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9 PJI 1.7 | ADA | RETALIATION

¹⁷[Plaintiff] claims that [defendant] discriminated against [him/her] because of [plaintiff’s] [describe protected activity].¹⁸

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 ADA].

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 protected activity].

Concerning the first element, [plaintiff] need not prove the merits of [describe conduct], but only that [plaintiff] was acting under a reasonable,¹⁹ good faith belief that [plaintiff’s] [or someone else’s] right to be [free from discrimination on the basis of a disability] [free to request an accommodation for a disability] was 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 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 [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].

[Plaintiff] can recover for retaliation even if [plaintiff] did not have a “disability” within the meaning of the ADA. The question is not whether there was a “disability” but whether [defendant] retaliated for the [describe protected activity of 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 Right to Jury Trial for ADA Retaliation Claims

At least one court in the Third Circuit has held that a plaintiff’s recovery for retaliation under the ADA is limited to equitable relief, and accordingly there is no right to jury trial on an ADA retaliation claim. The court in Sabbrese v. Lowe’s Home Centers, Inc., 320 F. Supp. 2d 311, 331 (W.D. Pa. 2004), considered a defendant’s claim that the plaintiff did not have a right to a jury trial on his ADA retaliation claim. The plaintiff argued that because compensatory and punitive damages are available for retaliation actions under Title VII, they likewise are available for an ADA retaliation claim.

The Sabbrese court agreed with the defendant, finding persuasive the Seventh Circuit’s analysis in Kramer v. Banc of America Securities LLC, 355 F.3d 961 (7th Cir. 2004). The Sabbrese court’s analysis on the jury trial question is as follows:
The enforcement provision of the ADA is codified at 42 U.S.C. § 12117. That section provides that the available remedies under the ADA are the same as provided in the 1964 Civil Rights Act, 42 U.S.C. § 2000e-4 though e-9. Section 2000e-5(g)(1) of the Civil Rights Act limits the remedies available under that act to equitable relief, including back pay, but does not provide for compensatory or punitive damages. Kramer, 355 F.3d at 964. The 1991 Civil Rights Act, 42 U.S.C. § 1981a(a)(2), expanded the remedies available in section 2000e-5(g)(1) to provide for compensatory and punitive damages in certain circumstances. With respect to the ADA, section 1981a(a)(2) provided that a complaining party could recover compensatory and punitive damages for violations of section 102 or section 102(b)(5) of the ADA, codified at 42 U.S.C. §§ 12112 and 12112(b)(5). Sections 12112 and 12112(b)(5) deal with an employer's failure to make reasonable accommodations to a qualified employee with a disability [and also to disparate treatment claims], while section 12203 - not listed in section 1981a(a)(2) - establishes retaliation claims under the ADA.

After reviewing the applicable statutes, the United States Court of Appeals for the Seventh Circuit concluded that the plaintiff was precluded from recovering compensatory and punitive damages under her ADA retaliation claim. The court determined that section 1981a(a)(2) permitted recovery of compensatory and punitive damages only for the claims listed in that statute, such as section 12112 of the ADA, and since the section establishing retaliation claims under the ADA (42 U.S.C. § 12203) was not listed, compensatory and punitive damages were unavailable. This court adopts the persuasive rationale of Kramer and accordingly holds that compensatory and punitive damages are not available. After finding that only equitable relief was available for a claim of retaliation under the ADA, the Sabbrese court referred to Third Circuit authority to determine that the plaintiff had no right to jury trial on the claim:
The United States Court of Appeals for the Third Circuit offered guidance with respect to whether the right to a trial by jury exists in Cox v. Keystone Carbon Co., 861 F.2d 390 (3d Cir. 1988). There, the court stated that "in determining a party's right to a jury trial it is the procedural and remedial sections of the statute creating the right which must be examined." Id. at 392. The court concluded that "where the particular remedial section in the statute provides for only equitable remedies then no right to a jury trial exists." Id. The court further cautioned that "within a particular statute a right to a jury might exist as to some of the enforcement sections and not as to others," and that courts must be careful to examine the applicable subsections at issue to determine which remedies are available. Id. Cox, thus, requires the court to examine the statutory provisions of the ADA concerning retaliation claims in order to determine the nature of relief that may be awarded. If the court determines that the remedy is "explicitly equitable, then there is no seventh amendment right to a jury." Id. (citing Curtis v. Loether, 415 U.S. 189, 194-95 (1974).

