Contents

STATEMENT OF INTEREST. 1

STATEMENT OF THE ISSUES. 2

STATEMENT OF THE CASE. 2

A. Statement of the Facts. 2

B. District Court’s Decisions. 6

1. Dismissal of plaintiffs’ Title VII sex-plus claims. 6

2. Summary judgment on plaintiffs’ ADEA claim of disparate treatment 7

ARGUMENT. 8

I.. Plaintiffs alleged viable sex-plus claims under Title VII. 8

A. Sex-plus claims by older women are cognizable under Title VII. 8

B. Plaintiffs’ complaint gave Affinity “fair notice” of their Title VII disparate treatment claim. 19

II. Plaintiffs established a prima facie case of age discrimination under the ADEA by adducing evidence that after Affinity fired them, the company continued to seek workers to fill their positions. 21

CONCLUSION.. 28

CERTIFICATE OF COMPLIANCE WITH FED. R. APP. P. 32. C-1

CERTIFICATE REGARDING PRIVACY REDACTIONS. C-1

CERTIFICATE REGARDING PAPER COPIES. C-1

CERTIFICATE REGARDING VIRUS SCAN.. C-2

CERTIFICATE OF SERVICE. C-3

Table of Authorities

Page(s)

Cases

Adamson v. Multi Cmty. Diversified Servs., Inc.,
514 F.3d 1136 (10th Cir. 2008)........................ 8, 23, 24, 25

Arndt v. City of Colorado Springs,
263 F. Supp. 3d 1071 (D. Colo. 2017)....................... 15, 16

Arnett v. Aspin,
846 F. Supp. 1234 (E.D. Pa. 1994)............................ 15, 18

Ashcroft v. Iqbal,
556 U.S. 662 (2009)........................................................ 20

Back v. Hastings on Hudson Union Free Sch. Dist.,
365 F.3d 107 (2d Cir. 2004)............................................ 12

Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007).................................................. 19, 20

Bennett v. Windstream Commc’ns, Inc.,
792 F.3d 1261 (10th Cir. 2015).................................. 24, 25

Boulware v. Baldwin,
545 F. App’x 725 (10th Cir. 2013) (unpub.).................... 18

Coleman v. B-G Maint. Mgmt.,
108 F.3d 1199 (10th Cir. 1997)........................ 9, 11, 13, 14

Connecticut v. Teal, 457 U.S. 440 (1982)............................... 9

Cooper v. Corr. Corp. of Am., Civ. No. 15-cv-755,
2015 WL 5736838 (D. Colo. Oct. 1, 2015) (unpub.)....... 15

DePaula v. Easter Seals El Mirador,
859 F.3d 957 (10th Cir. 2017)................................... 23, 27

Doucette v. Morrison Cnty., Minn.,
763 F.3d 978 (8th Cir. 2014)........................................... 14

English v. Colo. Dep’t of Corr.,
248 F.3d 1002 (10th Cir. 2001).................................. 26, 27

Franchina v. City of Providence,
881 F.3d 32 (1st Cir. 2018)........................................ 12, 13

Furnco Const. Corp. v. Waters,
438 U.S. 567 (1978)........................................................ 23

Garrison v. Gambro, Inc.,
428 F.3d 933 (10th Cir. 2005)......................................... 27

Gorzynski v. JetBlue Airways Corp.,
596 F.3d 93 (2d Cir. 2010).............................................. 14

Greene v. Safeway Stores, Inc.,
98 F.3d 554 (10th Cir. 1996)........................................... 25

Gross v. FBL Fin. Servs., Inc.,
557 U.S. 167 (2009)............................................... 6, 17, 22

Hall v. Mo. Highway & Transp. Comm’n,
995 F. Supp. 1001 (E.D. Mo. 1998), aff’d on other grounds, 235 F.3d 1065 (8th Cir. 2000)........................... 15

Hicks v. Gates Rubber Co., 833 F.2d 1406 (10th Cir. 1987). 10

Int’l Bhd. of Teamsters v. United States,
431 U.S. 324 (1977)............................................. 23, 24, 26

Jefferies v. Harris Cnty. Cmty. Action Ass’n, 615 F.2d 1025 (5th Cir. 1980............................................................ 10, 11

Jones v. Okla. City Pub. Schs., 617 F.3d 1273 (10th Cir. 2010)........................................................................................ 22

Kendrick v. Penske Transp. Servs., Inc.,
220 F.3d 1220 (10th Cir. 2000).................................. 26, 27

Khalik v. United Air Lines,
671 F.3d 1188 (10th Cir. 2012)........................ 7, 19, 20, 21

Lam v. Univ. of Hawai’i,
40 F.3d 1551 (9th Cir. 1994)........................................... 11

L.A. Dep’t of Water & Power v. Manhart,
435 U.S. 702 (1978)........................................................ 12

McDonell Douglas Corporation v. Green,
411 U.S. 792 (1973)................................... 7, 22, 23, 24, 27

McGrane v. Proffitt’s Inc., Civ. No. 97-cv-221,
2000 WL 34030843 (N.D. Iowa Dec. 26, 2000) (unpub.) 15

O’Connor v. Consolidated Coin Caterers Corp.,
517 U.S. 308 (1996)........................................................ 26

Perry v. Woodward,
199 F.3d 1126 (10th Cir. 1999)................ 23, 24, 25, 26, 27

Phillips v. Martin Marietta Corp.,
400 U.S. 542 (1971) (per curiam).......................... 9, 10, 14

Schatzman v. Cnty. of Clermont, Ohio, No. 99-4066
2000 WL 1562819 (6th Cir. Oct. 11, 2000) (unpub.)....... 14

