3.3 Plaintiff’s Burden of Proof

• Library: Employment Law in Virginia (Virginia CLE) (2020 Ed.)

3.3 PLAINTIFF'S BURDEN OF PROOF

3.301 In General.

A. McDonnell Douglas Framework. Because in most cases there is no direct evidence ²¹ of discriminatory intent, the Supreme Court, in McDonnell Douglas Corp. v. Green, ²² devised a procedural framework for establishing the requisite intent. Traditionally, there were three steps in the McDonnell Douglas analysis, but developments in the law have essentially added a fourth. First, the plaintiff establishes a prima facie case. This is rarely difficult. The employer then offers a legitimate nondiscriminatory reason for its actions. The plaintiff then attempts to prove that the employer's reasons are just a pretext for discrimination. As a fourth step, the employer attempts to show that even if there was discrimination, the employer would have taken the same actions absent the discrimination.

B. Gross v. FBL Financial Services, Inc. In 2009, the United States Supreme Court significantly altered the ADEA landscape and made it more difficult for employees to prove age discrimination claims. In Gross v. FBL Financial Services, Inc., ²³ the Court held that a plaintiff bringing an

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ADEA disparate-treatment claim must prove, by a preponderance of the evidence, that age was the "but-for" cause of the challenged adverse employment action. Unlike title VII cases, under the ADEA 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 evidence that age was one motivating factor in that decision.

Before Gross, claims under the ADEA were analyzed using the same burden-shifting framework used to determine discrimination claims under title VII. Under this framework, once an employee who was subject to an adverse employment action established that age was at least part of the reason for the employer's decision, the burden then shifted to the employer to show that the same decision would have been made regardless of the employee's age. In Gross, the Supreme Court rejected the burden-shifting framework for claims brought under the ADEA and held that the burden is always on the employee to establish that the adverse action was taken against him or her on the basis of age.

The Supreme Court reasoned that because title VII is materially different with respect to the relevant burden of persuasion, its interpretation of the ADEA is not governed by title VII decisions such as Price Waterhouse v. Hopkins ²⁴ and Desert Palace, Inc. v. Costa. ²⁵ Further, the Supreme Court noted that it has never applied title VII's burden-shifting framework to ADEA claims and declined to do so in Gross. The Court opined that the ADEA does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor. The Court pointed out that Congress did not add such a provision to the ADEA when it added 42 U.S.C. §§ 2000e-2(m) and 2000e-5(g)(2)(B) to title VII, even though it contemporaneously amended the ADEA in several ways.

C. Mixed-Motive Claims Not Authorized. The Supreme Court held in Gross that the ADEA's text does not authorize an alleged mixed- motives age discrimination claim.

D. "But-For" Standard. To establish a disparate-treatment claim under the ADEA, a plaintiff must prove that age was the "but-for" cause of the employer's adverse decision.

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The D.C. Circuit and at least one other federal court have declined to follow the "but-for" standard in suits brought under the federal employer provision, reasoning that the language of the federal employer provision requires a different outcome than the provision at issue in Gross. ²⁶ However, the Ninth Circuit and the majority of district courts addressing this issue, including the Eastern District of Virginia, have extended the "but-for" causation standard to suits brought under the federal employer provision. ²⁷

E. Evidentiary Framework Post-Gross. The Gross decision focused on the burden of persuasion at trial in ADEA cases and not the burden of production in those cases. With respect to the appropriate evidentiary framework, the Supreme Court in Gross noted that it "has not definitively decided whether the evidentiary framework of McDonnell Douglas Corp. v. Green, . . . utilized in Title VII cases is appropriate in the ADEA context." ²⁸ Gross did not, therefore, address the issue of the appropriate framework for an ADEA claim for purposes of a summary judgment motion where circumstantial evidence is presented.

The majority of district courts that have addressed this issue post- Gross, including the Western District of Virginia, continue to apply the McDonnell Douglas framework at the summary judgment stage while recognizing that at trial the plaintiff bears the burden of persuasion to prove that discrimination was the "but-for" cause of the adverse employment action. ²⁹ On

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the other hand, at least two district courts have recognized that it is questionable at best to apply the McDonnell Douglas burden-shifting framework to ADEA cases in the wake of the Gross decision. ³⁰ In response, one district court noted that "neither court actually held the McDonnell Douglas framework inapplicable." ³¹

3.302 Inferring Discrimination from Pretextual Explanation.

A. In General. When direct evidence is lacking, a court may infer discrimination from circumstantial evidence relating to the pretextual nature of the employer's justification. ³² The Supreme Court has held that "rejection of [an employer's] proffered [reason] will permit the trier of fact to infer the ultimate fact of intentional discrimination" but will not compel it to do so. ³³

However, a finding of pretext may not always imply discrimination, ³⁴ and mere evidence of "age awareness," as opposed to age discrimination, may not be enough to overcome the employer's justification. ³⁵ The greater the age disparity between a replacement and a terminated employee...