Johnson v. Benton Cnty. Sch. Dist.

• Decision Date: 25 February 2013
• Docket Number: Civil Action No. 3:11CV11.
• Citation: 926 F.Supp.2d 899
• Parties: Amanda Elizabeth JOHNSON, Plaintiff v. BENTON COUNTY SCHOOL DISTRICT, Defendant.
• Court: U.S. District Court — Northern District of Mississippi

926 F.Supp.2d 899

Amanda Elizabeth JOHNSON, Plaintiff

v.BENTON COUNTY SCHOOL DISTRICT, Defendant.

Civil Action No. 3:11CV11.

United States District Court,

N.D. Mississippi,

Western Division.

Feb. 25, 2013.

Jim D. Waide, III, Waide & Associates, PA, Richard Shane McLaughlin, Mclaughlin Law Firm, Tupelo, MS, for Plaintiff.

Michael Scott Jones, Richard Jarrad Garner, Lindsey Nicole Oswalt, Adams

and Reese LLP, Ridgeland, MS, for Defendant.

ORDER

MICHAEL P. MILLS, Chief Judge.

This cause comes before the court on its own motion, addressing the proposed jury instructions submitted by plaintiff in this case. These proposed instructions present difficult and unsettled issues of law, and, for the reasons discussed below, the court has decided to offer its best analysis of those issues and to thereupon certify this order for interlocutory appeal to the Fifth Circuit.

Following this court's order denying summary judgment, the parties are set to go to trial in less than a week on plaintiff's claims under the Americans With Disabilities Act (“ADA”) and Family and Medical Leave Act (“FMLA”). After reviewing plaintiff's proposed jury instructions, and conducting research into the law in this context, this court has come to the conclusion that the basic standard of causation regarding these claims remains unclear in this circuit. In particular, the court concludes that the U.S. Supreme Court's 2009 decision in Gross v. FBL Financial Services, Inc., 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009) has left serious questions regarding whether the so-called “mixed-motive” option remains available in FMLA and ADA cases, as it clearly was pre-Gross. Accordingly, the court has decided to offer, in this order, its “best guess” regarding which causation standard applies to ADA and FMLA claims post-Gross. If the parties are satisfied with this court's conclusions, then they may proceed to trial with jury instructions based thereon. If, however, either party should disagree with these conclusions, then they may file an interlocutory appeal to the Fifth Circuit. This will give the Fifth Circuit an opportunity to clarify the law for the purposes of not only this case, but for all ADA and FMLA cases which are filed in this circuit.

Prior to offering its best guess regarding the applicable causation standard, the court will briefly discuss the history of the mixed-motive option. In employment discrimination cases, the mixed-motive option has its origins in the U.S. Supreme Court's 1989 decision in Price Waterhouse v. Hopkins, 490 U.S. 228, 277, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). Price Waterhouse allowed plaintiffs to prove a Title VII violation if they could demonstrate that discrimination was a factor, among other factors, for an adverse employment action and the employer failed to establish that it would have made the same decision absent any discrimination. While significant, the impact of Price Waterhouse was lessened by the fact that most appellate courts adopted Justice O'Connor's concurrence in the decision, where she opined that direct, rather than circumstantial, evidence of discrimination was required in mixed-motive cases. This generally kept the mixed-motive analysis out of the most common vehicle for circumstantially proving a case of discrimination: the McDonnell Douglas burden-shifting framework.

In the Civil Rights Act of 1991, Congress codified the Price Waterhouse mixed-motive analysis, with some modifications. 42 U.S.C. § 2000e–2(m) provides that “an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” Once the plaintiff has made this showing, an employer cannot escape liability in Title VII cases. However, through the use of a limited affirmative defense, if an employer can demonstrate that it “would have taken the same action in the absence of the impermissible motivating factor,” then it may limit the plaintiff's damages to injunctive relief, declaratory relief, and attorney's fees and costs.

