Petition for Writ of Certiorari — Julio Licinio, Petitioner v. New York, et al.

No.

In the Supreme Court of the United States

_________

J ULIO L ICINIO,

Petitioner,

v.

STATE OF N EW Y ORK, STATE U NIVERSITY OF

N EW Y ORK, STATE U NIVERSITY OF N EW Y ORK

U PSTATE MEDICAL U NIVERSITY ,

Respondents.

_________

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

_________

PETITION FOR A WRIT OF CERTIORARI

_________

J OSHUA P. THOMPSON

Pacific Legal Foundation

555 Capitol Mall,

Suite 1290

Sacramento, CA 95814

916.419.7111

G LENN E. ROPER

Counsel of Record

Pacific Legal Foundation

1745 Shea Center Drive,

Suite 400

Highlands Ranch, CO 80129

916.503.9045

GERoper@pacificlegal.org

Counsel for Petitioner

QUESTION PRESENTED

Whether McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973), should be overruled.

ii

PARTIES TO THE PROCEEDING

AND RULE 29.6 STATEMENT

Petitioner Julio Licinio was the plaintiff in the district court and plaintiff-appellant in the court of appeals.

Respondents are the State of New York, the State

University of New York, and the State University

of New York Upstate Medical University. They

were defendants in the district court and defendantsappellees in the court of appeals.

iii

STATEMENT OF RELATED CASES

These proceedings are directly related to the abovecaptioned case under Rule 14.1(b)(iii):

Licinio v. State of New York, No. 24-2564 (2d Cir.

June 17, 2025)

Licinio v. State of New York, No. 5:21-cv-00387FJS-TWD (N.D.N.Y. Aug. 28, 2024)

iv

TABLE OF CONTENTS

Petition for a Writ of Certiorari ................................. 1

Opinions Below ........................................................... 1

Jurisdiction ................................................................. 1

Statutory Provisions Involved .................................... 1

Preliminary Statement ............................................... 2

Statement of the Case ................................................ 5

I. Factual Background ........................................... 5

II. Proceedings Below .............................................. 7

A. District court proceedings ............................ 7

B. Court of appeals proceedings ....................... 8

Reasons for Granting the Petition ............................. 9

I. McDonnell Douglas Should Be Overruled

Because It Created an Artificial Judge-Made

Framework That Is Unworkable and Contrary

to Statute........................................................... 10

A. McDonnell Douglas’s burden-shifting

framework ................................................... 10

B. McDonnell Douglas has been criticized

by lower court judges and scholars ............ 15

C. As recently recommended by two

Justices, McDonnell Douglas should

be reconsidered ........................................... 21

D. Stare decisis considerations weigh in

favor of overruling McDonnell Douglas ..... 26

II. This Case Is an Excellent Vehicle .................... 28

Conclusion ................................................................. 30

v

APPENDIX

Summary Order, U.S. Court of Appeals for the

Second Circuit, filed June 17, 2025 ..................... 1a

Memorandum-Decision and Order, U.S. District

Court for the Northern District of New York,

filed August 28, 2024 ........................................... 6a

Complaint (without exhibits), U.S. District Court

for the Northern District of New York,

filed April 4, 2021 .............................................. 98a

vi

TABLE OF AUTHORITIES

Cases:

Ames v. Ohio Dep’t of Youth Servs.,

605 U.S. 303 (2025) ........................... 3-5, 13, 21-24

Babb v. Wilkie,

589 U.S. 399 (2020) ............................................. 13

Brady v. Off. of Sergeant at Arms,

520 F.3d 490 (D.C. Cir. 2008) ......................... 4, 16

Coleman v. Donahoe,

667 F.3d 835 (7th Cir. 2012) ......................... 16, 25

Desert Palace, Inc. v. Costa,

539 U.S. 90 (2003) .................................... 23-24, 27

Gamboa v. Am. Airlines,

170 F. App’x 610 (11th Cir. 2006) ......................... 3

Gentry v. Ga.-Pac. Corp.,

250 F.3d 646 (8th Cir. 2001) ................................. 3

Green v. McDonnell-Douglas Corp.,

318 F. Supp. 846 (E.D. Mo. 1970) ....................... 12

Griffith v. Des Moines,

387 F.3d 733 (8th Cir. 2004) ................... 16, 23, 25

Hittle v. City of Stockton,

145 S. Ct. 759 (2025) ...................... 3, 12, 21-22, 25

Hollis v. Morgan State Univ.,

153 F.4th 369 (4th Cir. 2025) ............. 18, 25-26, 28

Janus v. Am. Fed’n of State, Cnty., & Mun. Emps.,

585 U.S. 878 (2018) ............................................. 26

Jenny v. L3Harris Technologies, Inc.,

144 F.4th 1194 (10th Cir. 2025) .................... 18, 20

Knick v. Twp. of Scott,

588 U.S. 180 (2019) ............................................. 26

Littlejohn v. City of New York,

795 F.3d 297 (2d Cir. 2015) ............................ 10-11

vii

Loeb v. Textron, Inc.,

600 F.2d 1003 (1st Cir. 1979) .............................. 15

Loper Bright Enters. v. Raimondo,

603 U.S. 369 (2024) ................................. 21, 26, 28

McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973) .................................... 2, 10-11

McNellis v. Douglas Cnty. Sch. Dist.,

116 F.4th 1122 (10th Cir. 2024) .......................... 16

Mobasher v. Bronx Cmty. Coll. of City of

New York, 269 F. App’x 71 (2d Cir. 2008) .......... 14

Nall v. BNSF Ry. Co.,

917 F.3d 335 (5th Cir. 2019) .................... 16-17, 28

O’Connor v. Consol. Coin Caterers Corp.,

517 U.S. 308 (1996) ............................................. 13

Ortiz v. Werner Enters., Inc.,

834 F.3d 760 (7th Cir. 2016) ............................... 24

Price Waterhouse v. Hopkins,

490 U.S. 228 (1989) ............................ 15, 24-25, 27

Raytheon Co. v. Hernandez,

540 U.S. 44 (2003) ................................ 3, 13-14, 23

Reeves v. Sanderson Plumbing Prods., Inc.,

530 U.S. 133 (2000) ......................................... 3, 11

St. Mary’s Honor Ctr. v. Hicks,

509 U.S. 502 (1993) ......................................... 3, 11

Swierkiewicz v. Sorema N. A.,

534 U.S. 506 (2002) ................................. 10, 14, 27

Tex. Dep’t of Cmty. Affs. v. Burdine,

450 U.S. 248 (1981) ........................................ 11-12

Trans World Airlines, Inc. v. Thurston,

469 U.S. 111 (1985) ............................ 12-13, 24, 27

Tynes v. Fla. Dep’t of Juv. Just.,

88 F.4th 939 (11th Cir. 2023) ........3, 13, 17, 20, 22,

25-27

viii

U.S. Postal Serv. Bd. v. Aikens,

460 U.S. 711 (1983) ............................ 14-15, 24, 27

Univ. of Texas Sw. Med. Ctr. v. Nassar,

570 U.S. 338 (2013) ............................................. 19

Vance v. Ball State Univ.,

570 U.S. 421 (2013) ............................................. 14

Walton v. Powell,

821 F.3d 1204 (10th Cir. 2016) ........................... 17

Wells v. Colo. Dep’t of Transp.,

325 F.3d 1205

(10th Cir. 2003)........................ 12, 15-16, 20, 24-25

Young v. United Parcel Serv., Inc.,

575 U.S. 206 (2015) ............................................. 13

Statutes:

