Mixed-Motive Defense in Employment Discrimination Cases Leveraging - - PowerPoint PPT Presentation

Mixed-Motive Defense in Employment Discrimination Cases

Leveraging the Defense Amid Differing Circuit Court Standards

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THURS DAY, MARCH 22, 2012

Presenting a live 90-minute webinar with interactive Q&A

Wayne S chrader, Part ner, Gibson Dunn & Crutcher, Washingt on, D.C. Melissa E. Pierre-Louis, Outten & Golden, New Y

• rk

Karen S ut herland, Member, Ogden Murphy Wallace, P .L.L.C., S eat t le

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Mixed Motive (“Motivating Factor”) Cases

Wayne A. Schrader Gibson Dunn & Crutcher LLP Washington D.C. 202-250-4800 wschrader@gibsondunn.com

Genesis of: “A Motivating Factor” Theory of Liability

• Mt. Healthy City School Board of Educ. v.

Doyle, 429 U.S. 274 (1977)

• Price Waterhouse v. Hopkins, 490 U.S. 228

(1989)

– Plaintiff relieved of obligation to demonstrate pretext and “but for cause” – Plaintiff prevails simply by proving [by a preponderance] that protected status was “a motivating factor.”

6

Elements of the “A Motivating Factor” Theory of Liability

• 1. Plaintiff is member of protected group and

suffered some sort of adverse employment action

• 2. Protected status was “a motivating factor” in

the decision

– Plaintiff need not [theoretically] address the employer’s stated reasons (pretext) and need not establish “but for” causation

7

Title VII - - Motivating Factor Theory

• “[A]n unlawful employment practice is

established when the complaining party demonstrates that . . . [protected status (not including retaliation)] was a motivating factor for any employment practice, even though

• ther factors also motivated [and indeed may

have caused] the practice.” [ §107 of the Civil Rights Act of 1991]

8

“Same Decision” Defense: Corollary to the Motivating Factor Theory

• So-called “mixed-motive” defense is corollary

to allowing plaintiff to prove case by simply establishing protected status was a motivating factor

• Often called “same decision” defense

– Employer demonstrates other neutral motivating factors (a) drove/caused the decision and (b) would have led to same outcome.

9

Same Decision Defense: Elements

• Establish the non-discriminatory factors that

motivated decision at the time it was made; and,

• Demonstrate those factors caused the

decision and therefore the decision would have been the same even absent the discriminatory motivating factor.

10

Title VII – Same Decision Defense

• “[If] . . . a respondent demonstrates that the respondent

would have taken the same action in the absence of the impermissible motivating factor, the court—

• “(i) may grant declaratory relief, injunctive relief (except

as provided in clause (ii)), and attorney's fees and costs demonstrated to be directly attributable only to the pursuit of [the motivating factor] claim . . . and

• “(ii) shall not award damages or issue an order requiring

any admission, reinstatement, hiring, promotion, or payment . . .” [ §107 of the Civil Rights Act of 1991]

11

Attorney’s Fee Award in Mixed Motive Cases

• Garcia v. City of Houston, 201 F.3d 672 (5th Cir. 2000), upheld the district court's

award of one-fourth of the attorney's fees sought where the employer established the mixed-motive defense. In reaching this conclusion, the court reviewed a Fourth Circuit decision and a Tenth Circuit decision criticizing the Fourth Circuit

• decision. The court found that the district court's reasoning was consistent with

both the Fourth and Tenth Circuit decisions:

• “Among the circuits that have decided this issue all agree that in mixed-motive

cases the award of attorneys' fees is a matter left to the discretion of the district

• court. The most influential case on this question is the Fourth Circuit's decision in

Sheppard v. Riverview Nursing Center, 88 F.3d 1332 (4th Cir. 1996). In Sheppard, the Fourth Circuit considered whether an employee should be awarded attorneys' fees in her pregnancy discrimination claim after the jury found mixed-motive and the court denied the employee injunctive relief. The district court granted the employee $40,000 in fees which the Fourth Circuit reversed. Sheppard, 88 F.3d at 1335.”

12

Rule 68 Offers in Mixed Motive Cases

• Largest exposure of employer may be

attorneys fee award

• Early Rule 68 Offer of Judgment may eliminate

that exposure

13

What if Employer Fails to Make or Prove Same Decision Defense

• Plaintiff entitled to full range of relief even

though plaintiff has not established that protected status was cause of decision or damages?

– Damages including punitive and full injunctive relief including being placed in the job sought and full award of attorneys fees

14

After-Acquired Evidence Defense: McKennon Case

• Established by the United States Supreme Court

in McKennon v. Nashville Banner Publishing, Co., 513 U.S. 352 (1995).

• Allows a defendant to prove that an employee

would have been terminated had the defendant known of wrongful conduct, even though the defendant did not learn of the conduct until after the termination.

• Limits relief up through date evidence acquired.

15

Third Circuit Model Instruction 5.1.1

• To prevail on this claim, [plaintiff] must prove both of the following by a preponderance of
• the evidence:
• First: [Defendant] [failed to hire [plaintiff]] . . . .; and
• Second: [Plaintiff’s] [protected status] was a motivating factor in [defendant's] decision.. . .
• In showing that [plaintiff's] [protected status] was a motivating factor for [defendant’s]
• action, [plaintiff] is not required to prove that [his/her] [protected status] was the sole motivation
• r even the primary motivation for [defendant's] decision. [Plaintiff] need only prove that [plaintiff’s
• protected status] played a motivating part in [defendant's] decision even though other factors may
• also have motivated [defendant].
• As used in this instruction, [plaintiff’s] [protected status] was a “motivating factor” if
• [his/her] [protected status] played a part [or played a role] in [defendant’s] decision to [state adverse
• employment action] [plaintiff].
• [For use where defendant sets forth a “same decision” affirmative defense:
• If you find that [defendant's] treatment of [plaintiff] was motivated by both discriminatory
• and lawful reasons, you must decide whether [plaintiff] is entitled to damages. [Plaintiff] is not
• entitled to damages if [defendant] proves by a preponderance of the evidence that [defendant] would
• have treated [plaintiff] the same even if [plaintiff's] [protected class] had played no role in the
• employment decision.]

16

Mixed Motive Standard Easier to Meet for Plaintiffs

• In White v. Baxter Healthcare Corp., 533 F.3d

381 (6th Cir. 2008), the court adopted separate analyses for single-motive and mixed-motive cases and in so doing refused to apply the McDonnell Douglas test in a mixed- motive case

17

White v. Baxter

• “We likewise hold that to survive a

defendant's motion for summary judgment, a Title VII plaintiff asserting a mixed-motive claim need only produce evidence sufficient to convince a jury that: (1) the defendant took an adverse employment action against the plaintiff; and (2) "race, color, religion, sex, or national origin was a motivating factor" for the defendant’s adverse employment action.”