As noted above, since compensatory and punitive damages are not available, the sole remedy for plaintiff's retaliation claims pursuant to the ADA is equitable relief. Under the mandate of Cox, because plaintiff's sole remedy under his ADA retaliation claim is equitable, plaintiff is not entitled to a jury trial on that claim. Accordingly, defendant's motion to strike [the demand for jury trial] is granted. The Sabbrese court noted that “[n]either the court nor any of the parties were able to locate any decisions in which the United States Court of Appeals for the Third Circuit implicitly upheld an award of compensatory or punitive damages for ADA retaliation claims.” It should be noted that courts in other circuits have found that damages (and a right to jury trial) are available in retaliation actions under the ADA. See, e.g., Foster v. Time Warner Entertainment Co., 250 F.3d 1189 (8th Cir. 2001); Lovejoy-Wilson v. Noco Motor Fuels, Inc., 242 F. Supp. 2d 236 (W.D.N.Y. 2003) (citing cases).

A pattern instruction for retaliation actions under the ADA is included here for two reasons. First, the Third Circuit has not yet considered whether there is a right to jury trial in ADA retaliation actions, and other courts are in disagreement on the question. Second, even if it is determined that there is no right to jury trial for ADA retaliation claims, the parties or the court may wish to have a jury render an advisory verdict on a plaintiff’s ADA retaliation claim. See Fed. R. Civ. P. 39(c). Alternatively, the parties may wish to stipulate to a jury’s resolution of a retaliation claim. Use of an advisory or a stipulated jury may especially be useful in cases where a retaliation claim is joined with an ADA disparate treatment or accommodation claim, as there is a right to jury trial for those claims and many of the issues to be decided by the jury for those claims might overlap with the retaliation claim.

The Basics of a Retaliation Claim under the ADA

The ADA provides: “No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by [the ADA] or because such individual made a charge... under [the ADA].” 42 U.S.C. § 12203(a). “Thus, it is unlawful for an employer to retaliate against an employee based upon the employee's opposition to anything that is unlawful under the ADA.” Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 188 (3d Cir. 2003).²⁰

Unlike a claim for discrimination, accommodation or harassment, an ADA retaliation claim does not require that a plaintiff show that he or she has a “disability” within the meaning of the ADA. Shellenberger, v. Summit Bancorp, Inc., 318 F.3d 183, 188 (3d Cir. 2003) (“we note that Shellenberger's failure to establish that she was disabled does not prevent her from recovering if she can establish that her employer terminated her because she engaged in activity protected under the ADA.”). This is because the text of the ADA retaliation provision protects “any individual” who has opposed any act or practice made unlawful by the ADA or who has made a charge under the ADA. This differs from the scope of the ADA disability discrimination provision, 42 U.S.C. § 12112(a), which may be invoked only by a “qualified individual with a disability.”

Protected Activity

Activity protected from retaliation under the ADA includes not only bringing or participating in formal actions to enforce ADA rights, but also informal activity such as requesting an accommodation for a disability. Shellenberger, v. Summit Bancorp, Inc., 318 F.3d 183, 188 (3d Cir. 2003). The plaintiff must have had a reasonable, good faith belief in the merits of an accommodation request in order for the activity to be protected against retaliation. Id. (“the protection from retaliation afforded under the ADA does not extend to an employee whose request is motivated by something other than a good faith belief that he/she needs an accommodation”); Sulima v. Tobyhanna Army Depot, 602 F.3d 177, 188 (3d Cir. 2010) (“[U]nlike a general ADA discrimination claim, an ADA retaliation claim does not require that the plaintiff demonstrate a disability within the meaning of the ADA, but only that the plaintiff has a ‘reasonable, good faith belief that [he] was entitled to request the reasonable accommodation [he] requested.’”) (quoting Williams v. Philadelphia Hous. Auth. Police Dep't, 380 F.3d 751, 759 n.2 (3d Cir. 2004)).

