No

TABLE OF CONTENTS

Page

STATEMENT OF INTEREST...................................................................... 1

STATEMENT OF THE ISSUES................................................................... 2

STATEMENT OF THE CASE

1. Nature of the Case and Course of Proceedings......................................... 3

2. Statement of Facts.................................................................................... 4

3. District Court's Decision........................................................................... 6

STANDARD OF REVIEW............................................................................ 8

ARGUMENT

I. A Plaintiff May Plead and Prove a Claim Under the ADEA, ADA,

or Title VII’s Retaliation Provision Without Alleging or Showing that

Age, Disability, or Protected Activity was the Sole Cause of Her Injury.. 9

II. The Federal Rules Permit Plaintiffs to Plead Claims of Retaliation

As Well As Age and Disability Discrimination in the Same Complaint... 18

CONCLUSION............................................................................................. 22

CERTIFICATE OF COMPLIANCE............................................................. 23

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

CASES Pages

Adinolfe v. United Technologies Corp.,

768 F.3d 1161 (11th Cir. 2014)............................................................... 19

Burrage v. United States,

134 S. Ct. 881 (2014)....................................................................... passim

Cleveland v. Policy Management Systems Corp.,

526 U.S. 795 (1999)................................................................................ 18

Culver v. Birmingham Board of Education,

646 F. Supp. 2d 1270 (N.D. Ala. 2009)........................................... 6-7, 20

EEOC v. DynMcDermott Petroleum Operations Co.,

537 F. App’x 437 (5th Cir. July 26, 2013) (unpublished)....................... 17

Gross v. FBL Financial Services,

557 U.S. 167, 129 S. Ct. 2343 (2009).............................................. passim

Hazen Paper Co. v. Biggins,

507 U.S. 604, 113 S. Ct. 1701(1993)...................................... 12-13, 15-16

Jones v. Oklahoma City Public Schools,

617 F.3d 1273 (10th Cir. 2010)............................................................... 16

Kwan v. Andalex Group LLC,

737 F.3d 834 (2d Cir. 2013)............................................................... 15-16

Lass v. Bank of America,

695 F.3d 129 (1st Cir. 2012)................................................................... 20

Leal v. McHugh,

731 F.3d 405 (5th Cir. 2013).................................................. 15, 17, 19-20

Lewis v. Humboldt Acquisition Corp.,

681 F.3d 312 (6th Cir. 2012) (en banc).................................................... 16

Marcus v. PQ Corp.,

458 F. App’x 207 (3d Cir. Jan. 19, 2012) (unpublished)........................ 16

McDonald v. Santa Fe Trail Transportation Co.,

427 U.S. 273, 96 S. Ct. 2574 (1976)................................................ 12, 15

McNely v. Ocala Star-Banner Corp.,

99 F.3d 1068 (11th Cir. 1996).......................................................... passim

Montgomery County Commission v. Federal Housing Finance Agency,

776 F.3d 1247 (11th Cir. 2015)................................................................. 8

Price Waterhouse v. Hopkins,

490 U.S. 228, 109 S. Ct. 1775 (1989)..................................................... 11

Reeves v. Sanderson Plumbing Products,

530 U.S. 133, 120 S. Ct. 2097 (2000)..................................................... 12

Robinson v. City of Philadelphia,

491 F. App’x 295 (3d Cir. July 13, 2012) (unpublished)........................ 16

Selby v. Goodman Manufacturing Co.,

2014 WL 2740317 (N.D. Ala. June 17, 2014) (unpublished)............. 20-21

Selman v. CityMortgage,

2013 WL 838193 (S.D. Ala. March 5, 2013) (unpublished)............... 20-21

Sims v. MVM,

704 F.3d 1327 (11th Cir. 2013)............................................................... 15

United Technologies Corp. v. Mazer,

556 F.3d 1260 (11th Cir. 2009)............................................................... 19

University of Texas Southwest Medical Center v. Nassar,

133 S. Ct. 2517 (2013)..................................................................... passim

STATUTES and RULES

Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. §2000e et seq. .................................................................. passim

