IN THE UNITED STATES COURT OF APPEAL FOR THE THIRD CIRCUIT _______________________ No. 11-3852 _______________________ DR. LAWRENCE ROBINSON, Plaintiff-Appellant, v. CITY OF PHILADELPHIA, DR. DONALD SCHWARTZ, KARLA HILL, and ALBERT L. D’ATTILIO, Defendants-Appellees. _______________________________________ On Appeal from the United States District Court for the Eastern District of Pennsylvania The Honorable Berle M. Schiller, District Judge ______________________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLANT ______________________________________________________________ P. DAVID LOPEZ General Counsel EQUAL EMPLOYMENT OPPORTUNITY COMMISSION CAROLYN L. WHEELER Acting Associate General Counsel Office of General Counsel 131 M Street, N.E., 5th Floor DANIEL T. VAIL Washington, DC 20507 Acting Assistant General Counsel 202-663-4721 barbara.sloan@eeoc.gov BARBARA L. SLOAN (FAX) 202-663-7090 Attorney TABLE OF CONTENTS Page STATEMENT OF INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUE. . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings. . . . . . . . . . . . 2 2. Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . 3 3. District Court’s Decision. . . . . . . . . . . . . . . . . . . . . . .6 STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . 8 ARGUMENT The Supreme Court’s Decision In Gross Did Not Disturb This Court’s Precedent Rejecting The Notion That Plaintiffs Suing Under Section 4(a)(1) Of The ADEA Must Prove That Age Was The Sole Cause Of A Challenged Employment Action. . . . . . . . . . . . . . . . . . . . . . 9 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . 23 CERTIFICATE OF IDENTICALLY FILED BRIEFS, VIRUS SCAN, AND BAR MEMBERSHIP. . . . . . . . . . . . . . . . . . . . . . . . 24 CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . .25 TABLE OF AUTHORITIES CASES Page(s) Andreoli v. Gates, 482 F.3d 641 (3d Cir. 2007). . . . . . . . . . . . . . . . . . . . . 9 Celotex Corp. v. Catrett, 477 U.S. 317 (1986). . . . . . . . . . . . . . . . . . . . . . . . 8 Fuentes v. Perskie, 32 F.3d 759 (3d. Cir. 1994). . . . . . . . . . . . . . . . . . . . 9, 12 Geiger v. Tower Automotive, 579 F.3d 614 (6th Cir. 2009). . . . . . . . . . . . . . . . . . . . . 17 Gross v. FBL Financial Services, 129 S. Ct. 2343 (2009). . . . . . . . . . . . . . . . . . . . . passim Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993). . . . . . . . . . . . . . . . . . 12, 14-16, 20 Jones v. Oklahoma City Public Schools, 617 F.3d 1273 (10th Cir. 2010). . . . . . . . . . . . . . . . . . 17-18 Keller v. Orix Credit Alliance, 130 F.3d 1101 (3d Cir. 1997) (en banc). . . . . . . . . . . . . . . 16 Leibowitz v. Cornell University, 584 F.3d 487 (2d Cir. 2009). . . . . . . . . . . . . . . . . . . . . 17 McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273 (1976). . . . . . . . . . . . . . . . . . . . . . . 11, 20 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). . . . . . . . . . . . . . . . . . . 6, 10-12, 16-17 Miller v. Cigna Corp., 47 F.3d 586 (3d Cir. 1995) . . . . . . . . . . . . . . . . . . passim Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), modified in part by 1991 Civil Rights Act § 107, Pub. L. 102-166...10, 12,14 Reeves v. Sanderson Plumbing Products, 530 U.S. 133 (2000). . . . . . . . . . . . . . . . . . . . . . . . 11-12 Shager v. Upjohn Co., 913 F.2d 398 (7th Cir. 1990). . . . . . . . . . . . . . . . . . . . . 14 Shelley v. Geren, 2012 WL 89215 (9th Cir. Jan. 12, 2012). . . . . . . . . . . . . . . . .17 Smith v. City of Allentown, 589 F.3d 684 (3d Cir. 2009). . . . . . . . . . . . . . . 8, 15-17, 20-21 St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993) . . . . . . . . . . . . . . . . . . . . . . . 11, 13 Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . 11 Velez v. Thermo King de Puerto Rico, 585 F.3d 441 (1st Cir. 2009) . . . . . . . . . . . . . . . . . . . . . 17 Wardlaw v. City of Philadelphia Streets Dep’t, 2009 WL 2461890 (E.D. Pa. Aug. 11, 2009), aff'd, 378 Fed. App’x 222 (3d Cir. Apr. 29, 2010) . . . . . . . .8, 18-20 Wardlaw v. City of Philadelphia Streets Dep’t, 378 F.3d App’x 222 (3d Cir. Apr. 29, 2010) . . . . . . . . . . . . 20-21 STATUTES and RULES The Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. . . . . . . . . . . . . . . . . . . . . . . . 1 29 U.S.C. § 623(a)(1). . . . . . . . . . . . . . . . . . . . . passim Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq . . . . . . . . . . . . . . . . . . . . passim Federal Rule of Civil Procedure 56(c). . . . . . . . . . . . . . . . . . . . 8 Third Circuit Internal Operating Procedure 5.7. . . . . . . . . . . . . . . 