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In this case [plaintiff] is alleging that [defendant] [describe alleged treatment] [plaintiff]. In order for [plaintiff] to recover on this discrimination claim against [defendant], [plaintiff] must prove that [defendant] intentionally discriminated against [plaintiff]. This means that [plaintiff] must prove that [his/her] age was a determinative factor in [defendant’s] decision to [describe action] [plaintiff].
To prevail on this claim, [plaintiff] must prove both of the following by a preponderance of the evidence:
First: [Defendant] [failed to hire [plaintiff]] [failed to renew [plaintiff’s] employment arrangement] [failed to promote [plaintiff]] [demoted [plaintiff]] [terminated [plaintiff]] [constructively discharged [plaintiff]] [or otherwise discriminated against [plaintiff] in a serious and tangible way with respect to [plaintiff’s] compensation, terms, conditions, or privileges of employment]4; and
Second: [Plaintiff’s] age was a determinative factor in [defendant's] decision.
Although [plaintiff] must prove that [defendant] acted with the intent to discriminate, [plaintiff] is not required to prove that [defendant] acted with the particular intent to violate [plaintiff’s] federal civil rights. Moreover, [plaintiff] is not required to produce direct evidence of intent, such as statements admitting discrimination. Intentional discrimination may be inferred from the existence of other facts.
You should weigh all the evidence received in the case in deciding whether [defendant] intentionally discriminated against [plaintiff]. [For example, you have been shown statistics in this case. Statistics are one form of evidence that you may consider when deciding whether a defendant intentionally discriminated against a plaintiff. You should evaluate statistical evidence along with all the other evidence.]
[Defendant] has given a nondiscriminatory reason for its [describe defendant’s action]. If you believe [defendant’s] stated reason and if you find that the [adverse employment action] would have occurred because of defendant’s stated reason regardless of [plaintiff’s] age, then you must find for [defendant]. If you disbelieve [defendant’s] stated reason for its conduct, then you may, but need not, find that [plaintiff] has proved intentional discrimination. In determining whether [defendant’s] stated reason for its actions was a pretext, or excuse, for discrimination, you may not question [defendant’s] business judgment. You cannot find intentional discrimination simply because you disagree with the business judgment of [defendant] or believe it is harsh or unreasonable. You are not to consider [defendant’s] wisdom. However, you may consider whether [plaintiff] has proven that [defendant’s] reason is merely a cover-up for discrimination.
Ultimately, you must decide whether [plaintiff] has proven that [his/her] age was a determinative factor in [defendant’s employment decision.] “Determinative factor” means that if not for the plaintiff 's age, the [adverse employment action] would not have occurred.
In deciding whether age was a determinative factor, you must be careful to distinguish age from other factors that are not dependent on age. [For example, if [defendant’s] action was based on [plaintiff’s] seniority, this is not an age-dependent decision. A person’s seniority is based on time with the employer, and this is not the same factor as the person’s age. Thus, an employer does not violate the ADEA just by interfering with an older employee's benefits that would have vested by virtue of the employee's years of service.]
COMMENT “To establish a disparate-treatment claim under the plain language of the ADEA,... a plaintiff must prove that age was the ‘but-for’ cause of the employer's adverse decision.” Gross v. FBL Financial Services, Inc., 557 U.S. 167, 176 (2009). Under Gross, the “mixed motive” burden-shifting instruction that courts apply to some Title VII cases under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), is unavailable in ADEA cases. Thus, this chapter contains no analogue to Instruction 5.1.1.
Instruction 8.1.1 is modeled on Instruction 5.1.2's language concerning Title VII pretext cases. The Gross Court stated that it “has not definitively decided whether the evidentiary framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792... (1973), utilized in Title VII cases is appropriate in the ADEA context,” see Gross, 557 U.S. at 175 n.2. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142 (2000) (“This Court has not squarely addressed whether the McDonnell Douglas framework, developed to assess claims brought under § 703(a)(1) of Title VII of the Civil Rights Act of 1964... , also applies to ADEA actions. Because the parties do not dispute the issue, we shall assume, arguendo, that the McDonnell Douglas framework is fully applicable here.”). The court of appeals has “conclude[d] 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.” Smith v. City of Allentown, 589 F.3d 684, 691 (3d Cir. 2009). See also Willis v. UPMC Children's Hosp. of Pittsburgh, 808 F.3d 638, 644 (3d Cir. 2015) (“Age discrimination claims in which the plaintiff relies on circumstantial evidence proceed according to the three-part burden-shifting framework set forth in McDonnell Douglas....”).