42 U.S.C. §2000e-2(m)...................................................................... 12, 13

42 U.S.C. §2000e-3................................................................................... 9

The Age Discrimination in Employment Act, as amended,

29 U.S.C. §§621 et seq..................................................................... passim

29 U.S.C. 623(a)(1).................................................................................... 9

Title I of the Americans with Disabilities Act, as amended,

42 U.S.C. §§12101 et seq................................................................. passim

42 U.S.C. §12112(a)............................................................................. 9-10

ADA Amendments Act of 2008,

Pub. L. No. 110-325, 122 Stat. 3553....................................................... 10

Federal Rule of Appellate Procedure 4(a)(1)(A).............................................. 4

Federal Rule of Appellate Procedure 29(a)..................................................... 2

Federal Rule of Civil Procedure 8(d).................................................... 2, 18-21

Federal Rule of Civil Procedure 12(b)(6)....................................................... 19

Federal Rule of Civil Procedure 54(b)......................................................... 3, 8

OTHER AUTHORITY

5 Charles Alan Wright & Arthur R. Miller, Federal Practice and

Procedure §1283 (3d ed. 2004 & Supp. 2012)................................... 18-19

W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton

on Law of Torts 265 (5th ed. 1984)..................................................... 17-18

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 15-12704

________________________

KAREN SAVAGE,

Plaintiff-Appellant,

SECURE FIRST CREDIT UNION,

Defendant-Appellee.

_______________________________________________

On Appeal from the United States District Court

for the Northern District of Alabama

_______________________________________________

BRIEF FOR THE EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION AS AMICUS CURIAE

IN SUPPORT OF PLAINTIFF-APPELLANT

AND IN FAVOR OF REVERSAL

_________________________________________________

STATEMENT OF INTEREST

The Equal Employment Opportunity Commission is charged by Congress with interpreting and enforcing Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq. (“Title VII”); the Age Discrimination in Employment Act, 29 U.S.C. §§621 et seq. (“ADEA”); Title I of the Americans with Disabilities Act, 42 U.S.C. §§12101 et seq. (“ADA”); and other federal employment discrimination statutes. This case raises important questions regarding the causation and pleading standards for claims under the ADEA, the ADA, and the anti-retaliation provision in Title VII. In pertinent part, the plaintiff here alleged in the alternative that her employer discriminated against her based on age and/or disability, and/or retaliated against her for complaining about discrimination. The district court dismissed the claims, holding that a complaint may include only one such claim since each requires proof that the protected characteristic (age, disability, protected activity) was the sole cause of the alleged discrimination. Moreover, the court held, a plaintiff may not allege discrimination claims in the alternative but must choose and allege only one.

In the Commission’s view, these holdings are simply wrong. Moreover, if allowed to stand, they could prevent plaintiffs, including the Commission, from pursuing otherwise meritorious claims of discrimination and, so, undermine enforcement of these statutes. The Commission therefore offers its views to this Court. See Fed. R. App. P. 29(a).

STATEMENT OF THE ISSUES[1]

1. In McNely v. Ocala Star-Banner Corp., 99 F.3d 1068 (11th Cir. 1996), this Court held that the ADA requires “but-for” causation and rejected the idea that “but-for” means “sole” cause. Since that time, the Supreme Court has held that the ADEA and Title VII’s anti-retaliation provision also require “but-for” causation, and did not hold that the protected characteristic must be the sole cause of the challenged employment decision. Did the district court err in holding that a plaintiff nevertheless must allege and prove that age or disability or protected activity was the sole cause of her injury and, by implication, that there can be no more than one “but-for” cause?

2. Federal Rule of Civil Procedure 8(d) expressly permits plaintiffs to allege claims in the alternative and to state as many separate claims as she has, regardless of consistency. Did the court here err in holding that, notwithstanding the Rule’s explicit terms, a plaintiff may not plead discrimination claims in the alternative but, instead, must choose one theory of discrimination and dismiss any other claims?