Schwager v. Sun Oil Co. of Pa.,
591 F.2d 58 (10th Cir. 1979)..................................... 22, 24

Shazor v. Prof’l Transit Mgmt., Ltd.,
744 F.3d 948 (6th Cir. 2014)..................................... 11, 14

Sherman v. Am. Cyanamid Co., No. 98-4035
1999 WL 701911 (6th Cir. Sept. 1, 1999) (unpub.)......... 14

Smith v. City of Jackson, Miss., 544 U.S. 228 (2005).............. 7

Sprogis v. United Air Lines, Inc.,
444 F.2d 1194 (7th Cir. 1971)................................... 12, 13

Swierkiewicz v. Sorema N.A.,
534 U.S. 506 (2002).................................................. 19, 20

Texas Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248 (1981).................................................. 23, 26

Weinberger v. Wiesenfeld, 420 U.S. 636 (1975)................... 12

Statutes

Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq..................................................................... 1

Civil Rights Act of 1964, Title VII (Title VII), 42 U.S.C. §§ 2000e et seq................................................................... 1, 9

29 U.S.C. § 623(a)................................................................ 22

42 U.S.C. § 2000e-2(a)(1)...................................................... 9

42 U.S.C. § 2000e-2(m)....................................................... 17

42 U.S.C. § 2000e-5(g)(2)(B)............................................... 17

Federal Rules

Fed. R. App. P. 29(a).............................................................. 1

Fed. R. Civ. P. 8(a)(2).................................................... 19, 20

Fed. R. Civ. P. 8(d)(1).......................................................... 19

Fed. R. Civ. P. 8(d)(3).......................................................... 18

Other Authorities

2 EEOC Compliance Manual § II, 2009 WL 2966754 (Aug. 6, 2009)............................................................................... 16

EEOC Compliance Manual § 15 (No. 915.003, 4/19/2006), 2006 WL 4673427 (June 1, 2006),.................................. 16

Lex K. Larson, Employment Discrimination § 40.04 (2d ed. 1996)............................................................................... 13

GLOSSARY

(10th Cir. R. 28.2(C)(6))

ADEA = Age Discrimination in Employment Act of 1967

App. = Appellant’s Appendix

EEOC = U.S. Equal Employment Opportunity Commission

TAC = Third Amended Complaint

Title VII = Title VII of the Civil Rights Act of 1964

Note: Record citations to the Appellant’s Appendix in this brief are in the form of [volume number]-App.[page number].

STATEMENT OF INTEREST

The U.S. Equal Employment Opportunity Commission (EEOC or Commission) is charged by Congress with interpreting, administering, and enforcing federal laws prohibiting workplace discrimination, including Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e et seq., and the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq. This appeal raises two principal questions of interest to the EEOC. First, the district court dismissed plaintiffs’ Title VII claims alleging sex discrimination against older women, stating that such claims cannot be brought under Title VII because “the scope of liability under the ADEA is narrower than that under Title VII.” The Supreme Court and courts of appeals, including this Court, have long recognized discrimination claims on behalf of subsets of protected individuals, and there is no principled basis to treat sex-plus discrimination claims by older women any differently. Second, the court barred plaintiffs from using a method for establishing a prima facie case of age discrimination under the ADEA that both the Supreme Court and this Court have repeatedly held valid.

The Commission has a strong interest in the correct interpretation of Title VII and the ADEA. Accordingly, it offers its views to the Court. Fed. R. App. P. 29(a).

STATEMENT OF THE ISSUES [1]

1. Did the district court err in dismissing the plaintiffs’ Title VII claims of sex discrimination against older women, because such claims are properly cognizable under Title VII and plaintiffs’ complaint gave the defendant “fair notice” of the nature of their Title VII disparate treatment claims?

2. Did the district court err in holding that the plaintiffs could not establish the fourth prong of a prima facie case of age discrimination under the ADEA where the defendant admitted that after it fired the plaintiffs, their jobs remained open and the defendant continued to seek individuals to fill those positions?

STATEMENT OF THE CASE

A. Statement of the Facts

Plaintiffs are eight women and one man who ranged in age between forty-six and seventy-four when suit was filed. Third Amended Complaint (TAC) ¶¶2-12, I‑App.164-65.[2] Plaintiffs were working in various positions at the Golden Mardi Gras Casino in Black Hawk, Colorado, when defendant Affinity Gaming Black Hawk purchased Golden Mardi Gras (and two other casinos) in 2012. I-App.166 (¶20). Upon assuming control over the casino’s day-to-day operations on November 1, 2012, Affinity required all Golden Mardi Gras employees to reapply for their jobs. I-App.166 (¶¶20, 22); see also V-App.1313 (Affinity’s EEOC Position Statement dated August 31, 2018). Affinity hired the plaintiffs (and other Golden Mardi Gras employees) subject to a ninety-day probationary period ending January 31, 2013. I-App.166-67, 171 (¶¶22, 32); V-App.1314.

Plaintiffs allege that on January 10, 2013, Affinity advertised fifty-nine job openings on Craigslist. I-App.173 (¶40). Soon thereafter, Affinity mandated that all existing employees undergo training on its “Genuine Service” philosophy. I-App.166 (¶21). All plaintiffs attended except Christine Frappied, whom Affinity had discharged about a week earlier. See I-App.167 (¶23(a)).

Shortly after conducting this training, Affinity began discharging employees from virtually every department of the Casino. These discharges included two plaintiffs on January 14 and 18 and the remaining plaintiffs on January 22. I‑App.167-69, 172 (¶¶23(b)-(k), 24-25, 34) (stating, inter alia, “Affinity laid off approximately sixty [of its 106] Golden Mardi Gras employees in January 2013”). Management offered plaintiffs various explanations for their discharges, including “I don’t know why”; “you did not pass your 90-day probation”; “you are ‘not what Affinity is looking for’”; and/or “alleged failure to satisfy Affinity’s ‘genuine service’ policy.” I-App.173 (¶39). Around the same time, however, a casino worker told plaintiff Debbie Vigil that the co-worker had seen a list on a manager’s desk that “ranked” employees “using a point scale based on their ages, seniority and work ability.” I-App.170 (¶ 27).