“The elements of a prima facie case of age discrimination are that:
(1) the plaintiff is at least forty years old;5
(2) the plaintiff suffered an adverse employment decision;
(3) the plaintiff was qualified for the position in question; and
(4) the plaintiff was ultimately replaced by another employee who was sufficiently younger so as to support an inference of a discriminatory motive.”6
Willis v. UPMC Children's Hosp. of Pittsburgh, 808 F.3d 638, 644 (3d Cir. 2015).
But the test “is not ‘intended to be rigid’”; “[w]here the plaintiff is not directly replaced, the fourth element is satisfied if the plaintiff can provide facts which ‘if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.’” Id. (quoting Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 352 (3d Cir. 1999) (quoting Furnco Const. Corp. v. Waters, 438 U.S. 567, 577 (1978))).7
If the plaintiff establishes a prima facie case of discrimination, the burden shifts to the defendant to produce evidence of a legitimate nondiscriminatory reason for the challenged employment action. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506-07 (1993) (Title VII case). “The legitimacy of the employer’s proffered business justification will be affected both by the duties and responsibilities of the employee’s position and the nature of the justification. Concomitantly, the significance of variations among an individual’s personnel evaluations may well depend upon the nature of the employee’s responsibilities; a more exacting standard of performance may have to be applied to positions of greater responsibility.” Healy v. New York Life Ins. Co., 860 F.2d 1209, 1214 (3d Cir. 1988) (ADEA case).
If the defendant meets its burden of producing evidence of a nondiscriminatory reason for its action,8 the plaintiff must persuade the jury that the defendant's stated reason was merely a pretext for age discrimination, or in some other way prove it more likely than not that age motivated the employer. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981) (Title VII case). The plaintiff retains the ultimate burden of proving intentional discrimination. Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 897 (3d Cir. 1987) (en banc) (“Under the ADEA, the ultimate burden remains with the plaintiff to prove that age was a determinative factor in the defendant employer’s decision. The plaintiff need not prove that age was the employer’s sole or exclusive consideration, but must prove that age made a difference in the decision.”).9 The factfinder’s rejection of the employer’s proffered reason allows, but does not compel, judgment for the plaintiff. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 (2000) (“In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose.”). The employer’s proffered reason can be shown to be pretextual by circumstantial as well as direct evidence. Chipollini v. Spencer Gifts, Inc., 814 F.2d 893 (3d Cir. 1987) (en banc) (ADEA case). “To discredit the employer’s proffered reason... the plaintiff cannot simply show that the employer’s decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent or competent.” Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1109 (3d Cir. 1997) (ADEA case). See also Tomasso v. Boeing Co., 445 F.3d 702, 707 (3d Cir. 2006) (ADEA case) (noting that the employee “need not always offer evidence sufficient to discredit all of the rationales advanced by the employer” because “the rejection of some explanations may so undermine the employer’s credibility as to enable a rational factfinder to disbelieve the remaining rationales, even where the employee fails to produce evidence particular to those rationales.”).
Miller v. Cigna Corp., 47 F.3d 586 (3d Cir. 1995) (en banc), was decided under the assumption that ADEA mixed-motive cases were governed by a framework distinct from that governing ADEA pretext cases. Obviously, that assumption is no longer good law after Gross, but the Miller court’s discussion of the appropriate instruction for an ADEA pretext case remains instructive:
A plaintiff in an ADEA case who does not qualify for a burden shifting instruction under Price Waterhouse [i.e., a “mixed-motive” case] has the burden of persuading the trier of fact by a preponderance of the evidence that there is a “but-for” causal connection between the plaintiff’s age and the employer’s adverse action -- i.e., that age “actually played a role in [the employer’s decisionmaking] process and had a determinative influence on the outcome” of that process. Miller, 47 F.3d at 596-97 (quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)). The court in Miller reversed a verdict for the defendant because the trial judge instructed the jury that age must be the “sole cause” of the employer’s decision. That standard was too stringent; instead, in a pretext case, “plaintiff must prove by a preponderance of the evidence that age played a role in the employer's decisionmaking process and that it had a determinative effect on the outcome of that process.”
