Gross v. FBL Fin. Servs., Inc., No. 08–441.

CourtU.S. Supreme Court
Writing for the CourtJustice THOMAS delivered the opinion of the Court.
Citation77 USLW 4531,129 S.Ct. 2343,174 L.Ed.2d 119,557 U.S. 167
Docket NumberNo. 08–441.
Decision Date18 June 2009
PartiesJack GROSS, Petitioner, v. FBL FINANCIAL SERVICES, INC.

557 U.S. 167
129 S.Ct.
2343
174 L.Ed.2d 119
77 USLW 4531

Jack GROSS, Petitioner,
v.
FBL FINANCIAL SERVICES, INC.

No. 08–441.

Supreme Court of the United States

Argued March 31, 2009
Decided June 18, 2009


Vacated and remanded.

Justice Stevens filed dissenting opinion, in which Justices Souter, Ginsburg and Breyer joined.

Justice Breyer filed dissenting opinion, in which Justices Souter and Ginsburg joined.

Syllabus *

Petitioner Gross filed suit, alleging that respondent (FBL) demoted him in violation of the Age Discrimination in Employment Act of 1967 (ADEA), which makes it unlawful for an employer to take adverse action against an employee “because of such individual's age,” 29 U.S.C. § 623(a). At the close of trial, and over FBL's objections, the District Court instructed the jury to enter a verdict for Gross if he proved, by a preponderance of the evidence, that he was demoted and his age was a motivating factor in the demotion decision, and told the jury that age was a motivating factor if it played a part in the demotion. It also instructed the jury to return a verdict for FBL if it proved that it would have demoted Gross regardless of age. The jury returned a verdict for Gross. The Eighth Circuit reversed and remanded for a new trial, holding that the jury had been incorrectly instructed under the standard established in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268, for cases under Title VII of the Civil Rights Act of 1964 when an employee alleges that he suffered an adverse employment action because of both permissible and impermissible considerations— i.e., a “mixed-motives” case.

Held: A plaintiff bringing an 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. 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 some evidence that age was one motivating factor in that decision. Pp. 2348 – 2352.

(a) Because Title VII is materially different with respect to the relevant burden of persuasion, this Court's interpretation of the ADEA is not governed by Title VII decisions such as Price Waterhouse and Desert Palace, Inc. v. Costa, 539 U.S. 90, 94–95, 123 S.Ct. 2148, 156 L.Ed.2d 84. This Court has never applied Title VII's burden-shifting framework to ADEA claims and declines to do so now. When conducting statutory interpretation, the Court “must be careful not to apply rules applicable under one statute to a different statute without careful and critical examination.” Federal Express Corp. v. Holowecki, 552 U.S. 389, ––––, 128 S.Ct. 1147, 1153, 170 L.Ed.2d 10. Unlike Title VII, which has been amended to explicitly authorize discrimination claims where an improper consideration was “a motivating factor” for the adverse

[557 U.S. 168]

action, see 42 U.S.C. §§ 2000e–2(m) and 2000e–5(g)(2)(B), the ADEA does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor. Moreover, Congress neglected to add such a provision to the ADEA when it added §§ 2000e–2(m) and 2000e–5(g) (2)(B) to Title VII, even though it contemporaneously amended the ADEA in several ways. When Congress amends one statutory provision but not another, it is presumed to have acted intentionally, see EEOC v. Arabian American Oil Co., 499 U.S. 244, 256, 111 S.Ct. 1227, 113 L.Ed.2d 274, and “negative implications raised by disparate provisions are strongest” where the provisions were “considered simultaneously when the language raising the implication was inserted,” Lindh v. Murphy, 521 U.S. 320, 330, 117 S.Ct. 2059, 138 L.Ed.2d 481. Pp. 2348 – 2349.

(b) The ADEA's text does not authorize an alleged mixed-motives age discrimination claim. The ordinary meaning of the ADEA's requirement that an employer took adverse action “because of” age is that age was the “reason” that the employer decided to act. See Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338. To establish a disparate-treatment claim under this plain language, a plaintiff must prove that age was the “but-for” cause of the employer's adverse decision. See Bridge v. Phoenix Bond & Indemnity Co., 553 U.S. 639, ––––, 128 S.Ct. 2131, 170 L.Ed.2d 1012. It follows that under § 623(a)(1), the plaintiff retains the burden of persuasion to establish that “but-for” cause. This Court has previously held this to be the burden's proper allocation in ADEA cases, see, e.g., Kentucky Retirement Systems v. EEOC, 554 U.S. 135, –––– – ––––, –––– – ––––, 128 S.Ct. 2361, 171 L.Ed.2d 322, and nothing in the statute's text indicates that Congress has carved out an exception for a subset of ADEA cases. Where a statute is “silent on the allocation of the burden of persuasion,” “the ordinary default rule [is] that plaintiffs bear the risk of failing to prove their claims.” Schaffer v. Weast, 546 U.S. 49, 56, 126 S.Ct. 528, 163 L.Ed.2d 387. Hence, the burden of persuasion is the same in alleged mixed-motives cases as in any other ADEA disparate-treatment action. Pp. 2350 – 2351.

