Does McDonnell Douglas survive Desert Palace?

In Diamond v. Colonial Life & Accident Ins. Co., the Fourth Circuit in an opinion by Judge Motz, joined by Judge Widener and Senior Judge Hamilton, affirmed summary judgment for the employer, where the plaintiff had raised various claims of employment discrimination.

In so doing, the Court rejected the plaintiff's argument "that the Supreme Court’s recent decision in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), rendered the 'shifting burden test . . . no longer . . . applicable' in Title VII cases at the '[s]ummary [j]udgment stage.'"

In response, the Court observed in a footnote:

"Notwithstanding our clear recognition in [Hill v. Lockheed Martin Logistics Management, Inc., 354 F.3d 277 (4th Cir. 2004) (en banc)] of these principles and the continued vitality of the McDonnell Douglas framework, Diamond insists that after Desert Palace that framework is "no longer a tool which can be used to dismiss a Title VII case at the [s]ummary [j]udgment stage." Her argument finds no support in the text of Desert Palace, which does not even mention McDonnell Douglas. Moreover, since deciding Desert Palace, the Supreme Court has continued to invoke the burden-shifting framework in pretext cases. See Raytheon Co. v. Hernandez, 124 S. Ct. 513, 517 n.3, 518 (2003); see also Johnson v. California, 125 S. Ct. 2410, 2418 n.7 (2005). Our sister circuits have also rejected the view that Desert Palace nullified the McDonnell Douglas framework. See, e.g., Keelan v. Majesco Software, Inc., 407 F.3d 332, 340 (5th Cir. 2005); Strate v. Midwest Bankcentre, Inc., 398 F.3d 1011, 1018 (8th Cir. 2005); Cooper v. Southern Co., 390 F.3d 695, 725 n.17 (11th Cir. 2004)."