima facie case is established, the burden shifts to
             Sprint PCS to articulate a non-discriminatory reason for the
             adverse employment action. St. Mary’s Honor Ctr. v.
             Hicks, 509 U.S. 502, 507, 125 L. Ed. 2d 407, 113 S. Ct.
             2742 (1993). If Sprint PCS articulates such a reason,
             Gagnon must respond with sufficient evidence that the


                                         -16-
            proffered reason was really a pretext for intentional
            discrimination. Id. At all times under this model, the
            burden of persuasion remains on Gagnon, the plaintiff. Id.

            Alternatively, Gagnon can proceed under the mixed-motive
            standard set forth in Price Waterhouse v. Hopkins, 490
            U.S. 228, 104 L. Ed. 2d 268, 109 S. Ct. 1775 (1989), if he
            is able to produce “direct evidence that an illegitimate
            criterion . . . ‘played a motivating part in [the] employment
            decision.’” Cronquist v. City of Minneapolis, 237 F.3d
            920, 924 (8th Cir. 2001) (alterations in original) (quoting
            Price Waterhouse, 490 U.S. at 258). Once Gagnon
            establishes such direct evidence, the burden shifts to Sprint
            PCS to demonstrate by a preponderance of the evidence
            that it would have reached the same employment decision
            absent any discrimination. Cronquist, 237 F.3d at 924. As
            modified by section 107 of the Civil Rights Act of 1991, 42
            U.S.C. § 2000e-5(g)(2), the mixed-motive model allows for
            declaratory relief, injunctive relief, attorney’s fees and
            costs once Gagnon meets his initial burden regarding direct
            evidence. 42 U.S.C. § 2000e-5(g)(2)(B)(i).

Since Price Waterhouse, as Mohr and Gagnon illustrate, the analysis appropriate at
the summary judgment stage depended on the evidentiary distinction made by Justice
O’Connor.

       In June 2003, the Supreme Court abrogated the proposition that whether the
courts apply McDonnell Douglas or a mixed-motive analysis depends on the
presentation of direct or indirect evidence. Desert Palace, 539 U.S. 98-99, 101. The
Court concluded that the Civil Rights Act did not require a heightened evidentiary
standard to proceed under a mixed-motive analysis. Id. Desert Palace admonished
that the key issue under Title VII is whether intentional discrimination occurred,
instead of how intentional discrimination is proved. Absent the distinction between
direct and indirect evidence, principles of statutory interpretation compel the

                                        -17-
conclusion that Congress never envisioned a dichotomy between single and mixed-
motive cases. Congress intended to hold employers liable when discrimination was
a contributing factor in the employment action, even if other motives existed. See 42
U.S.C. § 2000e-2(m); H.R. Rep. 102-40 (I) at 48; H.R. Rep. 102-40 (II) at 17.
Whether a plaintiff’s claim is single motive or mixed-motive is not evinced in the
language or the legislative history of the statute; Title VII imposes liability when
discrimination is “a motivating factor” for the adverse employment action. 42 U.S.C.
§ 2000e-2(m).7
       There is no rational connection between the type of evidence presented by a
plaintiff and whether a case involves single or mixed-motives. The language and
legislative history of the Civil Rights Act of 1991 do not support a distinction
between direct and indirect evidence. Circumstantial evidence is as equally
persuasive as direct evidence in proving discrimination. Moreover, maintaining a
distinction between direct and indirect evidence creates a legal fiction. Even
assuming that Congress intended to create a dichotomy between single-motive and
mixed-motive cases, a plaintiff that prevails under either theory obtains the same
relief for a defendant’s liability under Title VII. There is no need for a plaintiff to
prove the more onerous single-motive case, when all that Title VII requires a plaintiff
to prove is that discrimination was a motivating factor in the employment decision.
42 U.S.C. § 2000e-2(m). Courts that insist that two frameworks still exist improperly
create a fictional dichotomy of “first degree discrimination” and “second degree
discrimination.” The plain language of the statute does not require a plaintiff to prove


      7
         With the 1991 Amendment, it is impossible to construe the Civil Rights Act
as imposing liability under §§ 2000e-2(a)(1) and 2000e-2(m) as mutually exclusive.
Title VII does not create varying degrees of liability. The plain language of the
statute forbids an invidious consideration from motivating, in any way, an
employment decision. The 1991 Amendment was intended to clarify the statute from
the improper interpretation articulated in Price Waterhouse. Section 2000e-2(m)
further defines § 2000e-2(a)(1), and together these statutes form the standard for Title
VII liability. Thus, the motivating factor test controls.