18

White v. Baxter

• The court further advised trial courts that

"[t]his burden of producing some evidence in support of a mixed motive claim is not

• nerous and should preclude sending the case

to the jury only where the record is devoid of evidence that could reasonably be construed to support the plaintiff's claim." Id

19

First Circuit Pattern Instructions

• After Desert Palace, Inc. v. Costa, 539 U.S. 90

(2003), there likely will be little demand for this [pretext] instruction in a Title VII case, because the mixed motive instruction, 1.2, is less demanding of a plaintiff.

20

Motivating Factor Impact on Summary Judgment

• In a pretext case analyzed using McDonnell Douglas,

summary judgment is routinely granted to a defendant

• n grounds that a plaintiff cannot establish a prima facie

case, such as the inability to show that similarly situated employees outside of the protected class received more favorable treatment or that the plaintiff was qualified for the job. See Morris v. Emory Clinic, 402 F.3d 1076, 1082 (11th Cir. 2005).

• If the evidence supports a mixed-motive case, however,

this line of attack will be precluded unless an argument can be constructed along the lines of the Makky decision that the plaintiff lacks basic objective qualifications.

21

Need to Establish Objective Minimal Qualifications

• In Makky v. Chertoff, 541 F.3d 205, 215 (3d Cir. 2008), the

court held that “a mixed-motive plaintiff has failed to establish a prima facie case of a Title VII employment discrimination claim if there is unchallenged objective evidence that s/he did not possess the minimal qualifications for the position plaintiff sought to obtain or retain.” The court noted that “[i]n this respect at least, requirements under Price Waterhouse do not differ from those of McDonnell Douglas.”

• Makky emphasized the objective qualification requirement

was minimal and would arise only in limited fact situations where the plaintiff “does not possess the objective baseline qualifications to do his/her job . . . .”

22

Proof Required in Motivating Factor Case

• What type of level of proof is necessary to

establish that an impermissible factor [race, ethnicity, gender etc.] was a “motivating factor

– Statistics? – Other circumstantial evidence? – Evidence going to pretext issue?

23

Pretext Issue in Motivating Factor Case

• Issue of pretext still gets litigated in

“motivating factor “ case

• Employer still offers the legitimate non-

discriminatory reasons to explain decision

– But, the employer may end up with burden of proof on the relative effect or impact or strength

• f those reasons

24

Evidence Required to Present Motivating Factor Case

• Supreme Court ruled that direct evidence is not

required to prove that discrimination was a motivating factor in a "mixed-motive" case. Desert Palace Inc. v. Costa, 539 U.S. 90 (2003).

• Desert Palace concluded that in order to be

entitled to a mixed-motive instruction, “a plaintiff need only present sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that race, color, religion, sex, or national origin was a motivating factor for any employment practice.” Id. at 95-96

25

Nature of Proof Required for Motivating Factor Claim

• E.g., Stackhouse v. Pennsylvania State Police,

2006 WL 680871 at *4 (M.D.Pa. 2006) (“A pretext theory of discrimination is typically presented by way of circumstantial evidence, from which the finder of fact may infer the falsity of the employer's explanation to show bias. A mixed- motive theory of discrimination, however, is usually put forth by presenting evidence of conduct or statements by persons involved in the decisionmaking process that may be viewed as directly reflecting the alleged discriminatory attitude.”)

26

Proof Required in Motivating Factor Claims

• Mixed-motive cases, by contrast, are those in

which at least some of the plaintiff's proof of unlawful motive is not tied to pretext and does not depend on a pretext finding.

• Only then can the proof pattern break out of

an either/or posture and support the possibility that both motives combined to produce the adverse action.

27

Evidence Required to Pursue Motivating Factor Theory

• Rowland v. Am. Gen. Fin., 340 F.3d 187, 192-

94 (4th Cir. 2003) (finding plaintiff's evidence sufficient to raise a mixed-motive question where the plaintiff's proof did not depend on pretext and where the court acknowledged that the plaintiff's shortcomings may also have played a role in the decision not to promote her); Ostrowski, 986 F.2d at 181.

28

What is Pretext Evidence?

• Evidence which, if the employer's explanation was non-

pretextual, would have no probative value.

– If an employer stated that an employee was fired for excessive absenteeism, evidence challenging the existence, enforcement, or consistency of the employer's attendance policy would be “pretext evidence,” as it would bear directly on the bona fides of the employer's explanation.

• This evidence would have no other probative value if the employer's explanation

were in fact true. To be sure, evidence unrelated to the attendance policy can also bear on the pretext issue, such as evidence of discriminatory comments, sex stereotyping, unequal treatment, and statistical under-representation. See Reeves, 530 U.S. at 151-52; McDonnell Douglas, 411 U.S. at 804-05; see also Russell v. McKinney Hosp. Venture, 235 F.3d 219, 229 (5th Cir. 2000); Fisher v. Pharmacia & Upjohn, 225 F.3d 915, 922-23 (8th Cir. 2000). These latter forms of evidence have probative value apart from the pretext question.

29

Ostrowksi v. Atlantic Mut. Ins. 968 F.2d 171 (2d Cir. 1992)

• Plaintiff entitled to mixed motive instruction

where h/she presented evidence directly connected to the unlawful discharge (statistical evidence and scattered remarks by persons not involved in the decisionmaking process would be insufficient).

• Not evidence solely addressing pretext or

validity of employer’s offered reasons

30

Third Circuit Pattern Instructions

• While direct evidence is not required to make out a mixed motive

case, it is nonetheless true that the distinction between “mixed- motive” cases and “pretext” cases is often determined by whether the plaintiff produces direct rather than circumstantial evidence of

• discrimination. If the plaintiff produces direct evidence of

discrimination, this may be sufficient to show that the defendant’s activity was motivated at least in part by animus toward a protected class, and therefore a “mixed-motive” instruction is warranted. If the evidence of discrimination is only circumstantial, then the defendant can argue that there was no animus at all, and that its employment decision can be explained completely by a non- discriminatory motive; it is then for the plaintiff to show that the alleged non-discriminatory motive is a pretext, and accordingly Instruction 5.1.2 should be given.

31

Pretext-Only Evidence

• Generally evidence that solely serves to cast

doubt on bona fides of the asserted reason is not sufficient to allow for motivating factor/mixed motive instruction

• Pretext evidence of lesser quality and thus

burden does not shift on causation?

