It is uncommon for a losing party to persuade a U.S. Court of Appeals panel to reverse its outcome on a motion for rehearing, but the age discrimination plaintiff in this case pulled it off, winning a remand (in a 2-to-1 decision) of his claim for a trial under the Missouri Human Rights Act (MHRA).
Clark v. Matthews International Corp., No. 10-1037 (8th Cir. May 2, 2011): The court filed its first opinion in this case in 2010, affirming summary judgment against an age discrimination plaintiff under the federal Age Discrimination in Employment Act (ADEA), and dismissing the supplemental state-law claim – presumably to be relief in state court. Clark v. Matthews Int’l Corp., 628 F.3d 462 (8th Cir. 2010). But the plaintiff and counsel struck back, moving for rehearing on the ground that it was error to dismiss the state-law claim.
Clark was terminated as a part of a reduction in force (RIF). He argued – below and in the Eighth Circuit – that two younger employees performing similar work were allowed to keep their jobs, and that this fact plus certain other background evidence of age bias warranted a trial under both the ADEA and the MHRA. The panel in the first decision unanimously agreed that the record as a whole did not support ADEA liability under the recent decision, Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343 (2009), requiring proof of “but-for” causation. The panel also unanimously agreed that because the Missouri law was construed differently from the ADEA by state courts, it should dismiss that claim without prejudice, allowing the plaintiff to refile the claim in Missouri.
But on rehearing, two of the original panelists are persuaded that the district court actually had jurisdiction over the state-law claim based on diversity jurisdiction, 28 U.S.C. § 1332(a)(1) (the plaintiff being a citizen of Missouri, the corporation being headquartered in Pennsylvania). The plaintiff had alleged that basis for jurisdiction in his complaint, and the panel finds that he established the jurisdictional amount as well, finding that relief (with all categories of damages added) could tote-up over the $75,000 mark.
On the merits, the panel majority holds that in contrast with the ADEA, the MHRA had been construed to allow a plaintiff to prevail on liability with a lesser-standard of proof: age under the MHRA only has to contribute to, not determine, the adverse action. Daugherty v. City of Md. Heights, 231 S.W.3d 814, 819 (Mo. 2007). Evaluating the same record used for the ADEA case, the panel majority holds that in contrast to the ADEA but-for standard, a reasonable jury could find that age was at least a partial reason for the employee’s termination.
Judge Colloton, who had previously joined the opinion to dismiss the MHRA claim without prejudice, dissents. In addition to expressing doubts about the existence of diversity jurisdiction, he also shifts ground and holds that the state-law claim should be dismissed with prejudice: “whatever the circumstances in which evidence might add up to a violation of the state statute without showing a violation of federal law, zero plus zero still equals zero under the MHRA.”