Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘mixed motive case’

Could This Be News? Employee Fired Because She Was Too Old And Too Expensive Has Right To Age Discrimination Trial

Wednesday, March 17th, 2010

Direct Evidence Of Age Discrimination Gets Plaintiff Jury Trial: Court Wrongfully Applied Mixed Motive Standard To Bounce The Case

It’s hard to believe that this age discrimination victim got thrown out of court and had to go to the Eleventh Circuit Court of Appeals for a reversal but here’s what happened in the recently decided case of Mora v. Jackson Memorial Hospital.

Facts Of The Case

Sixty-two year old Josephine Mora worked for Jackson Memorial Hospital (“Hospital”) as a fundraiser. She initially worked for someone named Chea who recommended to the Hospital’s chief executive, Rodriguez, that she be fired. The reasons for the recommendation are not set out in the opinion.

Rodriguez first agreed, but then decided to give Mora a different position in his own office “where he could observe her more closely.” Mora worked with Rodriguez for a month. Rodriguez claimed during that time Mora was responsible for several errors and displayed a lack of professionalism.

At the end of the month, Rodriguez fired Mora. When he did so, according to Mora, Rodriguez called her into his office and said:

I need someone younger I can pay less … I need Elena [Quevedo, a 25 year old employee]

In addition, one employee heard Rodriguez tell Mora:

You are very old and inept. What you should be doing is taking care of old people. They really need you. I need somebody younger that I can pay less and I can control.

Another employee heard Rodriguez say “she’s too old to be working here anyway” in reference to Mora.

In the course of Mora’s lawsuit filed under the Age Discrimination in Employment Act, (“ADEA”) Rodriguez denied making these discriminatory remarks. In addition, the Hospital argued that even if it did discriminate against Mora, she would have been fired anyway because of poor performance.

The district court agreed with the defendant, concluded that the Hospital had met its burden under the “same decision” affirmative defense, and granted judgment in favor of the Hospital. Mora appealed.

The Eleventh Circuit Reverses

Mixed Motive Analysis Wrongfully Applied

Part of the reason why the Eleventh Circuit reversed the decision was because it found that the district court wrongfully applied a Title VII mixed motive analysis to an ADEA case.

The discussion involves a lot of complicated and tortured law, but here’s the simplest I can make it.

In the landmark Supreme Court case of Price Waterhouse v. Hopkins decided in 1989, the evidence showed that the partners at Price Waterhouse made sexist remarks and engaged in gender stereotyping when they denied Ann Hopkins partnership in the firm. In other words, there was direct evidence of discrimination.

In its holding the Supreme Court set out a new standard which could be applied to cases with direct evidence of discrimination. In sum, when a plaintiff shows that race or sex discrimination was a motivating or substantial factor in an employment decision, the burden of persuasion shifts to the employer to prove that it would have made the same decision anyway (in the absence of the discriminatory motive.)

Since the Price Waterhouse decision, this kind of discrimination case is often referred to as a “mixed motive case” with a “same decision defense.”

In Moro’s case, the district court applied the Price Waterhouse mixed motive analysis and ruled that the Hospital proved its “same decision” defense. It concluded that Mora ‘s termination was inevitable given the number and severity of her workplace problems and that no reasonable jury could find otherwise. And so she lost as a matter of law.

The problem with the district court’s ruling — according to the 11th Circuit — is that the Supreme Court’s decision in Gross v. FBIS Financial Services (2009) held that the Price Waterhouse mixed motive burden shifting analysis only applied to discrimination claims brought under Title VII and did not apply to the Age Discrimination in Employment Act. ( I wrote about the awful Gross case here and here)

Consequently, since the mixed motive burden shifting analysis was wrongly applied, the defense was not entitled to its same decision defense, and the district court’s reliance on that defense in finding against the plaintiff was reversible error.

The Jury Should Decide Whether Mora Was Fired Because Of Her Age

After the 11th Circuit explained why the district court’s analysis was wrong, it went on to explain what the correct analysis is – and unlike the above discussion, it’s all very straightforward from there.

A plaintiff in an ADEA case may prove illegal age discrimination with either direct or circumstantial evidence. Moro testified that she was fired because of her age, and two co-employees substantiated her. The Hospital denied that the comments were made which meant that material facts were in dispute and the case properly belonged in front of a jury.

As the Court put it:

The resolution of this case depends on whose account of the pertinent conversations a jury would credit. …..

A reasonable juror could find that Rodriguez’s statements should be taken at face value and that he fired Plaintiff because of her age. For us to conclude otherwise would be to deny Plaintiff the benefit of resolving all reasonable inferences in her favor as the nonmoving party.

Given the disputed question of material fact, Defendant was unentitled to a summary judgment.

Take Away

It’s awfully common for people to be let go because they are considered by some to be too old and too expensive. I can’t count the number of times I have represented people who were fired for just those reasons.