32

Proof Required in Motivating Factor Cases

• See generally Stackhouse v. Pennsylvania State Police,

2006 WL 680871 at *4 (M.D.Pa. 2006) (“A pretext theory of discrimination is typically presented by way

• f circumstantial evidence, from which the finder of

fact may infer the falsity of the employer's explanation to show bias. A mixed-motive theory of discrimination, however, is usually put forth by presenting evidence of conduct or statements by persons involved in the decisionmaking process that may be viewed as directly reflecting the alleged discriminatory attitude.”) (internal citations and quotations omitted).

33

Must Plaintiff Elect Between Motivating Factor and Pretext Theories

• “It is clear that in the early stages of litigation a plaintiff

may proceed simultaneously on both a McDonnell Douglas pretext case and a Price Waterhouse mixed motive case. See, e.g., Fernandes v. Costa Bros. Masonry, Inc., 199 F.3d 572, 581 (1st Cir. 1999) (Title VII). What happens at the jury instruction stage, however, is

• problematic. See id. (“the trial court, at an appropriate

stage of the litigation, will channel the case into one format or the other”). Arguably, Desert Palace, 539 U.S. 90 (2003), calls for instructing on both when requested.” [First Circuit Pattern Jury Instructions, Commentary]

34

Pulliam v. Tallapoosa County Jail 185 F.3d 1182 (11th Cir. 1999)

• Assertion of mixed motives defense does not

require employer admit a discriminatory motive

• Evidence that firing was for lawful reasons

support same decision defense and court allowed mixed motive defense despite not being specifically raised in pre-trial

35

Pretext/Motivating Factor

• With circumstantial evidence applicable to both methods of proof,

does or should any difference remain between mixed-motive and McDonnell Douglas pretext cases?

• Are plaintiffs now able to characterize every McDonnell Douglas

case as a mixed-motive case?

• If maintaining separate proof schemes is no longer supportable, is a

single uniform framework a worthy replacement?

• If, on the other hand, the two proof schemes are indeed severable,

what now distinguishes them, and how can courts identify the distinguishing features?

36

Waiver of Motivating Factor Theory

• “McDonnell Douglas is not applicable to Title VII mixed-motive

claims based on circumstantial evidence. See White v. Baxter Healthcare Corp., 533 F.3d 381 (6th Cir. 2008). Instead, to survive a motion for summary judgment, “plaintiffs need only produce evidence sufficient to convince a jury that: (1) the defendant took an adverse employment action against the plaintiff; and (2) race, color, religion, sex, or national origin was a motivating factor for the defendant’s adverse employment action.” White, 533 F.3d at 400. However, because White only applies when plaintiffs provide notice

• f mixed motive claims, as Plaintiff failed to do here, see Spees, 617

F.3d at 390, McDonnell Douglas applies to Plaintiff’s Title VII claims to the extent they are based on circumstantial [versus direct] evidence.” Bartlett v. Gates (6th Cir. 2010) at 6 n.1

37

Plaintiff Must Specifically Raise Motivating Factor Theory

• “Plaintiffs must give proper notice when bringing mixed-motive claims. Hashem- Younes v.

Danou Enters. Inc., . . . (affirming the district court’s application of the McDonnell Douglas/Burdine framework where the plaintiff failed to raise a mixed-motive claim in her complaint or in her response to the defendants’ summary judgment motion, and the record was “utterly silent as to mixed motives”). Spees provided such notice of her mixed-motive claims in the district court. As stated in her complaint, both discrimination claims alleged that Spees’s pregnancy “was a motivating factor in [JMI]’s treatment of her.” (Emphasis added.) She also specified in a footnote to her motion for summary judgment that she was bringing mixed-motive claims and was using the McDonnell Douglas/Burdine framework in her motion only because of uncertainty regarding the proper analysis of mixed-motive. . . claims on a plaintiff’s motion for summary judgment. Finally, Spees reiterated that she was pursuing mixed-motive claims under Title VII in her reply in support of her motion for summary judgment/response to JMI’s motion for summary judgment. We therefore conclude that Spees provided adequate notice

• f her mixed-motive claims. “ Spees v. James Marine Inc., (6th Cir,. 2010)
• Spees v. James Marine, Inc., No. 09-5839 (6th Cir. Aug. 10, 2010)

38

Waiver of Mixed Motive Defense

• Harris also contends the court did not err in refusing to instruct the jury

with BAJI No. 12.26 because the city's answer to Harris's complaint did not plead mixed motive as an affirmative defense. According to Harris, the defense was only an afterthought developed by the city in the midst of trial, evidenced by the city's failure to include the instruction in its initial set of jury instructions. Harris cites no authority, however, that the mixed- motive instruction constitutes an affirmative defense that a defendant waives if not alleged in its answer to the complaint. A defendant's answer must allege affirmative defenses that involve a “new matter” or risk waiving the defense. (Code of Civ. Proc., § 431.30, subd. (b)(2) [“The answer to a complaint shall contain: [¶] . . . [¶] 2. A statement of any new matter constituting a defense”].) A “new matter” is something not put at issue by the plaintiff's claims. (Carranza v. Noroian (1966) 240 Cal.App.2d 481, 488.) The city's motive for firing Harris was not a new matter; to the contrary, its motive was the central disputed issue in the lawsuit.

• Harris v. City of Santa Monica (Cal. Ct. App. 2d Dist. 2010)

39

RAISING THE MIXED MOTIVE CAUSE OF ACTION

MELISSA PIERRE-LOUIS Outten & Golden LLP New York, NY mpierrelouis@outtengolden.com Tel: (212) 245-1000

THE MIXED-MOTIVE CAUSE OF ACTION

The mixed motive theory is a claim plaintiffs raise in discrimination cases in which an adverse employment action was based on both unlawful and lawful considerations RULE To prevail on a mixed motive claim, a plaintiff must prove by a preponderance of the evidence that he was:  terminated, constructively discharged, demoted, not hired, and/or not promoted by the employer; and plaintiff’s protected status was a motivating factor in the employer’s decision DEFENSE The defendant has an opportunity to mitigate the plaintiff’s remedies if it shows that it would have made the same decision regardless

• f any discriminatory motive (known as the

“same decision” defense) BURDEN OF PROOF  Plaintiff has the burden of persuasion to prove the mixed motive claim  Defendant has the burden of persuasion to prove the “same decision” defense LIABILITY AND RELIEF  Under the Civil Rights Act of 1991 (42 U.S.C. 2000e-et seq), the “same decision” defense does not insulate the defendant from liability; defendant can invoke the “same decision” defense only to limit the plaintiff’s remedies

41

RAISING MIXED-MOTIVE AT THE PLEADING STAGE

• In most jurisdictions, plaintiffs are not required to raise a mixed motive claim at the pleading

stage

• Dominguez-Curry v. Nevada Transp. Dept., 424 F. 3d 1027 (9th Cir. 2005)