These discharges were not part of a reduction in force. I-App.169 (¶25); see V-App.1329 (Affinity confirmed to EEOC during EEOC’s administrative investigation that the plaintiffs were not discharged as part of “a reduction-in-force or directive to reduce headcount regardless of performance”). Rather, Affinity immediately began hiring new employees. I-App.169 (¶25). During January and February 2013, the company hired approximately twenty-four new employees. I‑App.173 (¶41).

Plaintiffs filed EEOC charges alleging age-based disparate impact and disparate treatment in violation of the ADEA. I-App.165 (¶15). The female plaintiffs also alleged that Affinity discriminated against them because they are older women. Id. During the EEOC’s administrative investigation, Affinity offered a different explanation for why it selected particular employees for discharge. As plaintiffs’ complaint alleges, Affinity told the EEOC it selected employees for discharge based on four “gender and age neutral criteria”: “job performance,” “attendance,” “attitude,” and “something loosely denominated as ‘overall interest in the job.’” I-App.170 (¶28); V-App.1314.

Plaintiffs eventually sued Affinity. The operative Third Amended Complaint alleges that Affinity subjected plaintiffs to age-based disparate treatment and disparate impact under the ADEA. I-App.174-75, 177 (¶¶44-51, 60-71). The complaint also alleges that Affinity subjected the female plaintiffs to disparate treatment and disparate impact based on their status as older women in violation of Title VII. I-App.175-76, 178 (¶¶52-59, 72-79).

The complaint contends that Affinity discharged plaintiffs despite their “experience, skill, seniority, satisfactory performance, attendance, positive attitude, overall interest in the job, and compliance with Affinity’s ‘Genuine Service’ philosophy and training.” I-App.173 (¶38). Plaintiffs assert that it is unclear whether Affinity actually selected employees for discharge based on the four criteria it identified to the EEOC during its administrative investigation and, if so, whether Affinity’s decisionmaker(s) used the four criteria correctly. I-App.170-71 (¶29). Nonetheless, the complaint alleges, Affinity’s discharge selections fell disproportionately on older workers, particularly, older female workers. I‑App.171-72 ¶¶30-36.

Affinity filed an Answer to plaintiffs’ claim of age-based disparate treatment under the ADEA, I-App.201-38, and moved to dismiss three of plaintiffs’ claims—the two Title VII claims alleging sex discrimination against older women and the ADEA disparate impact claim, I-App.184-200. The court took Affinity’s motion to dismiss under advisement, and the parties proceeded to complete discovery.

B. District Court’s Decisions

1. Dismissal of plaintiffs’ T itle VII sex-plus claims.[3]

After discovery ended, the district court dismissed plaintiffs’ two Title VII claims of discrimination based on sex plus age and plaintiffs’ ADEA claim of disparate impact. I-App.278-90 (Opinion and Order dated June 22, 2018). The court held that “plaintiffs may not proceed with their gender plus age claim” because plaintiffs’ complaint already alleged a “standalone age discrimination claim” under the ADEA, and “the scope of liability under the ADEA is narrower than that under Title VII.” I-App.283 (citing Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 174-77 (2009)); see also I-App.287 (dismissing plaintiffs’ Title VII claim of disparate impact based on sex plus age on same grounds).

The court characterized plaintiffs’ Title VII claims as “an attempt to work-around statutory dictates” and, in effect, “to have a spare bullet in plaintiffs’ chamber should its standalone age discrimination claim fail.” I-App.283. The court also questioned plaintiffs’ right “to handpick the statute under which their gender plus age claim should be governed,” particularly since the court believed the claim was “more accurately about 90 percent an age claim and 10 percent a gender claim.” I-App.284 (citing TAC ¶¶ 55, 57). The court dismissed plaintiffs’ gender-plus-age disparate impact claim for the same reason. I-App.287-88 (citing Smith v. City of Jackson, Miss., 544 U.S. 228, 240 (2005) (“[T]he scope of disparate-impact liability under ADEA is narrower than under Title VII.”)).

Alternatively, the court ruled that plaintiffs’ Title VII gender-plus-age disparate treatment claim failed to give Affinity “‘fair notice’ of the claim and the grounds upon which it rests.” I-App.284-85 (citing Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012)). The court criticized plaintiffs for not “identify[ing] the class of individuals who have been subjected to discrimination.” I-App.284. The court further stated that the complaint failed to include any “meaningful factual allegations … that plaintiffs were discriminated against due to their gender.” Id. (stating the “only factual allegation in this regard is that the pertinent plaintiffs were female”). The court expressly declined to apply this alternative rationale to plaintiffs’ claim of disparate impact based on gender plus age. I-App.287-88.

2. Summary judgment on plaintiffs’ A DEA claim of disparate treatment

The district court later granted Affinity summary judgment on plaintiffs’ remaining ADEA claim of intentional age discrimination. VIII-App.2084-96 (Order dated January 17, 2019). Of relevance here, the court held that plaintiffs failed to establish a prima facie case under McDonell Douglas Corporation v. Green, 411 U.S. 792, 802 (1973). VIII-App.2087-93.