Adverse Employment Action
As to the element of adverse employment action, the relevant statutory language in the ADEA is materially similar to that in Title VII. The ADEA makes it “unlawful for an employer... to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a); compare 42 U.S.C. § 2000e-2(a)(1) (similar provision in Title VII). The Committee accordingly has drafted the adverse employment action element in Instruction 8.1.1 to parallel that in Instructions 5.1.1 and 5.1.2. See Comment 5.1.1 for further discussion of the adverse employment action element in Title VII cases.
Seniority Distinct From Age
In Hazen Paper Co. v. Biggins, 507 U.S. 604, 611 (1993), the Court held that the ADEA does not prohibit discrimination on the basis of an employee’s seniority, as distinct from age. In Hazen, the employer fired the employee to prevent him from vesting in the pension plan. The Court found that the employer’s action was not prohibited by the ADEA. The Court reasoned as follows:
[T]he ADEA commands that "employers are to evaluate [older] employees... on their merits and not their age." Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 422 (1985). The employer cannot rely on age as a proxy for an employee's remaining characteristics, such as productivity, but must instead focus on those factors directly.
When the employer's decision is wholly motivated by factors other than age, the problem of inaccurate and stigmatizing stereotypes disappears. This is true even if the motivating factor is correlated with age, as pension status typically is.... On average, an older employee has had more years in the work force than a younger employee, and thus may well have accumulated more years of service with a particular employer. Yet an employee's age is analytically distinct from his years of service. An employee who is younger than 40, and therefore outside the class of older workers as defined by the ADEA, see 29 U.S.C. § 631(a), may have worked for a particular employer his entire career, while an older worker may have been newly hired. Because age and years of service are analytically distinct, an employer can take account of one while ignoring the other, and thus it is incorrect to say that a decision based on years of service is necessarily "age based.”
We do not preclude the possibility that an employer who targets employees with a particular pension status on the assumption that these employees are likely to be older thereby engages in age discrimination. Pension status may be a proxy for age, not in the sense that the ADEA makes the two factors equivalent, but in the sense that the employer may suppose a correlation between the two factors and act accordingly.... Finally, we do not consider the special case where an employee is about to vest in pension benefits as a result of his age, rather than years of service, and the employer fires the employee in order to prevent vesting. That case is not presented here. Our holding is simply that an employer does not violate the ADEA just by interfering with an older employee's pension benefits that would have vested by virtue of the employee's years of service.
See also Kentucky Retirement Systems v. EEOC, 554 U.S. 135, 148 (2008) (“Where an employer adopts a pension plan that includes age as a factor, and that employer then treats employees differently based on pension status, a plaintiff, to state a disparate treatment claim under the ADEA, must adduce sufficient evidence to show that the differential treatment was ‘actually motivated’ by age, not pension status.”); Bryan v. Gov't of Virgin Islands, 916 F.3d 242, 247, 249 (3d Cir. 2019) (holding that a territorial law “[r]equiring that long-tenured employees who declined to retire contribute 3% more of their salaries to the pension system each year... did not discriminate based on age” because it was motivated by financial considerations and the criterion it employed – thirty years of service – was not “a direct proxy [that] could be masquerading as a factor other than age”). The pattern instruction advises the jury to distinguish between age-related discrimination and discrimination on other grounds that might correlate with age.
Discrimination on the Basis of Relative Youth
ADEA liability does not lie when a member of the protected class suffers discrimination because she is too young. In General Dynamics Land Systems, Inc., v. Cline, 540 U.S. 581 (2004), the employer retained health care benefits only for current employers who were older than 50. This meant that employees within the protected age class of 40-50 were disentitled. The Court rejected an ADEA claim, relying on legislative history indicating that Congress intended to protect older workers only; it did not prohibit favoring the old over the young. In sum, “ADEA protects only relatively older workers (over 40 [sic]) from discrimination favoring relatively younger ones (of any age).” Lewis & Norman, Employment Discrimination Law 428 (2d ed. 2004).
(Last Updated July 2019)
4 Please see the Comment for discussion of this list of alternatives.
5 Instruction 8.1.1 is drafted on the assumption that there is no dispute as to the first of these elements – namely, that the plaintiff was 40 or older at the time of the alleged adverse employment action. In the (likely rare) case where the defendant disputes whether the plaintiff was at least 40 at the time of the alleged adverse action, Instruction 8.1.1 should be revised to put that question to the jury as an element that the plaintiff must prove.