20 IN THE UNITED STATES COURT OF APPEAL FOR THE THIRD CIRCUIT _____________________ No. 11-3852 _____________________ DR. LAWRENCE ROBINSON, Plaintiff-Appellant, v. CITY OF PHILADELPHIA, DR. DONALD SCHWARTZ, KARLA HILL, and ALBERT L. D’ATTILIO, Defendants-Appellees. ________________________________________________ On Appeal from the United States District Court for the Eastern District of Pennsylvania The Honorable Berle M. Schiller, District Judge ____________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLANT ____________________________________________________ STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency charged by Congress with interpreting and enforcing the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. (“ADEA”), Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”), and other federal anti-discrimination statutes. This appeal concerns the proper interpretation of Gross v. FBL Financial Services, 129 S. Ct. 2343, 2350-51 (2009), a recent Supreme Court decision holding that for all claims under § 4(a)(1) of the ADEA, plaintiffs bear the burden of proving that “age was the but-for cause of the employer’s adverse action.” The district court here interpreted that holding to mean that age must be the “sole reason” for the challenged employment decision. This Court has long recognized that “but-for” cause and “sole” cause are not the same. Gross did not hold otherwise, and the Court should not now rule to the contrary. Because multiple factors may well contribute to an age-based decision, such an interpretation of Gross, if allowed to stand, would frequently present plaintiffs with a nearly insurmountable hurdle and, so, could undermine the efforts of both private plaintiffs and the Commission to enforce the ADEA. We therefore offer our views to this Court. STATEMENT OF THE ISSUE<1> Did the district court err in concluding that to establish a violation of section 4(a)(1) of the ADEA, Gross requires that plaintiffs prove that age was the “sole” reason for the challenged adverse employment decision? STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings This is an appeal from an order of the United States District Court for the Eastern District of Pennsylvania granting partial summary judgment and dismissing plaintiff’s claim under the ADEA. In 2009, plaintiff brought suit in the Court of Common Pleas of Philadelphia County, alleging inter alia that he was terminated because of his age and race in violation of the ADEA, Title VII, and state law. In March 2010, defendants removed the case to federal court. District court docket number (“R.”)1. In July 2011, defendants moved for summary judgment (R.33), and plaintiff opposed the motion. R.35. On August 17, the district court issued a Memorandum and Order, granting in part and denying in part defendants’ motion. In the order, the court dismissed plaintiff’s age claims but denied summary judgment on the race claims. R.36 (“Mem.”), 37 (“Order”); see also R.42 (Order denying reconsideration). In October 2011, the race claims were tried to a jury, which ruled for defendants. R.59. Judgment was entered on October 12, 2011. R.60. On October 17, plaintiff filed a notice of appeal. R.61. 2. Statement of Facts<2> Plaintiff Dr. Lawrence Robinson, a Philadelphia native, is a graduate of Harvard College, the University of Pennsylvania Medical School, and the Johns Hopkins School of Public Health. Mem. 1. In 1992, Robinson became the Deputy Health Commissioner for Health Promotion in Philadelphia’s Department of Public Health (“DPH”). As Deputy Commissioner, Robinson was responsible for strategic public health promotion, evaluating health promotion campaigns, maintaining relationships with local and state health agencies, and coordinating efforts to obtain government and private funding. Mem. 2. He was also familiar with “general principles of epidemiology,” as well as “principles, practices, and techniques of statistics as applied to medical research and public health,” and “with evaluat[ing] scientific data in order to implement public health policies.” Id. During his career at DPH, Robinson received a number of awards and other recognition, including selection as Philadelphia Medical Society’s 2006 Practitioner of the Year. Id. By early 2009, he was 53 years old and earning approximately $123,000/year. Id. In January 2008, Dr. Robert Schwartz became DPH Commissioner and Robinson’s immediate supervisor. Then, in the summer of 2008, Schwartz began “courting a particular younger doc at Penn,” Dr. Giridhar Mallya, who was in his early 30s. Mem. 4, 10 (quoting 9/19/2008 email from Schwartz). Although DPH had no formal vacancy for Mallya at the time, on September 18, 2009, Schwartz offered Mallya a newly-created position, Director of Policy and Planning. In that position, Mallya would be performing “somewhat similar functions” as Robinson and would be earning $130,000/year, somewhat more than Robinson was earning. See Mem. 4. Mallya accepted the position and began working at DPH in early