A Boot To Pretext Plus, A Favorable Interpretation Of Gross, And More Age Discrimination Gems From The Tenth Circuit

For anyone interested in representing employees in age discrimination cases, the recent case of Jones v. Oklahoma City Public Schools from the Tenth Circuit Court of Appeals is a must read.

The case is loaded with great stuff including a helpful reading of the Gross case, an affirmation of the use of the McDonnell Douglas burden shifting framework in ADEA cases, a pro-employee interpretation of adverse action and a much needed kick in the pants to pretext plus which was resurrected from the dead by the district court.

What Happened In The Case

Judy Jones began working as a teacher for the Oklahoma City Public Schools (“OKC”) in 1969. She then served as an elementary school teacher for approximately fifteen years. In 2002, Jones was promoted to the position of Executive Director of Curriculum and Instruction.

In 2007, a new superintendant decided to reorganize OKC’s executive team. In particular he decided that Jones’ position could be eliminated and that her duties would be absorbed by other directors.

Jones was reassigned as an elementary school principal. At first she retained her previous salary level though her vacation benefits were affected immediately.

After Jones completed her first year as principal, her salary was decreased by approximately $17,000. The pay cut  reduced her retirement benefits and her daily pay rate was also reduced.

One month after Jones’ reassignment, the superintendant decided to create a new Executive Director of Teaching and Learning position. The job description and responsibilities for this new position were virtually identical to those of Jones’ former position of Executive Director of Curriculum and Instruction.  The new position was filled with an individual who was forty seven years old. Jones was nearly 60 at the time.

The evidence showed that funding for Jones’ position stayed on the books for the 2007-2008 fiscal year, and that her former staff continued to work in the department both before and after the position of Executive Director of Teaching and Learning was created.

In addition, several of her fellow OKC directors, including the interim superintendant, made age-related remarks to Jones regarding her retirement plans.

Jones filed suit in the District Court for the Western District of Oklahoma alleging that that OKC violated the Age Discrimination in Employment Act (ADEA) when it demoted her to the position of elementary school principal.

Quoting Reeves v. Sanderson Plumbing Products, Inc. the district court held that this was a case where the plaintiff established a prima facie case of age discrimination and set forth evidence to reject the defendant’s explanation for its decision, but “no rational factfinder could conclude that the action was discriminatory.”

Although the district court acknowledged that OKC leadership had made age-related comments, it faulted Jones for not providing any “additional evidence to show that age played a role in the reassignment decision.” Summary judgment was granted against Jones. She appealed.

The Tenth Circuit Court Of Appeals Reverses

Interpreting “But For” Causation Under Gross v. FBL Financial Services, Inc.

The first issue addressed by the Court involved an interpretation of the Supreme Court’s Gross v. FBL Financial Services, Inc. 2009 decision and it’s an important holding for anyone litigating a case under the ADEA.

The ADEA prohibits an employer from discriminating against an individual in employment “because of such individual’s age.” The statute, which does not define “because of”, was interpreted in the Gross decision to require “but for” causation.

OKC contended this required a plaintiff to prove that her employer was motivated solely by age discrimination when making an adverse decision. In other words, “but for” causation under the ADEA means that age must have been the only factor in the employer’s decision making process.

The Tenth Circuit rejected the argument. It stated:

The Tenth Circuit has long held that a plaintiff must prove but-for causation to hold an employer liable under the ADEA (citations omitted). Moreover, we have concluded that his causal standard does ‘not require [plaintiffs] to show that age was the sole motivating factor in the employment decision.’ (Citations omitted)

Instead, an employer may be held liable under the ADEA if other factors contributed to its taking an adverse action, as long as ‘age was the factor that made a difference.’ (citations omitted)

Gross does not hold otherwise … and does not place a heightened evidentiary requirement on ADEA plaintiffs to prove that age was the sole cause of the adverse employment action.

McDonnell Douglas Applies To the ADEA

Under the McDonnell Douglas framework of proving discrimination claims, a plaintiff may survive summary judgment by proving circumstantial rather than direct evidence of discrimination. To do that:

• the plaintiff must first demonstrate a prima facie case of unlawful discrimination
  

• if she succeeds at this first stage, the burden of production shifts to the employer to identify a legitimate, nondiscriminatory reason the adverse employment action
  

• once the employer advances its reason, the burden shifts back to the employee to prove that the employer’s proffered reason was pretextual

Most circuits have long held that plaintiffs can use the McDonnell Douglas three step analysis to prove age discrimination. The problem is that Gross left open the question of whether the McDonnell Douglas framework was applicable to the ADEA.  The Court addressed the issue. It stated:

Although we recognize that Gross created some uncertainty regarding burden-shifting in the ADEA context, we conclude that it does not preclude our continued application of McDonnell Douglas to ADEA claims. .. While Phillips (citation omitted) is not precedential, we agree with its reasoning and join all of our sibling circuits that have addressed this issue. (citations omitted)

In sum, the Tenth Circuit joined the majority of other circuits, in holding that McDonnell Douglas applies to ADEA cases which permits proof of discrimination through a framework of inference and circumstantial evidence.