(c) This Court rejects petitioner's contention that the proper interpretation of the ADEA is nonetheless controlled by Price Waterhouse, which initially established that the burden of persuasion shifted in alleged mixed-motives Title VII claims. It is far from clear that the Court would have the same approach were it to consider the question today in the first instance. Whatever Price Waterhouse 's deficiencies in retrospect, it has become evident in the years since that case was decided that its burden-shifting framework is difficult to apply. The problems associated with its application have eliminated any perceivable benefit to extending its framework to ADEA claims. Cf. Continental T. V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 47, 97 S.Ct. 2549, 53 L.Ed.2d 568. Pp. 2351 – 2352.

526 F.3d 356, vacated and remanded.

Thomas, J., delivered the opinion of the Court, in which ROBERTS, C.J., and SCALIA, KENNEDY, and ALITO, JJ., joined. STEVENS, J., filed a dissenting opinion, in which SOUTER, GINSBURG, and BREYER, JJ., joined. BREYER, J., filed a dissenting opinion, in which SOUTER and GINSBURG, JJ., joined.

Eric Schnapper, Seattle, WA, for petitioner.

Lisa S. Blatt, Washington, DC, for United States as amicus curiae, by special leave of Court, supporting the petitioner.


Carter G. Phillips, for respondent.
Beth A. Townsend, Townsend Law Office, West Des Moines, IA, Michael J. Carroll, Babich, Goldman, Cashatt & Renzo, P.C., Des Moines, IA, Eric Schnapper, Counsel of Record, School of Law, University of Washington, Seattle, WA, for petitioner.
Carter G. Phillips, Counsel of Record, Sidley Austin LLP, Washington, D.C., Frank Harty, Debra L. Hulett, Jordan B. Hansell, Nyemaster, Goode, West, Hansell & O'Brien, P.C., Des Moines, Iowa, for Respondent.
Justice THOMAS delivered the opinion of the Court.

[557 U.S. 169]

The question presented by the petitioner in this case is whether a plaintiff must present direct evidence of age discrimination

[557 U.S. 170]

in order to obtain a mixed-motives jury instruction in a suit brought under the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, as amended, 29 U.S.C. § 621 et seq. Because we hold that such a jury instruction is never proper in an ADEA case, we vacate the decision below.

I

Petitioner Jack Gross began working for respondent FBL Financial Group, Inc. (FBL), in 1971. As of 2001, Gross held the position of claims administration director. But in 2003, when he was 54 years old, Gross was reassigned to the position of claims project coordinator. At that same time, FBL transferred many of Gross' job responsibilities to a newly created position—claims administration manager. That position was given to Lisa Kneeskern, who had previously been supervised by Gross and who was then in her early forties. App. to Pet. for Cert. 23a (District Court opinion). Although Gross (in his new position) and Kneeskern received the same compensation, Gross considered the reassignment a demotion because of FBL's reallocation of his former job responsibilities to Kneeskern.

In April 2004, Gross filed suit in District Court, alleging that his reassignment to the position of claims project coordinator violated the ADEA, which makes it unlawful for an employer to take adverse action against an employee “because of such individual's age.” 29 U.S.C. § 623(a). The case proceeded to trial, where Gross introduced evidence suggesting that his reassignment was based at least in part on his age. FBL defended its decision on the grounds that Gross' reassignment was part of a corporate restructuring and that Gross' new position was better suited to his skills. See App. to Pet. for Cert. 23a (District Court opinion).

At the close of trial, and over FBL's objections, the District Court instructed the jury that it must return a verdict for Gross if he proved, by a preponderance of the evidence, that FBL “demoted [him] to claims projec[t] coordinator” and

[557 U.S. 171]

that his “age was a motivating factor” in FBL's decision to demote him. App. 9–10. The jury was further instructed that Gross' age would qualify as a “ ‘motivating factor,’ if [it] played a part or a role in [FBL]'s decision to demote [him].” Id., at 10. The jury was also instructed regarding FBL's burden of proof. According to the District Court, the “verdict must be for [FBL] ... if it has been proved by the preponderance of the evidence that [FBL] would have demoted [Gross] regardless of his age.” Ibid. The jury returned a verdict for Gross, awarding him $46,945 in lost compensation. Id., at 8.

FBL challenged the jury instructions on appeal. The United States Court of Appeals for the Eighth Circuit reversed and remanded for a new trial, holding that the jury had been incorrectly instructed under the standard established in Price...

