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

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 onerous 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 on 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 of 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 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.”) (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 (11 th 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 of 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 (6 th 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 of her mixed-motive claims. “ Spees v. James Marine Inc., (6 th 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 BURDEN OF PROOF raise in discrimination cases in which an  Plaintiff has the burden of adverse employment action was based on both persuasion to prove the mixed unlawful and lawful considerations motive claim RULE  Defendant has the burden of To prevail on a mixed motive claim, a plaintiff persuasion to prove the “same must prove by a preponderance of the decision” defense evidence that he was: LIABILITY AND RELIEF  terminated, constructively discharged,  Under the Civil Rights Act of demoted, not hired, and/or not promoted 1991 (42 U.S.C. 2000e-et seq), by the employer; and plaintiff’s protected the “same decision” defense does status was a motivating factor in the not insulate the defendant from employer’s decision liability; defendant can invoke DEFENSE the “same decision” defense only to limit the plaintiff’s remedies The defendant has an opportunity to mitigate the plaintiff’s remedies if it shows that it would have made the same decision regardless of any discriminatory motive (known as the “same decision” defense) 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 o 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 o 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) o 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 on 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 su pervisor 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 • Gross v. FBL Financial Services , 129 S. Ct. 2343 (2009) • Application of Gross on ADA, FMLA, and Title VII retaliation cases 53

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 other 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 of” 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 or 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 of 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 or "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 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 81

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 occurred. 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 of 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