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Archive for the tag “ADEA”

A Collection of Deaf Law Writings by James W. Cushing, Esquire

Over the course of my career, I have written extensively on a wide variety of deaf law issues.  These writings have been published in The Legal IntelligencerUpon Further Review, and The Pennsylvania Family Lawyer as well as posted onto my blog.  I have collected these articles and blog posts and have listed them below.  Thanks for reading!

A Collection of Employment, Civil Rights, and Labor Law Writings by James W. Cushing, Esquire

Over the course of my career, I have written extensively on a wide variety of employment, civil rights, and labor legal principles.  These writings have been published in The Legal IntelligencerUpon Further Review, and The Pennsylvania Family Lawyer as well as posted onto my blog.  I have collected these articles and blog posts and have listed them below.  Thanks for reading!


My Articles:

Coming of Age: Further Developments of the ADEA

The recent matter of Marcus v. PQ Corporation has seen the latest development in the application of the Age Discrimination in Employment Act (“ADEA”) since the U.S. Supreme Court’s decision in Gross v. FBL Financial Services, Inc., 129 S.Ct. 2343 (2009).

Marcus v. PQ Corp.,  Nos. 11-2009, 11-2006 slip op. (3rd Cir. Jan. 19, 2012), dealt with a handful of Plaintiffs who were all terminated from their employment with PQ Corporation (“PQ”) not long after PQ purchased their previous employer back in 2005.  All of the Plaintiffs were over fifty-five years old at the time of their termination and, as discovery eventually revealed, no one under fifty-five was terminated by PQ.  Consequently, due to what the Plaintiffs believed to be something other than coincidence as to their commonality of all being over fifty-five and terminated from their employment, they brought suit against PQ for violating the ADEA.  After a trial on the matter, a jury entered a verdict in favor of the Plaintiffs, awarding the two appealing Plaintiff sums of approximately $2.5 Million each.

After the trial, both parties appealed the decision: PQ appealed the decision on the basis of jury instructions and a matter of law, and the Plaintiffs appealed the decision on the basis of taking issue with the calculation of damages awarded.

PQ’s appeal was multifaceted with regard to its issues with the jury instructions, raising four different arguments.  PQ first argued that the jury instructions did not accurately reflect the “but-for” causation established by Gross.  Per the Grossdecision, in order for an employer to be liable under ADEA, a plaintiff must show that “but for” the alleged age discrimination, he would not have been terminated.  The court ruled that it would not reverse a decision unless the lower court’s jury instructions “as a whole fail to correctly state the burden of proof [and, r]ead together, [the lower court’s instructions] were not deficient.”

PQ next argued that the jury instructions should not have included an instruction indicating liability can attach to an employer due to the animus of a non-decision-maker (the so-called “cat’s paw”).  The court ruled that, under applicable law pursuant to the ADEA, “it is sufficient if those exhibiting discriminatory animus influenced or participated in the decision to terminate…[I]f a supervisor performs an act motivated by…animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment actions, then the employer is liable….”  The court further elaborated saying “the underlying principles of agency upon which subordinate bias theories are basedapply equally to all types of employment discrimination.”  Therefore, the instruction was appropriate.

PQ’s third argument was that the jury should have been given a specific business-judgment instruction.  A business-judgment instruction is one that makes it clear that an employer can make personnel decisions based on business considerations.  The court ruled that the jury instruction “the defendant had a right to hire and fire its employees whenever they [sic] wanted to, as long as they [sic] didn’t do it because of age” was sufficient to ensure the jury understood the law of business-judgment.

PQ’s fourth argument was that the lower court was not impartial in its jury instructions as a whole; however as the court ruled that the individual instructions described above were each acceptable, there is no question as to the impartiality of the instructions taken as a whole.

PQ then argued that judgment ought to have been entered in its favor as a matter of law.  When considering this argument, the court was unconvinced.  The court indicated that the Plaintiffs presented “considerable evidence” in support of their claims, including how PQ changed its reasons for termination over time, how it terminated only those employees over fifty-five years old, how the terminations are statistically significant as opposed to happenstance (even when controlling for alleged business decisions), and how statements from various people at PQ seemed to indicate a bias against older employees.  PQ argued that the evidence described above is insufficient to warrant a verdict in the Plaintiffs’ favor, however the court ruled that it is a jury’s discretion to weigh the evidence available and the above is sufficient to justify is verdict.

Finally, PQ argued that the award of the jury was inappropriate as it awarded damages for emotional distress in the absence of serious harm.  PQ argued that the size of the award reflected the jury’s ruling on passion and prejudice as opposed to measured consideration and, therefore, PQ should be entitled to a new trial.  The court quickly dismissed this argument citing well established case law indicating that the size of an award is not enough to prove the verdict was rendered due to passion and prejudice.  PQ then argued that the jury must have rendered its verdict due to passion and prejudice because it only spent three hours to deliberate, however again the court was not persuaded as it, again, cited a variety of case law indicating time spent deliberating is not dispositive.

