As we wind up the year (and I take a short hiatus from blogging), the Third Circuit becomes the latest court to turn back an argument that Gross v. FBL Financial Services, 129 S. Ct. 2343 (2009), supersedes McDonnell Douglas in ADEA cases. The Second Circuit returns the aged Meacham v. KAPL case back for a new trial (sigh!).
Smith v. City of Allentown, No. 09-1998 (3d Cir. Dec. 22, 2009): Defendants continue to take their shot that the Gross decision means that all ADEA cases must be decided along a single axis — whether age was the “but-for” cause of the termination (or other action) — and supercedes the burden-shifting process adopted in McDonnell Douglas Corp. v. Green, 411 U.S. 742 (1973). The Third Circuit becomes the latest court of appeals to reject this suggestion: “While we recognize that Gross expressed significant doubt about any burden-shifting under the ADEA, we conclude that the but-for causation standard required by Gross does not conflict with our continued application of the McDonnell Douglas paradigm in age discrimination cases.”
Um, not that it helps the plaintiff very much, because his appeal still results in an affirmance of summary judgment. The panel holds that the employee failed to present a genuine issue of material fact on pretext:
“He exhibited performance problems as early as 2002, when Pawlowski, then director of community and economic development, noted complaints that Smith and two other directors had neglected to maintain the City’s swimming pools. In late 2004, Guigere gave Smith a series of performance goals, which it is undisputed Smith failed to accomplish. When Dougherty reviewed Smith’s performance in early 2006, he was concerned with problems involving the golf course, youth sports, and the annual Halloween parade.”
Ah, messing up the annual Halloween parade! That will do you in every time!
Meacham v. Knolls Atomic Power Lab., No. 09-2037 (2d Cir. Dec. 22, 2009): The fortunes of this class action have ebbed and flowed over the years since KAPL first announced its reduction in force over thirteen years ago. Two trips to the U.S. Supreme Court resulted in a decision that the employer bears the burden of proof on the ADEA “reasonable factors other than age” defense in a disparate impact case (Meacham v. Knolls Atomic Power Laboratory, 128 S. Ct. 2395 (2008)).
At the beginning of 2009, the Second Circuit in an unpublished order (see my entry on the case) remanded the case for reconsideration in light of the Supreme Court’s decision, including whether “the employer waive[d] the RFOA affirmative defense by its conduct at the district court?” The district court in fact held, in a comprehensive order, that the defendant had waived the defense, and the original verdict in favor of the plaintiff class would stand. The case appeared poised to finally wrap up.
But now a new panel of the Second Circuit rules this week, in essence, never mind that last order. It holds (in an unpublished order) nothing less than that the U.S. Supreme Court, on reaching the merits of the RFOA defense in its decision, impliedly held that there was no waiver of RFOA. “Waiver principles are analytically antecedent to an analysis on the merits; we therefore read the Supreme Court’s opinion as impliedly but necessarily rejecting plaintiffs’ waiver argument.” In any event, out of fairness to the defendant, it was held that the intervening change of law warranted a new trial. But the trial is limited to liability alone; the remedy, evidently, will stand if a second trial leads to a finding of liability.