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4166 practice notes
  • United States v. Havelock, No. 08–10472.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • January 6, 2012
    ...the assumption that the ordinary meaning of that language accurately expresses the legislative purpose.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009) (internal quotations omitted). However, “[o]nly in the absence of a statutory definition does this co......
  • Campbell v. N.Y.C. Transit Auth., No. 11–CV–2827 MKB.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • March 26, 2015
    ...Second Circuit has not yet articulated what standard now applies for ADA retaliation claims in light of Gross [v. FBL Fin. Servs., Inc., 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009) ] and Nassar. ” (quoting Sherman, 71 F.Supp.3d at 353, 2014 WL 7370033, at *18 )); Hernandez v. City ......
  • Salazar v. Butterball Llc, No. 10–1154.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • July 5, 2011
    ...that the ordinary meaning of that language accurately expresses the legislative purpose.” Gross v. FBL Fin. Servs., Inc., ––– U.S. ––––, 129 S.Ct. 2343, 2350, 174 L.Ed.2d 119 (2009) (internal quotation omitted). The ordinary meaning of the term “clothes” is quite broad and contemplates item......
  • King v. CVS Caremark Corp., Case No.: 1:12-CV-1715-VEH
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • February 23, 2016
    ...mattered to those witnesses and, thus, to CVS.CVS's New Trial Motion also seemingly misconstrues Gross v. FBL Financial Services, Inc. , 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009), to mean that an ADEA plaintiff can never prevail in a circumstantial evidence case of age discrimina......
  • Request a trial to view additional results
4151 cases
  • United States v. Havelock, No. 08–10472.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • January 6, 2012
    ...the assumption that the ordinary meaning of that language accurately expresses the legislative purpose.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009) (internal quotations omitted). However, “[o]nly in the absence of a statutory definition does this co......
  • Campbell v. N.Y.C. Transit Auth., No. 11–CV–2827 MKB.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • March 26, 2015
    ...Second Circuit has not yet articulated what standard now applies for ADA retaliation claims in light of Gross [v. FBL Fin. Servs., Inc., 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009) ] and Nassar. ” (quoting Sherman, 71 F.Supp.3d at 353, 2014 WL 7370033, at *18 )); Hernandez v. City ......
  • Salazar v. Butterball Llc, No. 10–1154.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • July 5, 2011
    ...that the ordinary meaning of that language accurately expresses the legislative purpose.” Gross v. FBL Fin. Servs., Inc., ––– U.S. ––––, 129 S.Ct. 2343, 2350, 174 L.Ed.2d 119 (2009) (internal quotation omitted). The ordinary meaning of the term “clothes” is quite broad and contemplates item......
  • King v. CVS Caremark Corp., Case No.: 1:12-CV-1715-VEH
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • February 23, 2016
    ...mattered to those witnesses and, thus, to CVS.CVS's New Trial Motion also seemingly misconstrues Gross v. FBL Financial Services, Inc. , 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009), to mean that an ADEA plaintiff can never prevail in a circumstantial evidence case of age discrimina......
  • Request a trial to view additional results
5 books & journal articles
  • Sex Discrimination Claims Under Title Vii of the Civil Rights Act of 1964
    • United States
    • Georgetown Journal of Gender and the Law Nbr. XXII-2, January 2021
    • January 1, 2021
    ...due to the aff‌iliation agreement between the two institutions. 102. Id. at 2534. 103. Id. 104. Id. at 2524–25, 2527–28, 2533–34. 105. 557 U.S. 167 (2009). 106. Brian S. Clarke, The Gross Confusion Deep in the Heart of University of Texas Southwest Medical Center v. Nassar, 4 CAL. L. REV. 7......
  • Permitting After-Acquired Evidence of Employee Qualifications Perpetuating a McKennon Distinction Without a Difference.
    • United States
    • Suffolk University Law Review Vol. 55 Nbr. 1, January 2022
    • January 1, 2022
    ...that McDonnell Douglas may apply to ADEA claims, it has never definitively ruled on that issue. See Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 175 n.2 (2009) (acknowledging Court has not decided whether McDonnell Douglas appropriate in ADEA context); O'Connor v. Consol. Coin Caterers Cor......
  • BOSTOCK WAS BOGUS: TEXTUALISM, PLURALISM, AND TITLE VII.
    • United States
    • Notre Dame Law Review Vol. 97 Nbr. 1, November 2021
    • November 1, 2021
    ...(Kennedy, J., dissenting). (169) Nassar, 570 U.S. at 347 (protected conduct discrimination in Title VII); Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 175-180 (2009) (170) Price Waterhouse, 490 U.S. at 240-42 (1989). (171) Civil Rights Act of 1991, Pub. L. No. 102-166, [section][section] 2......
  • Capitalist Development, Labor Law, and the New Working Class.
    • United States
    • Yale Law Journal Vol. 131 Nbr. 6, April 2022
    • April 1, 2022
    ...Recent developments in individual-disparate-treatment doctrine show the logic's development. See, e.g., Gross v. FBL Fin. Servs., Inc. 557 U.S. 167 (2009) (summarizing doctrine and holding that an employee bringing a disparate-treatment claim under the Age Discrimination in Employment Act c......
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