In this case, Josephine Mora was told, “you’re too old. I need to find someone younger and cheaper.” If it’s not a case of age discrimination, I don’t know what is.

It’s both astounding and disheartening that forty three years after the passage of the Age Discrimination in Employment Act, a court faced with such strong evidence of age discrimination could throw the plaintiff out, grant judgment in favor of the employer, and deprive the employee of her right to a jury trial

It’s a good thing the Eleventh Circuit fixed the mistake and published this opinion, because if this woman can’t get her age discrimination case in front of a jury, I have a hard time figuring out who can.

image: lawblog.legalmatch.com

About the Author: Ellen Simon is recognized as one of the first and foremost employment and civil rights attorneys in the United States, Ellen Simon has been lauded for her work on landmark cases that established employment law in both state and federal court. A sought-after legal analyst and expert, she discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post www.employeerightspost.com/ has dedicated readers who turn to Ellen for her advice and opinion. Learn more about Ellen Simon at www.ellensimon.net/.

New Supreme Court Age Discrimination Decision Will Be Gone in a Flash

Friday, June 26th, 2009

Did the Supreme Court Discriminate Against Victims of Age Discrimination?

The only good thing to say about the new age discrimination case of Gross v. FBL Financial Services, Inc. is that it will be gone in a flash. 

There are so many things wrong with it that it’s hard to know where to begin, and because I really do believe that it will be legislatively overruled in the very near future, I don’t want to beat it to death.

Let me say this. For those immersed in discrimination law, the opinion and the dissenting opinions are a must read.

For the rest of the country, I believe that the decision will have little impact and there are several reasons why that’s so.

Case Background

The question before the Supreme Court was whether a plaintiff must present direct evidence of age discrimination in order to obtain a mixed motive instruction in a suit brought under the Age Discrimination in Employment Act.

It’s a pretty dry academic issue with little to no practical effect in the real world of age discrimination litigation. 

For those interested in the background of the issues presented in the case, you can take a look at the article I wrote on the case when it was argued in March.

What The Court Did In The Gross Case

Instead of deciding the issue before it, the Court did two really strange things in this case:

  1. It decided an entirely different issue than the question accepted for review — one that was not properly presented or briefed.
  2. The issue it chose to rule on manifested a complete disregard for Supreme Court precedent and Congressional intent.

Here’s an attempt at an explanation.

Title VII of the Civil Rights Act of 1964 says that a person can’t be discriminated against  in his/her employment “because of ” his/her race, color, sex, religion or national origin.

The Age Discrimination in Employment Act (“ADEA”) was passed in 1967.  Like Title VII, the ADEA prohibits discrimination in employment  “because of ” age.

The Supreme Court has interpreted the “because of” language and so has Congress. 

The issue first came up for interpretation before the Supreme Court in the Price Waterhouse case in 1989.  In that case, Justice Kennedy pushed for a “but for” standard which meant that the plaintiff in a Title VII case would have to prove that “but for” his race (sex, national origin, religion, etc.) he would not have been terminated (demoted, transferred, etc.).

The Price Waterhouse decision rejected the “but for” standard and held that the plaintiff in a Title VII employment discrimination case bears the burden of  proving that membership in the protected class was a “motivating factor in the employment decision” in order to prove that he or she was discriminated against because of it.

Congress ratified the “motivating factor” interpretation when it passed the Civil Rights Act of 1991.The precise language of the statute is as follows:

An unlawful employment practice is established when the complaining party 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.

What happened in the Gross case last week is that the majority resurrected thebut forstandard and held that:

To establish a disparate treatment claim under the plain language of  the ADEA, the plaintiff must prove that age was the “but-for”cause of the employer’s adverse decision.

It’s important to point out that Title VII and the ADEA have previously been interpreted uniformly by courts throughout this country including the Supreme Court.

After all discrimination is discrimination, and it make no sense to use different methods, burdens, or standards of proof for age discrimination cases than sex or race discrimination cases, and it’s not been done before.

Why The Decision Makes No Sense

For all of the reasons why the majority opinion written by Justice Thomas (joined by guess who) is in my opinion, just  plainly wrong (there are other words I would love to use but I am constrained to be respectful) I recommend that you take a look at  Justice Stevens scathing dissent. Here’s a glimmer:

The Court is unconcerned that the question it chooses to answer has not been briefed by the parties or interested amici curiae.  It’s failure to consider the views of the United States, which represents the agency charged with administering the ADEA, is especially irresponsible.

Unfortunately, the majority’s inattention to prudential Court practices is matched by its utter disregard our our precedent and the Congress’ intent.

Not only did the Court reject the but-for standard in [Price Waterhouse], but so too did Congress when it amended Title VII in 1991. Given this unambiguous history, it is particularly inappropriate for the Court, on its own initiative, to adopt an interpretation of the causation requirement in the ADEA that differs from the established reading of Title VII.