In accord with instructions from other circuits concerning retaliation under various employment discrimination statutes, Instruction 9.1.7 directs the jury to determine both the good faith and the reasonableness of the plaintiff’s belief that he or she was entitled to request a reasonable accommodation. 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).²¹ 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 ADA 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 ADA 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. For further discussion of White, see the Comment to Instruction 5.1.7.

Time Period Between Protected Activity and the Allegedly Retaliatory Action

On the relevance of the length of time between protected activity and an alleged retaliatory act, see Williams v. Philadelphia Hous. Auth. Police Dep’t, 380 F.3d 751, 757 (3d Cir. 2004), a case involving termination:
We have held in the ADA retaliation context that "temporal proximity between the protected activity and the termination [can be itself] sufficient to establish a causal link." Shellenberger, v. Summit Bancorp, Inc., 318 F.3d 183, 188 (3d Cir. 2003) (quoting Woodson v. Scott Paper Co., 109 F.3d 913, 920 (3d Cir. 1997)). However, "the timing of the alleged retaliatory action must be unusually suggestive of retaliatory motive before a causal link will be inferred." Shellenberger, 318 F.3d at 189 n.9. For example, two days between the protected activity engaged in and the alleged retaliation sufficed in Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir.1989), to support an inference of a causal connection between the two. Similarly, in Shellenberger, comments made by a supervisor suggesting retaliation ten days before termination, along with other evidence of retaliation, were sufficient to establish a prima facie showing of causation.

Here, over two months elapsed between the time Williams requested a radio room assignment and the time that he was terminated. In cases like this one, "where 'the temporal proximity is not so close as to be unduly suggestive,' we have recognized that 'timing plus other evidence may be an appropriate test....’” Thomas v. Town of Hammonton, 351 F.3d 108, 114 (3d Cir. 2003) (quoting Estate of Smith v. Marasco, 318 F.3d 497, 513 (3d Cir. 2003)). Williams has, however, put forth no other evidence suggesting that PHA terminated him because he requested a radio room assignment. Moreover, the evidence supporting PHA's alternative explanation is quite compelling. As Williams acknowledges, PHA had granted Williams medical leave on two prior occasions, and there was no indication that PHA would not have done so again had Williams simply [followed company procedures]. Protection Against Retaliation For the Protected Activity of Another Person Under the ADA

In Fogleman v. Mercy Hospital, Inc., 283 F.3d 561, 562 (3d Cir. 2002), the plaintiff was employed in the same facility as his father. His father engaged in protected activity under the ADA, and the plaintiff alleged that the employer retaliated against the plaintiff. The court held that the plaintiff’s third-party retaliation claim could proceed under 42 U.S.C. § 12203(b), which provides:
It shall be unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by this chapter. In a case involving a third-party retaliation claim, the instruction can be modified to accord with the holding in Fogleman. For a discussion of third-party retaliation claims under Title VII and Thompson v. North American Stainless, LP, 131 S. Ct. 863 (2011), see Comment 5.1.7.

Perceived Protected Activity

The court in Fogleman also held that the ADA protected an employee against 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.

“Determinative Effect” Instruction

Instruction 9.1.7 requires the plaintiff to show that the plaintiff’s protected activity had a “determinative effect” on the allegedly retaliatory activity. Prior to 2013, a distinction between pretext and mixed-motive cases had on occasion been recognized as relevant for both Title VII retaliation claims and ADA retaliation claims: “[W]e analyze ADA retaliation claims under the same framework we employ for retaliation claims arising under Title VII.... This framework will vary depending on whether the suit is characterized as a ‘pretext’ suit or a ‘mixed motives’ suit.” Krouse v. American Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997). For Title VII retaliation claims that proceeded on a “pretext” theory, the “determinative effect” standard applied. See Woodson, 109 F.3d at 935 (holding that it was error, in a case that proceeded on a “pretext” theory, not to use the “determinative effect” language). The same was true for ADA retaliation claims. See Krouse, 126 F.3d at 501. Writing in an ADA retaliation case that proceeded on a pretext theory, and citing Woodson and Krouse, the court of appeals stated in Shaner v. Synthes, 204 F.3d 494, 501 (3d Cir. 2000), that “[w]e recently have made clear that a plaintiff's ultimate burden in a retaliation case is to convince the factfinder that retaliatory intent had a ‘determinative effect’ on the employer's decision.” Shaner did not appear, however, to foreclose the use of a mixed-motive framework in an appropriate case, because the court of appeals later held that an ADA retaliation plaintiff had sufficient evidence to justify the use of such a framework: “The evidentiary framework of Shellenberger's claim will vary depending on whether the suit is characterized as a ‘pretext’ suit or a ‘mixed-motives’ suit. Shellenberger argues that her evidence was sufficient to survive judgment as a matter of law under either theory, and we agree.” Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 187 (3d Cir. 2003) (footnote omitted).