October 2008. Shortly before Mallya was hired, DPH and other City agencies were told that, because of a city-wide financial crisis, hiring would be sharply limited and budgets would be reduced. Unlike some other agencies, DPH opted to meet its budget cuts by laying off employees. On December 5, 2008, Schwartz called Robinson and told him that he would be laid off, effective January 16, 2009. Mem. 3. Robinson asked to be demoted, or bumped down to a lower level position, but this request was denied. Because he would lose health insurance and other benefits if he were laid off, on January 15, Robinson submitted paperwork requesting early retirement. Id. He then filed suit, alleging in pertinent part that he had been laid off because of his age and race. Defendants moved for summary judgment, arguing that Robinson was laid off because of the budget crisis. In opposing this motion, Robinson pointed to Schwartz’s email and noted that Mallya had been hired to do work for which Robinson himself was qualified. He also proffered evidence concerning another DPH physician, Dr. James Dean, who is white and in his mid-40’s and, like Robinson, was slated for layoff in January 2009. After Dean’s request for demotion was denied, however, he was able to secure another position at DPH, beginning the day after Robinson accepted early retirement. Mem. 5 (adding that Dean’s farewell email stated that Schwartz and DPH HR Director Karla Hill had been “tremendously helpful” in helping him identify layoff alternatives). Robinson noted that he was not told of or offered this position even though he was qualified for it. And, he contended, the fact that his layoff score was higher than Dean’s meant that he, rather than Dean, was arguably entitled to the job. In addition to his evidence regarding Mallya and Dean, Robinson pointed out that Dr. Robert Hodge, another African-American doctor in his fifties, had complained that he faced discrimination, based on age and race, at DPH. In his complaint, Hodge also noted that other “‘educated and qualified black males [at DPH] are less inclined to reap the same benefits as our white counterparts.’” Mem. 7-8 (citing 7/9/2008 email from Hodge). 3. District Court’s Decision The district court granted in part and denied in part defendants’ motion for summary judgment. The court first considered plaintiff’s Title VII race discrimination claim. Analyzing the evidence under the three-step burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973), the court concluded that Robinson made out a prima facie case with evidence that Hodge had also complained that “educated and qualified black males [at DPH] are less inclined to reap the same benefits as our white counterparts.” Mem. at 7-8. In addition, the court concluded, while defendants carried their burden of articulating a legitimate, nondiscriminatory reason by pointing to the budget crisis, plaintiff adequately demonstrated pretext with evidence that (1) despite the budget crisis, DPH created a similar position for Mallya at a higher salary than Robinson was earning; and (2) DPH helped Dean, a white doctor, obtain a position that Robinson should have been entitled to based on his layoff score. Mem. 8. Accordingly, the court refused to dismiss the claim under Title VII. In contrast, the court concluded that the evidence was not sufficient to withstand summary judgment on plaintiff’s claim under the ADEA. Citing Gross, 129 S. Ct. at 2350, the court noted that, to “establish unlawful age discrimination under the ADEA, the plaintiff must prove that age was the ‘but-for’ cause of the defendant’s adverse action.” Mem. 9. In the court’s view, this meant that plaintiff must show that “age was the sole cause” of the challenged action. See Mem. 10. The court reasoned that Robinson failed to carry this burden. While Robinson cited the email from Schwartz describing Mallya as a “particular younger doc,” the court noted that the email “contains no mention of Dr. Robinson and comments positively on Dr. Mallya’s credentials.” Mem. 10. Moreover, the court reasoned, even assuming Mallya could be considered Robinson’s “replacement,” Schwartz explained that Mallya was hired for “his unique skills in analyzing data and that Robinson lacked those skills.” Id. Given defendants’ evidence that Robinson was “also terminated because of the budget crisis,” the court concluded, the evidence was “insufficient for a jury to conclude that age was the sole reason for Dr. Robinson’s termination.” Mem. 10 (citing Wardlaw v. City of Phila. Streets Dep’t, 2009 WL 2461890, at *7 (E.D. Pa. Aug. 11, 2009), aff’d, 378 Fed. App’x 222 (3d Cir. Apr. 29, 2010)). Plaintiff moved for reconsideration, arguing that “sole cause” is not the proper standard for causation under the ADEA. R.38. The court summarily denied the