In Sims v. MVM, Inc., No. 11-14481, 2013 U.S. App. LEXIS 1130 (11t Cir. Jan. 17, 2013), the Eleventh Circuit court of Appeals considered the causation standard for proving cat’s paw liability under the Age Discrimination in Employment Act (ADEA). The Court held that the proximate causation standard announced by the Supreme Court in Staub v. Proctor Hosp., 131 S. Ct. 1186 (2011), does not apply to age discrimination cases which require the showing of a “but-for” link between the discriminatory animus and the adverse employment action, as opposed to showing that the animus was a motivating factor in the adverse employment decision, as is required under the Uniformed Services Employment and Reemployment Rights act of 1994 (USERRA).

Background

Plaintiff, Solomon Sims, started working for the Defendant, MVM, Inc., in January 2008. As an Operations Supervisor at the federal detention facility in Lovejoy, Georgia, Sims was responsible for reviewing documentation in order to make arrangements and prepare the paperwork necessary for the transportation of prisoners between different locations. Tom Davis, who was Sims’ direct supervisor, found Sims made more errors than other supervisors working under the same contract. In Davis’s opinion, Sims’ deficient performance never improved. In March 2008, Arnold Perkins, the Project Manager and Davis’s superior, was informed that he had to reduce the number of supervisors because MVM went over budget due to excessive hiring. Perkins resisted force reduction until August when he was ordered to eliminate two supervisor positions. At that time, Perkins as well as all other supervisors, based on their independent observations of Sims, recommended his termination as a part of the reduction in force (RIF). After informing Sims he was being discharged as part of the RIF, Perkins offered Sims another position, which he declined. During the meeting, Sims told Perkins he was seventy-one.

In his age discrimination charge filed with the Equal Employment Opportunity Commission (EEOC), Sims alleged that Davis told him that he was “too slow in performing his job” and that if needed he would recommend his termination, but that his age had “nothing to do with it.” Sims later alleged that at some point Davis also stated, “You’re old and slow.”

Subsequently, Sims sued MVM alleging his employment was terminated in violation of the ADEA. The United States District Court for the Northern District of Georgia granted MVM’s motion for summary judgment and Sims appealed. The Eleventh Circuit affirmed the District Court’s decision.

Legal Arguments

First, Sims argued that a reasonable jury could find that Perkins himself was biased and his age discrimination was the “but-for” factor in Perkins’ decision to terminate Sims. The Court disagreed. Even assuming that Sims could establish a prima facie case for age discrimination under McDonnell Douglas,[1] MVM clearly articulated legitimate, non-discriminatory reasons for Sims’ inclusion in the RIF, namely the budget constraints that forced MVM to eliminate two supervisory positions. Furthermore, there was very little, if any, evidence of pretext, and virtually no evidence of age bias on the part of Perkins, who at the time was sixty-one. Therefore, the Court concluded that an inference of Perkins’ age bias, at best, would be so weak that it would fall far short of satisfying Sims’ burden of proof that Perkins’ animus was the “but-for” cause for Sims’ termination.[2]

Second, Sims argued that Perkins, who was the decision maker, acted as a mere cat’s paw for Davis’s discriminatory animus, making MVM liable for Sims age discrimination. [3] Sims further contended that the U.S. Supreme Court’s decision in Staub v. Proctor Hosp., upholding a cat’s paw theory of liability under USERRA, lowers the burden of proof for plaintiffs in ADEA cases. The Eleventh Circuit rejected this argument explaining that USERRA and the ADEA impose different standards. Specifically, in Staub the Court held that USERRA requires a plaintiff to demonstrate that discrimination was a “motivating factor” in the adverse employment action. Staub, 131 S.Ct. at 1194. Moreover, this causation standard is a traditional tort law “proximate cause” standard which requires “some direct relation between the injury asserted and the injurious conduct alleged, and excludes only those link[s] that are too remote, purely contingent, or indirect.” Id. at 1192.

In contrast, under the ADEA, it is unlawful for an employee to suffer an adverse employment action “because of such individual’s age.”[4] Thus, under the plain language of the ADEA, a plaintiff must show that the age was the “but-for” cause of the employer’s adverse decision, which requires a closer link than proximate causation. Gross, 557 U.S. at 176 (“’the proscribed animus [must] have a determinative influence on the employer’s adverse decision”). Accordingly, the Court held that Staub’s “proximate causation” standard does not apply to cat’s paw cases involving age discrimination.[5]

The Eleventh Circuit declined to decide whether Staub’s agency principles, as they relate to scienter, set forth agency principles that constitute a lower burden for plaintiffs in establishing cat’s paw vicarious employer liability in comparison to the prior ADEA case law. The Court concluded that even if it accepted this assumption, Sims cannot prevail because he failed to prove that Davis’s animus was a “but-for” cause or a “determinative influence” for Perkins’ decision.

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[1] A plaintiff can establish age discrimination through either direct or circumstantial evidence. In the Eleventh Circuit, the ADEA claims based on circumstantial evidence are evaluated under the burden shifting framework of McDonnel Douglas Corp. v. Green, 411 U.S.792 (1973). Only the burden of production shifts to the defendant, while the burden of persuasion always remains on plaintiff to proffer evidence sufficient to permit a reasonable fact finder to conclude that the discriminatory animus was the “but-for” cause of the adverse employment action. See Gross v. FBL Financial Services, Inc., 557 U.S. 167, 176 (2009).

[2] It was also undisputed that every supervisor recommended Sims should be laid off.

[3] Under the cat’s paw theory of liability, referred to as a subordinate bias theory, an employer may be liable when the decision-maker has no discriminatory animus, but is influenced by a subordinate supervisor’s action that is the product of such discriminatory animus.

[4] 29 U.S.C. § 623(a)(1).

[5] The Eleventh Circuit followed the United States Court of Appeals for the Tenth Circuit’s decision in Simmons v. Skyes Enterprises, Inc., 647 F.3d 943, 949-50 (“If were ever to apply Staub directly to an age-discrimination case, the plaintiff would then only need to prove her supervisor’s animus was somehow related to the termination and not that the animus was necessary to bring about the termination.”).