(explaining that “a plaintiff need not decide at the outset of the case whether she wishes to pursue a single motive or mixed motive theory”)

• However, some courts require plaintiffs to plead a mixed motive claim in the complaint
• Hashem-Younes v. Danous Enters. Inc., 311 Fed. Appx. 777 ( 6th Cir. 2009) (finding

that the District Court’s analysis of the plaintiff’s claim under the single motive theory was proper because she failed to raise her mixed motive claim in the complaint or in her response to the Defendant’s motion for summary judgment); EEOC v. Aldi, Inc., 2009 WL 3183077 ( W.D. Pa. Sept.30, 2009) (refusing to grant plaintiff’s request for a mixed motive jury instruction because she failed to mention the mixed motive claim in her complaint)

• Often, a plaintiff will plead the mixed motive claim in the alternative (i.e. under both the

single motive and mixed motive theories)

• Nuskey v. Hochberg 730 F.Supp.2d 1 (D.D.C.2010) (noting that a plaintiff with a good

faith evidentiary basis for asserting both theories may argue both until case has been presented to the jury and the Court has evaluated the evidence)

42

SURVIVING A MOTION TO DISMISS IN A MIXED

MOTIVE CASE

The Ibqal standard is applicable in mixed motive cases:  Brown v. City of New York, 2011 WL 2693677 (S.D.N.Y July 11, 2011) (finding that plaintiffs sufficiently pled facts to withstand a motion to dismiss on their mixed motive disparate treatment claims where they claimed, inter alia, that the school’s principal was biased against them because of their non-Jamaican origin and that he expressed his intention to hire teachers who were of Jamaican origin)  Campbell v. Enterprise Holdings, Inc., 2011 WL 6780791 ( E.D.N.C. Dec. 27, 2011) (finding that the plaintiff pled sufficient facts to survive a motion to dismiss

• n his mixed motive claim where he alleged that he was more qualified than other

white workers for advancement based on objective criteria, yet he was not permitted to apply for a higher position)  But see Bryant v. Pepco, 2010 WL 3123180 (D.D.C. Aug. 9, 2010) (granting the defendant’s motion to dismiss with respect to the plaintiff’s mixed motive racial discrimination claim because the plaintiff failed to identify any specific facts regarding a mixed motive including race)

43

RAISING MIXED-MOTIVE AT THE SUMMARY JUDGMENT STAGE

• Either party, or the court, may dictate whether the case has a mixed motive claim at

summary judgment

• Depending on the jurisdiction, a party may be required to either choose a mixed

motive or a single motive framework  Fye v. Okla. Corp Commission, 516 F. 3d 1217 (10th Cir. 2008) (allowing plaintiff to argue both the mixed motive and single motive framework in the alternative at the pretrial stage)  Ginger v. District of Columbia, 527 F. 3d 1340 (D.C. Cir. 2008) (requiring plaintiff to choose a specific framework at the summary judgment stage)  Overall v. Univ of Pa., 2003 WL 23095953 (E.D.Pa. Dec 19, 2003) (holding that if plaintiff chooses to argue mixed motive at the summary judgment stage, then plaintiff has waived the right to invoke the single motive theory)

44

SUMMARY JUDGMENT: PLAINTIFF’S BURDEN OF PROOF

 The McDonnell Douglas/Burdine framework

• Griffith v. City of Des Moines, 387 F. 3d 733(8th Cir. 2004); Burstein
• v. Emtel, Inc., 137 Fed. Appx. 205 (11th Cir. 2005); Diamond v.

Colonial Life & Accident Insurance Co., 416 F. 3d 310 ( 4th Cir. 2004); McGinest v. GTE Service Corp, 360 F. 3d 1103 ( 9th Cir. 2002)

 The modified McDonnell Douglas approach

• Rachid v. Jack in the Box, Inc., 376 F. 3d 305 (5th Cir. 2004)

 The “motivating factor” framework

• White v. Braxter, 533 F. 3d 381 (6th Cir. 2008); Fogg v. Gonzales,

492 F.3d 447 ( D. C. Cir. 2007)

45

EVIDENCE THAT IS GENERALLY SUFFICIENT TO PROVE A MIXED-MOTIVE CAUSE OF ACTION

• Comparators (e.g. proof that plaintiff was treated differently than similarly

situated employees who were not members of the protected group)

• Documents and evidence of statements or actions by the employer that

may be construed as directly reflecting any discriminatory motive

• Discriminatory comments from the decision-maker or plaintiff’s direct

supervisor

46

EVIDENCE THAT IS GENERALLY INSUFFICIENT TO PROVE A MIXED-MOTIVE CAUSE OF ACTION

 Statistical evidence standing alone is insufficient, but otherwise can bolster a claim  Stray remarks in the workplace by non decision-makers  Lack of qualifications for the position the plaintiff sought to obtain or retain

47

RAISING MIXED MOTIVE AT TRIAL

• The mixed motive theory can be raised during trial and when requesting

jury instruction

• Example of a mixed motive jury instruction:
• Do you find the defendant's decision to [discharge] [refuse to

employ] [not promote] [demote] plaintiff was motivated both by [race] [color] [religion] [sex] [national origin] and a lawful reason? If so, has the defendant proved by a preponderance of the evidence that defendant would have made the same decision if plaintiff's [race] [color] [religion] [sex] [national origin] had played no role in the employment decision?

• In Costa v. Desert Palace, 539 U.S. 90 123 (2003), the Supreme Court held

that plaintiff can offer either direct or circumstantial evidence to receive a mixed motive jury instruction

48

IS A PLAINTIFF’S RIGHT TO A MIXED MOTIVE JURY INSTRUCTION WAIVABLE?

Although a Title VII plaintiff is entitled to a mixed motive jury instruction, a plaintiff will automatically waive the instruction on appeal under two circumstances:  if plaintiff proceeds to trial under a pretext theory; or

• Carthon v. Johnson Controls, Inc.,100 Fed. Appx. 993

(5th Cir. 2004)  plaintiff fails to raise a mixed motive theory at trial

• Mailly v. Park Place Entertainment Corp., 114 Fed.
• Appx. 602 (5th Cir. 2004); Ramirez Rodriguez v.

Boehringer Ingelheim, 425 F.3d 67 (1st Cir. 2005)

49

REMEDIES

Plaintiff is generally entitled to all damages available under a Title VII disparate treatment claim. However, if a plaintiff successfully establishes his mixed motive claim, but the employer successfully asserts its “same decision” defense: Plaintiff entitled to limited remedies:

• Declaratory relief
• Injunctive relief
• Attorneys’ fees

Plaintiff cannot recover:

• Monetary damages
• Reinstatement
• Promotion
• Hiring

50

MIXED MOTIVE – OTHER APPLICATIONS

Available under:  FLMA Retaliation claims

• Richardson v. Monitronics International Inc., 434 F.3d 327; Hunter v.