28 U.S.C. § 1254(1) ..................................................... 1

42 U.S.C. § 1981 .......................................................... 3

42 U.S.C. § 1981a(c),

Pub. L. No. 102-166, 105 Stat. 1071 ............. 12, 27

42 U.S.C. § 1983 .......................................................... 3

42 U.S.C. § 2000e-2(a) .............................................. 10

42 U.S.C. § 2000e-2(a)(1) ...................................... 1, 19

42 U.S.C. § 2000e-2(m) ............................................. 22

42 U.S.C. § 2000e-3(a) .......................................... 2, 10

42 U.S.C. § 2000e et seq. ........................................... 10

Other Authorities:

Cude, Donna Smith & Steger, Brian M.,

Does Justice Need Glasses? Unlawful

Retaliation Under the Title VII Following

Mattern: Will Courts Know It When They

See It?, 14 Lab. Law. 373 (1998) ........................... 3

ix

Davis, Kenneth R., Price-Fixing: Refining the

Price Waterhouse Standard and Individual

Disparate Treatment Law,

31 Fla. St. U. L. Rev. 859 (2004) .................... 18-19

Davis, Kenneth R., The Stumbling Three-Step,

Burden-Shifting Approach in Employment

Discrimination Cases,

61 Brook. L. Rev. 703 (1995) ............................... 19

Fed. R. Civ. P. 56(a) ........................................ 5, 19, 22

Malamud, Deborah C., The Last Minuet:

Disparate Treatment After Hicks,

93 Mich. L. Rev. 2229 (1995) ............................... 19

Ninth Circuit Jury Instructions Committee,

Manual of Model Jury Instructions for the

District Courts of the Ninth Circuit

(2017 ed., last updated Sept. 2025)..................... 14

Schuman, Mark A., 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 Comment. 67 (1993) .......... 12

Sperino, Sandra F., Flying Without a

Statutory Basis: Why McDonnell

Douglas Is Not Justified by Any

Statutory Construction Methodology,

43 Hous. L. Rev. 743 (2006) ............... 11-12, 18, 23

Sperino, Sandra F., Irreconcilable:

McDonnell Douglas and

Summary Judgment,

102 N.C. L. Rev. 459 (2024) ........... 4, 14, 18-19, 21

Tymkovich, Timothy M.,

The Problem With Pretext,

85 Denv. U. L. Rev. 503 (2008) .......... 14-15, 23, 25

x

Widiss, Deborah A.,

Proving Discrimination by the Text,

106 Minn. L. Rev. 353 (2021) .............................. 18

PETITION FOR A WRIT OF CERTIORARI

Petitioner Julio Licinio respectfully petitions for a

writ of certiorari to review the judgment of the United

States Court of Appeals for the Second Circuit.

OPINIONS BELOW

The decision of the Second Circuit is not reported

but is available at 2025 WL 1693108 and reprinted at

App. 1a.

The decision of the United States District Court for

the Northern District of New York is not reported but

is available at 2024 WL 3969010 and reprinted at

App. 6a.

JURISDICTION

The final decision of the Second Circuit sought to

be reviewed was issued on June 17, 2025. App. 1a. On

September 10, 2025, Justice Sotomayor granted a motion to extend the deadline to file a petition for writ of

certiorari to November 14, 2025. This Court has jurisdiction under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

42 U.S.C. § 2000e-2(a)(1) provides:

It shall be an unlawful employment practice for

an employer . . . to fail or refuse to hire or to

discharge any individual, or otherwise to

discriminate against any individual with

respect to his compensation, terms, conditions,

or privileges of employment, because of such

individual’s race, color, religion, sex, or national

origin . . . .

2

42 U.S.C. § 2000e-3(a) provides:

It shall be an unlawful employment practice for

an employer to discriminate against any of his

employees . . . because he has opposed any

practice made an unlawful employment practice

by this subchapter . . . .

PRELIMINARY STATEMENT

For more than fifty years, Title VII employment

discrimination cases have been decided not by the

statute Congress wrote, but by a judicial invention—

the McDonnell Douglas burden-shifting framework.

See McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). That rule has no basis in text or procedure,

and it routinely bars juries from hearing meritorious

discrimination claims. Under this judge-made test,

courts ask the wrong question—not whether

discrimination occurred, but whether the employer’s

excuses are plausible enough to end the case before

trial.

Specifically, a plaintiff must first establish a prima

facie case of discrimination. Id. at 802. If he does, the

burden shifts to the employer to articulate a

legitimate, nondiscriminatory reason for the

challenged employment action. Ibid. If the employer

meets its burden, the burden shifts back to the

plaintiff to show that the reasons offered by the

employer were not its true reasons, but were a pretext

for discrimination. Id. at 804.

In the ensuing decades, the McDonnell Douglas

framework strayed from its original scope. Lower

courts apply the framework not only to Title VII

3

discrimination claims, but also to retaliation claims.1

The framework has also been extended—or at least

assumed to apply—to other anti-discrimination

statutes, including the Americans with Disabilities

Act (ADA), the Age Discrimination in Employment

Act (ADEA), and 42 U.S.C. §§ 1981 and 1983.2 And

although the framework was originally developed for

judges to use at bench trials, it now applies most

commonly—if not exclusively—at the summary

judgment stage.3

Writing separately last term, Justice Thomas,

joined by Justice Gorsuch, twice called for the Court

to reconsider McDonnell Douglas—particularly as

applied at summary judgment. See Ames v. Ohio Dep’t

of Youth Servs., 605 U.S. 303, 314 (2025) (Thomas, J.,

concurring); Hittle v. City of Stockton, 145 S. Ct. 759,

761 (2025) (Thomas, J., dissenting from denial of

1 See Donna Smith Cude & Brian M. Steger, Does Justice Need

Glasses? Unlawful Retaliation Under the Title VII Following

Mattern: Will Courts Know It When They See It?, 14 Lab. Law.

373, 376 (1998) (“Although the Supreme Court developed the

McDonnell Douglas framework for disparate treatment cases,

lower courts have almost universally adopted and applied its

principles to retaliation cases.”).

2 See, e.g., Raytheon Co. v. Hernandez, 540 U.S. 44, 49 (2003)

(ADA); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,

142 (2000) (ADEA); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,

506 n.1 (1993) (42 U.S.C. §§ 1981 & 1983). In addition to federal

discrimination statutes, courts have also applied the framework

to claims under analogous state statutes. See, e.g., Gamboa v.

Am. Airlines, 170 F. App’x 610, 611-12 (11th Cir. 2006) (Florida

statute); Gentry v. Ga.-Pac. Corp., 250 F.3d 646, 650 (8th Cir.

