A case decided on December 5 by the U.S. 11th Circuit Court of Appeals—a sister federal appeals court to our 5th Circuit, which covers Texas—looks like it is being teed up for review by the Supreme Court of the United States (SCOTUS). The issue: What does it take to get a case dismissed before trial? And, it looks as if more claims will be going to trial. Buckle up!
Traditional: The Pretext Approach
Back in 1973—a mere nine years after Title VII of the Civil Rights Act of 1964 was enacted—SCOTUS decided in the McDonnell Douglas case how a trial court should determine whether to grant summary judgment (dismissal without a trial) to the employer. Summary judgment is when all the facts have been collected by both sides and the trial court decides, in applying the law, whether to dismiss the case.
The key phrase is “applying the law.” The Court said this would be the law: If an employer comes up with a valid reason or reasons for the alleged discrimination, then it is up to the suing employee to show that the reason is both false and that the real reason was unlawful discrimination. This is called pretext. That’s a big burden on the employee. But courts across the country embraced this formulation because it allowed them to mow down claims and manage their dockets.
Contemporary: The Mosaic Approach
So, what’s the matter with McDonnell Douglas? First off, SCOTUS just made it up—it isn’t based on the text of Title VII. Moreover, the Court never intended it to be the exclusive means of deciding whether a trial court should grant summary judgment. Rather, it was only intended as a way to sift through the evidence in a lawsuit. But the lower courts saw it as a convenient way to decide summary judgment cases, and off to the races they went.
The result: Over the last 53 years, countless discrimination cases were dismissed because it was too hard for employees to establish pretext. That time is coming to a close, with two SCOTUS Justices saying it’s time to reexamine McDonnell Douglas. Here, they are disagreeing with a decision from the other Justices to do so in a case called Hittle v. City of Stockton California, 145 S.Ct. 759 (2025):
This case highlights how McDonnell Douglas may distort a lower court’s analysis. [The employee] presented “ample” evidence of discriminatory intent on the part of those who decided to terminate him. . . . That evidence is more than likely sufficient for [him] to establish a genuine dispute of material fact as required by [the rules]. . . . Yet, after applying McDonnell Douglas, the District Court and the Ninth Circuit ruled for the [employer].
This is like your significant other when they tell you “we’ve got to talk.” Your time is short! The replacement? The mosaic test, whereby a court looks at all the evidence, not only evidence of pretext.
Facts in the New Case
Let’s see how all this works out in practice. Ahmed Ismael was a deputy sheriff. He was born in the Republic of Iraq and is a person of Arabic descent. He claimed his boss called him a “terrorist,” told him to “go play in the sand,” and warned their colleagues that Ismael “may have a bomb.”
Ismael complained, and an investigation cleared the boss. Eight days after filing his complaint, Ismael was fired. The reason? He was looking for a job as a deputy sheriff in another county (which was permitted) but drove his patrol car to the interviews (which was not permitted because patrol cars cannot be used for personal business).
Ismael sued for retaliation and discrimination. The trial court threw out the lawsuit, saying he was unable to show pretext because there was no evidence other officers engaged in similar conduct and were spared termination. But—and this is a big but—there was other evidence of discriminatory animus such as the claimed statements as well as creating the paperwork for the termination (contrary to policy) before Ismael was even interviewed on using the patrol car. So, in looking at a mosaic of all the evidence, there was enough to get the case to a jury. Ismael v. Sheriff Richard Roudtreee et al. (11th Cir., December 5, 2025).
What About Texas?
Recall that Texas has its own version of Title VII that is embodied in the Texas Labor Code, and Texas follows federal case law when interpreting and applying it. So, Texas courts adhere to McDonnell Douglas when a suit is filed under the Texas Labor Code.
Not surprisingly, McDonnell Douglas is under attack in Texas, as we see in Donavan v. Texas State Technical College from the Beaumont Court of Appeals (May 15, 2025). There, the former employee claimed he was terminated because of his cancer. The college claimed he was terminated for poor performance. He is now seeking review by the Texas Supreme Court, asking that it too abandon McDonnell Douglas. Here is a portion of his brief to our high court:
[All] Donavan had to do was raise a genuine question of material fact. . . . This Court has explained that this burden is met when “reasonable and fair-minded people” could reach differing conclusions. And, here reasonable and fair-minded people could come to differing conclusions on a host of questions ranging from whether Donavan [truly performed poorly] . . . to whether [the college] was on notice of his disability before his termination meeting.
So, to get to a jury, all the employee needs to show is that there is conflicting evidence on key issues, which is a much lower burden than having to show the falsity of the reason advanced by the employer for the adverse action.
Bottom Line
Employees’ lawyers will keep knocking on the door. And the door will be answered with a, “So long McDonnell Douglas test, come on in Mosaic test!” It’s just a matter of time. The result will lead to more jury trials and fewer cases dismissed before trial. Thoughts:
- Stress with managers that their decisions will likely be second-guessed by a jury. This is not to instill fear but rather to encourage them to come to HR for advice, guidance, and counsel.
- Do a stress test on every adverse employment decision affecting the pocketbook of an employee. This simply means that you second-guess the decision before implementing it by asking, “How can it be attacked?” This is called a “premortem.” Do an internet search, and you will see resources on implementing them in your business.
- Consider management training by using a jury consultant. If you are sued, consider retaining one to help with presenting your case and prepping your witnesses. Juries look at matters differently than you might.
Michael P. Maslanka is a professor at the UNT-Dallas College of Law. You can reach him at michael.maslanka@untdallas.edu.