Valley View Local Schools, 579 F. 3d 688 (6th Cir. 2009)  Title VII Retaliation claims

• Smith v. Xerox, 602 F.3D 320 (5th Cir. 2010)

Not available under:  ADA

• Hendrick v. Western Reserve Care System, 355 F. 3d 444 (6th Cir.

2004) cert. denied, 125 D. Ct. 68 (2004); Serwatka v. Rockwell Automation, Inc., 591 F.3d 957 (7th Cir. 2010)  ADEA

• Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009)

51

Mixed-Motive Defense in Employment Discrimination Cases March 22, 2012

Karen Sutherland, Chair Employment & Labor Law Practice Group Ogden Murphy Wallace, P.L.L.C. ksutherland@omwlaw.com

52

Relevant case law and implications for employment litigation

53

• Gross v. FBL Financial Services, 129 S. Ct. 2343

(2009)

• Application of Gross on ADA, FMLA, and Title

VII retaliation cases

Key points of the Gross case

• 5-4 decision
• Question presented: Whether a plaintiff must

present direct evidence of age discrimination in order to obtain a mixed-motives jury instruction in a suit brought under the ADEA

54

Key points of the Gross case

• Holding: Such a jury instruction is never

proper in an ADEA case

• Decision below was vacated

55

Key points of the Gross case

• ADEA is worded differently than Title VII
• ADEA, 29 USC § 623: unlawful to take adverse

action “because of an individual’s age”

• Title VII as amended, 42 USC § 2000e-2(m):

unlawful practice is established when complainant demonstrates that race, color, religion, sex, or national origin was “a motivating factor for any employment practice, even though

• ther factors also motivated the practice”

56

Key points of the Gross case

What does “because of” mean?

• Dictionaries from 1966 (Webster’s Third New

International Dictionary and The Random House Dictionary of the English Language) and 1933 (Oxford English Dictionary) were consulted

57

Key points of the Gross case

What does “because of” mean? (continued)

• Dicta from Hazen Paper Co. v. Biggins, 504 U.S.

604, 610 (1003) was cited for proposition that the employee’s protected trait must have “had a determinative influence on the outcome”

• Hazen Paper was decided to address whether

interference with vesting of pension rights violated the ADEA and what the standard should be for liquidated damages

58

Key points of the Gross case

• What does “because of” mean? (continued)
• Bridge v. Phoenix Bond and Indem. Co., 128 S.Ct.

2131 (2008) was cited for recognizing “by reason

• f” requires at least a showing of “but for”

causation under RICO

• Safeco Ins. Co. of America v. Burr, 127 S.Ct. 2201

(2007) was cited for observing in common talk, “based on” indicates a “but-for” causal relationship and statutory phrase “based on” has the same meaning as “because of” under FCRA

59

Key points of the Gross case

• “It follows then that under § 623(a)(1), the

plaintiff retains the burden of persuasion to establish that age was the “but-for” cause of the employer’s adverse action.” Gross, Id. at 2350

• Majority then states the plaintiff retains the

burden of persuasion to establish that age was the “but-for” cause of the employer’s adverse action, citing its holding in Kentucky Retirement Systems v. EEOC, 128 S.Ct. 2361 (2008)

60

Key points of the Gross case

• The only mention of “but for” in Kentucky is:

“Kentucky allows its employees to retire at the age of 55 if they have accumulated only five years of service. But for this provision, which links age and years of service in a way that benefits older workers, pension eligibility would be a function solely of tenure, not age.”

• Id. at 2378 (dissent)

61

Key points of the Gross case

• A plaintiff bringing a disparate treatment claim

pursuant to the ADEA must prove by a preponderance of the evidence (which may be direct or circumstantial) that age was the “but- for” cause of the challenged employer decision. Gross, at 2351, 2352

• “The burden of persuasion does not shift to the

employer to show it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision.” Id. at 2352

62

Key points of the Gross case

• Dissent argues the most “natural reading” of

the statutory test prohibits adverse actions motivated in whole or in part by age

• Dissent notes the “but-for” standard was

rejected in Price Waterhouse v. Hopkins, 109 S.Ct. 1775 (1989), which was interpreting what was then identical “because of” language in Title VII (which was amended in 1991)

63

Citations to Gross

Per Google Scholar: “To establish a disparate treatment claim under the ADEA, the plaintiff must prove by a preponderance of evidence that age was the ‘but-for’ cause of the employer's adverse action” has been cited 302 times

64

Citations to Gross

Per Google Scholar: “The Supreme Court stated that the plaintiff retains the burden of persuasion to establish that age was the ‘but-for’ cause of the employer's adverse action in an ADEA action” has been cited 79 times.

65

Citations to Gross

Per Google Scholar: “In Gross, the Supreme Court noted that it ‘has not definitively decided whether’ the McDonnell Douglas burden-shifting framework is appropriate in the ADEA context” has been cited 98 times

66

Citations to Gross

Per Google Scholar: “The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision” has been cited 82 times

67

Citations to Gross

Per Google Scholar: “The Gross Court held that the Plaintiff ‘must prove by a preponderance of the evidence that age was the “but-for” cause of the challenged employer decision’” has been cited 80 times

68

Citations to Gross

Per Google Scholar: “—by Justice Stevens, joined by Justices Souter, Ginsberg, and Breyer, argued that the most natural reading of ‘because of’ age prohibited adverse employment actions motivated in whole or in part by the age of the employee, and neither the Court nor Congress had ever embraced ‘but-for’ causation as the applicable standard for the ‘because of’ language in Title VII” was cited 33 times

69

Citations to Gross

Per Google Scholar: “—the Court held that the Age Discrimination in Employment Act of 1967 (‘ADEA’), 29 USC § 621 et seq., does not authorize a mixed-motive age- discrimination claim” has been cited 36 times

70

Application of Gross in ADA cases

Serwatka v. Rockwell Automation, Inc., 591 F.3d 957, 958 (7th Cir. 2010):

• Mixed-motive answers on verdict form
• Employer claimed plaintiff was not entitled to

judgment given the provisions of the ADA and the Gross decision

• Seventh Cir. applies Price Waterhouse to ADA

71

Application of Gross in ADA cases

Serwatka, continued:

• ADA incorporates certain Title VII remedies
• “Although the Gross decision construed the

ADEA, the importance that the court attached to the express incorporation of the mixed- motive framework into Title VII suggests that when another anti-discrimination statute lacks comparable language, a mixed-motive claim will not be viable under that statute.”