Even after the 1991 Act, most appellate courts still followed Justice O'Connor's Price Waterhouse concurrence and required plaintiffs to produce direct evidence of discrimination in order to proceed under a mixed-motive theory. See, e.g., Mohr v. Dustrol, Inc., 306 F.3d 636, 640–41 (8th Cir.2002); Fernandes v. Costa Bros. Masonry, Inc., 199 F.3d 572, 580 (1st Cir.1999). The application of the mixed-motive option thus remained somewhat limited in its scope. This changed with the U.S. Supreme Court's 2003 decision of Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003), where the Court expressly rejected the “direct evidence” requirement in Title VII mixed-motive cases. The Supreme Court held in Desert Palace that, in order to qualify for a mixed-motive instruction, “a plaintiff need only present sufficient evidence [either direct or circumstantial] for a reasonable jury to conclude, by a preponderance of the evidence, that ‘race, color, religion, sex, or national origin was a motivating factor for any employment practice.’ ”

In the 2004 decision of Rachid v. Jack In The Box, Inc., 376 F.3d 305, 309 (5th Cir.2004), the Fifth Circuit responded to Desert Palace by expressly incorporating the mixed-motive analysis into the McDonnell Douglas standard applicable in this circuit. This gave the mixed-motive option far greater importance in this circuit than had previously been the case. Significantly, the Fifth Circuit applied the mixed-motive option not only in Title VII cases, but in other employment discrimination contexts as well. Indeed, the Rachid decision which adopted this approach was an ADEA case, and the Fifth Circuit has applied the mixed-motive option in FMLA and ADA cases as well. Richardson v. Monitronics Intern., Inc., 434 F.3d 327 (5th Cir.2005); Pinkerton v. Spellings, 529 F.3d 513 (5th Cir.2008).

Consistent with this authority, plaintiff has, in this case, submitted proposed instructions which seek to use the mixed-motive option for her FMLA and ADA claims. Specifically, plaintiff seeks to instruct the jury as follows regarding her FMLA claims:

The court instructs the jury that in order to prevail on her FMLA claim, Amanda Johnson need only prove that her taking medical leave, requesting medical leave or the prospect of such leave, was a motivating factor in the decision to terminate her employment. Amanda Johnson does not have to prove that retaliation was the only reason she was terminated, but merely must prove that retaliation was one of the reasons for her termination.

As to her ADA claims, plaintiff seeks an instruction to the jury that:

In order for Plaintiff, Amanda Johnson, to prevail on her claim of unlawful discrimination under the Americans with Disabilities Act (“ADA”), she has the burden of proving all the following essential elements by a preponderance of the evidence: ...

(3) That Amanda Johnson's disability, history of a disability, or Defendant's regarding Johnson as having a disability, was a motivating factor in Defendant's decision to fire Johnson.

Prior to Gross, there would have been little question regarding plaintiff's right to these mixedmotive instructions. After Gross, however, that right is very much in doubt.

In Gross, the Supreme Court cast serious doubt upon the continued availability of the mixed-motive option in non-Title VII employment discrimination cases. Gross involved an ADEA claim, and the Supreme Court held that the Price Waterhouse framework was inapplicable to such claims for two reasons. First, the Court found that shifting the burden of persuasion to an age discrimination defendant would be inappropriate since 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.” Gross, 129 S.Ct. at 2350–51 (quoting 29 U.S.C. § 623(a)(1)). The Court also noted that, in the 1991 Civil Rights Act, Congress had modified Title VII to incorporate a version of the Price Waterhouse standard but that it had made no comparable modification to the ADEA (or any other anti-discrimination statute). Secondly, the Supreme Court in Gross expressed broader reservations about the wisdom of applying the Price Waterhouse framework to ADEA claims.

The Supreme Court noted in Gross that it had never definitively applied McDonnell Douglas to ADEA claims, and it suggested that Price Waterhouse has been difficult to apply in practice and that its cumbersome nature has “eliminated any perceivable benefit to extending its framework to ADEA claims.” Id. at 2352. Many of the reservations expressed by the Supreme Court in Gross are quite arguably applicable to other non-Title VII discrimination claims, including the ADA and FMLA retaliation claims which are presently before this court. To date, the Fifth Circuit has had only limited opportunity to clarify the issues in this context, and the opportunities which it has had have led to considerable disagreement among its judges.

In Smith v. Xerox Corporation, 602 F.3d 320 (5th Cir.2010), a divided Fifth Circuit panel held that the mixed-motive option was still available in Title VII retaliation claims, notwithstanding Gross. Significantly, the panel majority in Smith appeared to place considerable emphasis on the fact that it was dealing with a Title VII case, albeit a Title VII retaliation case, thus providing a better argument for the application of the Price Waterhouse framework. Specifically, the panel majority wrote in Smith that:

The Court's comparison of Title VII with the ADEA, and the textual differences between those two statutory schemes, led [the Supreme Court in Gross ] to conclude that Title VII decisions like Price Waterhouse and Desert Palace did not govern its interpretation of the ADEA. Gross, 129 S.Ct. at 2349 n. 2....