The Court’s endorsement of a different construction of the same critical language in the ADEA and Title VII is both unwise and inconsistent with settled law. 

I disagree not only with the Court’s interpretation of the statute, but also with its decision to engage in unnecessary lawmaking. 

(Justice Souter agreed with Justice Stevens and also wrote a separate dissent. He raised additional problems with the “but for” language — not the least of which is that it’s a tort concept of causation that has no place in the actual context of a discrimination case and its proof.)

What’s Coming

The talk has already started about a Congressional bill which will overturn the decision. As reported in the Washington Times on Friday:

 Democratic lawmakers seized on Justice Stevens’ dissent as constitutional lawyers predicted Congress would make a law to lower the courts new bar for age discrimination cases. 

‘It is even more troubling that these five justices decided to go further than the question presented to the court,’ said Senate Judiciary Committee Chairman Patrick J. Leahy, Vermont Democrat.

“This overreaching by a narrow majority of the court will have a detrimental effect on all Americans and their families. In these difficult economic times, American workers need to be protected from discrimination.”

Mr. Leahy said Thursday’s decision reminded him of the court’s “wrong-headed ruling in Ledbetter,” a reference to Lily Ledbetter, whose pursuit of equal pay to her male counterparts at Goodyear Tire & Rubber Co. was thrown out in 2007 because she filed the lawsuit after the expiry of a 180-day statute of limitations.

What’s the Practical Effect of the Decision?
  • As far as the loss of getting a mixed motive instruction in an age discrimination case, most plaintiff’s lawyers don’t care. It’s too confusing to the jury. So until it’s fixed legislatively, it really doesn’t matter.
  • Most experienced employment lawyers know that the “but for” language will have little effect on a jury.
  • Age discrimination plaintiffs will still have the opportunity, through the use of direct and circumstantial evidence, to prove that they were discriminated against because of their age — and this decision does not change that fact.

While some interpret the decision to  require proof that age was the sole reason for the discharge, I don’t think that’s clear at all from the language of the decision.

The majority opinion relies on a previous Supreme Court case, Hazen Paper Co. v. Biggens, and the language in it that says that “an age discrimination plaintiff can win if it proves that the discrimination played a (not the) role in the employer’s decision making process and had a (not the) determinative influence on the outcome.”

Plaintiffs in age discrimination cases can and will rely on that language to rebut the contention that a higher bar has been set. Justice Thomas also writes in a footnote that  the decision sets no “heightened evidentiary requirement for ADEA plaintiffs ” — so why not take him at his word.

In sum, I think it’s all academic and that the opinion will have little effect on the litigation or trial of age discrimination cases in the future. It will, however, make for a whole pile of briefing on what will shortly become a moot point.

The Bottom Line

The bottom line is that Congress has certainly never said that it should be harder to prove age discrimination than any other kind of prohibited discrimination and never intended that result.

It’s fundamentally unsound and intellectually dishonest to interpret the same words differently because one discrimination statute refers to race and sex and another refers to age. What’s more, it’s just totally confusing.

That’s why the Gross decision will, in my opinion, be gone in a flash.

About the Author: Ellen Simon is recognized as one of the foremost employment and civil rights lawyers in the United States. Ms. Simon is the owner of the Simon Law Firm, L.P.A., and Of Counsel to McCarthy, Lebit, Crystal & Liffman, a Cleveland, Ohio based law firm. She is also the author of the legal blog, the Employee Rights Post. Her website is www.ellensimon.net.

This article originally appeared in Employee Rights Post on June 22, 2009. Re-printed with permission by the author.

Images:  www.roadtransport.com and farm1.static.flickr.com

Supreme Court Hears "Mixed-Motive" Age Discrimination Case

Thursday, April 2nd, 2009

Good luck to anyone who is trying to figure out what is going on with the Gross v. FBL Financial Services case argued in the Supreme Court yesterday. I have been doing this work for three decades and I think it’s almost impossible.

The questions presented are:

  1. In a “mixed-motive” age discrimination case — where both legitimate and illegitimate reasons motivated the employment decision, should the employer be permitted to avoid liability if proves that it would have taken the same action anyway?
  2. What kind of evidence needs to be presented — direct or circumstantial — to prove a “mixed-motive” case?
  3. Does the discriminatory reason need to be a “substantial reason” or “a motivating reason” for the employee to prevail?
  4. Which party bears the burden of proof?

The answers turns on whether the Supreme Court will apply the older mixed motive analysis under Price Waterhouse v. Hopkins or the newer standard under the Civil Rights Act of 1991. (“CRA”); or (less likely) whether the Court will overrule Price Waterhouse as requested by the employer-respondent.