Plaintiffs also raised arguments on appeal.  Plaintiffs argued that it should have been entitled to prejudgment interest and an adjustment for negative tax consequences.  The court ruled that one of the purposes of damages is to make an injured party whole; it also noted that an abuse of discretion in awarding damages “occurs when a district court deviates from this policy without a reasoned explanation.”  The court ruled that consideration of prejudgment interest and negative tax consequences were typical and the lower court’s denial of the above requested damages, contained in a single sentence, was clearly not a reasoned explanation for its deviation from the norm.  Therefore, the court ruled that the prejudgment interests and accounting for negative tax consequences were appropriate to make the Plaintiffs whole.

The applicability of the ADEA is in flux since the Gross decision.  The case of Marcus v. PQ Corporation will serve to make the ADEA’s applicability clearer in the wake of Gross, and help practitioners to more effectively and appropriately use it for the benefit of their clients.

Originally published in the Legal Intelligencer on May 9, 2012 and can be found here.


“Hot” Disability Issues

Check out Faye Cohen’s blog post ‘“Hot’ Disability Issues ” on her blog Toughlawyerlady here.

Gross Decision (?)

In the 1964 Christmas television classic, Rudolph the Red-Nosed Reindeer, prospector Yukon Cornelius, while in search of silver and gold (or is it gold and silver?), declares that the frightful Abominable Snowmonster of the North, who evokes fear and trembling in anyone who sees him, “is nothing without his choppers,” after toymaker turned dentist, Hermey the Elf, extracts all of the monster’s teeth. Consistent with Yukon’s observation, the United States Supreme Court, with Justice Clarence Thomas writing for the majority, in the recent case of Gross v. FBL Financial Services, Inc., 129 S.Ct. 2343 (U.S. 2009), in what has become a landmark decision, may have used its judicial pliers to extract the teeth of the Age Discrimination in Employment Act (ADEA) for claims brought thereunder by plaintiffs who feel they were victims of age discrimination.

In Gross, the Plaintiff was at the time of the alleged actionable discrimination, a 54-year-old male claims administrator director who had worked for the Defendant for 30 years when Defendant elected to reassign Gross to the position of claims project coordinator. Simultaneously, Defendant reassigned Gross’ former subordinate, a woman in her early forties, to a newly created position that carried with it most of Gross’ former responsibilities. Gross believed his reassignment to be effectively a demotion, and that he was discriminated against based on his age, and he brought suit against Defendant under the ADEA claiming age discrimination.

At the conclusion of the trial of this matter at the District Court level, the Judge, over Defendant’s objections, instructed the jury that a verdict must be entered against the Defendant if Gross proved, by a preponderance of the evidence, that Defendant demoted him and Gross’ age was the motivating factor in Defendant’s decision to demote him. The jury was further instructed that Gross’ age was a motivating factor if it played a part or role in the Defendant’s decision to demote him. In other words, if the Defendant’s motives were a mix of lawful and unlawful (e.g.: age discrimination) reasons for demotion, then a verdict would have to be entered against the Defendant. Finally, the jury was instructed that if the Defendant proved, by a preponderance of the evidence, that it would have demoted Gross regardless of age, a verdict would have to be entered against Gross. This portion of the jury instructions presumes that the burden of proof shifts from Gross, who has to prove that age was the motivating factor in Defendant’s decision, to Defendant, who has to prove that it would have demoted Gross regardless of his age.

Gross was victorious at the District Court level causing the Defendant to appeal to the United States Court of Appeals for the 8th Circuit. The Circuit Court reversed and remanded the District Court decision for a new trial as a result of what it found to have been improper jury instructions. Gross appealed to the Supreme Court of the United States.

The question presented to that Court was whether a case under the ADEA requires (1) a shifting burden of proof and (2) could successfully proceed when an employer takes a discriminatory action against an employee based upon mixed motives. By including these two elements when enunciating jury instructions, the District Court implicitly requested the jury to apply an analysis required for alleged discrimination pursuant to Title VII of the Civil Rights Act as interpreted by the landmark case Price Waterhouse v. Hopkins, 490 US 228 (1989). The Court first examined whether a shifting burden of proof is warranted under the ADEA. It then examined whether the ADEA allows for a claim of mixed motives or requires a “but-for” analysis, id est but for the plaintiff’s age, the employer would not have taken the alleged discriminatory action.