2001) (Arkansas statute).

3 See Tynes v. Fla. Dep’t of Juv. Just., 88 F.4th 939, 952 n.2

(11th Cir. 2023) (Newsom, J., concurring) (“[R]esolving cases at

summary judgment seems to be McDonnell Douglas’s sole

remaining office.”).

4

certiorari).

Those separate opinions highlighted

fundamental problems with the McDonnell Douglas

framework that weigh in favor of reconsideration—

including that it has “no basis in the text of Title VII

or any other source of law.” Ames, 605 U.S. at 320

(Thomas, J., concurring). Other serious problems

with the doctrine include: it is “incompatible with the

summary-judgment standard”; it “fails to capture all

the ways in which a plaintiff can prove a Title VII

claim”; it “requires courts to draw and maintain an

artificial

distinction

between

direct

and

circumstantial evidence”; and its extension into the

summary judgment context “has caused significant

confusion and troubling outcomes on the ground.” Id.

at 319, 322-26 (quotation omitted).

Justices Thomas and Gorsuch are not the only ones

to identify flaws in McDonnell Douglas. From the

outset, it has been the subject of criticism from a

chorus of lower court judges—including then-Judge

Kavanaugh, who called its prima facie case

requirement “a largely unnecessary sideshow” that

has “spawn[ed] enormous confusion and wast[ed]

litigant and judicial resources.” Brady v. Off. of

Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008)

(Kavanaugh, J.). Scholars have also criticized the

burden-shifting framework and its disconnect with

both Title VII and the Rule 56 summary judgment

standard. See, e.g., Sandra F. Sperino, Irreconcilable:

McDonnell Douglas and Summary Judgment, 102

N.C. L. Rev. 459 (2024).

The growing mountain of persuasive criticism

points to a simple conclusion: the Court should reconsider and overrule McDonnell Douglas in favor of a

standard that aligns with Title VII and Rule 56. Under Rule 56, summary judgment must be denied if

5

there is a genuine dispute as to any material fact.

Fed. R. Civ. P. 56(a). In the Title VII context, the

question should be whether a plaintiff has presented

a genuine factual dispute as to whether discrimination was a but-for cause of an adverse employment action. In departing from the plain text, McDonnell

Douglas requires courts to divert their attention from

that critical question and apply an atextual and confusing test that has plagued the federal courts for over

fifty years and that diminishes protections against

discrimination. Stare decisis factors weigh in favor of

reconsideration, as the McDonnell Douglas framework is atextual, is unworkable, has been undermined

by subsequent decisions, and has not engendered any

significant reliance interests.

For the reasons identified in Justice Thomas’s

separate opinions in Ames and Hittle, this Court

should grant the petition to overrule this unworkable

and egregiously wrong test.

STATEMENT OF THE CASE

I.

Factual Background

Dr. Julio Licinio is an accomplished medical doctor

and psychiatrist. App. 101a. In 2017, he was hired to

be the new Dean of the College of Medicine at the

State University of New York (“SUNY Upstate”) in

Syracuse, New York. App. 8a-9a. His employment

contract specified that he would be provided with

eight months’ notice if he were to be asked to step

down for any reason other than misconduct. App.

104a. A little over two years later, on September 12,

2019, the Interim President of SUNY Upstate

demoted Dr. Licinio from his position as Dean,

“effective immediately.” App. 2a, 43a-44a. Although

6

Dr. Licinio was allowed to retain a position as a

tenured professor, his salary was reduced by more

than half. App. 44a, 125a.

Dr. Licinio claims that his demotion was in

retaliation for his attempts as Dean to correct what he

perceived as an entrenched system of discriminatory

practices and lack of diversity at SUNY Upstate. App.

2a-3a, 57a-59a. Among other things, he sought to

combat what he saw as underrepresentation of female

employees at the school, sought to increase the

number of females on the school’s Budget Committee,

and reported to the Dean of Student Affairs that Black

students at the school were not being adequately

prepared for career development. App. 76a-85a.

On August 12, 2019, Dr. Licinio also complained

to the school’s Interim President about the school’s

decision to reduce the salary of his wife, Dr. Ma Li

Wong, a professor at SUNY Upstate. App. 87a. Dr.

Wong is of Asian ancestry and culturally Hispanic,

and Dr. Licinio told the President that because of the

salary reduction, she would have reason under both

Title VII and Title IX to file a discrimination

complaint, since white male professors were not

subject to the same reduction. App. 87a. Dr. Licinio’s

demotion from Dean occurred one month later. App.

2a.

Prior to his demotion, Dr. Licinio never received

any negative performance reviews, and there is no

documentation of any performance issues. App. 95a.

He was also not afforded the eight-month transition

period specified by his contract. App. 95a. During a

deposition, the school’s Associate Vice President for

Human Resources admitted that Dr. Licinio’s

7

whistleblowing activities “could have been part of ” the

reason for demoting him. App. 5a.

After his demotion, Dr. Licinio filed a complaint

with the New York State Department of Human

Rights (DHR), charging SUNY Upstate with unlawful

discriminatory practices.

App. 100a.

DHR

determined there was probable cause to believe that

the school had committed an unlawful discriminatory

practice and set a public hearing. App. 100a. Dr.

Licinio ultimately decided to dismiss the DHR

complaint and instead pursue a discrimination claim

in federal court. App. 100a-101a. He received a right

to sue letter from the EEOC in January 2021. App.

101a.

II. Proceedings Below

A. District court proceedings

Dr. Licinio sued in district court, claiming both

discrimination and retaliation under Title VII. App.

98a-142a. After discovery, the district court granted

summary judgment to Defendants on both sets of

claims. App. 6a-97a. As for his discrimination claims,

the court concluded that Dr. Licinio had failed to

exhaust administrative remedies. App. 69a. In the

alternative, applying the McDonnell Douglas burdenshifting framework, the court concluded that Dr.

Licinio failed to establish a prima facie case of

discrimination under Title VII. App. 72a.

As for his retaliation claims, the court again

applied McDonnell Douglas, concluding at the first

step that Dr. Licinio failed to establish a prima facie

case by showing that he was demoted for engaging in

protected activity under Title VII. App. 74a-92a.

Even if he had met his burden at the first step, the

8

court held that Defendants met their burden under

the second step by proffering nondiscriminatory

reasons for his demotion—namely, an alleged pattern

of unprofessional conduct and wasteful spending as

Dean. App. at 92a-94a. As for the third step, the court

held that Dr. Licinio failed to demonstrate that

Defendants’ asserted nondiscriminatory reasons for

demoting him were mere pretext for discrimination.

App. 94a-97a.

It therefore granted summary

judgment to Defendants. App. 97a.

B. Court of appeals proceedings

Dr. Licinio appealed the dismissal of his retaliation

claims, but not his discrimination claims. App. 3a.