STATEMENT OF THE CASE

1. Nature of the Case and Course of Proceedings

This is an appeal from a final judgment under Federal Rule of Civil Procedure 54(b) dismissing claims under the ADEA, ADA, and Title VII’s anti-retaliation provision. On December 24, 2014, plaintiff brought suit alleging that her employer discriminated against her based on her race, age, and disability and retaliated against her for complaining about perceived race discrimination. Tab A (District court docket number (“R”) 1).[2] In the spring of 2015, defendant moved to dismiss the age and disability claims as well as the Title VII retaliation claim. R.12. Plaintiff opposed the motion. R.16. In May 2015, the district court granted defendant’s motion, holding that all three claims require “but-for” causation; a “but-for” cause must be the “only” or “sole” cause of alleged discrimination or retaliation; and plaintiff could not allege multiple claims in the alternative. Tabs18-19. When plaintiff refused to amend her complaint in accordance with these rulings, the court dismissed the three claims, entered final judgment under Rule 54(b), and stayed the remaining Title VII race discrimination claim pending the outcome of the appeal. Tabs 22, 23. Plaintiff timely noticed an appeal on June 11, 2015. See Fed. R. App. P. 4(a)(1)(A).

2. Statement of Facts

According to her complaint, Karen Savage began working at Secure First Credit Union in 1998. Tab 1 (Complaint ¶10). In 2013, she held the position of collection manager. ¶13. In July of that year, the company hired a new president, Marya Washington, who was “biracial/African-American” and approximately 27 years old. ¶12. Savage, who is white and over 40, alleges that Washington harassed and otherwise discriminated against her and other white employees because of their race, causing several white employees to quit. ¶¶11, 14-15.

Beginning shortly after she was hired, the complaint continues, Washington ordered Savage to move offices several times for “unfounded and frivolous reasons.” On one occasion, Savage did not immediately obey because federal regulators were at the office and she did not want to cause a disruption. As a result, Washington gave her her first-ever disciplinary “write-up.” ¶¶16-18. Believing the write-up was “unjustified,” Savage initially refused to sign it but was “forced” to do so. She complained to Human Resources. ¶¶19-20.

In September, the complaint contends, Savage asked permission to use sick leave because she needed to have surgery. Washington denied the request. Savage reiterated her sick leave request in December, noting that she still needed the surgery. Washington again refused. ¶¶29-32.

Also in December, Washington announced that, while there were “no issues with her performance,” Savage was to exchange jobs with Tomeka Toliver, “the African-American Loan Officer” who was also “substantially younger” and “less qualified” than Savage. Before the exchange, the complaint alleges, there were “several issues” with Toliver’s performance, but she was never disciplined. ¶¶22-25.

According to the complaint, Savage told Washington that she did not want to trade jobs with Toliver. She also complained to the Board of Directors, who told her she could keep her job if she objected to the exchange. Nevertheless, Washington told her she had no “say” in the matter and would have to make the exchange. Shortly thereafter, Savage left the company. ¶¶26-28.

The following year, Savage brought this action, alleging that she was demoted, harassed, otherwise discriminated against, and constructively discharged because of her race, age, and disability (including a perceived disability), and in retaliation for her protected activity — complaining to the Board and HR. Defendant then moved to dismiss the age, disability, and Title VII retaliation claims for failure to state a claim.

3. District Court’s Decision

The district court granted defendant’s motion. Tab18 (Memorandum Order). The court noted that case law from the Supreme Court makes clear that the ADEA, ADA, and Title VII’s anti-retaliation provision require plaintiffs to prove that a challenged employment decision would not have occurred in the absence of — that is, but for — the protected trait or activity. See Memorandum at 2, 4-5 (citing Burrage v. U.S., 134 S.Ct. 881, 887-88 (2014); Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2525 (2013); Gross v. FBL Fin. Servs., 557 U.S. 167, 176, 129 S. Ct. 2343, 2350 (2009)). In the court’s view, the “‘only logical inference to be drawn from [these cases] is that an employee cannot claim that age [or protected activity] was a motive for the employer’s adverse conduct and simultaneously claim that there was any other proscribed motive involved.’” Memorandum at 5 (quoting Culver v. Birmingham Bd. of Educ., 646 F. Supp. 2d 1270, 1271-72 (N.D. Ala. 2009) (Acker, D.J.). “Therefore,” the court continued, a pleading “must make it perfectly clear” that the plaintiff is alleging only one proscribed motivation. Id.