                                         -18-
that discrimination was the “but-for” cause of the employment decision, but rather
requires a plaintiff to demonstrate that discrimination was “a motivating” factor.
There is no evidence that Congress intended to create different degrees of
discrimination under Title VII.8 Although the statute entitles a plaintiff to damages
beyond that articulated in § 2000e-5(g)(2)(B), these damages are only awarded if the
defendant employer fails to prove its affirmative defense that it would have made the
same decision in the absence of a discriminatory motive. This burden allows the
defendant employer to limit the plaintiff’s remedy, but does not negate liability.
Thus, whether the employer has other nondiscriminatory reasons which enter into the
employment decision is wholly irrelevant to Title VII liability under the Civil Rights
Act of 1991. The only rational conclusion is that no distinction between single and
mixed motives exists. 42 U.S.C. § 2000e-2(m) applies to all individual disparate
treatment cases.9


      8
         In the absence of this evidentiary distinction, this Circuit to date has not
provided any basis on which to determine whether to apply a McDonnell Douglas
analysis or the alternative mixed-motive analysis. Instead, this Circuit and the
Majority appear to cling to the distinction articulated in Price Waterhouse and
abrogated by Desert Palace. See supra at 3-4; see Hammer v. Ashcroft, File No. 3-
3259 (8th Cir. Sept. 7, 2004) (“A plaintiff who lacks direct evidence of discrimination
may utilize the framework set forth in McDonnell Douglas”). The Majority
misunderstands the history and context of the dichotomy between the single-motive
test articulated in McDonnell Douglas and the motivating factor test, a variation of
which was first adopted by the Supreme Court in Price Waterhouse. The Majority
refuses to acknowledge that Desert Palace eliminated direct evidence as a prerequisite
for mixed-motive analysis.
      9
          Contrary to what the Majority asserts, this is not simply an issue for the
purposes of giving jury instructions. Although the context of the decision applied to
jury instructions, the practical effect of Desert Palace nonetheless affects the analysis
used at summary judgment. The reasonable jury standard is the same as the summary
judgment standard: whether the plaintiff has presented sufficient evidence from which
a reasonable jury could logically infer that the adverse employment action resulted
from an improper consideration of a protected characteristic.

                                          -19-
       For thirty years, courts have been slaves to the McDonnell Douglas burden
shifting paradigm that is inconsistent with Title VII. McDonnell Douglas cannot be
reconciled with the Civil Rights Act of 1991, as it is indignant to the clear text of the
statute. McDonnell Douglas impermissibly focuses on the but-for cause of the
employment decision, when all that the Civil Rights Act of 1991 requires is that
discrimination be a motivating factor in the employment decision. Because a plaintiff
need not demonstrate that discrimination was the but-for cause in the employment
decision, all cases under Title VII should be evaluated to determine whether invidious
discrimination in any way influenced or motivated the employment decision.
McDonnell Douglas fails to always achieve this result, while the motivating factor
test consistently does.

       McDonnell Douglas should not be used by courts to analyze Title VII claims.
The burden-shifting framework is not supported in the language of the statute, nor
does it impose liability under Title VII as Congress intended. Under McDonnell
Douglas, requiring the employer to articulate a nondiscriminatory reason for the
employment decision is worthless. First, this element is not highly significant to a
plaintiff’s claim because in the vast majority of cases, if not all, the defendant
employer always chooses to deny claims of discrimination and offers a


       Moreover, there is no support for the proposition that the Civil Rights Act of
1991 compels different analyses at different procedural stages of a Title VII case.
Applying the more onerous McDonnell Douglas paradigm at summary judgment and
then applying the Civil Rights Act of 1991 at trial is inconsistent and impractical.
This approach requires the plaintiff to prove at summary judgment that an invidious
characteristic was the but-for cause of the employment action, but then at trial only
requires the plaintiff to prove that this characteristic was a motivating factor in the
employment decision. This inconsistency further interferes with the ultimate issue
of whether there is any evidence that supports a finding that discrimination motivated
the employment decision. It is absurd to require the plaintiff to satisfy a higher
burden at summary judgment when the lesser burden is all that is required under the
statute.

