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Newberry v. Burlington Basket Co., No. 09-3082 (8th Cir. Sept. 28, 2010)

| Sep 28, 2010 | Daily Developments in EEO Law |

I’m feeling a bit of shame about the long (unprecedented, really) gap in posts, but – in my defense – there’s been a weird lapse in EEO decisions worth writing about. The Eighth Circuit solved my problem yesterday by affirming a jury verdict for a plaintiff in an ADEA/Iowa Civil Rights Act (ICRA), which survives – post-Gross – because the parallel state law is more progressive.

Newberry v. Burlington Basket Co., No. 09-3082 (8th Cir. Sept. 28, 2010): A four-day jury trial on an age discrimination case resulted in a $25K verdict for the plaintiff, awarded entirely for mental distress damages. The federal law, the ADEA, of course only provides economic loss, so the verdict is supported solely by the state claim. The district court awarded fees of $140,000. After trial, the Supreme Court issues Gross v. FBL Financial Servs., Inc., 129 S. Ct. 2343 (2009), which holds that all ADEA cases are subject to the but-for/determining factor standard of liability.

Because the jury charge (pre-Gross) directed the jury to find liability if age was “a determining factor,” if it “played a part” in the company’s decision to terminate her employment, the employer challenged the verdict as legally erroneous. On appeal, the Eighth Circuit agrees that this charge is no longer valid under Gross, but affirms the verdict under the ICRA.

“The ICRA, like the ADEA, provides for liability when a defendant discharges an employee ‘because of’ age. See Iowa Code § 216.6(1)(a). Nonetheless, the Supreme Court of Iowa recently concluded, in a sex-discrimination action tried as a so-called ‘pretext’ case, that an instruction derived from Eighth Circuit Model Civil Jury Instruction 5.96 on ‘motivating factor’ was correct. DeBoom v. Raining Rose, Inc., 772 N.W.2d 1, 13 (Iowa 2009).”

Because the instruction was correct under Iowa law, and the award (solely compensatory losses) was awardable fully under that law, there was no prejudice to defendant because of the charge, despite the intervening change of law under Gross.

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