motion, adding in a footnote that even if the court did “misread” Gross as requiring that discrimination be the sole cause of the alleged adverse action, the evidence would not suffice under the pre-Gross standard for pretext. R.42 (Reconsideration Order at 1 n.1). STANDARD OF REVIEW This Court exercises “plenary review” over an appeal from a grant of summary judgment. Smith v. City of Allentown, 589 F.3d 684, 689 (3d Cir. 2009) (citation omitted). The Court applies the same standard the district court should have applied — whether “‘the pleadings, deposition, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact’” and whether “‘the moving party is entitled to judgment as a matter of law.’” See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) (quoting Fed. R. Civ. P. 56(c)). When deciding a motion for summary judgment, this Court, like the district court, must view the facts in the light most favorable to the nonmoving party and draw all reasonable inferences in that party’s favor. Andreoli v. Gates, 482 F.3d 641, 647 (3d Cir. 2007). In suits under Title VII or the ADEA, summary judgment is not appropriate where, based on evidence of “weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action,” a “reasonable factfinder could rationally find [the proffered reasons] ‘unworthy of credence.’” Fuentes v. Perskie, 32 F.3d 759, 765 (3d. Cir. 1994) (emphasis in original). ARGUMENT The Supreme Court’s Decision In Gross Did Not Disturb This Court’s Precedent Rejecting The Notion That Plaintiffs Suing Under Section 4(a)(1) Of The ADEA Must Prove That Age Was The Sole Cause Of A Challenged Employment Action. The district court erred in holding that to withstand summary judgment on a claim under § 4(a)(1) of the ADEA, a plaintiff must establish that age was the “sole reason” for a challenged employment decision. As this Court has long recognized, a plaintiff can prevail in an ordinary discriminatory-discharge claim like this one under the ADEA by showing “but-for” causation – that is, that age “actually played a role in [the decisionmaking process] and had a determinative influence on the outcome” of that process. See, e.g., Miller v. Cigna Corp., 47 F.3d 586, 595-98 (3d Cir. 1995) (en banc). Contrary to the district court’s decision here, the Supreme Court’s decision in Gross v. FBL Financial Services, 129 S. Ct. 2343 (2009), did not redefine the concept of “but-for” causation or hold that to meet that standard, plaintiff must show that age was the “sole cause” of the challenged treatment. Rather, it remains true that the plaintiff can show but-for causation even if other non-age factors were also present. Section 4(a)(1) of the ADEA makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual . . . because of such individual’s age.” 29 U.S.C. § 623(a)(1). In Price Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989), the Supreme Court held that an employer could be liable for discriminating “because of” a protected trait even if the trait is only one of the reasons motivating the employer.<3> In such “mixed motives” cases, if a plaintiff showed that a trait such as race or sex was a motivating factor in a challenged employment decision, the employer could avoid liability only if it proved that it would have made the same decision even if the prohibited factor had not been considered. However, in the vast majority of disparate-treatment cases, plaintiffs do not seek to prove discrimination using the “mixed motives” framework. Instead, plaintiffs attempt to prove that the protected trait was a “but-for” or “determinative” factor in the challenged decision. Ordinarily, to carry that burden, plaintiffs rely on the three-step burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). Under the McDonnell Douglas framework, the plaintiff initially makes out a prima facie case. See, e.g., Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 142 (2000) (listing possible elements). Once he carries this burden, which is “not onerous,” the burden shifts to the defendant to produce evidence that the decision was made for a “legitimate nondiscriminatory reason.