6 In O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996), the Court rejected the argument that an ADEA plaintiff in a discharge case must show that he was replaced by someone under 40. Under O’Connor, the question is whether the employer relied on age in making the challenged decision, not on whether the employer chose someone outside the protected class. The Court added, however, that an inference of age discrimination “cannot be drawn from the replacement of one worker with another insignificantly younger.” 517 U.S. at 313. See also Maxfield v. Sinclair Int’l, 766 F.2d 788, 792-93 (3d Cir. 1985) (“The probative value of the age of the replacement will depend on the circumstances of the case. Although replacement by someone younger, without more, will not give rise to an inference of age discrimination, it has been noted that a substantial difference in the ages may be circumstantial evidence that gives rise to that inference. [citing cases] If the difference in ages of the two employees were insignificant, the district court would likely find that the evidence was insufficient to permit an inference of discrimination.”).
On the question of what is a substantial difference in age, see, e.g., Sempier v. Johnson & Higgins, 45 F.3d 724 (3d Cir. 1995) (noting that no particular age difference must be shown; citing cases holding that a five year difference was sufficient, and other case law indicating that a one year difference was insufficient to support an inference of age discrimination).
7 On the standards for proving age discrimination in reduction in force cases, see, e.g., Tomasso v. Boeing Co., 445 F.3d 702, 706 n.4 (3d Cir. 2006): Ordinarily, to make out a prima facie case [of age discrimination] the plaintiff must show... that he was replaced by a sufficiently younger person to create an inference of age discrimination. Fakete v. Aetna, Inc., 308 F.3d 335, 338 (3d Cir. 2002). However, where an employee is terminated during a RIF, the [disputed question] becomes whether the employer retained employees who do not belong to the protected class. See also Dreyer v. ARCO Chemical Co., 801 F.2d 651, 654 (3d Cir. 1986) (noting that in reduction of force cases “it is often impracticable to require a plaintiff whose job has been eliminated to show replacement”), overruled on other grounds by Hazen Paper Co. v. Biggins, 507 U.S. 604, 617 (1993); Anderson v. CONRAIL, 297 F.3d 242 (3d Cir. 2002) (in a reduction in force case, the plaintiff must show that a similarly situated substantially younger employee was retained).
8 The Committee has not attempted to draft an instruction for the (likely rare) case in which the defendant fails to articulate any legitimate nondiscriminatory reason for the adverse employment action. Regarding such cases, see St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509-10 & n.3 (1993) (stating that if the plaintiff presents evidence supporting the elements of the prima facie case and the defendant fails to articulate a legitimate nondiscriminatory reason, then “[i]f the finder of fact... finds that the prima facie case is supported by a preponderance of the evidence[,] it must find the existence of the presumed fact of unlawful discrimination and must, therefore, render a verdict for the plaintiff”).
9 See also Burton v. Teleflex Inc., 707 F.3d 417, 427 (3d Cir. 2013) (ADEA and Title VII case) (“To make a showing of pretext, ‘the plaintiff must point to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action’” (quoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)).). The second of these two numbered alternatives was not at issue in Burton, because the court relied on the first alternative, holding that there was evidence that would justify a factfinder in disbelieving the employer’s stated reason. See id. at 431.
In Willis v. UPMC Children's Hosp. of Pittsburgh, 808 F.3d 638 (3d Cir. 2015), the Court of Appeals offered more detail concerning the second alternative: “Pointing to evidence demonstrating any of the following satisfies this second way to prove pretext: (1) the defendant previously discriminated against the plaintiff; (2) the defendant discriminated against others within the plaintiff's protected class; or (3) the defendant has treated similarly situated, substantially younger individuals more favorably.” Id. at 645; see also id. at 649 (holding that the plaintiff “has not presented evidence that supports any of the three categories that would allow a factfinder to believe unlawful discrimination was more likely than not a motivating or determinative cause of her termination”).
Although the Burton and Willis courts phrased the second alternative in terms that seem to permit a finding of liability based on proof that discrimination was “a motivating... cause,” such an approach would appear to contravene the Gross Court’s requirement of but-for causation.