Noting Affinity’s concession that plaintiffs established the first three elements of their prima facie case, the court held that plaintiffs’ evidence was insufficient to establish the fourth element, which, the court said, ordinarily requires the plaintiff to show she was “replaced by a younger person.” VIII-App.2087-91 (citing, inter alia, Adamson v. Multi Cmty. Diversified Servs., Inc., 514 F.3d 1136, 1146 (10th Cir. 2008)). The court acknowledged that the McDonnell Douglas framework is “meant to be flexible,” but rejected plaintiffs’ argument that the fourth element could be established with evidence that Affinity did not eliminate their positions after firing them. VIII-App.2091-92. Citing an unpublished district court decision, the court stated, “[s]ome additional circumstances” beyond the job remaining open “are required to infer discrimination.” VIII-App.2092. According to the court, plaintiffs’ “anecdotal evidence” “f[e]ll short of establishing discriminatory animus warranting modification of the McDonnell Douglas[] framework.” VIII-App.2092-93.

ARGUMENT

I. Plaintiffs alleged viable sex-plus claims under T itle VII.

A. Sex-plus claims by older women are cognizable under T itle VII.

The district court erroneously dismissed plaintiffs’ Title VII claims of sex plus age on the ground that such claims are not cognizable under Title VII. The Supreme Court first recognized “sex-plus” claims as viable under Title VII almost fifty years ago. Since then, this Court and other courts of appeals have recognized such claims in various forms. The district court nevertheless rejected plaintiffs’ sex-plus claims because the “plus” characteristic—age—is protected by another statute that the plaintiffs also invoked in a separate ADEA age discrimination claim. The court erred. Title VII protects older women from unlawful discrimination for the same reasons it protects other subsets of women. No statutory provision or judicial precedent supports the district court’s contrary view.

Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to “discharge any individual … because of such individual’s … sex.” 42 U.S.C. § 2000e-2(a)(1). The Supreme Court and courts of appeals have long recognized, however, that Title VII’s protections are not limited to discrimination that affects all women within a particular workplace. As the Supreme Court explained in Connecticut v. Teal, “It is clear that Congress never intended to give an employer license to discriminate against some employees on the basis of race or sex merely because he favorably treats other members of the employees’ group.” 457 U.S. 440, 455 (1982) (citations omitted). Rather, Title VII’s protections extend equally to subgroups of women whom the employer treats differently than both men and other women who lack the subgroup-defining characteristic. See, e.g., Phillips v. Martin Marietta Corp., 400 U.S. 542, 544 (1971) (per curiam); Coleman v. B-G Maint. Mgmt., 108 F.3d 1199, 1203 (10th Cir. 1997) (“Title VII not only forbids discrimination against women in general, but also discrimination against subclasses of women.”) (citing, inter alia, Phillips, 400 U.S. at 544).

This is true regardless of whether the trait that defines the subgroup has separate statutory protection. In Phillips, for example, the Supreme Court reinstated a plaintiff’s claim that her employer discriminated against women with pre-school-age children as compared to its treatment of men with pre-school-age children. Although the subgroup-defining trait was not itself statutorily protected, the Court stated that Title VII does not “permit[] one hiring policy for women and another for men—each having pre-school-age children,” and reinstated the plaintiff’s claim. 400 U.S. at 544.

Courts have since recognized sex-plus claims under Title VII in a variety of circumstances, both where the second trait is covered by Title VII and where (as in Phillips) it is not. An example of the former is Hicks v. Gates Rubber Company, where this Court allowed a plaintiff to proceed with a Title VII claim for sexual harassment based on the combination of her sex and her race. 833 F.2d 1406, 1416-17 (10th Cir. 1987). Noting that “Title VII prohibits an employer from discriminating … because of race or because of sex,” this Court stated: “‘The use of the word “or” evidences Congress’ intent to prohibit employment discrimination based on any or all of the listed characteristics.’” Id. at 1416 (emphasis added) (quoting Jefferies v. Harris Cnty. Cmty. Action Ass’n, 615 F.2d 1025, 1032 (5th Cir. 1980)). This Court thus declined to force the plaintiff in Hicks to choose one protected basis or the other, observing that “discrimination against black females [could] exist even in the absence of discrimination against black men or white women.” Id. (quoting Jeffries, 615 F.2d at 1032).

Other courts of appeals have reached similar conclusions. See, e.g., Shazor v. Prof’l Transit Mgmt., Ltd., 744 F.3d 948, 957-58 (6th Cir. 2014) (plaintiff established prima facie case of discrimination on the basis of race and sex combined); Lam v. Univ. of Hawai’i, 40 F.3d 1551, 1562 (9th Cir. 1994) (recognizing discrimination claim based on being female and Asian). As these courts explained, “where two bases of discrimination exist, the two grounds cannot be neatly reduced to distinct components.” Shazor, 744 F.3d at 957 (noting that plaintiff’s sex discrimination claim could not be “untangled from her claim for race discrimination”). Instead, “it is necessary to determine whether the employer discriminates on the basis of that combination of factors, not just whether it discriminates against people of the same race or of the same sex.” Lam, 40 F.3d at 1562.

This Court and other circuits have also recognized sex-plus claims where the “plus” characteristic has no independent statutory protection from discrimination. In Coleman, 108 F.3d at 1202-04, this Court acknowledged the viability of a Title VII claim of sex plus marital status in explaining that “the protected class need not include all women,” as long as “the subclass of women was unfavorably treated as compared to the corresponding subclass of men.” Id. at 1203. Likewise, the Seventh Circuit, recognizing a Title VII claim of sex discrimination against a subset of married women, observed that Title VII “is not confined to explicit discrimination based ‘solely’ on sex.” Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 1198 (7th Cir. 1971). See also, e.g., Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 118-19 & n.8 (2d Cir. 2004) (relying on Title VII precedent to recognize § 1983 claim of discrimination based on sex-plus-motherhood).[4]

Such sex-plus claims are viable under Title VII because Congress, in prohibiting employers from discriminating based on an individual’s sex, intended “to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” Sprogis, 444 F.2d at 1198; see also L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702, 707 n.13 (1978) (same; quoting Sprogis). As the First Circuit recently stated, “The effect of the statute is not to be diluted because discrimination adversely affects only a portion of the protected class.” Franchina v. City of Providence, 881 F.3d 32, 53 (1st Cir. 2018) (citing Sprogis, 444 F.2d at 1198).

