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8 PJI 1.5 | Third Circuit (US)
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8 PJI 1.5 | ADEA | RETALIATION

[Plaintiff] claims that [defendant] discriminated against [him/her] because of [plaintiff’s] [describe protected activity].

To prevail on this claim, [plaintiff] must prove all of the following by a preponderance of the evidence:

First: [Plaintiff] [describe activity protected by the ADEA].

Second: [Plaintiff] was subjected to a materially adverse action at the time, or after, the protected conduct took place.

Third: There was a causal connection between [describe challenged activity] and [plaintiff’s] [describe plaintiff’s protected activity].


Concerning the first element, [plaintiff] need not prove the merits of [his/her] [describe plaintiff’s activity], but only that [he/she] was acting under a reasonable,17 good faith belief that [plaintiff’s] [or someone else’s] rights under the Age Discrimination in Employment Act were violated.

Concerning the second element, the term “materially adverse” means that [plaintiff] must show [describe alleged retaliatory activity] was serious enough that it well might have discouraged a reasonable worker from [describe plaintiff’s protected activity]. [The activity need not be related to the workplace or to [plaintiff’s] employment.]

Concerning the third element, that of causal connection, that connection may be shown in many ways. For example, you may or may not find that there is a sufficient connection through timing, that is [defendant’s] action followed shortly after [defendant] became aware of [plaintiff’s] [describe activity]. Causation is, however, not necessarily ruled out by a more extended passage of time. Causation may or may not be proven by antagonism shown toward [plaintiff] or a change in demeanor toward [plaintiff].

Ultimately, you must decide whether [plaintiff’s] [protected activity] had a determinative effect on [describe alleged retaliatory activity]. “Determinative effect” means that if not for [plaintiff's] [protected activity], [describe alleged retaliatory activity] would not have occurred.

COMMENT The ADEA provides a cause of action for retaliation:

(d) Opposition to unlawful practices; participation in investigations, proceedings, or litigation. It shall be unlawful for an employer to discriminate against any of his employees or applicants for employment, for an employment agency to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because such individual, member or applicant for membership has opposed any practice made unlawful by this section, or because such individual, member or applicant for membership has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this Act.

29 U.S.C. § 623(d). This section applies to protect employees in the private sector; the ADEA provision covering federal employees, see 29 U.S.C. §633a(a), does not contain an explicit provision on retaliation. However, the Supreme Court in Gomez-Perez v. Potter, 128 S. Ct. 1931, 1943 (2008), held “that § 633a(a) prohibits retaliation against a federal employee who complains of age discrimination.”

The substantive standards for a retaliation claim under the ADEA are generally the same as those applied to Title VII retaliation claims. Lewis and Norman, Employment Discrimination 453 (2d ed. 2004) (“Section 623(d) of ADEA provides protection against retaliation in the same terms as § 704(a) of Title VII.”) ; Daniels v. Sch. Dist. of Philadelphia, 776 F.3d 181, 192 (3d Cir. 2015) (addressing retaliation claims under Title VII, the ADEA, and the Pennsylvania Human Rights Act “together[,] as the circumstances of this case do not require that we make differing analyses”).

Protected Activity

The most common activities protected from retaliation under the ADEA and Title VII are:

1) opposing or complaining about discrimination;18

2) making a charge of employment discrimination;

3) testifying, assisting or participating in any manner in an investigation, proceeding or hearing under the ADEA.


See the discussion of protected activity in the Comment to Instruction 5.1.7. See also Fasold v. Justice, 409 F.3d 178, 188 (3d Cir. 2005) (filing a complaint with the EEOC is protected activity); Robinson v. City of Pittsburgh, 120 F.3d 1286, 1299 (3d Cir. 1997) (filing discrimination complaint constitutes protected activity), overruled on other grounds by Burlington N. & S.F. Ry. Co. v. White, 548 U.S. 53 (2006); Kachmar v. Sungard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir. 1997) (advocating equal treatment was protected activity); Aman v. Cort Furniture, 85 F.3d 1074, 1085 (3d Cir. 1989) (under Title VII’s anti-retaliation provision “a plaintiff need not prove the merits of the underlying discrimination complaint, but only that ‘he was acting under a good faith, reasonable belief that a violation existed.’” (quoting Griffiths v. CIGNA Corp., 988 F.2d 457, 468 (3d Cir. 1993) (quoting Sumner v. United States Postal Service, 899 F.2d 203, 209 (2d Cir. 1990)), overruled on other grounds by Miller v. CIGNA Corp., 47 F.3d 586 (3d Cir. 1995))).

