EIGHT YEARS OF BACK PAY & AN AGE DISCRIMINATION GUIDE
MSPB just issued what it labelled a precedent-setting decision that will give a former OMB employee eight years of back pay and all the benefits that go along with it. We are delighted for her, but one of the things that stuck out from the MSPB decision was a very well-written description of what is necessary to prove age discrimination in the federal sector. No one expects stewards to be employment lawyers or even to remember all the decisions that have been issued that might be helpful to a member someday. However, you might find it helpful to read through the MSPB guide to proving age discrimination just once to get a sense of what to look for when a member in trouble stops at your desk. What follows is a verbatim excerpt from the Board’s ruling in Marguerite Pridgen, v. Office of Management and Budget, 2022 MSPB 31 (September 12, 2022)
In Babb v. Wilkie, 140 S. Ct. 1168 (2020), the U.S. Supreme Court interpreted the identical statutory language in 29 U.S.C. § 633a, which prohibits Federal sector age discrimination. As the Court explained, “the Federal Government [is held to] a stricter standard than private employers or state and local governments. That is what the statutory language dictates, and if Congress had wanted to impose the same standard on all employers, it could have easily done so.” Babb, 140 S. Ct. at 1176. ¶21 Considering this sweeping statutory language, the Court held that a plaintiff may prove a claim of age discrimination by showing that age discrimination “play[ed] any part in the way a decision [was] made.” Id. at 1173-74. In other words, the statute does not require proof that an employment decision would have turned out differently if age had not been taken into account. Id. A finding that prohibited discrimination played “any part” in the contested action is the same as a finding of “motivating factor.” See Wingate v. U.S. Postal Service, 118 M.S.P.R. 566, ¶ 7 (2012) (finding that a Federal employee may prove a violation of 29 U.S.C. § 633a(a) by establishing that age was “a factor” in a personnel action, even though it was not a “but-for” causation). 4
But while an appellant who proves motivating factor and nothing more may be entitled to injunctive or other “forward-looking relief,” to obtain the full measure of relief available under the statute, including status quo ante relief, compensatory damages, or other forms of relief related to the end result of an employment decision, he “must show that age discrimination was a but-for cause of the employment outcome.” Babb, 140 S. Ct. at 1171, 1177-78. The but-for causation standard does not require discrimination to be the sole cause of the contested action, only a necessary one. There may be more than one but-for cause of a single employment action. Loberger v. Del-Jen Inc., 616 F. App’x 922, 930 (11th Cir. 2015) (finding that pretext means both the reason was false, and that discrimination was the real reason); Tramp v. Associated Underwriters, Inc., 768 F.3d 793, 801 (8th Cir. 2014) (“This is not to say that age must have been the only factor in the employer’s decision-making process, but only that, as among several factors, age was the factor that made a difference.”); see also McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 282 n.10 (1976). ¶23 One may prove discrimination under these different standards of proof by various methods. No one method is the exclusive path to a finding of liability. We take the opportunity to explain the methods of proof by which an appellant may prove discrimination as an affirmative defense, and clarify Savage v. Department of the Army, 122 M.S.P.R. 612 (2015), and Gardner v. Department of Veterans Affairs, 123 M.S.P.R. 647 (2016), to the extent that they could be read to suggest otherwise.
The methods by which an appellant may prove a claim of discrimination under Title VII are: (1) direct evidence; (2) circumstantial evidence, which may include (a) evidence of “suspicious timing, ambiguous statements oral or written, behavior toward or comments directed at other employees in the protected group, and other bits and pieces from which an inference of discriminatory intent might be drawn,” also known as “convincing mosaic”; (b) comparator evidence, consisting of “evidence, whether or not rigorously statistical, that employees similarly situated to the plaintiff other than in the characteristic . . . on which an employer is forbidden to base a difference in treatment received systematically better treatment”; (c) evidence that the agency’s stated reason for its action is “unworthy of belief, a mere pretext for discrimination” (i.e., the burden-shifting standard under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973)); and (3) some combination of direct and indirect evidence. Troupe v. May Department Stores Co., 20 F.3d 734, 736 (7th Cir. 1994); see also Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 764-65 (7th Cir. 2016) (stating that “the use of disparate methods and the search for elusive [convincing] mosaics has complicated and sidetracked employment-discrimination litigation for many years” and explaining that Troupe used “mosaic” as a metaphor that was designed to displace the direct and indirect methods, rather than add a separate legal test to them). None of the above types of evidence, i.e., direct, “convincing mosaic,” comparator, or pretext, will be needed in every case. “Each type of evidence,” the Seventh Circuit explained in Troupe, “is sufficient by itself . . . to support a judgment for [the employee]; or they can be used together.” Id. When an appellant raises an affirmative defense of disparate treatment discrimination under Title VII, the administrative judge should notify her of the various standards and methods of proof, including the respective levels of relief available under each standard. 5 See Alarid v. Department of the Army, 122 M.S.P.R. 600, ¶ 17 (2015). ¶25 In Savage, 122 M.S.P.R. 612, ¶ 46, the Board held that, because it lacks summary judgment authority, the McDonnell Douglas framework has no application to Board proceedings. This statement is incorrect, and that aspect of Savage is overruled. The Supreme Court in McDonnell Douglas, 411 U.S. at 802-04, set forth the “order and allocation of proof” in an employment discrimination case, not only during pretrial proceedings but also during trial. See Capaci v. Katz & Besthoff, Inc., 711 F.2d 647, 663 (5th Cir. 1983). Although McDonnell Douglas and its progeny outline the order and allocation of proof as a three-stage process, presenting evidence of discrimination does not contemplate a trifurcated trial, but simply sets forth the proper method of analysis after the relevant evidence has been introduced. Johnson v. Transportation Agency, Santa Clara County, California, 770 F.2d 752, 761 (9th Cir. 1984). “The prima facie case method established in McDonnell Douglas was ‘never intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination.’” U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715 (1983) (quoting Furnco Construction Corp. v. Waters, 438 U.S. 567, 577 (1978)).
4 An important distinction between the motivating factor and “but-for” standards is that an appellant in a motivating factor regime need not fully rebut the agency’s proffered motives as pretext. By contrast, under the “but-for” standard, the burden of persuasion always remains with the appellant. See, e.g., Gloetzner v. Lynch, 225 F. Supp. 3d 1329, 1346 (N.D. Fla. 2016) (“The burden of persuasion always remains on the plaintiff in an [Age Discrimination in Employment Act (ADEA)] case to proffer evidence sufficient to permit a reasonable fact finder to conclude that the discriminatory animus was the “but-for” cause of the adverse employment action.”). Therefore, certain courts have considered the “but-for” standard to be more “onerous,” often when they compare Federal and state law claims. See, e.g., Wojcik v. Costco Wholesale Corporation, No. 3:13-CV-2314-D, 2015 WL 1511093 (N.D. Tex. 2015) (granting summary judgment on the plaintiff’s ADEA claim but denying for state law claim as motivating factor standard was “more lenient”); Bauers-Toy v. Clarence Central School District, No. 10-CV-845, 2015 WL 13574309 (W.D.N.Y. 2015) (requiring plaintiff to separate age and sex claims because Title VII gender discrimination claim is subject to a more lenient motivating factor standard).
5 In particular, appellants must be instructed that to obtain the full panoply of relief under Title VII, they must prove “but-for” discrimination regarding the end result of an employment decision, and it may be proven through any of the methods stated above.
P.S. our compliments to the Board’s decision-writers for a fine piece of prudence.