                                          -20-
nondiscriminatory reason for the adverse employment action. Moreover, mere
articulation of a nondiscriminatory reason without requiring evidentiary proof is a
useless ritual. Second, even if the plaintiff successfully disproves the employer’s
nondiscriminatory reason, this does not necessarily result in judgment in favor of the
plaintiff. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000) (prima
facie case plus sufficient evidence of pretext may permit the jury to find unlawful
discrimination); Hicks, 509 U.S. 502 (1993) (a finding of pretext does not compel
judgment for the plaintiff; but that any reason in the record, even if not specifically
articulated by the employer as the nondiscriminatory reason, is proper for jury
consideration). Finally, the plain language of the statute lacks any reference
whatsoever to a burden-shifting paradigm articulated in McDonnell Douglas. Instead,
the Civil Rights Act of 1991 requires the plaintiff to prove that discrimination was a
motivating factor, and then allows the defendant to affirmatively prove otherwise to
negate damages. See 42 U.S.C. § 2000e-5(g)(2)(B). Rather than aiding the plaintiff
in proving that discrimination was a motivating factor in the employment decision,
McDonnell Douglas focuses on the legitimacy of the employer’s proffered reasons
without considering whether discrimination played any part in the adverse
employment decision.

        The Civil Rights Act of 1991 is intended to root out and deter employment
discrimination and provide public benefit through the active enforcement of a
statutory scheme that ensures equality in employment decisions. Although I
acknowledge that Desert Palace confirms the demise of the McDonnell Douglas
framework, I do not ignore the vitality of “pretext” – that is, the proffered reason
articulated by the employer as a proxy for discrimination – and the underlying value
that it provides in employment discrimination cases. Title VII liability requires a
plaintiff to show that discrimination was a motivating factor in employment, using
either direct or circumstantial evidence. Of course, pretext is circumstantial evidence
that may sufficiently demonstrate that an employer was motivated by an improper
consideration. However, § 2000e-2(m) does not require the plaintiff to prove pretext

                                         -21-
to prevail under Title VII. Regardless if the plaintiff proves pretext or that
discrimination was a motivating factor, the plaintiff is entitled to the same damages
for Title VII liability. 42 U.S.C. § 2000e-5(g)(2)(B). A plaintiff is entitled to
damages beyond those enumerated in § 2000e-5(g)(2)(B) only if the defendant
employer cannot sustain its burden on its same-decision affirmative defense. If the
defendant employer cannot prove that there was an existing but-for cause that would
have created the same employment result, then the plaintiff is entitled to greater
damages. Thus, a plaintiff is no worse off if he or she is unable to prove pretext.
Title VII is not designed to provide a windfall to plaintiffs, but rather serves to put
the plaintiff in the same position he or she would have been in absent discrimination.
See H.R. Rep. 102-40 (II) at 19 (“complaining party may receive relief only for the
harm that actually results from the illegal discriminatory conduct”). This is the
fundamental purpose behind our civil litigation system.10

       Since its inception, McDonnell Douglas has befuddled the Courts. Over time,
the Supreme Court has gradually chiseled McDonnell Douglas away from its original
failing framework to an analysis that still fails to give effect to the language of the
Civil Rights Act. Since Desert Palace, courts all over this country have attempted to
interpret, understand, and give effect to the Civil Rights Act of 1991. See, e.g.,
Rachid v. Jack in the Box, Inc., 376 F.3d 305 (5th Cir. 2004); Dunbar v. Pepsi Cola




      10
           I also understand the concern that innocent defendants may be liable to
plaintiffs. However, the same-decision test ensures that no innocent defendant will
owe a plaintiff damages. This differs from McDonnell Douglas, because there are no
longer guilty defendants evading liability and innocent victims denied compensation
because the victims cannot successfully prove pretext. The Civil Rights Act is
designed to provide the victims of discrimination with redress and to sanction
employers’ discriminatory conduct. See H.R. Rep. 102-40(I) at 47. Requiring a
plaintiff to prove pretext frustrates this objective.

                                         -22-
General Bottlers of Iowa, Inc., 285 F. Supp. 2d 1180, 1197 (N.D. Iowa 2003).11
However, courts have failed to thoroughly examine the language of the statute and
congressional intent, and instead have fought to keep an arbitrary paradigm alive. It
is imperative for courts to acknowledge a congressional mandate and give effect to
the express language of the statute. There is no need to adopt a modified McDonnell
Douglas approach when the Civil Rights Act of 1991 effectively allows a plaintiff to
prove discrimination without invoking the complexities and insensibility of the
McDonnell Douglas paradigm.12 There is simply no need to retain the McDonnell
Douglas paradigm when the Civil Rights Act of 1991 effectively allows a court to