The same legal principle applies here. Congress did not intend Title VII’s reach to be “diluted” because plaintiffs’ Title VII claims allege discrimination against “only a portion” of the protected class of women—i.e., older women. See Franchina, 881 F.3d at 53. There is no logical basis to treat Title VII sex-plus-age claims any differently than other recognized sex-plus claims.

Coleman illustrates why the subset of older women is analytically no different than other subsets of women (or men) that courts have held actionable under Title VII, whether the “plus” trait is covered by Title VII, another statute such as the ADEA, or not statutorily protected at all. As this Court noted, “[t]o be actionable, … gender-plus discrimination must be premised on gender.” 108 F.3d at 1203. This Court explained that “Title VII contemplates gender-plus claims because ‘when one proceeds to cancel out the common characteristics of the two classes being compared ([e.g.,] married men and married women), as one would do in solving an algebraic equation, the cancelled-out element proves to be that of married status, and sex remains the only operative factor in the equation.’” Id. (quoting Lex K. Larson, Employment Discrimination § 40.04, at 40-12 (2d ed. 1996)) (emphasis in Coleman).

Applying the same analysis here, in the comparison between older men and older women in a Title VII sex-plus-age case, age “cancels out,” and the operative question is whether the employer treated older women differently than older men. Or, as the Eighth Circuit put it in recognizing a state-law claim of sex plus age, “age is one way an employer could discriminate against some members of one sex but not the other.” Doucette v. Morrison Cnty., Minn., 763 F.3d 978, 985 (8th Cir. 2014) (citing, inter alia, Phillips, 400 U.S. 542; Shazor, 744 F.3d at 958; and Coleman, 108 F.3d at 1203). Where a plaintiff alleges that “her sex and her age both played a role” in her employer’s decisionmaking, “[t]hese characteristics do not exist in isolation.” Id.

Neither this Court nor any other court of appeals has yet expressly addressed the viability of Title VII sex-plus claims where age is the “plus” factor.[5] Several district courts, however, have relied on Phillips and its progeny in recognizing such claims under Title VII. The court in Arnett v. Aspin, 846 F. Supp. 1234, 1238-41 (E.D. Pa. 1994), for example, held that Arnett’s claim that she was passed over for vacant positions in favor of older men (and younger women) stated a valid Title VII claim of discrimination based on sex plus age because she alleged that the defendants “required more of her than they did of the male applicants.” Specifically, the court explained, the defendants “required that she be under the age of forty.” Id. at 1240.

Other district courts have likewise accepted the viability of Title VII sex-plus claims where age is the “plus” factor. See, e.g., Cooper v. Corr. Corp. of Am., Civ. No. 15-cv-755, 2015 WL 5736838, at *3 (D. Colo. Oct. 1, 2015); McGrane v. Proffitt’s Inc., Civ. No. 97-cv-221, 2000 WL 34030843, at *6-7 (N.D. Iowa Dec. 26, 2000); Hall v. Mo. Highway & Transp. Comm’n, 995 F. Supp. 1001, 1005 (E.D. Mo. 1998), aff’d on other grounds, 235 F.3d 1065 (8th Cir. 2000). In its motion to dismiss, Affinity cited to Arndt v. City of Colorado Springs, 263 F. Supp. 3d 1071 (D. Colo. 2017), as contrary support. I-App.190. The plaintiffs in Arndt were female police officers challenging a physical ability test used to determine whether officers could keep their jobs. The court commented that Title VII and ADEA disparate impact claims “may not be conflated because the defenses to liability are different,” but the court offered no analysis or discussion of case law. Id. at 1076. And the court qualified that statement by noting that “age is not irrelevant” to the plaintiffs’ claim. Id. In any event, the district court acknowledged that its opining did not matter to resolution of the case because plaintiffs’ counsel identified the class as “women police officers,” abandoning any claim for the subset of older female officers. Id.

The EEOC has also recognized the validity of such claims in its enforcement guidance. See 2 EEOC Compliance Manual § IIA, 2009 WL 2966754 (Aug. 6, 2009), text accompanying nn.9-11 (noting that “intersectional discrimination can involve more than one EEO statute, e.g., discrimination based on … sex and age”); EEOC Compliance Manual § 15 (No. 915.003, 4/19/2006), 2006 WL 4673427 (June 1, 2006), text accompanying nn.32-35 (“Title VII prohibits discrimination not just because of one protected trait …, but also because of the intersection of … their race and a trait covered by another EEO statute” such as “race and age”).

In this case, the district court’s reasoning for rejecting plaintiffs’ Title VII sex-plus claims of discrimination against them as older women is not entirely clear. Although the court explained its holding as being tied to the plaintiffs’ allegation of a “standalone ADEA claim,” I-App.283, the court appears to have believed that the ADEA’s stricter causation standard requires all discrimination claims with some age-related factual component to be brought only under the ADEA. See id. (describing plaintiffs’ sex-plus-age claims as an impermissible effort “to work-around statutory dictates” and avoid the ADEA’s “narrower scope of liability”). Nothing in the ADEA (or in Title VII) stands for this proposition. As explained above, the gravamen of a sex-plus claim is sex discrimination against a subset of, in this case, women who are older. Such a claim appropriately lies under Title VII, not the ADEA.