72

Application of Gross in ADA cases

Serwatka, continued:

• ADA: “[n]o covered entity shall discriminate

against a qualified individual with a disability because of the disability of such individual . . .” 42 U.S.C. § 12112(a) (2008)

73

Application of Gross in ADA cases

Serwatka, continued:

• There is no provision in the ADA akin to Title

VII’s mixed-motive provision

• Although section 12117(a) cross-references

the remedies set forth in section 2000e- 5(g)(2)(B) for mixed-motive cases, it does not cross-reference the provision of Title VII, section 2000e-2(m), which renders employers liable for mixed-motive employment decisions

74

Application of Gross in ADA cases

Serwatka, continued:

• Thus, in the absence of a cross-reference to

Title VII's mixed-motive liability language or comparable stand-alone language in the ADA itself, a plaintiff complaining of discriminatory discharge under the ADA must show that his

• r her employer would not have fired him but

for his actual or perceived disability; proof of mixed motives will not suffice

75

Application of Gross in ADA cases

Serwatka, continued:

• ADAAA modified statute to prohibit an employer

from discriminating against an individual “on the basis of disability.” 42 U.S.C. § 12112(a) (2009) (emphasis supplied)

• Whether “on the basis of” means anything

different from “because of,” and whether this or any other revision to the statute matters in terms

• f the viability of a mixed-motive claim under the

ADA, are not questions that we need to consider in this appeal

76

Application of Gross in ADA cases

Zimmerman v. AHS Tulsa Regional Medical Center, LLC, No. 11-CV-00730-CVE-TLW (N.D. Oklahoma 2011):

• “The Seventh Circuit has found that the

reasoning in Gross also applies to the ADA, and an ADA plaintiff may not rely on a mixed motive theory.” (citing Serwatka)

77

Application of Gross in ADA cases

Zimmerman, continued:

• Tenth Circuit has continued to apply burden-shifting

analysis to ADA claims and has not required ADA plaintiffs to prove disability discrimination was the sole

• r "but-for" cause of an adverse employment action.

See Carter v. Pathfinder Energy Servs., Inc., __ F.3d __, 2011 WL 5222882 (10th Cir. Nov. 3, 2011) [additional citations omitted]

• Plaintiff is not required to prove that her disability was

the sole or “but-for” cause of termination to survive summary judgment on her ADA claim

78

Application of Gross in ADA cases

Garrido v. Beall Corp., No. 10-845-AA (D. Or. 2010):

• Employer cited Gross and Serwatka, contending

that plaintiff’s worker’s compensation, FMLA, ADA, Oregon Rehabilitation Act, ADEA, and wrongful termination claims were “inconsistent and irreconcilable”

• FRCP 8(d)(3) allows inconsistent claims; cases

cited by employer did not involve a motion to dismiss

79

Application of Gross in ADA cases

Freeman v. Koch Foods of Alabama, No. 2:09-cv- 270-MEF (M.D. Ala, N.D. 2010):

• Plaintiff alleged disparate treatment in

violation of FMLA, ADA, Title VII, and Section 1981 of the Civil Rights Act of 1866

• In 12(c) motion, employer argued Gross

applies to ADA and that because she must prove but-for causation she must choose between her theories of liability

80

Application of Gross in ADA cases

81

Freeman, continued:

• A sole-causation standard is different from a

“but-for” or “necessary causation” standard

• Court “expresses no opinion on whether the

logic of Gross applies to any part of any employment-discrimination statute other than the ADEA

Application of Gross in ADA cases

Wardlaw v. City of Philadelphia Streets Dept.,

• Nos. 05-3387, 07-160 (E.D. Pa. 2009), affirmed,
• No. 09-3666 (3d Cir. 2010)(not precedential):
• ADEA claim failed under Gross because

plaintiff cited multiple bases for her discrimination claim, including gender, race and disability.

• Plaintiff’s claims under Title VII and ADA had

been previously dismissed

82

Application of Gross in ADA cases

Prisco v. Methodist Hospital, No. 10-3141 (E.D. PA 2011):

• Gross does not apply at the pleading stage

where employee has asserted multiple claims for discrimination (age and disability)

• Employer’s FRCP 12(b)(6) motion did not

cover the ADA claim

83

Application of Gross in ADA cases

Zhang v. Honeywell International, Inc., CV-06- PHX-MHM, consolidated with CV-07-1790-PHX- MHM (D. AZ 2009):

• McDonnell Douglas burden shifting applies

equally to claims brought under Title VII and ADA; Gross has imposed what appears to be a much stricter standard for ADEA claims

• No evidentiary support for ADA claim

84

Application of Gross in ADA cases

Gard v. U.S. Dept. of Education, 752 F. Supp. 2d 30 (D.D.C. 2010):

• Gross altered the interplay between Title VII

cases and cases under other federal anti- discrimination laws

• Gross applies to pre-ADAAA language
• Gross applies to Rehabilitation Act’s “solely by

reason of” language

• Differences between ADAAA and Rehabilitation

Act may or may not be significant in an ADA case

85

Application of Gross in ADA cases

McDermott v. New York City Housing Dev. Corp., No. 10 Civ. 2029 (HB)(S.D. N.Y. 2011) (pre-ADAAA):

• Gross “but-for” test cited for ADEA claim but not

mentioned in dismissal of ADA claim

• “‘[A] plaintiff cannot simply rely on the fact that

he was terminated. Rather, he must point to facts that suggest the termination was motivated, at least in part, by animus based on his alleged disability.’” (emphasis added)

86

Application of Gross in ADA cases

Warshaw v. Concentra Health Services, 719 F. Supp. 2d 484 (E.D. Pa. 2010):

• ADA’s anti-retaliation provision states, “[n]o

person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.” 42 U.S.C. § 12203(a)

87

Application of Gross in ADA cases

Warshaw, continued:

• Like the anti-discrimination provisions of the

ADEA, and unlike Title VII (as amended), this language does not expressly allow a plaintiff to recover "by showing that [the protected characteristic] was simply a motivating factor” [citing Gross]

• For these reasons, Gross bars mixed-motive

retaliation claims under the ADA

88

Application of Gross in ADA cases

• To summarize:
• Every case that has mentioned Gross and the

ADA was not reviewed for this presentation

• The cases reviewed do not show a clear trend

in applying Gross to ADA claims

• Few post-ADAAA cases mean little post-

ADAAA guidance

89

Application of Gross in FMLA cases

Hunter v. Valley View Local Schools, 579 F.3d 688 (6th Cir. 2009):

• Evidence FMLA leave was a motivating factor in

decision to place employee on involuntary leave

• “Gross thus requires us to revisit the propriety of

applying Title VII precedent to the FMLA by deciding whether the FMLA, like Title VII, authorizes claims based on an adverse employment action motivated by both the employee's use of FMLA leave and also other, permissible factors. We conclude that it does.”

