Frappied v. Affinity Gaming Black Hawk, LLC

Decision Date21 July 2020
Docket NumberNo. 19-1063,19-1063
Citation966 F.3d 1038
Parties Christine FRAPPIED; Christine Gallegos; Kathleen Greene ; Joyce Hansen ; Kristine Johnson ; Georgean LaBute; John Roberts; Annette Trujillo; Debbie Vigil, Plaintiffs - Appellants, and Jennifer Ryan, Plaintiff, v. AFFINITY GAMING BLACK HAWK, LLC, Defendant - Appellee. Equal Employment Opportunity Commission; National Employment Lawyers Association; The Employee Rights Advocacy Institute for Law & Policy ; AARP; AARP Foundation, Amici Curiae.
CourtU.S. Court of Appeals — Tenth Circuit

Lisa R. Sahli, Lisa R. Sahli, Attorney at Law, LLC, Littleton, Colorado, and Barry D. Roseman, Roseman Law Offices, LLC, Denver, Colorado for Plaintiffs-Appellants.

Joshua B. Kirkpatrick (Jennifer S. Harpole and David C. Gartenberg, with him on the briefs), Littler Mendelson, P.C., Denver, Colorado for Defendant-Appellee.

Daniel B. Kohrman and William Alvarado Rivera, AARP Foundation, Washington, D.C., filed an Amici Curiae brief for AARP and AARP Foundation, in support of Appellants.

Darold W. Killmer and Liana Orshan, Killmer, Lane & Newman, LLP, Denver, Colorado, filed an Amici Curiae brief for the National Employment Lawyers Association and the Employee Rights Advocacy Institute for Law & Policy, in support of Appellants.

James L. Lee, Deputy General Counsel, Jennifer S. Goldstein, Associate General Counsel, Elizabeth E. Theran, Assistant General Counsel, and Susan R. Oxford, Attorney, Equal Employment Opportunity Commission, Office of General Counsel, Washington, D.C., filed an Amicus Curiae brief for the Equal Employment Opportunity Commission, in support of Appellants.

Before LUCERO, PHILLIPS, and MORITZ, Circuit Judges.

LUCERO, Circuit Judge.

This is an employment discrimination case. Plaintiffs allege defendant Affinity Gaming Black Hawk, LLC ("Affinity") terminated them on the basis of age and sex. They brought disparate impact and disparate treatment claims under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act ("ADEA"). The district court dismissed (1) the Title VII disparate impact claim, (2) the Title VII disparate treatment claim, and (3) the ADEA disparate impact claim. It granted summary judgment in favor of Affinity on the ADEA disparate treatment claim. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the dismissal of the Title VII disparate treatment claim. With respect to the other claims, we reverse and remand to the district court.

I

Plaintiffs were employed at the Golden Mardi Gras Casino ("the Casino"). Affinity purchased the Casino in early 2012 and took over its operations in November 2012. In January 2013, Affinity laid off many of the Casino's employees. The terminations were not a reduction in force, and Affinity posted an advertisement on Craigslist listing 59 open positions.

Plaintiffs are nine Casino employees terminated by Affinity in January 2013.1 Eight are women; one is a man. All were forty or older when they were terminated. The female plaintiffs brought "sex-plus-age" disparate impact and disparate treatment claims under Title VII, alleging they were terminated because Affinity discriminated against women over forty. All nine plaintiffs brought disparate impact and disparate treatment claims under the ADEA, alleging they were terminated because of their age.

The district court granted Affinity's motion to dismiss the Title VII sex-plus-age claims and the ADEA disparate impact claim. It also denied plaintiffsmotion for reconsideration of the order dismissing the disparate impact ADEA claim. Additionally, the court granted summary judgment in favor of Affinity on the remaining disparate treatment ADEA claim. This appeal followed.

II

We first address the district court's dismissal of plaintiffsTitle VII sex-plus-age disparate impact claim. We review de novo the dismissal of a claim under Federal Rule of Civil Procedure 12(b)(6). See Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009).

At the outset, we must determine whether sex-plus-age claims are cognizable under Title VII. "Title VII is a broad remedial measure, designed to assure equality of employment opportunities." Pullman-Standard v. Swint, 456 U.S. 273, 276, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982) (quotation omitted). The statute makes it unlawful for an employer to "discharge any individual ... because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). "[T]he ordinary meaning of ‘because of’ is ‘by reason of’ or ‘on account of,’ " so "Title VII's ‘because of’ test incorporates the simple and traditional standard of but-for causation." Bostock v. Clayton Cty., Ga., ––– U.S. ––––, 140 S. Ct. 1731, 1739, ––– L.Ed.2d –––– (2020) (quotations omitted). The statute also provides that a plaintiff may show discrimination by showing that his or her membership in a protected class was a "motivating factor" for the challenged employment practice. § 2000e-2(m). "An employer violates Title VII when it intentionally fires an individual employee based in part on sex." Bostock, 140 S. Ct. at 1741.