The Second Circuit affirmed, in a short summary

order that, like the district court, relied on McDonnell

Douglas. App. 3a. As to the first prong, the court did

not adopt the district court’s conclusion, but instead

“assume[d] without deciding that Licinio engaged in

protected activity.” App. 3a. The court specifically

highlighted Dr. Licinio’s statement to the school

President that decreasing his wife’s salary when

white male professors were not subject to the same

reduction “would give her reason both under Title 7

and Title 9, to file a complaint.” App. 3a (citation

omitted).

As to the second prong, the panel agreed with the

district court that SUNY Upstate had “presented

legitimate, non-retaliatory reasons for removing

Licinio.” App. 3a-4a.

As to the third prong, the court also agreed with the

district court that Dr. Licinio “failed to adduce

admissible evidence that SUNY Upstate’s nonretaliatory reasons for his demotion are ‘mere pretext’

for retaliation.” App. at 4a. Although there was an

9

undeniable “temporal proximity” between his

complaints about discrimination and his demotion,

the panel held that was not enough to defeat

Defendants’ motion for summary judgment. App. 5a.

Nor, in the panel’s view, was it enough that Dr. Licinio

had not previously been given any negative

performance reviews or that SUNY Upstate’s

Associate Vice President for Human Resources

testified that Dr. Licinio’s efforts to combat what he

saw as discrimination “could have been part of ” the

basis for his demotion. App. 5a. Thus, under

McDonnell Douglas, the panel affirmed the grant of

summary judgment to Defendants. App. 5a.

REASONS FOR GRANTING THE PETITION

The McDonnell Douglas framework is an atextual,

judge-made test that denies plaintiffs with potentially

meritorious discrimination claims their day in court.

The test conflicts with the text of Title VII and Rule

56 and has caused decades of confusion among the

lower courts. That confusion is not theoretical: it has

led courts to dismiss claims that present genuine factual disputes, forced litigants and judges to navigate

needless doctrinal puzzles, and replaced the straightforward inquiry Congress prescribed with a judicial

maze of shifting burdens and presumptions. Judges

and scholars have rightly criticized the test, and stare

decisis factors weigh in favor of jettisoning it. For the

reasons articulated last term by two Justices of this

Court, McDonnell Douglas has outlived its utility and

should be overruled.

10

I.

McDonnell Douglas Should Be Overruled

Because It Created an Artificial, JudgeMade Framework That Is Unworkable and

Contrary to Statute

A. McDonnell Douglas’s burden-shifting

framework

1. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on specified protected characteristics: race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a). Prohibited employment practices include not only firing or refusing

to hire someone, but also “discriminat[ing] against

any individual with respect to his compensation,

terms, conditions, or privileges of employment, because of ” that individual’s protected characteristics.

42 U.S.C. § 2000e-2(a). It is also unlawful under Title

VII for an employer to retaliate against an employee

“because he has opposed any . . . unlawful employment practice . . . , or because he has made a charge,

testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a).

2. Title VII does not establish a burden-shifting

framework. See generally 42 U.S.C. § 2000e et seq.

The Court created a three-part burden-shifting framework in McDonnell Douglas. Under that framework,

first, a plaintiff bears the burden of establishing a

prima facie case of discrimination. 411 U.S. at 80207. This is “an evidentiary standard, not a pleading

requirement.” Swierkiewicz v. Sorema N. A., 534 U.S.

506, 510 (2002). Although the precise formulation

may vary, the prima facie requirement is generally interpreted as requiring a plaintiff to prove several elements: “the plaintiff [(1)] is a member of a protected

11

class, [(2)] was qualified, [(3)] suffered an adverse employment action, and [(4)] has at least minimal support for the proposition that the employer was motivated by discriminatory intent.” Littlejohn v. City of

New York, 795 F.3d 297, 311 (2d Cir. 2015); see also

Reeves, 530 U.S. at 142 (petitioner established a prima

facie case under the ADEA because (1) he was a member of the protected class, (2) he was qualified for his

position, (3) he was discharged by his employer, and

(4) the employer hired younger persons to fill his position).

If a plaintiff establishes a prima facie case, a presumption of discrimination arises and the burden of

production shifts to the employer to articulate a “legitimate, nondiscriminatory reason” for the adverse employment action. McDonnell Douglas, 411 U.S. at 802.

If the employer satisfies that requirement, the burden shifts back to the plaintiff to prove that the employer’s proffered reasons are mere “pretext” for discrimination. Id. at 804. Under this third step, the

plaintiff may succeed “either directly by persuading

the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the

employer’s proffered explanation is unworthy of credence.” Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S.

248, 256 (1981). But later decisions acknowledged the

framework’s inconsistency: disbelief of an employer’s

stated reason, standing alone, does not establish discrimination. See St. Mary’s Honor Ctr., 509 U.S. at

514-16.

Notably, McDonnell Douglas is not grounded in the

text of Title VII—indeed, the Court did not provide

any explanation as to the source of the newly created

framework. See Sandra F. Sperino, Flying Without a

12

Statutory Basis: Why McDonnell Douglas Is Not Justified by Any Statutory Construction Methodology, 43

Hous. L. Rev. 743, 746 (2006) (“[T]he test draws little

support from the text, intent, or purpose of Title VII.”);

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 Comment. 67, 70 (1993) (“The McDonnell Douglas Court gave no justification or authority

for its establishment of this structure . . . .”). But as

the Court later explained, the purported purpose of

the framework is to “bring the litigants and the court

expeditiously and fairly to th[e] ultimate question”:

whether “the defendant intentionally discriminated

against the plaintiff.” Burdine, 450 U.S. at 253.

3. At the time McDonnell Douglas was decided,

Title VII cases were tried exclusively to the bench. See

Hittle, 145 S. Ct. at 761 (Thomas, J., dissenting from

denial of certiorari). McDonnell Douglas itself was an

appeal from a bench trial. See Green v. McDonnellDouglas Corp., 318 F. Supp. 846, 847 (E.D. Mo. 1970).

In that context, this Court’s decision was viewed “as a

plaintiff-friendly opinion,” Wells v. Colo. Dep’t of

Transp., 325 F.3d 1205, 1224 (10th Cir. 2003) (Hartz,

J., writing separately), since it was designed “to assure that the plaintiff [has] his day in court despite

the unavailability of direct evidence” of discrimination. Trans World Airlines, Inc. v. Thurston, 469 U.S.

111, 121 (1985) (cleaned up).

In 1991, Congress amended Title VII to allow for

jury trials, 42 U.S.C. § 1981a(c), Pub. L. No. 102-166,

105 Stat. 1071, which raised the issue of whether

McDonnell Douglas should be applied at summaryjudgment in Title VII cases. This Court has never

held that such use is appropriate. And in Trans World

13

Airlines the Court concluded that the framework was

inapplicable at summary judgment because the plaintiff had presented direct evidence of discrimination.

469 U.S. at 121.

Nonetheless, the Court has used the McDonnell

Douglas framework—or at least assumed that it applies—at summary judgment in discrimination cases

under other statutes. See, e.g., Babb v. Wilkie, 589

U.S. 399, 403 (2020) (ADEA); Young v. United Parcel

Serv., Inc., 575 U.S. 206, 231 (2015) (ADA and Pregnancy Discrimination Act); Raytheon Co., 540 U.S. at

49-50 & n.3 (ADA); O’Connor v. Consol. Coin Caterers

Corp., 517 U.S. 308, 309 (1996) (ADEA). In each case,

it did so without examining or discussing the appropriateness of applying the framework in that context.

