We have reported in past newsletters that, because the Age Discrimination in Employment Act is worded differently from Title VII and other discrimination laws, a plaintiff in an ADEA case must prove that age discrimination was the "but-for" cause (rather than merely a "motivating factor") of the adverse employment action being challenged.* This "but-for" standard is a higher legal standard for plaintiffs to meet. We have also reported on the U.S. Supreme Court's acceptance of the so-called "cat's paw" theory of discrimination, i.e., that an employer is liable when an adverse employment action is taken by a decision-maker who is not biased, but who is influenced by a discriminatory subordinate.** Although courts have permitted "cat's paw" age discrimination claims, often plaintiffs cannot meet the "but-for" standard with "cat's paw" proof. The most recent example of this is Sims v. MVM, Inc.***,
In Sims, a 71-year old supervisory employee claimed that his layoff in a reduction in force was because of his age, and he claimed that both levels of management above him were age-biased. His evidence against the Project Manager who made the layoff decisions (Perkins) was particularly weak, so the plaintiff advocated that the decision-maker relied on the recommendations of the Assistant Project Manager (Davis), against whom the plaintiff had stronger evidence of age bias. The claim did not succeed, however, as a matter of law, because the plaintiff's "cat's paw" evidence did not meet the ADEA's "but-for" standard of causation.
The decision in Sims hinged on the fact that the decision-maker (Perkins) himself had been evaluating the performance of employees for five months, and based on his own personal observations, he considered Sims to be at the bottom of the list of supervisors in terms of quality and accuracy of work product. Perkins acknowledged that he discussed the layoff decisions with Davis, but that Davis had merely confirmed his own personal assessment of Sims. Moreover, all the supervisors with whom Perkins conferred (except for Sims) recommended that Sims be laid-off. Based on this evidence, the Eleventh Circuit held that "a reasonable juror could not find that Davis's animus was a ‘but-for' cause of Sims' termination. It is clear that Davis's recommendation, even assuming arguendo it was tainted with some discriminatory animus, was not a ‘determinative influence' on Perkins' decision."
This decision supports the Tenth Circuit's analysis of this question in Simmons v. Sykes Enters., Inc.****
* Gross v. FBL Financial Services, Inc., 557 U.S. 167, 176 (2009).
** Staub v. Proctor Hospital, 131 S.Ct. 1190 (2011).
*** Sims v. MVM, Inc.*, No. 11-14481.(11th Cir. Jan. 17, 2013).
**** Simmons v. Sykes Enters., Inc., 647 F.3d 943, 949-50 (10th Cir. 2001).