Eleventh Circuit Sets Standard for Cat's Paw Liability in ADEA Cases

Practical Law Legal Update 5-523-7410 (Approx. 4 pages)

Eleventh Circuit Sets Standard for Cat's Paw Liability in ADEA Cases

by PLC Labor & Employment

Key Litigated Issues

In Sims v. MVM, Inc., the US Court of Appeals for the Eleventh Circuit considered, among other things, whether an employer that terminated a 71-year-old employee engaged in age discrimination in violation of the ADEA under a cat's paw theory of liability. Specifically, one key litigated issue was whether the theory of proximate causation that applies to the cat's paw theory of liability under the Uniformed Services Employment and Reemployment Rights Act (USERRA) applies to cat's paw cases under the ADEA.

Background

The plaintiff, Solomon Sims, was an Operations Supervisor for MVM, providing custody and transport services for federal prisoners in the custody of the US Marshals Service. Sims started working for MVM in January 2008, but his direct supervisor, Davis, soon judged Sims' work performance to be poor. In particular, Davis found that Sims made more errors than other MVM supervisors who were working on the same contract.

In March 2008, MVM's project manager (who was senior to Davis) found that MVM's contract to provide services for federal prisoners was over budget due to excessive hiring. Although MVM's vice president recommended reducing the number of supervisors, the project manager resisted doing so until August 2008, when the vice president ordered him to cut two positions. At that time, the project manager believed that Sims was one of the worst performers among the supervisors, based on:

The quality and accuracy of his work.
His lack of comfort using computers.
The length of time it took him to prepare documents.

Other supervisors had to correct Sims' work occasionally, and they each recommended that Sims be terminated as part of the reduction in force (RIF).

Sims was informed that he would be terminated as part of the RIF and was offered a different job, which he declined. During that conversation, Sims told the project manager his age (71), but the parties disputed who mentioned the subject first.

Sims filed an age discrimination charge with the EEOC alleging that his immediate supervisor, Davis, told him that he was too slow in performing the job and would recommend his termination, but that his age had "nothing to do with it." Although not in the EEOC charge, Sims later alleged that Davis at some point stated, "You're old and slow."

The US District Court for the Northern District of Georgia granted summary judgment to MVM, concluding that no reasonable fact finder could find that MVM would have kept Sims as Operations Supervisor "but for" his age.

Sims appealed the District Court's decision to the Eleventh Circuit. On appeal, Sims argued:

The project manager was biased against Sims because of his age and that his age discrimination was the "but-for" cause of the decision to terminate Sims.
Davis was biased and that the project manager acted as a mere cat's paw for Davis's discriminatory animus, and therefore MVM is liable under the ADEA.

Outcome

In an opinion issued on January 17, 2013, the Eleventh Circuit affirmed the District Court's holding.

McDonnell Douglas Analysis

Rejecting Sims's first argument, the Eleventh Circuit reaffirmed that ADEA claims based on circumstantial evidence are evaluated using the McDonnell Douglas framework, even after the US Supreme Court's decision in Gross v. FBL Financial Services, Inc., holding that the ADEA requires a plaintiff to prove that discrimination was the "but-for" cause of the adverse employment action. Finding that there was very little, if any, evidence of pretext and virtually no evidence of age bias by the project manager, the Eleventh Circuit held that Sims could not carry his burden of persuasion under McDonnell Douglas.

Cat's Paw Theory of Liability

The Eleventh Circuit also rejected Sims's second argument, that MVM is liable under a cat's paw theory of liability. Sims argued that the US Supreme Court's decision in Staub v. Proctor Hospital, upholding a cat's paw theory of liability under USERRA, lowers the burden for plaintiffs in ADEA cases.

The Eleventh Circuit rejected this argument explaining that USERRA and the ADEA impose different standards. Specifically, under USERRA, the plaintiff must show that discrimination was a "motivating factor" in the adverse decision. In contrast, under the ADEA, the plaintiff must show that age was the "but-for" cause of the adverse decision. Because of this different standard, the Eleventh Circuit held that the proximate causation standard in Staub does not apply to cat's paw cases involving age discrimination. In so holding, the Eleventh Circuit followed the US Court of Appeals for the Tenth Circuit's decision in Simmons v. Sykes Enterprises, Inc.

Although the Eleventh Circuit declined to decide whether Staub changes prior cat's paw ADEA cases with respect to agency principles, the Eleventh Circuit noted that under Sims's theory, to prevail, he would have to prove that Davis's animus was a "but-for" cause of or a "determinative influence on" the project manager's decision.

Practical Implications

This decision provides guidance to employers operating in the Eleventh Circuit (Alabama, Florida and Georgia) and their counsel on the standard for cat's paw liability under the ADEA. Employers and their counsel should be aware that the proximate causation standard in Staub does not apply to cases under the ADEA. Instead, ADEA plaintiffs must show that the age bias or animus was a "but-for" cause of the adverse employment action.

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