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). At that point, the burden shifts back to the plaintiff to persuade the factfinder that, for example, the legitimate reason offered by the defendant was not the true reason but was a pretext for discrimination. Reeves, 530 U.S. at 142-43 (2000) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507-08 (1993); Burdine, 450 U.S. at 253). In these “pretext” cases, unlike in “mixed-motives” cases, only the burden of production, not persuasion, shifts to the defendant. Nevertheless, it is well settled that to sustain their burden of persuasion in a pretext case, plaintiffs need not show that the trait was the “sole” reason — or even a “predominant” reason — for the decision. Rather, the standard is “but-for” or “determinative” cause. See, e.g., McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 282 n.10 (1976) (stating in Title VII case that plaintiff need not show he was rejected “solely” on the basis of race: “no more is required … than that race was a ‘but for’ cause”); Reeves, 530 U.S. at 141 (stating that “plaintiff’s age must have ‘actually played a role in [the employer’s decisionmaking] process and had a determinative influence in the outcome’”) (citing Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)); Hazen Paper, 507 U.S. at 610, 617 (same, also stating that in ADEA case, to show willfulness, plaintiff need not prove that age was a “predominant” rather than just a “determinative” factor). As this Court explained, “[t]o prevail at trial, the plaintiff must prove not that the illegitimate factor was the sole reason for the decision, but that [it] was a determinative factor in the adverse employment decision, that is, that but for the protected characteristic, the plaintiff would have been hired (or promoted)” — or, in this case, retained. See Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994) (emphasis in original). “But-for” and “sole” cause are simply not the same. Although Price Waterhouse and McDonnell Douglas arose under Title VII, this Court and others have extended the same analyses to claims under the ADEA. See Gross, 129 S. Ct. at 2355 n.5 (Stevens, J., dissenting) (listing appellate courts that had applied Price Waterhouse to age claims); Reeves, 530 U.S. at 140-41 (listing appellate courts that apply McDonnell Douglas to age claims). Thus, in Miller v. Cigna Corp., 47 F.3d 586, 597-98 & n.9 (3d Cir. 1995), this Court, sitting en banc, concluded that while the motivating-factor/mixed-motives theory of liability applies to a “small subset” of age cases, most ADEA claims are pretext cases analyzed under the McDonnell Douglas framework. In pretext cases, the Court explained, the standard is “but-for” causation. Id. at 595-96, 598. It is therefore the “plaintiff’s burden is to show that [age] played a role in the decisionmaking process and that it had a determinative influence on the outcome in that process.” Id. at 597. At the same time, however, the Miller Court expressly rejected the view that a plaintiff alleging disparate treatment age discrimination must prove that the treatment was caused only by the plaintiff’s age. See generally 47 F.3d 586. The Court concluded that, absent further direction from Congress, “because of” age should not construed to mean “solely because of” age, adding that this understanding of the standard is confirmed by Hazen Paper as well as St. Mary’s Honor Center v. Hicks, 509 U.S. 510, 510-15 (1993). Id. at 593-97.<4> The Miller Court recognized that multiple factors may contribute to a decision that nevertheless ultimately turns on age. By way of illustration, the Court suggested that an employer might proffer evidence that it discharged the plaintiff because of his performance. Yet, even if the factfinder agreed that plaintiff’s performance played a role in the discharge decision, the employer would still be liable if evidence showed that the plaintiff would not have been fired if he had been younger: but for his age, he would have been retained. Id. at 597-98 (adding that “[t]he ADEA’s protection against age discrimination is not limited to perfectly qualified employees”) (citing Shager v. Upjohn Co., 913 F.2d 398, 403 (7th Cir. 1990)). In Gross v. FBL Financial Services, 129 S. Ct. 2343 (2009), the Supreme Court altered this settled understanding of age discrimination law in one important way. It held that a plaintiff in an ADEA case may not shift the burden of persuasion to the defendant by proving that age was a “motivating factor” in the challenged decisionmaking. Instead, the Court held, to establish a violation of § 4(a)(1), a plaintiff always bears the burden of persuasion and must always prove that the challenged adverse action would not have occurred but for his age. Id. at 2350-51; see also id. at 2349-50 & n.3 (refusing to apply the rationale of Price Waterhouse to the ADEA). The Court did not, however, offer any new definition of “but-for” causation or otherwise impose any “heightened evidentiary burden” on the plaintiff. See id. at 2351 n.4. The Gross Court based its holding on its interpretation of the statutory text and the term “because of … age.” Id. at 2350. Observing that the “words ‘because of’ mean ‘by reason of’ or ‘on account of,’” the Court noted that “the ordinary meaning of the ADEA’s requirement that an employer took the adverse action ‘because of’ age is that age was the ‘reason’ that the employer decided to act.” Id. (inter alia, citing Hazen Paper, 507 U.S. at 610, for the proposition that an ADEA