90

Application of Gross in FMLA cases

Hunter, continued:

• 29 CFR 825.220(c): “employers cannot use the

taking of FMLA leave as a negative factor in employment actions”

• “The phrase ‘a negative factor’ envisions that

the challenged employment decision might also rest on other, permissible factors. Cf. 42 U.S.C. § 2000e-2(m)”

91

Application of Gross in FMLA cases

Hunter, continued:

• In light of our reading of the FMLA through

the lens provided by Gross, we continue to find Price Waterhouse's burden-shifting framework applicable to FMLA retaliation claims

92

Application of Gross in FMLA cases

Khami v. Ortho-McNeil-Janssen Pharmaceutical, Inc., No. 09-11464 (E.D. Mich. 2012):

• The employer’s adverse action need not be

motivated solely by the employee’s use of FMLA leave. [citing Hunter] (“The FMLA . . . authorizes claims based on an adverse employment action motivated by both the employee's use of FMLA leave and also other, permissible factors.”)

93

Application of Gross in FMLA cases

Pierce v. Teachers Federal Credit Union, No. 09-780 (JNE/FLN) (D. Minn. 2010):

• Unlike an interference claim, a claim for retaliation

requires an employee to establish that the employer acted with retaliatory intent

• An employee can prove retaliatory intent with direct

evidence or by satisfying the burden-shifting framework articulated in McDonnell-Douglas

• If there is direct evidence of retaliatory animus, a court

applies the mixed-motives test set forth in Price Waterhouse

94

Application of Gross in FMLA cases

Pierce, continued:

• Citing Hunter: “In light of our reading of the FMLA

through the lens provided by [Gross], we continue to find Price Waterhouse’s burden-shifting framework applicable to FMLA retaliation claims.”

• The mixed-motives test places the burden on “the

employer to show that it more likely than not would have made the same decision without consideration of the illegitimate factor.” citing King v. Hardesty, 517 F.3d 1049, 1057 (8th Cir. 2008) (applying Price Waterhouse to race discrimination)

95

Application of Gross in FMLA cases

Barton v. Zimmer, Inc., No. 10-2212 (7th Cir. 2011):

• Summary judgment for employer upheld on

FMLA claim without discussing burden of proof; their was no evidence of one of the elements of an FMLA claim

• Gross but-for test applied to ADEA retaliation

claim

96

Application of Gross in FMLA cases

Pantoja v. Monterey Mushrooms, Inc., No. 10- CV-1184 (C.D. Ill. 2011):

• Motivating factor test no longer applies under

Gross

• Seventh Cir. has determined that Gross

requires proof of but-for causation in all civil rights and employment discrimination cases unless statutory language otherwise indicates

97

Application of Gross in FMLA cases

Pantoja, continued:

• FMLA states: “It shall be unlawful for any

employer to interfere with . . . the exercise or . . . attempt to exercise, any right provided under this chapter.” 29 U.S.C. § 2615(a)

• FMLA also states: “It shall be unlawful for any

employer to discharge . . . any individual . . . because such individual” opposes a violation of the FMLA or alleges that a violation of the FMLA

• ccurred. 29 U.S.C. § 2615(b)

98

Application of Gross in FMLA cases

Pantoja, continued:

• The language in either section of the FMLA

lacks any “motivating factor” language

• The employer must interfere with the exercise
• f the right or must discharge the individual

because an individual opposed a violation of the FMLA. This direct language implies but-for causation

99

Application of Gross in FMLA cases

Pantoja, continued:

• In light of the Gross decision and the

subsequent Seventh Circuit decisions, the Court must apply a but-for causation to FMLA cases

100

Application of Gross in FMLA cases

Wilson v. Noble Drilling Services, Inc., No. 10-20129 (5th Cir. 2010):

• Gross raises the question of whether the mixed-

motive framework is available to plaintiffs alleging discrimination outside of Title VII

• Because plaintiff has not argued that “the

employer’s reason, although true, is but one of the reasons for its conduct,” the court need not consider the applicability of a mixed-motive framework to FMLA claims

101

Application of Gross in FMLA cases

Garner v. Chevron Phillips Chemical Company, LP, No. H-10-138 (S.D. Texas 2011):

• Although the Fifth Circuit previously applied

the mixed motive framework to FMLA cases, it questions whether Gross now bars such, but it has not yet decided. Wilson, 405 Fed. Appx. at 912 n.1, citing Richardson v. Monitronics Int’l Inc., 434 F.3d 327, 333 (5th Cir. 2005).

102

Application of Gross in FMLA cases

• Garner, continued:
• District courts within the [Fifth] Circuit have

applied the mixed motive analysis to retaliation claims under the FMLA. See, e.g., Harville v. Texas A&M University, Civ. A. No. H-10-1656, 2011 WL 2295279, *8 (S.D. Tex. June 8, 2011)

• The plaintiff does not have to show that the

protected activity was the only reason for his termination

103

Application of Gross in FMLA cases

Kosierowski v. Erald, No. SA-09-CV-584-XR (W.D. Texas 2011):

• Gross raises the question of whether the

mixed-motive framework is available to plaintiffs alleging discrimination outside of the Title VII framework. Regardless of which test applies, plaintiff’s FMLA claim cannot meet either standard

104

Application of Gross in FMLA cases

Gambill v. Duke Energy, No. 1:06-CV-00724 (S.D. Ohio, 2010):

• Gross applied to ADEA claim but is not mentioned

in FMLA analysis

• Motivating factor test applied to FMLA claim on

summary judgment, citing Edgar v. JAC Prods., Inc., 443 F.3d 501, 508 (6th Cir. 2006)

105

Application of Gross in FMLA cases

Twigg v. Hawker Beechcraft Corp., 659 F.3d 987 (10th Cir. 2011):

• “In light of [Gross] there is a substantial question

whether a mixed motive analysis would apply in a retaliation claim under the FMLA. However, we need not decide that issue in this case. Even assuming, without deciding, that a mixed motive analysis would be used in a FMLA retaliation case, Twigg’s FMLA retaliation claim would fail.”

106

Application of Gross in FMLA cases

• To summarize:
• There have been fewer FMLA cases than ADA

cases that reference the Gross case

• Every single FMLA case mentioning Gross and the

FMLA was not reviewed for this presentation

• The courts are split on applying the Gross “but-

for” test to FMLA cases

107

Gross and Title VII retaliation claims

Smith v. Xerox Corp., 602 F.2d 320 (5th Cir. 2010):

• Gross’s reasoning could be applied here. The

text of § 2000e-2(m) states only that a plaintiff proves an unlawful employment practice by showing that "race, color, religion, sex, or national origin was a motivating factor.” It does not state that retaliation may be shown to be a motivating factor.