As the District Court’s jury instructions were an application of the requirements under Title VII of the Civil Rights Act, the primary focus of the Court’s analysis was a comparison of the language of the ADEA with that of Title VII. When making its comparison, the Court, through Justice Thomas’ opinion writing for the majority, also took note of the fact that Congress has amended both Title VII and the ADEA, with some amendments occurring simultaneously. Ultimately, Justice Thomas’ textual analysis of the respective statutes is actually quite simple. First, Justice Thomas observed that the ADEA contains absolutely no language regarding a shifting of burdens of proof while Title VII does have such language. Second, Justice Thomas also noted that the ADEA does not contain any language implying that proving that an employer acted with mixed-motives is sufficient to warrant a judgment in favor of an allegedly discriminated-against plaintiff. Instead, as Justice Thomas pointed out, the ADEA specifically says that a discriminatory act must be “because of” an individual’s age. After a somewhat extensive, and perhaps torturously overwrought, dictionary and linguistic examination of the phrase “because of,” Justice Thomas concluded that a “but for” analysis is consistent with the aforesaid language. Finally, Justice Thomas, attempting to divine the mental intent of the legislators responsible for amending and voting for the changes to the ADEA years in the past, suggested that since both Title VII and the ADEA were amended around the same time, and the mixed-motives language inserted into Title VII was not correspondingly inserted into the ADEA, a logical conclusion could be drawn that Congress did not want and/or intend the ADEA to allow claims to successfully proceed in cases involving mixed-motives.

Justice Stevens, in his dissent, argued that burden shifting, and, therefore, permitting mixed-motives cases, ought to be permitted under the ADEA as the ADEA was drafted, in haec verba, from Title VII and that Title VII analysis has, for quite some time, been commonly applied to the ADEA by the United States Supreme Court. Furthermore, he explained that the phrase “because of” does not require the rigid and exclusive meaning that is synonymous with “but for” applied by Justice Thomas. Justice Stevens argues that “because of” can certainly permit multiple motives, including a discriminatory one, but does not, on its face, require a single motive as Justice Thomas suggests. Justice Stevens also pointed out that the cases under ADEA have regularly allowed burden-shifting and mixed-motives cases and one cannot conjure some sort of presumption, through an attempt to divine significant meaning from a non-action by Congress, from Congress’ amending Title VII and the ADEA differently. Indeed, as burden-shifting and mixed motives cases were already permitted under the Court’s previous rulings, why would Congress need to codify it? Justice Stevens argues that Congress’ lack of action confirms their approval of existing case law under the ADEA. Justice Breyer, in his rather brief dissent, simply focused upon the fact that a requirement to prove “but for” with direct evidence is, at its core, a requirement to prove what someone else’s thoughts were; an impossible task even for the thinker himself, especially after so much time and influences come to pass after the suit has been filed. For Justice Breyer, a “but for” analysis requires a plaintiff to engage in finding proof of hypothetical thoughts; proof that, in reality, could never be found, and resulting in a toothless ADEA that could never be effectively employed by plaintiffs. For Justice Beyer, Congressional intent was to have an ADEA under which plaintiffs could have successful claims, as opposed to an ADEA that requires a plaintiff to prove the impossible, effectively foreclosing any viable actions for age discrimination.

Obviously, Justice Thomas’ opinion had less-than-favorable results for Gross. As Gross’s employer did not have to prove what its actual motive was for demoting him, and Gross could not prove that “but for” his age he would not have been demoted, Gross’s matter was remanded to proceed in a manner consistent with Justice Thomas’ opinion. In sum, pursuant to the current authoritative precedent described herein, a plaintiff bringing an action under the ADEA must prove, by a preponderance of the evidence, that his age was the only factor motivating the alleged discriminatory action through the presentation of direct evidence in order to have a successful suit. As it stands now, plaintiffs bringing suit under the ADEA are required to plunge their way into the nearly impossible task of entering someone else’s mind to learn how he made his decisions. The Gross decision could not have come at a worse time because the declining economy has impacted heavily on older employees, resulting in a substantial increase in ADEA claims being filed at the state and federal discrimination administrative agency level by impacted employees. It makes their task of proving discrimination far harder. Although there is an effort by interest groups acting on behalf of employees within the ADEA age purviews to have Congress enact a law that would repudiate Gross, that effort may not be successful, especially given the outcome of the latest Congressional elections and the current political makeup of Congress.

After Gross, Hermey the Elf’s advice about the once-fearsome, but now-toothless, Abominable Snowmonster holds equally true for employers when faced with the post-Gross ADEA: “don’t let this big blowhard scare you anymore, just walk right past him.”

This article also appeared in the Philadelphia Bar Association’s “Upon Further Review” on January 6, 2011 and can also be found here on my website.

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