See Ames, 605 U.S. at 321 n.4 (Thomas, J., concurring)

(“[A]s far as I can tell, this Court has never had occasion to decide whether the McDonnell Douglas framework is a useful or appropriate tool for evaluating any

kind of claim at summary judgment.”). Most recently,

the Court in Ames “assume[d] without deciding that

the McDonnell Douglas framework applies at the

summary-judgment stage of litigation” in a Title VII

case. Id. at 308 n.2.

In the lower courts, however, McDonnell Douglas

is frequently—and almost exclusively—applied to decide cases at summary judgment. See Tynes, 88 F.4th

at 952 n.2 (Newsom, J., concurring) (“[R]esolving

cases at summary judgment seems to be McDonnell

Douglas’s sole remaining office.”); Raytheon Co., 540

U.S. at 49 n.3 (“The Courts of Appeals have consistently utilized this burden-shifting approach when reviewing motions for summary judgment in disparate-

14

treatment cases.”).4 That is not just a matter of happenstance, but is largely because this Court has held

that the McDonnell Douglas burden-shifting analysis

is inapplicable both at the pleading stage, see

Swierkiewicz, 534 U.S. at 508, and in deciding posttrial motions, see U.S. Postal Serv. Bd. v. Aikens, 460

U.S. 711, 715 (1983).

As for trial, most federal circuits have eliminated

the McDonnell Douglas framework from jury instructions. See Tymkovich, 85 Denv. U. L. Rev. at 527-28

(collecting cases); Vance v. Ball State Univ., 570 U.S.

421, 444-45 & n.13 (2013) (collecting cases); see also,

e.g., Mobasher v. Bronx Cmty. Coll. of City of New

York, 269 F. App’x 71, 73 (2d Cir. 2008) (“The language used in the traditional McDonnell Douglas formulation, developed by appellate courts for use by

judges, is at best irrelevant, and at worst misleading

to a jury.” (internal quotation marks omitted)); Ninth

Circuit Jury Instructions Committee, Manual of

Model Jury Instructions for the District Courts of the

Ninth Circuit (2017 ed., last updated Sept. 2025), at

296 (stating “a McDonnell Douglas burden-shifting instruction should not be given in a Title VII case”).

Half a century later, a device originally meant to organize trial evidence now instead decides who reaches

trial—displacing the statute Congress enacted with a

judicial test of the Court’s own making.

4 See also Timothy M. Tymkovich, The Problem With Pretext,

85 Denv. U. L. Rev. 503, 509 (2008) (“To the extent that

McDonnell Douglas still matters, it only affects how judges

evaluate motions for summary judgment.”); Sperino, 102 N.C. L.

Rev. at 496 (“Courts primarily use McDonnell Douglas at the

summary judgment stage.”)

15

B. McDonnell Douglas has been criticized by

lower court judges and scholars

1. For more than fifty years, courts have struggled

to apply McDonnell Douglas—a struggle that has only

deepened with time. Just six years after the Court

created the framework, the First Circuit observed that

“the subtleties of McDonnell Douglas are confusing”

and “have caused considerable difficulty for judges of

all levels.” Loeb v. Textron, Inc., 600 F.2d 1003, 1016

(1st Cir. 1979). A decade later, Justice Kennedy

agreed, explaining that the numerous and

complicated frameworks courts use in the

employment context make employment law “difficult

for the bench and bar” and confirming that “[l]ower

courts long have had difficulty applying McDonnell

Douglas.” Price Waterhouse v. Hopkins, 490 U.S. 228,

279, 291 (1989) (Kennedy, J., dissenting). In an

article 20 years later, Judge Tymkovich observed:

“Lower courts have struggled to implement the

[McDonnell Douglas] burden-shifting framework for

over thirty years.” Tymkovich, 85 Denv. U. L. Rev. at

529.

McDonnell Douglas has now been on the books for

over fifty years, and things have not improved with

age. Instead, the disconnect between the burdenshifting framework and the plain text of Title VII and

Rule 56 has repeatedly led lower court judges to

question its ongoing utility. In a 2003 concurring

opinion, Judge Hartz concluded that “[t]he McDonnell

Douglas framework only creates confusion and

distracts courts from ‘the ultimate question of

discrimination vel non.’” Wells, 325 F.3d at 1221

(Hartz, J., concurring) (quoting Aikens, 460 U.S. at

714). His frank conclusion was that “McDonnell

Douglas has served its purpose and should be

16

abandoned.” Ibid.; see also McNellis v. Douglas Cnty.

Sch. Dist., 116 F.4th 1122, 1144 (10th Cir. 2024)

(Hartz, J., concurring) (“The McDonnell Douglas

framework is an anomaly . . . [that] distracts the

courts from what should be the focus of the inquiry

. . . .”). The next year, Judge Magnuson likewise noted

that “[s]ince its inception, McDonnell Douglas has

befuddled the Courts” and that “[i]t is simply

impossible to reconcile the ancient McDonnell

Douglas paradigm with the clear language of the Civil

Rights Act.” Griffith v. Des Moines, 387 F.3d 733, 74647 (8th Cir. 2004) (Magnuson, J., concurring). In his

view, “McDonnell Douglas should not be used by

courts to analyze Title VII claims” because it “is not

supported in the language of the statute, nor does it

impose liability under Title VII as Congress

intended.” Id. at 745.

A few years later, then-Judge Kavanaugh

condemned McDonnell Douglas’s prima facie case

requirement as “a largely unnecessary sideshow” that

has “spawn[ed] enormous confusion and wast[ed]

litigant and judicial resources.” Brady, 520 F.3d at

494. That was followed by Judge Wood of the Seventh

Circuit (joined by Judges Tinder and Hamilton)

calling attention to “the snarls and knots” that

McDonnell Douglas and its progeny have “inflicted on

courts and litigants alike.” Coleman v. Donahoe, 667

F.3d 835, 863 (7th Cir. 2012) (Wood, J., concurring).

Judge Wood likened McDonnell Douglas to an

“allemande worthy of the 16th century,” a complicated

and outdated ritual. Ibid. In her view, even if such a

dance was necessary “when Title VII litigation was

still relatively new in the federal courts,” it has by now

lost all utility. Ibid.; see also Nall v. BNSF Ry. Co.,

917 F.3d 335, 351 (5th Cir. 2019) (Costa, J.,

17

concurring) (calling McDonnell Douglas “the ‘kudzu’ of

employment law”).

Then-Judge Gorsuch soon aired similar concerns,

arguing that McDonnell Douglas “has proven of

limited value” and that its application invites

“confusion and complexities.” Walton v. Powell, 821

F.3d 1204, 1210 (10th Cir. 2016). Citing the opinions

of Judges Hartz and Wood, as well as Judge

Tymkovich’s article, he noted that “more than a few

keen legal minds have questioned whether the

McDonnell Douglas game is worth the candle.” Id. at

1211. In his view, courts should

employ the same and straightforward standard

for liability . . . for all cases at all stages in the

litigation rather than devis[ing] special and

idiosyncratic (McDonnell Douglas) rules that

depend on what kind of proof you allege, what

kind of case you allege, and where in the life of

the litigation you happen to find yourself.