108

Gross and Title VII retaliation claims

Smith, continued:

• Although Congress amended Title VII to add §

2000e-2(m) in 1991, it did not include retaliation in that provision. These considerations are, of course, similar to the Supreme Court’s reasoning in Gross

• The Smith court believed that such a

simplified application of Gross is incorrect

109

Gross and Title VII retaliation claims

Smith, continued:

• “To state the obvious, Gross is an ADEA case,

not a Title VII case. The Gross Court cautioned that when conducting statutory interpretation, courts ‘must be careful not to apply rules applicable under one statute to a different statute without careful and critical examination.’”

110

Gross and Title VII retaliation claims

Smith, continued:

• The decision before us is how to proceed in

light of Price Waterhouse, which specifically provided that the “because of” language in the context of Title VII authorized the mixed- motive framework, and Gross

• We believe that under these circumstances,

the Price Waterhouse holding remains our guiding light

111

Gross and Title VII retaliation claims

Smith, continued:

• Gross did not overrule our prior decisions

addressing Title VII retaliation

• Because we believe that Gross does not

unequivocally control whether a mixed-motive jury instruction may be given in a Title VII retaliation case, we must continue to allow the Price Waterhouse burden shifting in such cases unless and until the Supreme Court says

• therwise

112

Gross and Title VII retaliation cases

Garner v. Chevron Phillips Chemical Company, LP, No. H-10-138 (S.D. Texas 2011):

• The Fifth Circuit has rejected applying Gross to

Title VII retaliation cases and permits mixed motive analysis for such [citing Smith]

113

Gross and Title VII retaliation cases

Beckham v. National RR Passenger Corp., 736 F.

• Supp. 2d 130 (D.D.C. 2010):
• The legal analysis applicable to claims of

retaliation under Title VII—specifically mixed- motive retaliation claims— is now a subject of debate among the circuit courts. Compare Smith

• v. Xerox, 602 F.3d 320 (5th Cir. 2010) (allowing

mixed-motive retaliation claims), with Serwatka v. Rockwell Automation, Inc., 591 F.3d 957, 962-63 (7th Cir. 2010)

114

Gross and Title VII retaliation cases

Beckham, continued:

• There is also an ongoing debate among the

members of this Bench. Compare Nuskey, 06- cv-1573, 730 F.Supp.2d at 4-6; with Beckford v. Geithner, 661 F. Supp. 2d 17, 25 N. 3(D.D.C. 2009). The question is whether [Gross] . . . affects the analysis of Title VII’s retaliation provision

115

Gross and Title VII retaliation cases

Beckham, continued:

• The answer is both yes and no, depending on a

plaintiff’s allegations and the evidence

• Section 2000e-2(m) means just what it says: when an

impermissible motive animates “any employment practice,” even though permissible motives were also involved, “an unlawful employment practice is established.” 42 U.S.C. § 2000e-2(m)

• There can, therefore, be mixed-motive retaliation cases

despite the “because” language in the statute

116

Gross and Title VII retaliation cases

Beckham, continued:

• In a mixed-motive case, a successful employee

must prove an illegal motive behind the employer's action; if the employer then proves that it would have taken the same action without regard to the illegal motive, the employee’s recovery is limited to declaratory judgment, an injunction against further violations, and attorneys’ fees. See 42 U.S.C. § 2000e-5(2)(B)

117

Gross and Title VII retaliation cases

Beckham, continued:

• This stands in contrast to the situation where

an employee alleges disparate treatment based on a single motive. The Gross analysis fits such a single-motive case: an employee must prove that “but-for” his or her protected status, the employer would not have taken the adverse action

118

Gross and Title VII retaliation cases

Nuskey v. Hochberg, 730 F. Supp. 1 (D.D.C. 2010):

• By analogy to Gross, a decision involving the

ADEA, not Title VII, Judge Huvelle concluded that a “mixed motive” theory is never available in a retaliation case and therefore that the "a motivating factor" instruction is never appropriate in such a case. See Beckford v. Geithner, 661 F. Supp. 2d 17, 25 n.3 (D.D.C. 2009)

• The Court disagrees, aligning itself instead with

the analysis of the Fifth Circuit in Smith v. Xerox Corp., 602 F.3d 320 (5th Cir. 2010).

119

Gross and Title VII retaliation cases

Nuskey, continued:

• The defendant is correct that if plaintiff pursues

a mixed motive claim only, or if the evidence supports only a mixed motive claim, and if the defendant proves by a preponderance of the evidence that it would have taken the same action regardless of discrimination, then the plaintiff is entitled only to declaratory relief, limited injunctive relief, and attorneys’ fees—but not to compensatory damages, reinstatement, or back pay [citations omitted].

120

Gross and Title VII retaliation cases

Barton v. Zimmer, Inc., No. 1:06-CV-208-TS (N.D.

• Ind. 2009):
• “For example, the Supreme Court recently

held that, unlike Title VII, the ADEA's text does not authorize mixed-motives claims.” [citing Gross]

121

Gross and Title VII retaliation cases

Everett v. Central Mississippi, Inc., No. 3:08CV34 (N.D. Miss. 2010):

• Gross is cited in analysis of ADEA claim but not in

Title VII retaliation analysis

• The court noted that the Fifth Circuit recognizes

that “[t]he ADEA anti-retaliation provision is related to the anti-retaliation provision of Title VII, and cases interpreting the latter provision are frequently relied upon in interpreting the former.” Shirley v. Chrysler First, Inc., 970 F.3d 39, 42, n.5 (5th Cir. 1992).

122

Gross and Title VII retaliation cases

Isaac v. City of New York, 701 F. Supp. 2d 477 (S.D.N.Y. 2010):

• Gross test is discussed in ADEA analysis but not in

Title VII retaliation analysis

• “Plaintiff offers no evidence from which a

reasonable factfinder could conclude that retaliation played a substantial role in the adverse employment actions at issue”

• “Substantial role” sounds like a mixed-motive

analysis

123

Gross and Title VII retaliation cases

Gorzynski v. Jetblue Airways Corp., 596 F.3d 93 (2nd Cir. 2010):

• In ADEA analysis, the Second Circuit noted

Gross distinguished the text of ADEA from the text of Title VII

• In Title VII retaliation analysis, the Second

Circuit did not mention Gross but found plaintiff established a prima facie case

124

Gross and Title VII retaliation cases

• All Title VII retaliation cases that mentioned

Gross were not reviewed for this presentation

• There is a split among the courts as to

whether Gross applies to Title VII retaliation cases

125

Thank you! Karen Sutherland Ogden Murphy Wallace, P.L.L.C. ksutherland@omwlaw.com

126