Turning to Savage’s age and retaliation claims, the court held that her complaint was infirm because, “[d]espite receiving strong hints from the court,” she failed to amend her complaint to allege that her age was the “only motive” for the challenged employment action (id. at 5-6) or that retaliation was “the sole cause for her adverse treatment.” Id. at 7. She therefore did not state an age or retaliation claim upon which relief could be granted. Id. at 6-7.

As for the disability claim, the court acknowledged that before Gross and Nassar, McNely v. Ocala Star-Banner Corp., 99 F.3d 1068, 1077 (11th Cir. 1996), had “held the ADA’s statutory text requires but-for causation,” and that “‘but-for’ causation was ‘not to mean solely because of.’” Memorandum at 8 (emphasis in McNely). The court concluded, however, that this precedent was effectively “overruled or undermined to the point of abrogation” by Gross, Nassar, and Burrage, which, taken together, mean that disability must be the sole cause of the adverse action. Memorandum at 8-9 (noting “props under McNely have been removed). Since Savage’s complaint not only failed to use the magic words “but-for” causation but “affirmatively allege[d] that Secure First mistreated her for other proscribed reasons,” she did not state an ADA claim upon which relief could be granted. Id. at 9-10.

Finally, the court rejected Savage’s argument that the federal rules expressly allow her to plead alternative and even inconsistent theories of recovery. In the court’s view, multiple claims requiring “but-for” causation are irreconcilable. And, the court stated, “there is a recognized distinction between the pleading of alternative theories of liability and irreconcilable contradictions and concessions as to an essential element of a particular claim.” Id. at 10. The court therefore gave Savage an ultimatum: plead only one claim and dismiss the others or face dismissal of the “but-for” claims. Id. at 10-11. When Savage refused to amend her complaint, the court dismissed her ADA, ADEA, and retaliation claims, sua sponte entered final judgment as to the latter claims under Federal Rule of Civil Procedure 54(b), and stayed her Title VII race claim pending the appeal. Tabs 22-23.

STANDARD OF REVIEW

This Court reviews an order granting a motion to dismiss under Rule 12(b)(6) de novo, applying the same standard as the district court applied. Montgomery Cty. Com’n v. Fed. Hous. Fin. Agency, 776 F.3d 1247, 1254 (11th Cir. 2015). The Court accepts as true all the well-pleaded allegations in the complaint and draws all reasonable inferences in the plaintiff’s favor. Id.

ARGUMENT

I. A Plaintiff May Plead and Prove a Claim Under the ADEA, ADA, or Title VII’s Retaliation Provision Without Alleging or Showing that Age, Disability or Protected Activity was the Sole Cause of Her Injury.

The main question in this case concerns the proper standard for causation in suits under the ADEA, ADA, and Title VII’s anti-retaliation provision. The district court held that plaintiffs must prove — and plead — that age or disability or protected activity was the only cau8se of a challenged employment decision, and dismissed the age, disability, and retaliation claims in Savage’s complaint because she refused to limit it to only one theory of discrimination. To the contrary, however, a discrimination plaintiff need prove only that a particular employment decision would not have occurred in the absence of — that is, but for — a protected characteristic even if other factors may also have played a role. She need not prove, let alone plead, that the characteristic was the sole cause of her injury.

The ADA, ADEA, and Title VII’s anti-retaliation provision contain similar causation standards. All three essentially prohibit employers from taking adverse action against an applicant or employee because of a protected trait or characteristic — her age, disability, or protected activity (complaints or support of complaints about discrimination). See 29 U.S.C. §623(a)(1) (ADEA) (“because of such individual’s age”); 42 U.S.C. §2000e-3(a) (Title VII retaliation) (“because” the individual has “opposed” discriminatory conduct or “participated” in any proceeding under the provision); 42 U.S.C. §12112(a) (ADA) (“on the basis of disability”). See also Burrage v. U.S., 134 S. Ct. 881 (2014) (treating various causation terms, including “results from,” “because,” and “based on,” as meaning “but-for”).