Id. at 1212.

Two years ago, the Eleventh Circuit sought to

clarify McDonnell Douglas’s prima facie requirement,

noting that it has caused “continuing confusion.”

Tynes, 88 F.4th at 941, 945. Judge Newsom concurred

in the decision, but took the opportunity to express

“even deeper skepticism of McDonnell Douglas.” Id.

at 949 (Newsom, J., concurring). He noted that the

framework “seems . . . awfully made up”; that “it

seems to have taken on a life of its own”; and that

“perhaps worst of all,” it “obscures the actual Title VII

inquiry, especially at summary judgment.” Id. at 95154 & n.6.

Finally, earlier this year, Judges Eid and

Quattlebaum each joined the chorus of judges voicing

18

criticism of McDonnell Douglas, especially when it is

used at summary judgment. See Jenny v. L3Harris

Technologies, Inc., 144 F.4th 1194, 1202 (10th Cir.

2025) (Eid, J., concurring) (noting the “many problems

with the McDonnell Douglas framework,” including

that it “demands too much of plaintiffs at summary

judgment”); Hollis v. Morgan State Univ., 153 F.4th

369, 388, 391 (4th Cir. 2025) (Quattlebaum, J.,

concurring) (“I join those urging the Supreme Court to

clarify or overturn McDonnell Douglas” because

(1) “it’s counter-textual,” (2) it “is more restrictive

than the language in [Title VII],” (3) “it imposes a

higher burden than Federal Rule of Civil Procedure 56

requires at summary judgment,” and (4) “it is

unnecessarily complex”).

2. In addition to judges, the academy has been

deeply critical of McDonnell Douglas. Numerous

scholars have criticized the test and called for its

abandonment. See, e.g., Sperino, 102 N.C. L. Rev. at

495 & n.188 (citing articles); Sperino, 43 Hous. L. Rev.

at 806 (“[T]he [McDonnell Douglas] standard was

adopted without proper regard to the operative text,

the legislative history, and the broad policies of Title

VII. . . . Now is the time to reconsider the legal

heritage and appropriateness of McDonnell

Douglas.”);

Deborah

A.

Widiss,

Proving

Discrimination by the Text, 106 Minn. L. Rev. 353, 396

(2021) (“McDonnell Douglas and related judge-created

doctrines must be clarified to conform to the statutory

standard―or simply abandoned.”); Kenneth R. Davis,

Price-Fixing:

Refining the Price Waterhouse

Standard and Individual Disparate Treatment Law,

31 Fla. St. U. L. Rev. 859, 862 (2004) (although the

McDonnell Douglas framework “was arguably

justified as initially conceived[,] . . . it no longer serves

19

any meaningful purpose” and should “be abandoned”);

Kenneth R. Davis, The Stumbling Three-Step,

Burden-Shifting

Approach

in

Employment

Discrimination Cases, 61 Brook. L. Rev. 703, 761

(1995) (“The Supreme Court should discard the

McDonnell Douglas scheme . . . .”); Deborah C.

Malamud, The Last Minuet: Disparate Treatment

After Hicks, 93 Mich. L. Rev. 2229, 2320 (1995)

(“[A]bandoning McDonnell Douglas-Burdine would

have several important advantages: it would increase

intellectual honesty, deter the creation of dangerous

pseudo-uniform rules, and encourage a more subtle

and creative understanding of discrimination in its

many forms.”).

3. A common thread of the criticisms by both

judges and scholars is that applying McDonnell Douglas at the summary-judgment stage is unwarranted.

A straightforward Rule 56 analysis in a Title VII discrimination case would simply ask if the plaintiff has

created a material factual dispute over whether discrimination based on a protected characteristic was a

reason for an adverse employment action. See Fed. R.

Civ. P. 56(a); 42 U.S.C. § 2000e-2(a)(1). Likewise, the

summary judgment question in a Title VII retaliation

case should be whether the plaintiff has created a material factual dispute over whether there was “unlawful retaliation” that “would not have occurred in the

absence of the alleged wrongful action or actions of the

employer.” Univ. of Texas Sw. Med. Ctr. v. Nassar,

570 U.S. 338, 360 (2013).

Instead, McDonnell Douglas requires the plaintiff

to show that the employer’s proffered legitimate reasons for the action—which it will “almost always”

have asserted by the time a case reaches the summary

judgment stage, see Sperino, 102 N.C. L. Rev. at 486—

20

were pretextual. As Judge Newsom explained, this

pretext requirement

not only lacks any real footing in the text of

Rule 56 but, worse, actually obscures the answer to the only question that matters at summary judgment: Has the plaintiff shown a

“genuine dispute as to any material fact”—in

the typical Title VII case, as to whether her employer engaged in discrimination based on a

protected characteristic.

Tynes, 88 F.4th at 949 (Newsom, J., concurring); see

also, e.g., Jenny, 144 F.4th at 1203 (Eid, J., concurring) (courts should “focus[] on the true Rule 56 question: whether the record, viewed in the light most favorable to [the plaintiff], would allow a jury to infer

intentional discrimination”).

Put another way,

“[r]ather than concentrating on what should be the focus of attention—whether the evidence supports a

finding of unlawful discrimination—courts focus on

the isolated components of the McDonnell Douglas

framework, losing sight of the ultimate issue.” Wells,

325 F.3d at 1224 (Hartz, J., writing separately).

The chorus of judicial and scholarly criticism is remarkable in its uniformity. From Justice Kennedy to

Judges Hartz, Magnuson, Tymkovich, Kavanaugh,

Wood, Gorsuch, Newsom, Eid, and Quattlebaum, jurists across decades and circuits have concluded that

McDonnell Douglas obscures rather than clarifies the

discrimination inquiry. When the lower-court bench

consistently describes a precedent as “confusing,” “unworkable,” and “awfully made up,” the doctrine has

reached the end of its useful life.

21

C. As recently recommended by two Justices,

McDonnell Douglas should be

reconsidered

The concerns voiced by judges across the country

for decades have now reached this Court itself. Last

term, Justice Thomas, joined by Justice Gorsuch,

surveyed the history and criticisms of McDonnell

Douglas and summarized key problems with its

burden-shifting framework. He identified five flaws

that should lead the Court to reconsider McDonnell

Douglas:

First, the framework was “made . . . out of whole

cloth,” Hittle, 145 S. Ct. at 760 (Thomas, J., dissenting

from denial of certiorari), and has “no basis in the text

of Title VII or any other source of law.” Ames, 605 U.S.

at 320 (Thomas, J., concurring). The lack of any

connection to the text of Title VII, Rule 56, or any

other apparent source of law is reason enough to

reconsider McDonnell Douglas. See, e.g., Loper Bright

Enters. v. Raimondo, 603 U.S. 369, 412 (2024)

(overruling the judge-made and counter-textual

Chevron test as contrary to the Administrative

Procedure Act). This lack of any connection to the

statutory text also underscores and exacerbates the

other flaws with the framework.