In accord with instructions from other circuits, Instruction 8.1.5 directs the jury to determine both the good faith and the reasonableness of the plaintiff’s belief that employment discrimination had occurred. See Fifth Circuit Committee Note to Instruction 11.6.1 (Title VII retaliation); Seventh Circuit Committee Comment to Instruction 3.02 (retaliation instruction for use in Title VII, § 1981, and ADEA cases); Eleventh Circuit Instruction 4.21 (Section 1981 retaliation); Eleventh Circuit Instruction 4.22 (retaliation claims under Title VII, ADEA, ADA, and FLSA); see also Eighth Circuit Instruction 10.41 (retaliation claim (regarding opposition to harassment or discrimination) under Title VII and other federal discrimination laws; instruction uses phrase “reasonably believed”); id. Notes on Use, Note 5 (using phrase “reasonably and in good faith believe”); compare Ninth Circuit Instruction & Comment 10.3 (Title VII retaliation) (discussing reasonableness requirement in the comment but not in the model instruction). In cases where the protected nature of the plaintiff’s activity is not in dispute, this portion of the instruction can be modified and the court can simply instruct the jury that specified actions by the plaintiff constituted protected activity.

Standard for Actionable Retaliation

The Supreme Court in Burlington N. & S.F. Ry. v. White, 548 U.S. 53, 68 (2006), held that a cause of action for retaliation under Title VII lies whenever the employer responds to protected activity in such a way “that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” (internal quotation marks and citations omitted).19 The Court elaborated on this standard in the following passage:
We speak of material adversity because we believe it is important to separate significant from trivial harms. Title VII, we have said, does not set forth "a general civility code for the American workplace." Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80, 118 S. Ct. 998, 140 L. Ed. 2d 201 (1998). An employee's decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience. See 1 B. Lindemann & P. Grossman, Employment Discrimination Law 669 (3d ed. 1996) (noting that "courts have held that personality conflicts at work that generate antipathy" and "'snubbing' by supervisors and co-workers" are not actionable under § 704(a)). The anti-retaliation provision seeks to prevent employer interference with "unfettered access" to Title VII's remedial mechanisms. It does so by prohibiting employer actions that are likely "to deter victims of discrimination from complaining to the EEOC," the courts, and their employers. And normally petty slights, minor annoyances, and simple lack of good manners will not create such deterrence. See 2 EEOC 1998 Manual § 8, p. 8-13.

We refer to reactions of a reasonable employee because we believe that the provision's standard for judging harm must be objective. An objective standard is judicially administrable. It avoids the uncertainties and unfair discrepancies that can plague a judicial effort to determine a plaintiff's unusual subjective feelings. We have emphasized the need for objective standards in other Title VII contexts, and those same concerns animate our decision here. See, e.g., [Pennsylvania State Police v.] Suders, 542 U.S., at 141, 124 S. Ct. 2342, 159 L. Ed. 2d 204 (constructive discharge doctrine); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993) (hostile work environment doctrine).

We phrase the standard in general terms because the significance of any given act of retaliation will often depend upon the particular circumstances. Context matters.... A schedule change in an employee's work schedule may make little difference to many workers, but may matter enormously to a young mother with school age children. A supervisor's refusal to invite an employee to lunch is normally trivial, a nonactionable petty slight. But to retaliate by excluding an employee from a weekly training lunch that contributes significantly to the employee's professional advancement might well deter a reasonable employee from complaining about discrimination. Hence, a legal standard that speaks in general terms rather than specific prohibited acts is preferable, for an act that would be immaterial in some situations is material in others.

Finally, we note that... the standard is tied to the challenged retaliatory act, not the underlying conduct that forms the basis of the Title VII complaint. By focusing on the materiality of the challenged action and the perspective of a reasonable person in the plaintiff's position, we believe this standard will screen out trivial conduct while effectively capturing those acts that are likely to dissuade employees from complaining or assisting in complaints about discrimination.
548 U.S. at 68-70 (some citations omitted).