Plaintiffs’ pursuit of their sex-plus-age claims under Title VII is, thus, not some sort of end run around the ADEA, as the district court apparently believed. Nor did the court have any grounds to question plaintiffs’ decision to plead their sex-plus claims under Title VII rather than under the ADEA. I-App.283-84. It is true that under the ADEA a plaintiff must show age was a “but-for” cause of the challenged employment action, in contrast to the “motivating factor” standard that Title VII permits for proving sex discrimination, 42 U.S.C. § 2000e-2(m).[6] See I-App.283 (citing Gross, 557 U.S. at 174-77). If a plaintiff can meet that Title VII standard by showing that sex played a motivating factor, then the plain language of the statute indicates that the plaintiff has proved a sex discrimination case. The existence of other statutes, such as the ADEA, or the absence of other federal statutes, such as laws that would cover parenthood or marital status, does not alter the meaning of Title VII. As explained above, sex-plus claims are sex claims, not age claims.

The district court also erred insofar as it believed that plaintiffs’ advancement of a “standalone” ADEA claim prevented them from asserting a separate sex-plus claim with age as the additional factor. Federal rules allow plaintiffs to plead claims in the alternative—even inconsistent ones. See F ed. R. Civ. P. 8(d)(3) (“A party may state as many separate claims or defenses as it has, regardless of consistency.”); Boulware v. Baldwin, 545 F. App’x 725, 729 & n.4 (10th Cir. 2013) (“Federal pleading rules have for a long time permitted the pursuit of alternative and inconsistent claims.”). Nothing supports the court’s apparent belief that plaintiffs must pick one basis on which to rest their discrimination claims (or must pick bases that implicate the same standard of proof). Nor is there any factual basis for the court’s statement that plaintiffs’ Title VII claims relate primarily “to the age of employees, rather than to their gender.” I-App.283-84.

Courts that recognize sex-plus cases “have not created a new remedy”; rather they “have closed a loophole through which defendant employers could escape Title VII liability.” Arnett, 846 F. Supp. at 1240. The need to close this loophole is just as strong here, where plaintiffs do not allege that Affinity discriminated against women generally, but allege that Affinity selected them for discharge because they are women who are older.

B. Plaintiffs’ complaint gave Affinity “fair notice” of their T itle VII disparate treatment claim.

Plaintiffs’ complaint plausibly alleged their gender-plus-age claims. The district court erred in dismissing plaintiffs’ Title VII disparate treatment claim on the alternative ground that it failed to provide Affinity “fair notice of … the grounds upon which it rests.”[7] I-App.284-85.

Federal Rule of Civil Procedure 8(a)(2) requires a “short and plain statement of the claim showing [plaintiffs’ entitlement] to relief.” “Each allegation must be simple, concise, and direct.” Fed. R. Civ. P. 8(d)(1). The allegations must be sufficiently specific “to raise a right to relief above the speculative level” and to state a claim that is “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57, 570 (2007). Plaintiffs need not, however, allege facts that establish they will definitely prevail, nor need they plead a McDonnell Douglas prima facie case. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510, 515 (2002); Khalik, 671 F.3d at 1192. The complaint must simply “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” A shcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 557); Khalik, 671 F.3d at 1190.

There is no merit to the district court’s alternative basis for dismissing plaintiffs’ Title VII disparate treatment claim. Plaintiffs’ complaint does not “fail[] to fairly identify the class of individuals” subjected to discrimination, nor leave to “speculation” the age someone had to be in order to be considered older or younger for purposes of this claim. I-App.284. The complaint identifies the plaintiffs and their respective ages in paragraphs 2-12; indicates the dates plaintiffs were fired in paragraph 23(a)-(k); and, in paragraph 55, alleges explicitly that plaintiffs were over age forty when fired. I-App.164-65, 167-69, 176.

Nor does the complaint lack any “meaningful factual allegations … that plaintiffs were discriminated against due to their gender” or allege facts that “[a]t most … relate to age discrimination.” I-App.284-85. Importantly, this Court instructed in Khalik that “[s]pecific facts are not necessary” and a complaint “need only ‘give the defendant fair notice of what the … claim is and the grounds upon which it rests.’” 671 F.3d at 1192 (citations omitted).[8] Plaintiffs’ complaint does more than what Khalik requires. Like the complaint the Supreme Court found sufficient in Swierkiewicz, 534 U.S. at 514, the TAC includes significant detail describing the circumstances under which plaintiffs were fired, plausibly stating a claim of sex discrimination. See I-App.169-73 (¶¶24-25, 28-42) (alleging, inter alia, that the discharge selection process “fell more harshly on older, particularly older female workers”) (emphasis added).

Against this extensive factual backdrop, plaintiffs’ second claim asserts that Affinity selected them for discharge because it “viewed older females unfavorably and/or graded older females more harshly than younger females and/or older males” in violation of Title VII. I-App.175-76 (¶¶54-58). The TAC also specifically alleges, based on what plaintiffs knew at the time, that the few replacement workers Affinity hired who were over age forty were all men. I‑App.176 (¶57). Plaintiffs’ complaint, unlike the complaint in Khalik, thus gave Affinity “fair notice” that their Title VII disparate treatment claim alleged that Affinity selected them for discharge because they are older women. The district court erred in holding otherwise.

II. Plaintiffs established a prima facie case of age discrimination under the A DEA by adducing evidence that after Affinity fired them, the company continued to seek workers to fill their positions.