Second, it is incompatible with the Rule 56

summary-judgment standard. Ames, 605 U.S. at 322

(Thomas, J. concurring); see also Sperino, 102 N.C. L.

Rev. at 506 (arguing that McDonnell Douglas “is not

consistent with the summary judgment standard and

. . . significantly distorts the discrimination inquiry in

the defendant’s favor”). Because the framework was

developed for use in bench trials, not summary

judgment, it is perhaps understandable that it “does

22

not speak in terms of ‘genuine dispute[s]’ regarding

the facts.” Ames, 605 U.S. at 322 (Thomas, J.,

concurring) (quoting Fed. R. Civ. P. 56(a)). But

whether there is a genuine dispute should be the only

relevant factual inquiry at summary judgment.

Under Rule 56, a plaintiff opposing an employer’s

motion “need not establish or prove any elements—by

a preponderance or otherwise—to survive summary

judgment.” Ibid. (quoting Hittle, 145 S. Ct. at 761

(Thomas, J., dissenting from denial of certiorari)).

That it requires a plaintiff to do so is a fatal flaw in

McDonnell Douglas, especially since as the framework

has evolved, “resolving cases at summary judgment

seems to be McDonnell Douglas’s sole remaining

office.” Tynes, 88 F.4th at 952 n.2 (Newsom, J.,

concurring).

Third, it “fails to capture all the ways in which a

plaintiff can prove a Title VII claim.” Ames, 605 U.S.

at 323 (Thomas, J., concurring).

As Congress

amended the statute in 1991, discrimination claims

under Title VII only require proof that discrimination

was “a motivating factor . . . even though other factors

also motivated the practice.” 42 U.S.C. § 2000e-2(m).

Thus, it is not (or at least should not be) fatal that an

employer can offer legitimate, non-discriminatory

reasons for its adverse employment action at step two

of McDonnell Douglas, so long as the plaintiff is

proceeding under a “mixed motive” theory that claims

discrimination was one of several motivations.

Requiring a plaintiff to prove that an employer’s

proffered reasons are pretext is contrary to the plain

terms of Title VII.

At the same time, the “mixed motive/single motive”

dichotomy that grew out of McDonnell Douglas is

confusing and questionable. Congress added the

23

“motivating factor” language to Title VII in response

to this Court’s divided decision in Price Waterhouse,

which created the mixed motive/single motive

distinction and found McDonnell Douglas inapplicable

to mixed-motive cases. See Tymkovich, 85 Denv. U. L.

Rev. at 522 (discussing Price Waterhouse and the 1991

amendment). Yet “[n]othing in the text of the Civil

Rights Act of 1991 . . . indicates that Congress

intended courts to maintain th[e] dichotomy.” Ibid.5

Putting that complication aside, even in a so-called

single motive case, “[a] plaintiff who cannot establish

a prima facie case at the first step or pretext at the

third step” should still be able to defeat an employer’s

summary judgment motion “so long as his evidence

raises a reasonable inference of unlawful

5 Further confusing the issue, in 2003 the Court held that a

plaintiff can get a mixed-motive jury instruction without direct

evidence of discrimination. Desert Palace, Inc. v. Costa, 539 U.S.

90, 101-02 (2003). The Court did not address or even cite

McDonnell Douglas and did not explain to what extent the new

Desert Palace standard applies at summary judgment, see

Tymkovich, 85 Denv. U. L. Rev. at 523-24, or to single motive

cases, see Sperino, 43 Hous. L. Rev. at 790 (“[Desert Palace] does

not discuss how the 1991 amendments affected single-motive

discrimination cases, and the issue remains unsettled.”). Some

viewed Desert Palace as “confirm[ing] the demise of the

McDonnell Douglas framework.” Griffith, 387 F.3d at 746

(Magnuson, J., concurring). Yet six months later, the Court

acknowledged the ongoing viability of McDonnell Douglas in an

ADA case, Raytheon, 540 U.S. at 49 n.3, without addressing

Desert Palace. See Griffith, 387 F.3d at 747 n.11 (Magnuson, J.,

concurring) (“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.”).

24

discrimination.” Ames, 605 U.S. at 324 (Thomas, J.,

concurring).

Fourth, because McDonnell Douglas does not apply

when a plaintiff presents direct evidence of

discrimination, see Trans World Airlines, 469 U.S. at

121, use of the framework “requires courts to draw

and maintain an artificial distinction between direct

and circumstantial evidence.” Ames, 605 U.S. at 324

(Thomas, J., concurring). Title VII claims need not be

proved using any particular type of evidence. See id.

at 325 (Thomas, J., concurring) (“‘[I]n any lawsuit, the

plaintiff may prove his case by direct or circumstantial

evidence,’ or some combination thereof.”) (quoting

Aikens, 460 U.S. at 714 n.3); see also Ortiz v. Werner

Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016)

(“[D]istrict courts must stop separating ‘direct’ from

‘indirect’ evidence and proceeding as if they were

subject to different legal standards.”); Desert Palace,

539 U.S. at 100 (“Circumstantial evidence is not only

sufficient, but may also be more certain, satisfying

and persuasive than direct evidence.”) (quotation

omitted). Yet “[r]ather than simply deciding whether

the evidence is sufficient to sustain the plaintiff's

claim, [under McDonnell Douglas] the courts must

engage in the singularly unproductive exercise of

deciding whether some item of evidence is ‘direct

evidence’ in order to decide how to go about analyzing

whether the plaintiff's claim survives.” Wells, 325

F.3d at 1225 (Hartz, J., concurring); see also Price

Waterhouse, 490 U.S. at 291 (Kennedy, J., dissenting)

(highlighting the difficulty of “mak[ing] the often

subtle and difficult distinction between ‘direct’ and

‘indirect’ or ‘circumstantial’ evidence”). And of course,

the distinction between direct and indirect evidence

has no connection to the text of Title VII.

25

Fifth, the McDonnell Douglas test continues to

cause immense confusion among the lower courts. See

Price Waterhouse, 490 U.S. at 291 (Kennedy, J.,

dissenting) (“Lower courts long have had difficulty

applying McDonnell Douglas”); Griffith, 387 F.3d at

746 (Magnuson, J., concurring) (the McDonnell

Douglas framework “has befuddled” courts “[s]ince its

inception”); Tymkovich, 85 Denv. U. L. Rev. at 529

(“Lower courts have struggled to implement the

burden-shifting framework for over thirty years.”);

Hittle, 145 S. Ct. at 761 (Thomas, J., dissenting from

denial of certiorari) (use of McDonnell Douglas at

summary judgment has caused “significant confusion”

and “troubling outcomes on the ground”). This

“continuing confusion,” Tynes, 88 F.4th at 945

(Newsom, J., concurring), calls out for resolution—

which can only come from this Court.