In McNely v. Ocala Star-Banner Corp., 99 F.3d 1068 (11th Cir. 1996), this Court analyzed the causation standard in the ADA which, at the time, was phrased as “because of disability.” The Court emphatically rejected an argument that “because of” means “solely because of.” Id. at 1076. Rather, the Court held, the ADA “imposes liability whenever the prohibited motivation makes the difference in the employer’s decision, i.e., when it is a ‘but-for’ cause.” Id. at 1076. [3]

The Court based this decision primarily on Congress’s presumed intent. First, the Court recognized that the Rehabilitation Act of 1973 specifies that the employer may not act “solely by reason of handicap” and concluded that Congress knew what it was doing in omitting the word “solely” in the ADA. 99 F.3d at 1074. The Court noted that the ADA is designed to eliminate discrimination against people with disabilities. “A liability standard that tolerates decisions that would not have been made in the absence of discrimination but were nonetheless influenced by at least one other factor [if ever so slightly] does little to ‘eliminate’ discrimination; instead it indulges it.” Id.

Second, the Court noted that the ADA was passed immediately after Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775 (1989). In Price Waterhouse, despite other disagreements, “all of the justices agreed that ‘because of,’ as used in Title VII, does not mean ‘solely because of.’” McNely, 99 F.3d at 1076 (emphasis in McNely). Thus, the Court concluded, Congress presumably intended that the same causal language in the ADA likewise should not mean “solely because of.” Id.

Because it relies on statutory language that is echoed in the ADEA and Title VII’s retaliation provision, McNely’s interpretation of “but-for” causation should also apply to those provisions. Accordingly, a plaintiff need not prove that disability or age or protected activity was the sole cause of alleged discriminatory treatment but simply that the factor made a difference in the employer’s decisionmaking.

This result accords with the Supreme Court’s contemporaneous interpretation of the causation language in the ADEA. See Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S. Ct. 1701, 1706 (1993). Hazen Paper explains that a claim of age discrimination normally cannot succeed “unless the employee’s protected trait actually played a role in [the employer’s decisionmaking] process and had a determinative influence on the outcome.” Id. Logically, a trait or factor had a “determinative influence” on the decisionmaking if it made a difference in the outcome. Under any plain meaning of the terms, both formulations fall far short of requiring that the trait or factor be the sole cause of the outcome. See McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 282 n.10, 96 S. Ct. 2574, 2579-80 n.10 (1976) (stating that a Title VII plaintiff need not show he was rejected “solely on the basis of his race, without regard to [any] alleged deficiencies”; “no more is required ... than that race was a ‘but-for’ cause”)[4]; Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 141, 120 S. Ct. 2097, 2105 (2000) (stating that “plaintiff’s age must have ‘actually played a role in [the employer’s decisionmaking] process and had a determinative influence in the outcome’”) (quoting Hazen Paper).

Although it is controlling precedent in this Circuit, the district court refused to follow McNely, concluding that it is no longer good law in light of later Supreme Court decisions. See Memorandum at 2, 7-10 (citing Gross v. FBL Fin. Servs., 557 U.S. 167, 129 S. Ct. 2343 (2009); Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013); U.S. v. Burrage, 134 S. Ct. 881 (2014)). In the court’s view, those cases stand for the proposition that “but-for” causation means “sole” cause.

This misreads Gross and Nassar. Gross interpreted the ADEA while Nassar interpreted Title VII’s anti-retaliation provision. Unlike in McNely, the question in those cases was whether the proper standard of causation in the applicable provisions was “motivating factor” or “but-for” cause. The Supreme Court held that 42 U.S.C. §2000e-2(m) — the provision in Title VII under which a plaintiff need only show that race, color, sex, religion, or national origin was a “motivating factor” in a challenged employment decision before the burden of disproving “but-for” causation shifts to the employer — is applicable only to the enumerated Title VII traits. Gross, 557 U.S. at 174-76, 129 S. Ct. at 2348-49; Nassar, 133 S. Ct. at 2525-26. Other types of claims, such as age discrimination and Title VII retaliation, do not permit burden-shifting but rather require the plaintiff to prove “but-for” causation. Gross, 577 U.S. at 175-78, 180, 129 S. Ct. at 2350-52, 2353; Nassar, 133 S. Ct. at 2526-28.