claim “‘cannot succeed unless the employee’s [age] actually played a role in [the employer’s decisionmaking] process and had a determinative influence on the outcome’”) (emphasis added in Gross). And, because the statutory text nowhere suggests that Congress intended to override the “ordinary default rule” requiring plaintiffs to bear the burden of persuasion, the Court found no justification for shifting that burden to the defendant — even if the plaintiff could prove that age was “one motivating factor” — in claims under § 4(a)(1). Id. at 2351, 2352. In short, the Court concluded, the plaintiff always “retains the burden of persuasion to establish that age was the ‘but-for’ cause of the employer’s adverse action.” Id. at 2351-52. While Gross did alter the legal landscape for age discrimination claims, however, its scope is sharply limited. Gross is about the burden of proof. Nothing more. As this Court put it, “Gross stands for the proposition that it is improper to shift the burden of persuasion to the defendant in an age discrimination case.” Smith v. City of Allentown, 589 F.3d 684, 691 (3d Cir. 2009). Instead, the plaintiff alleging a violation of § 4(a)(1) always bears the burden of proving that but for his age, the challenged employment action would not have occurred. Id. at 690. But Gross in no way suggests that the plaintiff cannot prevail merely because the case involves multiple motives.<5> Moreover, precisely because of its limited scope, Gross does not require this Court to revisit — and overrule — all of its existing caselaw regarding claims under § 4(a)(1) of the ADEA. To the contrary, as this Court stressed in Smith, the Court “may not depart from [its] prior decisions … unless those decisions are irreconcilable with Gross.” Id. at 691. Thus, in Smith, this Court rejected an argument that it should stop applying the McDonnell Douglas framework in suits under the ADEA in light of language in Gross noting that the Supreme Court “had never definitively applied McDonnell Douglas to ADEA claims.” Smith, 589 F.3d at 691 (citing Gross, 129 S. Ct. at 2349 n.2); see also id. at 689 (citing Keller v. Orix Credit Alliance, 130 F.3d 1101, 1108 (3d Cir. 1997) (en banc), as holding that McDonnell Douglas does apply to ADEA claims). In the Court’s view, “the but-for causation standard required by Gross does not conflict with [the Court’s] continued application of the McDonnell Douglas paradigm in age discrimination cases.” Id. at 691. The Court explained that “throughout [McDonnell Douglas’s] burden-shifting exercise, the burden of persuasion, including the burden of proving ‘but-for’ causation …, remains on the employee.” Id. “Hence,” the Court concluded, “Gross, which prohibits shifting the burden of persuasion to an ADEA defendant, does not forbid our adherence to precedent applying McDonnell Douglas to age discrimination claims.” Id.<6> The same reasoning should resolve the question presented in this case — whether, as the district court here held, Gross requires plaintiffs to prove that age was the only reason the challenged employment action was taken. As noted above, nothing in Gross suggests that the Supreme Court was redefining “but-for” causation to mean “sole cause.” Hence, because Gross is in no way “irreconcilable” with Miller and other cases holding that “but-for” and “sole cause” are not the same, this Court should conclude, as it did in Smith, that the Court need not “depart” from its well-established precedent. Cf. Smith, 589 F.3d at 691. Rather, contrary to the district court’s ruling, a plaintiff need not prove that age was the only factor in an employment decision in order to establish liability in a suit under § 4(a)(1) of the ADEA. That is the conclusion reached by the only court of appeals to have expressly resolved this question thus far. See Jones v. Okla. City Pub. Schs., 617 F.3d 1273, 1277-78 (10th Cir. 2010). Noting that Gross “clarified that the ADEA requires ‘but-for’ causation,” the Tenth Circuit squarely rejected an argument that this entails proof that age was the only factor in the employer’s decisionmaking process. Jones, 617 F.3d at 1277 (citing Gross, 129 S. Ct. at 2351). Instead, the Court reasoned, under Tenth Circuit caselaw, “an employer may be liable under the ADEA if other factors contributed to its taking an adverse action as long as ‘age was the action that made a difference.’” Id. (citations omitted). And, the Court concluded, because “Gross does not hold otherwise,” the decision “does not disturb longstanding Tenth Circuit precedent by placing a heightened evidentiary requirement on ADEA plaintiffs to prove that age was the sole cause of the adverse employment action.” Id. at 1277-78. In holding, instead, that plaintiffs must prove that age was the only reason for the challenged employment decision, the district court here relied, for support, on Wardlaw v. City of Philadelphia Streets Department, 2009 WL 2461890, at *7 (E.D. Pa. Aug. 11, 2009), aff’d, 378 F.3d App’x 222 (3d Cir. Apr. 29, 2010). See Mem. at 10. That reliance is misplaced. In Wardlaw, a pro se plaintiff complained of discrimination based on race and sex as well as age but, according to the court, pressed her age claim only after and because her Title VII claims were dismissed on procedural grounds. 