The district court held that the plaintiffs could not establish the fourth prong of their McDonnell Douglas prima facie case of age discrimination with evidence that—as Affinity conceded—it did not eliminate plaintiffs’ positions after firing them. In so ruling, the court took an improperly myopic and legally incorrect view of the Supreme Court’s and this Court’s precedent construing McDonnell Douglas under the ADEA. While replacement by materially younger individuals is certainly a common method of establishing the fourth prong of an ADEA prima facie case, it is far from the only permissible one, as this Court has acknowledged.

The ADEA protects employees age forty and older from, inter alia, job termination based on age. 29 U.S.C. § 623(a). As with Title VII claims, plaintiffs lacking direct evidence of age discrimination can prove their claims using the three-step McDonnell Douglas burden-shifting framework. See, e.g., Jones v. Okla. City Pub. Schs., 617 F.3d 1273, 1278 (10th Cir. 2010) (“This circuit has long held that plaintiffs may use the McDonnell Douglas analysis to prove age discrimination under the ADEA.”); Schwager v. Sun Oil Co. of Pa., 591 F.2d 58, 60-61 (10th Cir. 1979) (applying McDonnell Douglas to an age discharge claim). Although the district court believed the Supreme Court’s decision in Gross somehow altered McDonnell Douglas’s applicability to ADEA cases, VIII-App.2092, this Court specifically rejected that view in Jones. 617 F.3d at 1278-79 (“[T]he rule articulated in Gross has no logical effect on the application of McDonnell Douglas to age discrimination claims.”) (citing Gross, 557 U.S. at 175 n.2).

Initially, the plaintiff bears the burden of establishing a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802. The purpose of the prima facie case is to “eliminate[] the most common nondiscriminatory reasons for the plaintiff’s rejection.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-54 (1981) (citing Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 358 & n.44 (1977)); Perry v. Woodward, 199 F.3d 1126, 1140 (10th Cir. 1999) (§1981 case applying Title VII law, including Burdine). Doing so permits the inference that, unless explained, the action was more likely than not “based on a discriminatory criterion.” Furnco Const. Corp. v. Waters, 438 U.S. 567, 576 (1978). Accordingly, establishing a prima facie case creates “a rebuttable presumption … that the defendant unlawfully discriminated against the plaintiff” unless the defendant, at the second McDonnell Douglas step, articulates a legitimate, nondiscriminatory reason for the challenged action. DePaula v. Easter Seals El Mirador, 859 F.3d 957, 970 (10th Cir. 2017) (citations omitted). The plaintiff then has an opportunity at the third step to establish that the proffered reason is actually a pretext for discrimination. Id.; McDonnell Douglas, 411 U.S. at 804-05.

The prima facie case ordinarily requires proof of four elements. Affinity did not dispute that the plaintiffs established the first three: membership in a protected group (age forty or older); qualification for the job; and adverse employment action (here, discharge). See Adamson, 514 F.3d at 1146; VIII-App.2088. Under the ADEA and the other federal antidiscrimination statutes, the fourth element of the prima facie case can take different forms depending on the factual scenario at issue.

While many ADEA cases characterize the fourth element as requiring evidence of replacement by a younger comparator, both the Supreme Court and this Court have stated unequivocally that there is no single, rigid McDonnell Douglas test applicable to all cases. As this Court has emphasized, because discrimination comes in many forms, the elements of the prima facie case are “neither rigid nor mechanistic.” Adamson, 514 F.3d at 1146. See also McDonnell Douglas, 411 U.S. at 802 n.13 (prima facie proof will necessarily vary with the facts); Teamsters, 431 U.S. at 358 (no “inflexible formulation”); Schwager, 591 F.2d at 61 n.1 (ADEA prima facie standards “are merely guidelines,” not “inflexible, rigid approaches”); Bennett v. Windstream Commc’ns, Inc., 792 F.3d 1261, 1266 & n.1 (10th Cir. 2015) (same).

In Perry, this Court reasoned that the imposition of a categorical rule requiring replacement by a non-protected comparator “is untenable because it could result in the dismissal of meritorious claims.” 199 F.3d at 1137. For example, such a rule would preclude suits against employers “who hire and fire minority employees in an attempt to prevent them from vesting in employment benefits or developing a track record to qualify for promotion,” or who “replace[] an African-American with an African-American who is perceived to ‘know his place.’” Id. This Court rejected this result because, “[a]lthough each of these situations involves wrongfully-motived terminations, under [such a rule], the terminated employee would be unable to meet the prima facie burden.” Id.

For these reasons, courts, including this Court, often articulate the fourth prong of McDonnell Douglas in more general terms, as requiring evidence of “circumstances giving rise to an inference of discrimination.” See, e.g., Bennett, 792 F.3d at 1266. And although one such “circumstance[]” in an ADEA case could be replacement by a younger employee, this Court has never held that it is the only way an ADEA plaintiff can establish the fourth element. In fact, on several occasions, this Court has expressly rejected a rigid replacement-by-younger-comparator requirement under the ADEA. See, e.g., Adamson, 199 F.3d at 1146 (noting that “replacement by an older or insignificantly younger worker does not per se doom a prima facie case,” and stating that what matters is that the evidence is “adequate to create an inference that the adverse employment decision was, in fact, motivated by plaintiff's age”); Greene v. Safeway Stores, Inc., 98 F.3d 554, 559 (10th Cir. 1996) (observing that this Court’s decisions stating an ADEA plaintiff “must prove” or “must ordinarily prove” replacement by a younger person describe one typical iteration of the prima facie case, not “an absolute” requirement).

Whatever formulation is used, “there must be at least a logical connection between each element of the prima facie case and the illegal discrimination for which it establishes a ‘legally mandatory, rebuttable presumption.’” O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 311-12 (1996) (citing Burdine, 450 U.S. at 254 n.7); Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1227 (10th Cir. 2000). Such a logical connection exists here in plaintiffs’ formulation of the fourth element of their prima facie case: that, after Affinity fired them, it sought new workers to replace them. See supra at 4.

