'Mixed Motive' Is Not 'Sole Motive' in Age Discrimination Case
Age discrimination is a strange animal in the federal circuits. Case law-wise, it shares many similarities with Title VII cases, but the jurisprudence is slightly different.
In Leal v. McHugh, the Fifth Circuit tackled a case that exemplifies some of the quirks of age discrimination cases, as well as the low standard of meeting a pleading burden.
Older Employees Passed Over for Promotion
George Leal and John M. Lozano were both employees at the Corpus Christi Army Depot (CCAD) since the mid-1980s, during which time they received multiple promotions and positive performance evaluations and awards. However, in 2009, they were both passed over for a higher position because a CCAD supervisor allegedly preferred some "new blood" in his department.
After unsuccessfully filing complaints with the Equal Employment Opportunity Commission (EEOC), Leal and Lozano filed suit against the Army for age discrimination under the Age Discrimination in Employment Act (ADEA) of 1967.
The district court in 2011 granted a 12(b)(6) motion to dismiss the pair's age discrimination claim, citing Gross v. FBL, a U.S. Supreme Court case that disapproved of "mixed motive" cases in age discrimination.
"Mixed motive" in the district court's mind was evinced from the plaintiffs' complaint, wherein they discussed a supervisor both discriminating based on age and his past relationship with a potential hire.
Surprised that the district court was getting this in-depth on a 12(b)(6) motion, the Leal court reversed the dismissal and offered some insight.
Procedural Burdens and ADEA
First up, the Fifth Circuit reminded the lower court that the burden for pleading is really pretty small -- see Ashcroft v. Iqbal, Twombly, etc. -- which is why courts rarely grant them.
Second, "mixed motive" does not mean "sole motive," and the fact that the appellants had two reasons to believe that the CCAD supervisor passed them over for the position does not negate their claims.
Under Gross, plaintiffs wishing to succeed on ADEA claims need to prove that their ages were the but-for cause of the adverse employment action, and a but-for cause can still exist despite additional, possibly inconsistent allegations.
Additionally, the Fifth Circuit noted that Leal and Lozano are perfectly free under FRCP 8(d) to plead inconsistent claims or facts under their blanket ADEA claim.
The Leal court refused to rule on the applicability of the Gross standard toward federal cases (the D.C. Circuit has claimed it does not apply), and remanded the case based on the improper 12(b)(6) dismissal.
Leal and Lozano did present a plausible case for age discrimination under the ADEA, and future burdens of proof that may be the subject of a summary judgment motion (i.e., plaintiffs providing evidence of a but-for discriminatory motive) are not proper grounds for granting a motion for failure to state a claim.
- Madigan v. Levin: SCOTUS to Resolve Discrimination Circuit Split (FindLaw's U.S. Seventh Circuit Blog)
- Age Gap Must Be 'Significant' to Support Discrimination Claim (FindLaw's U.S. Sixth Circuit Blog)
- Court Cuts Down Award in Raytheon Age Discrimination Case (FindLaw's U.S. Fifth Circuit Blog)
- Pascal and Pretext: Court Reinstates Age Discrimination Claim (FindLaw's U.S. Eleventh Circuit Blog)