In 2013, the Supreme Court held that the mixed-motive proof framework is unavailable for Title VII retaliation claims. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013) (“Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test stated in [42 U.S.C.] § 2000e–2(m). This requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.”). The Nassar Court reasoned that Congress legislated against a background tort principle of “but for” causation, see Nassar, 133 S. Ct. at 2523; that Title VII’s retaliation provision uses the word “because,” which is incompatible with a mixed-motive test, see id. at 2528; that Congress would have structured the statutory framework differently had it wished to encompass Title VII retaliation claims among those eligible for the statutory mixed-motive test set forth in 42 U.S.C. '§ 2000e-2(m) and 2000e 5(g)(2)(B), see id. at 2529; that policy considerations support a restrictive approach to the standards of proof for retaliation claims, see id. at 2531-32; and that the “careful balance” that Congress set in the Civil Rights Act of 1991 forecloses the use of the Price Waterhouse mixed-motive test for Title VII retaliation claims, id. at 2534.

More recently, in Comcast Corp. v. Nat'l Ass'n of African American-Owned Media, 140 S. Ct. 1009 (2020), the Court held that proving a violation of Section 1981 required plaintiff to show that the adverse action would not have occurred but for the racial motivation: “To prevail, a plaintiff must initially plead and ultimately prove that, but for race, it would not have suffered the loss of a legally protected right.” Id. at 1019. The Court viewed this as a default principle for tort suits, and it saw no reason to depart from that “‘background’ rule,” id. at 1014, even though Section 1981 lacks the “because” language that the Court focused on in Gross and Nassar.

The Committee has not attempted to determine what, if any, implications Nassar and Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009),²² have for ADA retaliation claims,²³ but users of these instructions may wish to consider that question.
(Last Updated July 2019)

Footnotes

¹⁷ Some courts have held that there is no right to jury trial for an ADA retaliation claim. See the Comment to this instruction.
¹⁸ In some cases, an employer might retaliate against a plaintiff for the protected activity of another employee. As Comment 9.1.7 discusses, Instruction 9.1.7 can be modified to address such third-party retaliation claims.
¹⁹ See the Comment for a discussion of the allocation of responsibility for determining the reasonableness of the plaintiff’s belief.
²⁰ 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 ADA’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).
²¹ 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 ADA’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.”).
²² The Court in Nassar relied upon its prior decision in Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009). In Gross, the Supreme Court rejected the use of a mixed-motive framework for claims under the Age Discrimination in Employment Act (ADEA). The Gross Court reasoned that it had never held that the mixed-motive framework set by Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), applied to ADEA claims; that the ADEA’s reference to discrimination “because of” age indicated that but-for causation is the appropriate test; and that this interpretation was bolstered by the fact that when Congress in 1991 provided the statutory mixed-motive framework codified at 42 U.S.C. § 2000e-5(g)(2)(B), that provision was not drafted so as to cover ADEA claims.

The Court in Comcast looked to both Nassar and Gross despite the fact that Section 1981 lacked the “because” language that those decisions relied on. Even absent such explicit language, it perceived a common law but-for causation “‘background’ rule,” id. at 1014, that Congress presumably adopted when it did not explicitly provide otherwise, as in Title VII’s motivating factor standard. Cf. Babb v. Wilkie, 140 S. Ct. 1168 (2020) (adopting a modified causation analysis for federal employee ADEA claims in light of the governing statutory language requiring “personnel actions” to be “free” of discrimination).
²³ Cf. 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”); id. at 76 (holding that Nassar and Gross “undermine[d],” and thus justified panel reconsideration of, a prior Third Circuit opinion indicating that a “motivating factor” analysis was appropriate for False Claims Act retaliation claims).