One of the most common nondiscriminatory reasons for discharging someone is that his or her job has been eliminated. Perry, 199 F.3d at 1140; see Teamsters, 431 U.S. at 358 & n.44. As this Court explained in Perry, “[t]he firing of a qualified minority employee raises the inference of discrimination because it is facially illogical for an employer to randomly fire an otherwise qualified employee and thereby incur the considerable expense and loss of productivity associated with hiring and training a replacement.” 199 F.3d at 1140. Consequently, this Court held that “[e]vidence of the seeking or hiring of a replacement to fill the position vacated by a discharged plaintiff who [belongs to a statutorily-protected group] is, by itself, sufficient to satisfy the fourth element of the plaintiff’s McDonnell Douglas prima facie case.” Id.; see also English v. Colo. Dep’t of Corr., 248 F.3d 1002, 1008 (10th Cir. 2001) (same; citing Kendrick); Kendrick, 220 F.3d at 1226-29 (same; citing Perry).

This Court, in at least two published ADEA cases, has applied the exact same formulation of the fourth prong of the McDonnell Douglas prima facie case endorsed in Perry, English, and Kendrick and advanced by the plaintiffs here. DePaula, 859 F.3d at 969 (“Generally, a plaintiff may establish a prima facie case of wrongful termination by showing that: … (4) the job was not eliminated after her discharge.”) (quoting Perry, 199 F.3d at 1135) (internal quotation marks omitted); Garrison v. Gambro, Inc., 428 F.3d 933, 936-37 (10th Cir. 2005) (analyzing age and sex discrimination claims “identically” and citing Kendrick in applying “position remained open” formulation to plaintiffs’ demotion/failure to hire claims under both statutes). Notably, this is also the same formulation used in McDonnell Douglas itself. 411 U.S. at 802 (holding that the plaintiff could establish his prima facie case by showing, inter alia, that “after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.”).

The district court’s rejection of this standard thus conflicts with Supreme Court and Tenth Circuit precedent, as well as with the logic underlying the prima facie case. Especially in this factual context—a mass termination and replacement affecting every department—the prima facie case should be adapted because the scale of the firing and hiring makes it untenable to require evidence of individualized replacement by a younger employee. The Supreme Court and this Court’s flexible approach to the prima facie case allows plaintiffs to establish the fourth prong with evidence that is logically connected to the facts of this case: plaintiffs’ jobs were not eliminated after they were fired.

CONCLUSION

For the foregoing reasons, the judgment of the district court should be reversed and the case remanded for further proceedings.

Respectfully submitted,

JAMES L. LEE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ELIZABETH E. THERAN

Assistant General Counsel

s/Susan R. Oxford

SUSAN R. OXFORD

Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St., N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4791

susan.oxford@eeoc.gov

[1] The EEOC takes no position on any other issues in this appeal.

[2] Plaintiffs Judy Huck and Jennifer Ryan were voluntarily dismissed from the case.

[3] The district court referred to plaintiffs’ Title VII claims alleging sex discrimination against older women as “gender-plus” claims. E.g., I-App.283. This brief adopts the “sex-plus” terminology used by most courts.

[4] As the Back court observed, “[d]iscrimination that might be called ‘sex plus’ in the Title VII context has … been found to violate the Equal Protection Clause.” Back, 365 F.3d at 119 n.9 (citing Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) (holding that a statute that treats widowers less favorably than widows—which, in the Title VII context, might have been called a “sex plus marital status” claim—violates the Equal Protection Clause)).

[5] Two circuits have acknowledged the issue but did not resolve it. See Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 109-10 (2d Cir. 2010) (declining to reach the question because plaintiff offered sufficient evidence of age discrimination to reach a jury under the ADEA); Schatzman v. Cnty. of Clermont, Ohio, No. 99-4066, 2000 WL 1562819, at *9 (6th Cir. Oct. 11, 2000) (unpub.) (declining to reach the issue where plaintiff offered no facts showing defendant treated older women adversely); Sherman v. Am. Cyanamid Co., No. 98-4035, 1999 WL 701911, at *5 (6th Cir. Sept. 1, 1999) (unpub.) (declining to reach the issue because plaintiff could not establish pretext). As noted above, the Eighth Circuit ruled a sex-plus-age discrimination claim likely cognizable under state law but affirmed summary judgment for the defendant because the plaintiff did not establish pretext. Doucette, 763 F.3d at 985-86.

[6] 42 U.S.C. § 2000e-2(m) provides that an unlawful employment practice is established by a demonstration that sex “was a motivating factor for any employment practice, even though other factors also motivated the practice.” But Title VII also provides a partial defense when a plaintiff proves a violation under § 2000e-2(m). If the defendant demonstrates it would have taken the same action even absent the impermissible motivating factor, the court cannot award damages or order the defendant to hire or reinstate the plaintiff, but may only grant declaratory relief, injunctive relief, and attorney’s fees and costs. 42 U.S.C. § 2000e-5(g)(2)(B). Thus, as a practical matter, few Title VII plaintiffs seek to establish liability primarily under § 2000e-2(m); rather, the mine-run of Title VII cases are “but-for cause” cases if the plaintiff is seeking damages or reinstatement.

[7] The district court expressly declined to rely on this alternative ground in dismissing plaintiffs’ Title VII disparate impact claim. I-App.287-88.

[8] As this Court noted, neither Iqbal nor Twombly supplanted Rule 8(a)(2)’s requirement of a short, plain statement of the claim. Khalik, 671 F.3d at 1191 (“Rule 8(a)(2) still lives.”).