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The Third Circuit Rejects the Argument that the Supreme Courts But-For Analysis Set Forth in Gross V. FBL Financial Supercedes the Burden-Shifting Process Adopted In McDonnell Douglas Corp. V. Green in All Age Discrimination Cases

By: Thomas Paschos

Thomas Paschos & Associates, P.C.

Haddonfield, NJ

In Smith v. City of Allentown, — F.3d —-, 2009 WL 4912120 (3d Cir. (Pa.) December 22, 2009), plaintiff filed suit against the City of Allentown and its mayor claiming discrimination based upon his age and political affiliation after he was discharged as a city superintendent (he had been appointed by a former Republican mayor). The trial court granted summary judgment in favor of the defendants holding plaintiff failed to produce evidence that his allegedly inadequate job performance was a pretext for unlawful discrimination of any kind.Plaintiff appealed.

The District Court disposed of Smith’s age discrimination claim under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The parties had stipulated that Smith possessed sufficient evidence to establish a prima facie case and that Smith’s allegedly substandard job performance provided defendants with a legitimate, nondiscriminatory rationale for his termination. Therefore, the District Court addressed only whether Smith had adduced evidence from which a reasonable jury could conclude that defendants relied upon his job performance as a pretext for age discrimination. Smith based his allegations of age discrimination upon several things: first, reference to Smith’s birthday and anniversary date during a meeting at which his termination was discussed; second, the recommendations of the City Solicitor, and the Assistant Solicitor that Smith not be discharged; and, third, the City’s progressive discipline policy, which defendants allegedly failed to utilize prior to discharging him. The Court concluded that this evidence did not cast doubt upon the performance-related reasons that defendants proffered for Smith’s discharge. The Court therefore granted summary judgment to defendants on Smith’s age discrimination claim.

After the District Court rendered its ruling, the Supreme Court decided Gross v. FBL Financial Services, — U.S. —-, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009), which considered whether the burden-shifting framework established by Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), is available to plaintiffs in age discrimination cases. Gross refused to apply Price Waterhouse to ADEA claims for two reasons. First, the Court found that shifting the burden of persuasion to an age discrimination defendant is improper because the plain language of the ADEA requires the plaintiff to prove that the defendant took the adverse employment action because of [the plaintiff's] age. The Court construed this language as requiring that the plaintiff prove but-for causation from the outset of an ADEA case. Second, the Court expressed ambivalence about the utility of burden-shifting in age discrimination claims.

Defendants argued that Gross rendered McDonnell Douglas’s burden-shifting inapplicable to ADEA cases and that plaintiffs appeal should be disposed of solely by inquiring whether Smith would have retained his job but for the alleged age discrimination. However, the court held that it may not depart from our prior decisions applying McDonnell Douglas to age discrimination cases unless those decisions are irreconcilable with Gross. The court cited Mennen Co. v. Atl. Mut. Ins. Co., 147 F.3d 287, 294 n. 9 (3d Cir.1998) which provided that a panel of the court may not overrule the decisions of a prior panel unless the earlier disposition is in conflict with Supreme Court precedent. The court noted that [w]hile we recognize that Gross expressed significant doubt about any burden-shifting under the ADEA, we conclude that the but-for causation standard required by Gross does not conflict with our continued application of the McDonnell Douglas paradigm in age discrimination cases.

As such, the court evaluated Smith’s age discrimination claim pursuant to McDonnell Douglas to see whether he produced sufficient evidence to establish that defendants’ proffered rationale for terminating him was a pretext for age-based discrimination and the court concluded that Smith failed to carry that burden.

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