Title VII also prohibits discrimination based on a combination of protected characteristics, such as "sex-plus-race" discrimination, i.e., discrimination targeted only at employees of a particular race and sex. See Connecticut v. Teal, 457 U.S. 440, 455, 102 S.Ct. 2525, 73 L.Ed.2d 130 (1982) ("It is clear that Congress never intended to give an employer license to discriminate against some employees on the basis of race or sex merely because he favorably treats other members of the employees’ group."); see also Hicks v. Gates Rubber Co., 833 F.2d 1406, 1416-17 (10th Cir. 1987) (same).

In this case, plaintiffs’ sex-plus-age claim is not based on a combination of protected characteristics enumerated in the statute; rather, the "plus-" characteristic is age, which is not a protected class under Title VII. Ample precedent holds that Title VII forbids "sex-plus" discrimination in cases in which the "plus-" characteristic is not itself protected under the statute. In Phillips v. Martin Marietta Corp., 400 U.S. 542, 91 S.Ct. 496, 27 L.Ed.2d 613 (1971) (per curiam), the employer refused to hire women with preschool-age children. Id. at 543, 91 S.Ct. 496. The Supreme Court held that the employer violated Title VII by maintaining "one hiring policy for women and another for men—each having preschool-age children." Id. at 544, 91 S.Ct. 496. Even though Title VII does not prohibit discrimination against people with preschool-age children as a class, the Court recognized that discrimination against only women, not men, with preschool-age children is a form of sex discrimination cognizable under the statute. In Bostock, the Court acknowledged that the employer in Phillips "easily could have pointed to some other, nonprotected trait and insisted it was the more important factor in the adverse employment outcome." 140 S. Ct. at 1744. But so long as sex plays a role in the employment action, it "has no significance" that a factor other than sex "might also be at work," even if that other factor "play[s] a more important role [than sex] in the employer's decision." Id.

We have also held that Title VII prohibits sex-plus discrimination even when the "plus-" characteristic is not itself protected. In Coleman v. B-G Maintenance Management of Colorado, Inc., 108 F.3d 1199 (10th Cir. 1997), we held that Title VII forbids "discrimination against subclasses of women." Id. at 1203. But when the "plus-" characteristic is not itself protected, sex-plus discrimination claims must be premised on sex alone. See id. We explained:

Title VII contemplates [sex]-plus claims because when one proceeds to cancel out the common characteristics of the two classes being compared (e.g., married men and married women), as one would do in solving an algebraic equation, the cancelled-out element proves to be that of married status, and sex remains the only operative factor in the equation. Thus, although the protected class need not include all women, the plaintiff must still prove that the subclass of women was unfavorably treated as compared to the corresponding subclass of men.

Id. (emphases in original) (alteration, citation, and quotation omitted); see also Chadwick v. WellPoint, Inc., 561 F.3d 38, 43 (1st Cir. 2009) ("The terminology may be a bit misleading[;] ... the ‘plus’ does not mean that more than simple sex discrimination must be alleged; rather, it describes the case where not all members of a disfavored class are discriminated against." (quotation omitted)); Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107, 118 (2d Cir. 2004) ("The term ‘sex plus’ or ‘gender plus’ is simply a heuristic. It is, in other words, a judicial convenience developed in the context of Title VII to affirm that plaintiffs can, under certain circumstances, survive summary judgment even when not all members of a disfavored class are discriminated against.").

In its recent decision in Bostock, the Supreme Court stated that when determining whether a person is subjected to discrimination under Title VII, "our focus should be on individuals, not groups." 140 S. Ct. at 1740. In dicta, the Court examined a hypothetical situation in which an employer has "a policy of firing any woman he discovers to be a Yankees fan." Id. at 1742. It explained that a termination because of such a policy would constitute discrimination " ‘because of sex’ if the employer would have tolerated the same allegiance in a male employee," and that such discrimination would satisfy Title VII's but-for causation standard. Id.; see also id. at 1739 ("[A] defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision. So long as the plaintiff's sex was one but-for cause of that decision, that is enough to trigger the law.").2 If the hypothetical employer has a policy under which it fires all Yankees fans, a termination based solely on that...

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