While its reasoning is unclear, the district court here evidently assumed that if the standard is not “motivating factor,” the only other option is “sole cause.” That assumption is flawed. In neither Gross nor Nassar did the Supreme Court determine that a plaintiff must prove (let alone plead) that a particular factor was the “sole” cause of her injury. Indeed, both cases quote Hazen Paper for the proposition that age or another protected characteristic must have had “a determinative influence on the outcome” of the challenged decision. Gross, 557 U.S. at 176, 129 S. Ct. at 2350; Nassar, 133 S. Ct. at 2525. The cases therefore simply require that the proof be sufficient to support a finding that the injury would not have occurred in the absence of — but for — the particular factor even though other factors may also have contributed. See Nassar, 133 S. Ct. at 2525.

This is clear from Burrage, the third case cited by the district court, where the victim died from a combination of drugs, including heroin supplied by the defendant; the statute imposed a mandatory minimum 20-year sentence if death “resulted from” use of the illegal substance. 134 S. Ct. at 885-86. Rejecting an argument that the term “results from” merely requires that the substance be a “contributing cause” of the death, the Court held that the substance must instead be a “but-for cause.” It was undisputed that heroin was not the sole cause of the victim’s death. To illustrate how the standard would work, the Court reasoned that “if poison is administered to a man debilitated by multiple diseases, it is a but-for cause of his death even if those diseases played a part in his demise, so long as, without the incremental effect of the poison, he would have lived.” Id. at 888.

Burrage relies heavily on the discussion of “but-for” causation in Nassar and Gross. See, e.g., Burrage, 134 S. Ct. at 887-88 (Nassar), 889 (Gross). Both cases use the term “the ‘but-for’ cause.” Gross, 557 U.S. at 176, 129 S. Ct. at 2350; Nassar, 133 S. Ct. at 2528. Interestingly, however, in quoting the passages from Nassar and Gross, Justice Scalia, writing for the Burrage majority, consistently replaced the word “the” with “[a],” thus clarifying that the particular protected trait need not be the sole cause of a challenged action but only “a but-for cause.” This accords with Hazen Paper’s phrase, “a determinative influence.” 507 U.S. at 610, 113 S. Ct. at 1706; see also McDonald, 427 U.S. at 283 n.10, 96 S. Ct. at 2580 n.10 (“a ‘but-for’ cause”).

It also accords with case law from this and other circuits after Gross and Nassar. In a suit under the ADEA, for example, this Court explained that a “but-for” cause requires that the proscribed animus have “a determinative influence on the employer’s adverse decision” — language the Court recognized that Gross had drawn from Hazen Paper. See Sims v. MVM, 704 F.3d 1327, 1335–36 (11th Cir. 2013) (citing Gross, 557 U.S. at 176, 129 S. Ct. at 2350) (quoting Hazen Paper, 507 U.S. at 610, 113 S. Ct. at 1706)). See also Leal v. McHugh, 731 F.3d 405, 415 (5th Cir. 2013) (ADEA) (holding that “‘but-for cause’ does not mean ‘sole cause’” so plaintiffs need not plead or prove that age was the sole cause of their injury); Kwan v. Andalex Grp. LLC, 737 F.3d 834, 846 (2d Cir. 2013) (Title VII retaliation) (stating “‘but-for’ causation does not require proof that retaliation was the only cause of the employer’s action, but only that the adverse action would not have occurred in the absence of the retaliatory motive”); Lewis v. Humboldt Acquisition Corp., 681 F.3d 312, 314 (6th Cir. 2012) (en banc) (ADA) (expressly rejecting sole cause standard); Jones v. Oklahoma City Pub. Schs., 617 F.3d 1273, 1277–78 (10th Cir. 2010) (ADEA) (post-Gross, reaffirming long-standing circuit precedent that employer may be liable “if other factors contributed to its taking an adverse action, as long as age was the factor that made a difference”); see also Marcus v. PQ Corp., 458 F. App’x 207, 211 (3d Cir. Jan. 19, 2012) (ADEA) (stating that jury instruction that age must be “a ‘but-for’ cause,” “a ‘decisive’ or ‘determinative’ factor” properly stated causation standard after Gross); Robinson v. City of Phila., 491 F. App’x 295, 299 (3d Cir. July 13, 2012) (ADEA) (stating that it is “reversible error” to require showing that age was sole cause of adverse action).