In the 1989 Price Waterhouse decision, the plaintiff Ann Hopkins presented direct evidence (as opposed to circumstantial evidence) that she was discriminated against when she was denied a promotion to partnership. The defendant basically said that even though it  may have discriminated,  it would have reached the same result anyway in denying Ms. Hopkins her promotion.

In it’s fractured decision,  the Supreme Court came up with a new way of proving discrimination in what it called a “mixed-motive” case.  Simply said, this new method of proof set forth a complicated and confusing burden shifting framework.

After the Price Waterhouse decision, courts began allowing employers who used illegal factors in employment decisions to avoid liability by merely showing that they would have made the same decision anyway even without considering the unlawful factor.

In other words, the unintended consequence of the decision was that employers were getting off the hook in the face of direct evidence of discrimination.

As a result, Congress overturned that portion of Price Waterhouse when it enacted the Civil Rights Act of 1991.  In so doing, it specifically lowered the standards for employees in “mixed-motive” cases.  Theoretically, the CRA  makes it easier for employees to win these cases.  Under the Act:

  • the employer is not absolved of liability in “mixed-motive cases” even if it proves it would have made the same decision anyway, but damages to the employee are restricted.
  • in  order to take advantage of the mixed-motive theory and shift the burden to the defendant, the plaintiff must “demonstrate” that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice

The legislation was silent as to what type of evidence (direct, circumstantial, clear and convincing, etc.) the plaintiff needed to successfully prove the illegal motivation.

The issue of what kind of evidence was required was decided by the Supreme Court inDesert Palace, Inc. v.Costa in 2003. According to that decision, Congress intended the term “demonstrate” to mean that an employee could prove his or her case bydirect or circumstantial evidence. As the Court stated:

Title VII’s silence with respect to the type of evidence required in mixed-motive cases . . . suggests that we should not depart from the “[c]onventional rul[e] of civil litigation [that] generally appl[ies] in Title VII cases.” … That rule requires a plaintiff to prove his case “by a preponderance of the evidence,” . . . by using “direct or circumstantial evidence,” Postal Service Bd. of Governors v. Aikens,460 U.S. 711, 714, n. 3 (1983).

You would think that would settle it but there’s always a wrinkle, and the wrinkle for Mr. Gross is that  the CRA applies to Title VII and does not specifically mention the Age Discrimination in Employment Act . As a result, according to FBL Financial, neither the CRA nor the Desert Palace decision apply to Gross’ case.

Paul Secunda from the Marquette University Law School Faculty Blog points out that conservative justices like Scalia, Thomas, Roberts and Alito may jump on this argument.

One argument, likely to be favored by conservative justices like Scalia, Thomas, Roberts, and Alito, is a textualist approach arguing that Congress knew what it was doing, could have expressly included the ADEA in the CRA of 1991, but chose not to for whatever reason. If we are unhappy with the current state of affairs, the argument continues, the proper approach is to allow Congress to amend the CRA of 1991 to include ADEA claims.

The flip side is that disparate treatment claims under the Age Discrimination in Employment Act (which is what this is) are always interpreted identically to claims brought under Title VII (which prohibits discrimination because of race, color, religion, sex, or national origin) on issues like the ones before the Court.

Gross’ argument is that there would be no reason not to interpret the ADEA  consistently with Title VII and no reason not to do so in this case.  That is in fact what many courts have done. (ie the Sixth Circuit Court of Appeals in Blair v. Henry Filters)

If anyone wants more, better, or different analysis of  the Gross case,  there are lots good pieces on it (SCOTUSBLOG, Ross Runkel’s Law Memo are two)

Whatever the outcome, as a practical matter I don’t think it will change the way employees and their lawyers go about proving age discrimination cases:

  • Plaintiffs are going to present all the evidence they have whether it’s direct or circumstantial, or both.
  • Most of us who represent employees have never seen the benefit of getting a “mixed motive” instruction even when we have direct evidence of discrimination because it’s too confusing to the jury.
  • It’s just a much easier and better standard for employees in discrimination cases to have to prove by a preponderance of the evidence, whether direct or circumstantial, that age, race, sex, religion, national origin, or disability was a motivating factor in the adverse employment decision.

For sure, the decision will be interesting to Supreme Court observers to see how the justices line up on this one.  Other than that, it’s not very interesting at all, but since it’s not often that an age discrimination cases hit the Supreme Court, it’s got to be talked about even though I am the first to admit –it’s mostly academic.

Image: www.visitingdc.com

Crossposted from Ellen Simon’s blog Employee Rights Post.

About the Author: Ellen Simon is recognized as one of the foremost employment and civil rights lawyers in the United States. Ms. Simon is the owner of the Simon Law Firm, L.P.A., and Of Counsel to McCarthy, Lebit, Crystal & Liffman, a Cleveland, Ohio based law firm. She is also the author of the legal blog, the Employee Rights Post. Her website is www.ellensimon.net.


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