      11
           I am likewise cognizant that the Supreme Court acknowledged the
McDonnell Douglas burden shifting paradigm following Desert Palace. See
Raytheon Co. v. Hernandez, 124 S. Ct. 513, 518 n.3 (2003). In Raytheon, the
Supreme Court vacated the Ninth Circuit because the panel improperly applied the
disparate impact standard to a disparate treatment case. In acknowledging
McDonnell Douglas, the Supreme Court stated that, “the plaintiff can still prove
disparate treatment by, for instance, offering evidence demonstrating that the
employer’s explanation is pretextual.” Id (emphasis added). Although the Supreme
Court acknowledged McDonnell Douglas, it did not revisit the Ninth Circuit’s
analysis nor did it discuss McDonnell Douglas as applied to Title VII cases. Just as
the Supreme Court ignored McDonnell Douglas in the Desert Palace opinion, the
Supreme Court likewise ignored Desert Palace in the Raytheon opinion. These
inconsistencies further demonstrate the confusion that McDonnell Douglas creates.
Moreover, it is the Civil Rights Act of 1991 that overruled McDonnell Douglas, and
the Supreme Court’s failure to acknowledge this effect does not resurrect McDonnell
Douglas.
      12
          The modified McDonnell Douglas approach, as advocated in Dunbar and
Rachid, essentially creates varying degrees of discrimination, by allowing a plaintiff
to prove Title VII liability by either demonstrating that discrimination was (1) the
“but-for” cause of the employment decision, or (2) a motivating factor in the
employment decision. However, the plain language of the statute only requires the
plaintiff to prove that discrimination was a motivating factor. It is ridiculous for
courts to adopt a scheme that provides a plaintiff the option to prove something more
than what the statute actually requires for liability.

                                        -23-
analyze the evidence to determine if discrimination was a motivating factor in the
employment decision. Thus, the Civil Rights Act of 1991sufficiently provides an
analysis that achieves what Congress has always intended: the absolute elimination
of discrimination in employment decisions.

       As jurists, courts have the insurmountable task to interpret and apply the law
as prescribed by Congress. In limited circumstances, courts have the power to
invalidate congressional mandates that exceed the scope of congressional power.
Nonetheless, courts do not have unfettered discretion and are not entitled to rewrite
legislation as they see fit. The Civil Rights Act of 1964 and the 1991 Amendments
expressly prohibit any discrimination in employment. Courts are not empowered to
impose an arbitrary and analytical scheme that contradicts the express, unambiguous
language of the statute. If Congress intended that Title VII impose varying degrees
of liability, then Congress needs to amend Title VII to reflect that intent. It is simply
impossible to reconcile the ancient McDonnell Douglas paradigm with the clear
language of the Civil Rights Act. Courts are required to apply the law. McDonnell
Douglas does not apply Title VII as Congress envisioned. In its place, the express
language of the Civil Rights Act of 1991 should emerge.

       Thus, courts should adhere to the statute rather than divine standards of
analyzing claims. “[T]he complaining party must demonstrate that discrimination
was a contributing factor in the employment decision - i.e., that discrimination
actually contributed to the employer’s decision with respect to the complaining
party.” H.R. Rep. 102-40 (II) at 18. The plaintiff may use any type of evidence to
prove liability. The burden is on the plaintiff to demonstrate that discrimination was
a motivating factor in the employment action. If the evidence is sufficient for a
rational factfinder to conclude that discrimination was a motivating factor in the
employment action, then the employer may rebut with evidence that discrimination
was not a motivating factor for the employment decision. The defendant employer
also bears the burden to prove that it would have made the same employment decision

                                          -24-
absent the discriminatory motive. Judgment may be entered against either party
depending on the sufficiency of the evidence presented. A plaintiff’s claim will fail
if the evidence is insufficient for a rational factfinder to find intentional
discrimination. Eliminating the tripartite framework provides an aggrieved plaintiff
with redress when the plaintiff proves that discrimination played, not the but-for role,
but a role in the employment decision.

       The distinction between the Civil Rights Act of 1991 and McDonnell Douglas
cannot be articulated in this case. As a matter of law, regardless of what type of
evidence Mr. Griffith has presented and regardless of the standard utilized by the
Court, Mr. Griffith fails to present sufficient evidence to support his claim for
intentional discrimination. Therefore, I concur that Mr. Griffith’s claims fail, and
concur in the decision to affirm the district court.
                        ______________________________




                                         -25-