*

*

*

*

The flaws identified by Justices Thomas and

Gorsuch are not remediable tweaks; they strike at the

foundation of the doctrine. After five decades of

confusion, only this Court can restore Title VII to the

straightforward inquiry Congress wrote. See Wells,

325 F.3d at 1221 (Hartz, J., concurring) (“McDonnell

Douglas has served its purpose and should be

abandoned.”); Griffith, 387 F.3d at 745 (Magnuson, J.,

concurring) (“McDonnell Douglas should not be used

by courts to analyze Title VII claims.”); Coleman, 667

F.3d at 863 (Wood, J., concurring) (“By now, however,

as this case well illustrates, the various tests that we

insist lawyers use have lost their utility.”); Tynes, 88

F.4th at 958 (Newsom, J., concurring) (calling for

“relegat[ing] McDonnell Douglas to the sidelines”);

Hollis, 153 F.4th at 395 (Quattlebaum, J., concurring)

(“I join many other judges and Justices in calling for

26

the clarification, or overturning, of McDonnell

Douglas’ burden-shifting framework.”). The question

is no longer whether McDonnell Douglas works, but

whether this Court will heed the call to replace it with

the rule Congress enacted.

D. Stare decisis considerations weigh in

favor of overruling McDonnell Douglas

Fifty years of experience have confirmed what

McDonnell Douglas failed to recognize: atextual doctrine breeds confusion, not stability. Under this

Court’s established stare decisis factors, every consideration—reasoning, workability, consistency and doctrinal development, and reliance—points toward a

need for correction. See Janus v. Am. Fed’n of State,

Cnty., & Mun. Emps., 585 U.S. 878, 917 (2018).

First, as with the recently overruled Chevron doctrine, McDonnell Douglas is a judge-created rule that

does not comport with the text of the underlying statute and “has proved to be fundamentally misguided.”

Loper Bright, 603 U.S. at 407. As Judge Newsom recently declared, “McDonnell Douglas masks and muddles the critical Rule 56 inquiry,” and there is “no textual warrant in Title VII or the Federal Rules for so

elaborate a scheme.” Tynes, 88 F.4th at 952, 958

(Newsom, J., concurring). The decision’s failure to

grapple with the text of the statute it purported to be

applying confirms that, again like Chevron, from the

outset it “has been a ‘rule in search of a justification,’

if it was ever coherent enough to be called a rule at

all.” Loper Bright, 603 U.S. at 407 (quoting Knick v.

Twp. of Scott, 588 U.S. 180, 204 (2019)).

Second, as the judges and scholars who have critiqued the doctrine attest, McDonnell Douglas is unworkable. See supra Part I.B. It has created ongoing

27

confusion among courts and litigants and creates

anomalies in the law. For example, this Court held in

Desert Palace that Title VII “treat[s] circumstantial

and direct evidence alike,” 539 U.S. at 100, yet the artificial McDonnell Douglas framework applies only in

indirect-evidence cases, Trans World Airlines, 469

U.S. at 121. And although the framework was never

designed to be applied at summary judgment, that has

become perhaps its “sole remaining office.” Tynes, 88

F.4th at 952 n.2 (Newsom, J., concurring). These are

not issues that will be worked out over time—indeed,

the longer McDonnell Douglas remains in place, the

more the confusion grows.

Third, the framework has been significantly undermined by subsequent cases and amendments that

have altered and diluted McDonnell Douglas’s role.

For example, Trans World Airlines held that the burden-shifting framework does not apply when a plaintiff presents direct evidence of discrimination. 469

U.S. at 121. Price Waterhouse concluded that McDonnell Douglas does not apply in mixed-motive cases.

490 U.S. at 246-47. Congress altered the scope of Title

VII by allowing for jury trials and adding the “motivating factor” language as part of the Civil Rights Act

of 1991. 42 U.S.C. § 1981a(c), Pub. L. No. 102-166, 105

Stat. 1071. And this Court has held that the burdenshifting framework does not apply at the pleading

stage, Swierkiewicz, 534 U.S. at 508, or in deciding

post-trial motions, Aikens, 460 U.S. at 715. Put

28

simply, the state of discrimination law is very different than it was in 1973, such that McDonnell Douglas

has been relegated to an uncertain corner.6

Fourth, no reliance interests justify preserving the

McDonnell Douglas framework. As with Chevron, it

has been “inconsistent[ly] appli[ed] by the lower

courts” and “does not provide a clear or easily applicable standard.” Loper Bright, 603 U.S. at 410 (internal

quotation marks omitted); see also, e.g., Hollis, 153

F.4th at 393 (Quattlebaum, J., concurring) (“While the

text of Title VII is straightforward, the McDonnell

Douglas framework is not.”). Moreover, McDonnell

Douglas was designed to be used by judges, not by the

employers or employees who are regulated under Title

VII—and who do not rely on the burden-shifting

framework in ordering their day-to-day interactions.

It would be a relatively simple matter for judges to instead apply the text of Title VII and the summary

judgment standard of Rule 56 with which they are

very familiar.

II. This Case Is an Excellent Vehicle

This case cleanly presents the question whether

McDonnell Douglas should continue to govern Title

VII and other discrimination cases at summary judgment. The decision below turned entirely on that

framework: both the district court and the Second Circuit applied McDonnell Douglas’s three-step burdenshifting test and held at step three that Dr. Licinio

McDonnell Douglas is far from an insignificant precedent,

however. As of 2019, “[m]ore than 57,000 court opinions ha[d]

cited it,” Nall, 917 F.3d at 351 (Costa, J., specially concurring),

and thousands more have done so since then.

6

29

failed to “prove” pretext. App. 2a-5a, 94a-97a. No alternative issues or procedural complications obscure

the question presented.

The record also illustrates exactly how McDonnell

Douglas distorts the summary-judgment inquiry. Despite undisputed evidence—including that: (1) Dr. Licinio had received no negative performance reviews,

(2) SUNY Upstate’s human-resources officer admitted

Dr. Licinio’s diversity efforts “could have been part of ”

the reason for his demotion, (3) there was close temporal proximity between his protected activity and his

demotion, and (4) he was inexplicably denied the

eight-month transition period promised in his contract—the courts below concluded that he did not satisfy McDonnell Douglas’s pretext requirement at summary judgment. App. 4a-5a, 95a. In a world governed

by Rule 56, those same facts would have created a genuine dispute for trial.

The posture is final, the record is clean, and the issue is dispositive. This petition therefore offers the

ideal opportunity for the Court to reconsider—and replace—a half-century-old framework that has no basis

in Title VII’s text or the Federal Rules of Civil Procedure. By granting review, the Court can restore summary-judgment analysis to the straightforward question Congress enacted: is there a genuine factual dispute as to whether there was intentional discrimination?

30

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

J OSHUA P. THOMPSON

Pacific Legal Foundation

555 Capitol Mall,

Suite 1290

Sacramento, CA 95814

916.419.7111

G LENN E. ROPER

Counsel of Record

Pacific Legal Foundation

1745 Shea Center Drive,

Suite 400

Highlands Ranch, CO 80129

916.503.9045

GERoper@pacificlegal.org

Counsel for Petitioner

N OVEMBER 2025