2009 WL 2461890, at *6. While its analysis of Gross is not completely clear, the Wardlaw court apparently assumed that there are only two possible types of causation in discrimination claims — mixed motives and sole cause. In its decision, therefore, the court conflated the terms “but for,” “determinative” factor, and “sole cause,” treating them as equivalent. See, e.g., 2009 WL 2461890, at *4 (noting that employer discriminates if age had a “determinative influence on the outcome,” and that plaintiff’s claim failed because “age was not the ‘but-for’ cause” of the alleged discrimination; no evidence “age was the sole cause” of the challenged treatment); accord id. at *7 (fact that Wardlaw was alleging race and sex as well as age discrimination strongly suggested that she could not “establish that age was the ‘but for’ reason” for the alleged discrimination). The court then apparently reasoned that, because Gross held that mixed-motives causation is unavailable under the ADEA, a plaintiff may prevail on a claim under the ADEA only by proving that age was the sole cause of the challenged employment action. See 2009 WL 2461890, at *4 (noting that Gross held that “the ADEA does not support so-called ‘mixed motive’ discrimination claims, where age-based discrimination is not the sole cause of an adverse employment decision”); id. at *7 (after Gross, plaintiff can prevail only if age is “the only reason for discrimination”). The Wardlaw court pointed to nothing in Gross — because there is nothing — suggesting that, after Gross, to establish that age was the but-for cause or determinative factor in a challenged employment decision, the plaintiff must now prove that the employer relied solely on his age. As discussed above, both the Supreme Court and this Court have recognized that age may be a “but-for” or “determinative” factor without being the “sole cause” of a challenged decision; the terms are not the same. See, e.g., Hazen Paper, 507 U.S. at 610, 617; McDonald, 427 U.S. at 282 n.10; Miller, 47 F.3d 587. In this regard, therefore, Wardlaw is simply wrong. We recognize that the district court’s decision in Wardlaw was affirmed by a panel of this Circuit. In our view, however, this affirmance does not signal that the Court has abandoned Miller and its well-reasoned rejection of a sole-cause requirement under the ADEA. Significantly, “one panel of the court cannot overrule the decisions of a prior panel unless the earlier disposition ‘is in conflict with Supreme Court precedent.’” Smith, 589 F.3d at 691 (citation omitted). No such conflict exists in this case. Moreover, the Wardlaw affirmance is unpublished and the section of the decision addressing the ADEA claim consists of a single paragraph. See 378 Fed. App’x, at *3 (3d Cir. Apr. 29, 2010). As such, the decision is not binding on later panels. See, e.g., Third Cir. I.O.P. 5.7 (unpublished opinions do not bind later panels). Nor does it seem likely that the Court would have cast aside its long-held understanding of “but for” causation implicitly and without discussion. Thus, although the Court stated that it was “rely[ing]” on the district court’s “analysis” as well as the “evidence presented with the motion for summary judgment” to “conclude that there would be little merit to an appeal of the judgment on the ADEA claim” (id.), this could not have been meant as an endorsement of the district court’s “bipolar view of causation” which the panel did not repeat and the Miller Court explicitly rejected (see 47 F.3d at 596). More reasonably, the statement should be read to mean that the Wardlaw panel was relying on the district court’s “analysis” of the evidence and its holding that the plaintiff did not meet her burden of showing that “age discrimination was the but- for cause of the complained-of action” (id.), as that term has historically been interpreted. Cf. Smith, 589 F.3d at 691 (stating that Gross requires “but-for” causation without suggesting that circuit interpretation of that term has changed). To avoid any further confusion, however, the Commission urges this Court to reaffirm that, after Gross as before, a plaintiff need not establish that age was the sole cause of a challenged employment decision. Rather, to withstand summary judgment, there need only be sufficient evidence, viewed in the light most favorable