Sixth Circuit Confirms But-For Causation Standard Remains In ADEA Claims

Last month, the U.S. Court of Appeals for the Sixth Circuit declined to extend the Supreme Court’s ruling in Bostock v. Clayton County, 140 S.Ct. 1731 (2020) to an Age Discrimination in Employment Act (“ADEA”) claim.  In Pelcha v. MW Bancorp, Inc., 984 F.3d 1199 (6th Cir. Jan. 12, 2021), the Sixth Circuit affirmed the U.S. District Court for the Southern District of Ohio’s dismissal of an ADEA lawsuit, stating the plaintiff failed to show age was the “but-for” cause of her termination.   

Pelcha v. MW Bancorp, Inc. involved a 47-year-old bank teller who was terminated following an in office dispute over a newly implemented procedure for requesting time off.  In the dispute between the employee and her manager, the employee refused to follow the new procedure and admitted to having resentment towards the policy; however, she eventually acquiesced and abided by the process.  Due to the remarks the employee made during the exchange, the employee was terminated for insubordination.

The employee sued under the ADEA, claiming the basis for her termination, insubordination, was pretextual.  The lawsuit claimed the employer’s president and CEO had remarked in the past about his desire to hire young employees, and that another older employee had a “limited shelf life.”  The employee pointed to those statements as indirect proof that her age was the actual reason for her termination. 

As support to her argument, the Plaintiff cited Bostock v. Clayton County to claim the Supreme Court’s recent decision regarding Title VII cases reduced her burden of proof in the ADEA case.  In Bostock, the Supreme Court held that Title VII’s protections apply  when an employee shows that protected class is one  cause of a negative employment decision.  Conversely, the ADEA requires a plaintiff to prove by a preponderance of evidence that age is the “but-for” cause.

The argument arises out of the use of the phrase “because of such individual’s age” contained in the ADEA.  The Plaintiff noted that the Court in Bostock recognized that because Title VII uses similar “because of” language, the ruling should relax her burden of proof for a claim brought under the ADEA.  The Court disagreed, noting that the Bostock court not only expressly limited its opinion to Title VII, but also noted the “but-for” ADEA standard was set by another Supreme Court case, Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009).  As a result, the employee failed to create a genuine dispute of material fact.

The Pelcha decision means the Sixth Circuit continues to recognize the applicability of Gross and the “but-for” causation standard precedent.  In doing so, it rejected the circumstantial and direct evidence presented by the plaintiff, including the CEO’s remarks, and ruled for the employer at summary judgment.   While this case is limited to the Sixth Circuit, it provides strong arguments to oppose any claim that Bostock changed the proof standard in discrimination claims outside of Title VII. 

 

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