Jones Suffered An Adverse Action

In applying McDonnell Douglas to the case, Jones was required to prove that:

1) she was a member of the protected class

2) she suffered an adverse employment action

3) she was qualified for the position at issue and

4) she was treated less favorably than others not in the protected class

OKC did not dispute that Jones was protected by the ADEA, qualified for her former position, and that she was treated less favorably than others not in the protected class.

It contended that she did not suffer an adverse employment action because she remained in a job with similar responsibilities and a daily rate that was almost exactly the same as her per diem rate as a director. Therefore, according to the defense, she had no case.

The Court rejected this argument pointing to evidence of:

• a $17,000 decrease in salary the following year after her reassignment
• an immediate reduction of vacation benefits
• a reduction of retirement benefits

The Court also noted:

Although OKC argues that Jones did not experience a demotion, she certainly lost professional prestige and fell to a lower position in the district’s hierarchy. Also, OKC’s argument that a five-dollar reduction in daily pay is not sufficient to constitute an adverse employment action is simply incorrect. All told, the record in this case conclusively shows that Jones suffered and adverse employment action and proved a prima facie case of age discrimination.

The District Court Erroneously Applied A “Pretext Plus” Standard

In discrimination cases which use the McDonell Douglas framework, once the employer advances its reason for the adverse employment action, the burden shifts back to the employee to prove that the employer’s proffered reason was pretextual – in other words, not believable or false.

As explained by the Court:

A plaintiff produces sufficient evidence of pretext when she shows such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that her employer did not act for the asserted non-discriminatory reasons.

There was a period of time in which some courts required plaintiffs using the McDonnell Douglas framework to show pretext plus produce additional evidence of discrimination in order to avoid summary judgment. In 2000, the Supreme Court squarely rejected the so called “pretext plus” standard in Reeves.

As the Court noted:

Reeves expressly held that ‘a plaintiff’s prima facie case [of discrimination] combined with sufficient evidence to the find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.’

No additional evidence is necessary because proof that the defendant’s explanation is unworthy of belief is simply one form of circumstantial evidence that is probative of intentional discrimination.

In this case, OKC proffered two reasons for Jones reassignment:

• the superintendant’s reorganization of IKC’s executive team was done in a revenue ne-neutral fashion

• the superintendant’s believed that Jones former position contained only narrow duties that could be absorbed by other directors

Jones produced evidence of pretext:

• her former position stayed on the books for the 2007-2008 fiscal year

• staff in her department stayed employed in the same positions after her transfer

• a new position, with duties just like her former position, was created shortly after her transfer

She also produced evidence of discrimination which included age-related comments by three executive directors all involved in the reassignment decision.

The district court concluded that Jones had created only a weak issue of fact as to whether the employer’s reason for its decision was untrue and that there was abundant evidence that no discrimination had occurred.

The Court of Appeals reversed. It held that Jones’ evidence was sufficient to satisfy McDonnell Douglas’s third step and that the district court’s grant of summary judgment was improper.

According to the Court, the district court:

• “improperly favored OKC’s version of the facts” when it was “required to view the facts in the light most favorable to Jones.”

• refused to consider Jones evidence of discrimination which included age-related comments by three executive directors all involved the reassignment decision

• erroneously applied “pretext plus.”

As the Court stated:

Rather than properly applying Reeves, the district court erroneously held Jones to the discredited pretext plus standard. The court faulted Jones for not presenting ‘additional evidence that age was a determining factor in her reassignment. But after showing that OKC’ s reasons for her transfer were pretextual, Jones was under no obligation to provide additional evidence of age discrimination. (citations omitted)  Accordingly, . . . we reverse the district court’s grant of summary judgment and REMAND for further proceedings.

Take Away

This case covers so much territory on the ever changing battlefield of age discrimination law. It should be very helpful to those facing arguments under Gross which suggest that plaintiffs in age discrimination cases should be held to a higher or different standard of proof than employees in other kinds of discrimination cases.

It gives a much needed reminder that an application of “pretext plus,” even when disguised in a different form, is reversible error.

The case also serves as an admonition to courts to refrain from the all too common practice of crediting an employer’s version of facts over an employee’s instead of  viewing the facts in the light most favorable to the employee opposing summary judgment.

Even though Reeves has been around for ten years, it seems that some just don’t get it, so thanks to the Tenth Circuit for this very cogent reminder.

This article was originally posted on Employee Rights Blog.

About the Author: Ellen Simon: is recognized as one of the leading  employment and civil rights lawyers in the United States.She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.