The anti-retaliation provision of Title VII, construed by the Court in White, is substantively identical to the ADEA provision on retaliation, supra. This instruction therefore follows the guidelines of the Supreme Court’s decision in White.

No Requirement That Retaliation Be Job-Related To Be Actionable

The Supreme Court in Burlington N. & S.F. Ry. v. White, 126 S. Ct. 2405, 2413 (2006), held that retaliation need not be job-related to be actionable under Title VII. In doing so, the Court rejected authority from the Third Circuit (and others) requiring that the plaintiff suffer an adverse employment action in order to recover for retaliation. The Court distinguished Title VII’s retaliation provision from its basic anti-discrimination provision, which does require an adverse employment action. The Court noted that unlike the basic anti-discrimination provision, which refers to conditions of employment, the anti-retaliation provision is broadly worded to prohibit any discrimination by an employer in response to protected activity.

Because the ADEA anti-retaliation provision is substantively identical to the Title VII provision construed in White — it broadly prohibits discrimination without reference to employment-related decisions — this instruction contains bracketed material to cover a plaintiff’s claim for retaliation that is not job-related. The instruction does not follow pre-White Third Circuit authority which required the plaintiff in a retaliation claim to prove that she suffered an adverse employment action. See, e.g., Nelson v. Upsala College, 51 F.3d 383, 386 (3d Cir. 1995)(requiring the plaintiff in a retaliation case to prove among other things that “the employer took an adverse employment action against her”).

It should be noted, however, that damages for emotional distress and pain and suffering are not recoverable under the ADEA. Rogers v. Exxon Research and Engineering Co., 550 F.2d 834, 842 (3d Cir. 1977) (relying on legislative history tying recovery under the ADEA to that provided by the Fair Labor Standards Act, and not Title VII; holding that “damages for pain and suffering or emotional distress cannot properly be awarded in ADEA cases”), overruled on other grounds by Holliday v. Ketchum, MacLeod & Grove, Inc., 584 F.2d 1221 (3d Cir. 1978) (en banc). So, to the extent that retaliatory activity is not job-related, it is probably less likely to be compensable under the ADEA than it is under Title VII. For further discussion of White, see the Comment to Instruction 5.1.7.

Retaliation for another’s protected activity

The Supreme Court held in Thompson v. North American Stainless, LP, 131 S. Ct. 863 (2011), that Title VII not only bars retaliation against the employee who engaged in the protected activity, it also bars retaliation against another employee if the circumstances are such that the retaliation against that employee might well dissuade a reasonable worker from engaging in protected activity. See id. at 868. The Thompson Court did not discuss whether its holding extends to retaliation claims under other statutory schemes such as the ADEA. The Thompson Court’s holding that the third-party retaliation victim can sometimes assert a retaliation claim under Title VII rested on the Court’s analysis of the specific statutory language of Title VII. See Thompson, 131 S. Ct. at 869 (analyzing language in 42 U.S.C. § 2000e-5(f)(1) stating that “a civil action may be brought... by the person claiming to be aggrieved”). The ADEA contains similar language. See 29 U.S.C. § 626(c)(1) (“Any person aggrieved may bring a civil action in any court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this chapter....”). For further discussion of Thompson, see Comment 5.1.7. For a pre-Thompson Third Circuit case holding that the ADEA does not encompass third-party retaliation claims, see Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 570 (3d Cir. 2002).

Determinative Effect

As discussed in Comment 8.1.1, the Supreme Court has held with respect to non-retaliation ADEA claims that the plaintiff must prove but-for causation (and thus that a mixed-motive burden-shifting framework is unavailable). See Gross v. FBL Financial Services, Inc., 557 U.S. 167, 177-78 (2009). Although the Gross Court was interpreting 29 U.S.C. § 636(a), its reasoning seems equally applicable to 29 U.S.C. § 636(d) (the ADEA’s anti-retaliation provision). And this view also seems consistent with the Court’s more recent decision in University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517, 2528 (2013) (holding “that Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action”); id. at 2531-32 (discussing policy concerns relating to the standard of proof for retaliation claims).20 Accordingly, Instruction 8.1.5 requires the plaintiff to prove that the plaintiff’s protected activity had a determinative effect on the defendant’s retaliatory activity.

