Shannon Gladden v. The Procter & Gamble Distributing, LLC

The questions presented are:

1. Does the but-for reasoning referenced in Bostock apply to McDonnell Douglas pretext analysis?: In the decision below, the Eleventh Circuit appears to have ignored what this Court reinforced in Bostock, with regard to the issue of multiple versus sole causes or motivating factors. The problem is that the McDonnell Douglas pretext analysis can be a back door to avoid complying with a proper but-for or motivating factor analysis, if Bostock’s analysis, which does not mention pretext, is not clarified explicitly to apply to pretext analysis. Failure to answer this question in the affirmative “means a defendant can[] avoid liability just by citing some other factor[, the supposed pretext,] that contributed to its challenged employment decision” Bostock, 140 S. Ct. 1731, 1739 207 L. Ed. 2d 218 (2020) (emphasis to “can” added).

2. Must the Eleventh Circuit’s prejudicial characterization of Petitioner’s evidence give way to the Seventh Circuit Rule that does not diminish or limit evidence?: The Seventh Circuit has held, ‘that district courts must stop separating “direct” from “indirect” evidence and proceeding as if they were subject to different legal standards.’ Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 765 (7th Cir. 2016). ‘We are instead concerned,’ the Seventh Circuit has said, ‘about the proposition that evidence must be sorted into different piles, labeled “direct” and “indirect,” that are evaluated differently. Instead, all evidence belongs in a single pile and must be evaluated as a whole.’ Id., at 766.