Two years ago, the United States Supreme Court held that plaintiffs claiming age discrimination under the Age Discrimination in Employment Act (“ADEA”) must show by a preponderance of the evidence that age was the “but for” cause of the adverse employment action. Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343 (2009). The Supreme Court held: “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.” Id. at 2352. The Supreme Court, however, declined to answer whether the use of the familiar burden-shifting scheme of McDonnell Douglas Corp. v. Green was still appropriate in the context of ADEA claims.
After the Gross decision, some circuits continued to apply the evidentiary framework articulated in McDonnell-Douglas. Gorzynski v. Jetblue Airways Corp., 596 F.3d 93, 106 (2nd Cir. 2010); Geiger v. Tower Auto., 579 F.3d 614, 622 (6th Cir. 2009); Smith v. City of Allentown, 589 F.3d 684, 691 (3rd. Cir. 2009). While the Eighth Circuit had opportunities to address the issue in these last two years, it chose to punt the issue for a later time. See, e.g., Clark v. Matthews Int’l Corp., 628 F.3d 462 (8th 2010) (declining to apply the McDonnell-Douglas framework because the plaintiff did not argue for the application of the burden-shifting analysis in the district court.)
Two years after the Supreme Court’s decision in Gross, the Eighth Circuit has finally ruled on this issue in Haigh v. Gelita USA, Inc., ___ F.3d. ___, 2011 WL 260303 (8th Cir. Jan. 28, 2011). In Haigh, the Court affirmed the district court’s granting of summary judgment in favor of the employer. The Court held that, “In order to prove his claim, [plaintiff] must show, by a preponderance of the evidence, that age was the ‘but-for’ cause of the challenged adverse employment action.” The Court was then forced to take a stance on the effect of the Gross decision and held that ADEA plaintiffs’ claims must be analyzed under the familiar burden-shifting scheme of McDonnell-Douglas.
Under this burden shifting scheme, an employee is required to show that (1) he is at least 40 years old; (2) he was terminated; (3) he was meeting his employer’s reasonable expectations at the time he was terminated; and (4) he was replaced by an individual who was substantially younger. Id. If an employee establishes this prima facie case of age discrimination, the burden shifts to the employer to provide a legitimate, nondiscriminatory reason for the termination. If the employer provides such a reason, the burden returns to the employee to prove that the employer’s reason was mere pretext for discrimination. In Haigh v. Gelita, the Eighth Circuit affirmed the district court’s granting of summary judgment to the employer because the employer provided a legitimate non-discriminatory reason for its discharge of the employee because the employee had refused to work with his new manager.
This case in important for Employment Law attorneys practicing within the Eighth Circuit. Employment lawyers have been in limbo since the Supreme Court’s decision in Gross and were unsure whether the burden-shifting framework of McDonnell-Douglas still applied in ADEA cases in the Eighth Circuit. Now that the Eighth Circuit has made a definitive ruling on this issue, there is more certainty as to how the law will be applied in age discrimination cases under the ADEA.