Causation for Federal Employees

Babb v. Wilkie, 140 S. Ct. 1168 (2020), recognized a modified causation structure for ADEA discrimination claims under 29 U.S.C. § 633(a). See comment to Instruction 8.0. That provision has also been held to bar retaliation, despite the absence of explicit language to that effect. Gomez-Perez v. Potter, 128 S. Ct. 1931 (2008). It is possible, therefore, that the Babb’s structure will apply to ADEA retaliation claims by federal employees.

Non-retaliatory Reason; Pretext

As with other types of discrimination or retaliation claims, the defendant may proffer a non-retaliatory reason for its employment decision, and the plaintiff may seek to rebut that reason by showing that it was really a cover-up for retaliation. See, e.g., Daniels v. School District of Philadelphia, 776 F.3d 181, 198 (3d Cir. 2015) (upholding grant of summary judgment against plaintiff on retaliation claims under, inter alia, the ADEA, because the defendant had “proffered legitimate reasons for [its] adverse actions, which Daniels has failed to rebut”).

Employer’s Attitude Toward Employee

On the relevance of an employer’s attitude toward an employee who engaged in protected activity, see Fasold v. Justice, 409 F.3d 178, 190 (3d Cir. 2005) (reversing a grant of summary judgment for an employer on an ADEA retaliation claim and noting that “we cannot discount the possibility that [the supervisor’s] irritation with Fasold’s pending administrative claims influenced the calculus [the supervisor] made in his decision to deny the Level II grievance.”).

Retaliation Against Perceived Protected Activity

In Fogleman v. Mercy Hospital, Inc., 283 F.3d 561, 562 (3d Cir. 2002), the court held that anti-retaliation provisions in the Americans with Disabilities Act, the Age Discrimination in Employment Act, and Pennsylvania state law extended to retaliation for “perceived” protected activity. “Because the statutes forbid an employer's taking adverse action against an employee for discriminatory reasons, it does not matter whether the factual basis for the employer's discriminatory animus was correct[;]... so long as the employer's specific intent was discriminatory, the retaliation is actionable.” 283 F.3d at 562. If the fairly unusual case arises in which the employer is alleged to have retaliated for perceived rather than actual protected activity, then the instruction can be modified consistently with the court’s directive in Fogleman.

(Last Updated July 2019)

Footnotes

17 See the Comment for a discussion of the allocation of responsibility for determining the reasonableness of the plaintiff’s belief.
18 Where an employer conditioned its conversion of terminated at-will employees into independent contractors on the employees’ signing releases of all existing claims (including but not limited to discrimination claims), an employee’s refusal to sign that release did not constitute opposition within the meaning of the ADEA’s anti-retaliation provision: “[R]efusing to sign a release... does not communicate opposition sufficiently specific to qualify as protected employee activity…. Because Allstate's Release barred its signatories from bringing any claims against Allstate concerning their employment or termination, employee agents who refused to sign it might have done so for any number of reasons unrelated to discrimination.” E.E.O.C. v. Allstate Ins. Co., 778 F.3d 444, 452 (3d Cir. 2015).
19 Where an employer terminated at-will employees but offered them a chance to serve as independent contractors if they signed releases of all existing claims (including but not limited to discrimination claims), the employer’s denial of the independent-contractor arrangement to terminated employees who refused to sign that release did not constitute an adverse action for purposes of the ADEA’s anti-retaliation provision. E.E.O.C. v. Allstate Ins. Co., 778 F.3d 444, 452 (3d Cir. 2015) (“[T]he terminated agents were not entitled to convert to independent contractor status…. And the [EEOC] has cited no legal authority for the proposition that an employer commits an adverse action by denying an employee an unearned benefit on the basis of the employee’s refusal to sign a release.”).
20 See also DiFiore v. CSL Behring, LLC, 879 F.3d 71, 78 (3d Cir. 2018) (holding that a mixed-motive framework is unavailable for False Claims Act retaliation claims because “the language of the FCA anti-retaliation provision uses the same ‘because of’ language that compelled the Supreme Court to require ‘but-for’ causation in Nassar and Gross”).

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