Presenting a live 90-minute webinar with interactive Q&A
Mixed-Motive Defense in
Employment Discrimination Cases
Leveraging the Defense Amid Differing Circuit Court Standards
THURSDAY, MARCH 22, 2012
1pm Eastern
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12pm Central | 11am Mountain
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10am Pacific
Today’s faculty features:
Wayne Schrader, Partner, Gibson Dunn & Crutcher, Washington, D.C.
Melissa E. Pierre-Louis, Outten & Golden, New York
Karen Sutherland, Member, Ogden Murphy Wallace, P.L.L.C., Seattle
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Mixed Motive
(“Motivating Factor”) Cases
Wayne A. Schrader
Gibson Dunn & Crutcher LLP
Washington D.C.
202-250-4800
[email protected]
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
other 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
or 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 mixedmotive 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
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 nondiscriminatory 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 mixedmotive 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, 19294 (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 nonpretextual, 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 “mixedmotive” 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 nondiscriminatory 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 (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
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 (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
of 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 mixedmotive 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
[email protected]
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
of 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
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
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.
[email protected]
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 “butfor” 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 agediscrimination 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 mixedmotive 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 2000e5(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-cv270-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-06PHX-MHM, consolidated with CV-07-1790-PHXMHM (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 antidiscrimination 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 postADAAA 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. 10CV-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
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 mixedmotive 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 “butfor” 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 mixedmotive 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
otherwise
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 mixedmotive 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, 06cv-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.
[email protected]
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