to the plaintiff, to support a finding of but-for causation — that age actually played a role in the employer’s decisionmaking process and had a determinative influence on the outcome of that process. CONCLUSION For the foregoing reasons, this Court should conclude that the district court erred in granting summary judgment to defendants on the ground that plaintiff’s evidence was insufficient to show that “age of the sole reason for [plaintiff’s] termination.” Respectfully submitted, P. DAVID LOPEZ General Counsel CAROLYN L. WHEELER Acting Associate General Counsel DANIEL T. VAIL Acting Assistant General Counsel /s/ Barbara L. Sloan BARBARA L. SLOAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., 5th Floor Washington, DC 20507 202-663-4721 barbara.sloan@eeoc.gov (FAX) 202-663-7090 CERTIFICATE OF COMPLIANCE I certify that the foregoing brief complies with the type-volume requirement set forth in Federal Rule of Appellate Procedure 32(a)(7)(B) because it contains 5,103 words from the Statement of Interest through the Conclusion, as determined by the Microsoft Word 2003 word processing program. This brief complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and the type style requirements of Federal Rule of Appellate Procedure 32(a)(6) because it has been prepared in a proportionally spaced type using Times New Roman 14- point font. /s/ Barbara L. Sloan BARBARA L. SLOAN Attorney for the Equal Employment Opportunity Commission Date: 24 January, 2012 CERTIFICATE OF IDENTICALLY FILED BRIEFS, VIRUS SCAN AND BAR MEMBERSHIP I hereby certify that the text of the electronically filed version of the brief of Amicus Curiae the Equal Employment Opportunity Commission, filed with this Court via the Court’s CM/ECF system on January 24, 2012, is identical to the text of the hard copies filed with the Court. I additionally certify that the electronic version of the brief was submitted to a virus check using Trend Micro OfficeScan version 10.0 and that no virus was detected. I also certify that, as an attorney of the federal government and representing a federal agency, I am not required to be a member of the bar of this Court. /s/ Barbara L. Sloan BARBARA L. SLOAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., 5th Floor Washington, DC 20507 202-663-4721 barbara.sloan@eeoc.gov CERTIFICATE OF SERVICE I certify that on January 24, 2012, I electronically filed this foregoing brief with the Clerk of the Court of the United States Court of Appeals for the Third Circuit by using the Court’s CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the Court’s CM/ECF system. /s/ Barbara L. Sloan BARBARA L. SLOAN ********************************************************************************** <> <1> The Commission takes no position on any other issue in the appeal. <2> Because the Commission has not fully examined the record in the case, this statement relies largely on the district court’s presentation of the facts. <3> The holding in Price Waterhouse was modified in part by § 107 of the Civil Rights Act of 1991, Pub. L. 102-166 § 107, and, as discussed infra at 14-15, was rejected as inapplicable to ADEA cases in Gross v. FBL Financial Services, 129 S. Ct. 2343, 2349-50 (2009). <4> While it may seem intuitive that a plaintiff in a pretext case must show that the prohibited factor is the only true reason (the proffered reason is not), Miller rejected this “bipolar view of pretext cases.” 47 F.3d at 596. The Court reasoned that under Hicks, the factfinder may, but need not, accept either of the reasons proffered by the parties as “reflecting the whole truth”; instead, the factfinder could find, e.g., that the employer’s reason “played a part but that the plaintiff would not have been fired if he or she were twenty years younger.” Id. at 596-97. <5> Indeed, the statement in Gross — that the burden of persuasion never shifts to the defendant even if plaintiff produces evidence that age was “one motivating factor” — strongly suggests that the Court recognized that multiple reasons may motivate an employment decision. See Gross, 129 S. Ct. at 2352. This is consistent with a statement in Hazen Paper acknowledging the possibility of “dual liability” under ERISA and the ADEA where evidence shows that a challenged decision was motivated by both pension status and age. See 507 U.S. at 613. <6> Other appellate courts have reached the same conclusion. See Shelley v. Geren, 2012 WL 89215, at *7 (9th Cir. Jan. 12, 2012); Jones v. Okla. City Pub. Schs., 617 F.3d 1273, 1278 (10th Cir. 2010); Velez v. Thermo King de P.R., 585 F.3d 441, 447 n.2 (1st Cir. 2009); Geiger v. Tower Auto, 579 F.3d 614, 622 (6th Cir. 2009); cf. Leibowitz v. Cornell Univ., 584 F.3d 487, 498 (2d Cir. 2009) (applying McDonnell Douglas to age claims after Gross without discussing Gross footnote).