The district court was therefore wrong in concluding that one and only one protected characteristic may be the cause of a challenged employment decision under the ADEA, ADA, and Title VII’s anti-retaliation provision. To the contrary, a plaintiff’s injury may have multiple causes, including “but-for” causes, “each one of which may be sufficient to support liability.” See Kwan, 737 F.3d at 846 n.5 (adding that determining whether a protected trait was a “but-for” cause, rather than simply a motivating factor, “is particularly poorly suited to disposition by summary judgment” since it requires weighing of disputed facts).

Thus, for example, in EEOC v. DynMcDermott Petroleum Operations Co., the Commission alleged that the employer violated the ADEA and/or ADA by failing to hire the charging party because he was too old and because he would have to care for his wife, who had cancer. 537 F. App’x 437 (5th Cir. July 26, 2013). Reversing summary judgment for the employer, the court of appeals reasoned that, based on the evidence, “a reasonable jury could return a verdict for the EEOC, finding that but for [the charging party’s] age and disabled wife, [the employer] would have hired him.” Id. at 448; see also Leal, 731 F.3d at 414–15 (quoting DynMcDermott with approval).

The possibility of multiple but-for causes also follows from a baseball analogy that the district court quoted from Burrage. Memorandum at 2-3. In Burrage, the Supreme Court explained that a leadoff home run would be a “but-for” cause of the team’s victory in a 1-0 game. This is true even though other factors, such as the pitcher’s stellar performance, also played a role — and may in fact likewise be “but-for” causes of the victory. See 134 S. Ct. at 888. Alternatively, if the 1-0 score resulted from three singles, instead of a home run, each hit would be a “but-for” cause of the victory since the team would not have scored a run without all three hits. Cf. W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 265 (5th ed. 1984) (“An act or omission is not regarded as a cause of an event if the particular event would have occurred without it.”), cited in Gross, 557 U.S. at 176-77.

Accordingly, this Court should take this opportunity to reaffirm McNely and hold that “but-for” causation does not mean “sole” cause under the ADA, the ADEA, or Title VII’s anti-retaliation provision. Contrary to the district court’s ruling, all three statutes impose liability whenever the prohibited motivation made a difference in the employer’s decisionmaking.

II. The Federal Rules Permit Plaintiffs to Plead Claims of Retaliation As Well As Age and Disability Discrimination in the Same Complaint.

The district court further erred in rejecting Savage’s complaint because she refused to amend her complaint to allege only one theory of discrimination — race or age or disability or retaliation. This error extended the court’s misreading of Gross and Nassar to the pleadings stage, requiring plaintiffs not only to prove that a protected characteristic was the sole cause of the challenged employment decision, but also to plead only one such cause.

Rule 8(d) of the Federal Rules of Civil Procedure specifies that a “party may state as many separate claims or defenses as it has, regardless of consistency,” and if a “party makes alternative statements, the pleading is sufficient if any one of them is sufficient.” This language has been construed literally, to permit plaintiffs to plead alternate, inconsistent theories of liability. See, e.g., Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 805 (1999) (quoting rule); 5 Charles Alan Wright & Arthur R. Miller, Fed. Practice & Proc. §1283 (3d ed. 2004 & Supp. 2012) (“Under [Federal Rule 8] a party may include inconsistent allegations in a pleading’s statement of facts.”) (citations omitted)).

Thus, for example, this Court has reversed the dismissal of claims under Rule 12(b)(6) based on supposedly inconsistent theories of liability, reasoning, “Rule 8 of the Federal Rules [] expressly permits the pleading of both alternative and inconsistent claims” even if it would be “impossible” for the claims to be true simultaneously. United Techs. Corp. v. Mazer, 556 F.3d 1260, 1272–73 (11th Cir. 2009); accord Adinolfe v. United Techs. Corp., 768 F.3d 1161, 1175–76 (11th Cir. 2014) (“It is a well-settled rule of federal procedure that plaintiffs may assert alternative and contradictory theories of liability.”). As Mazer explained, it is unreasonable to expect greater specificity at this preliminary juncture — “[t]hat is why we have discovery.” 556 F.3d at 1273.

Significantly, the categorical language of the Rule contains no exception for discrimination claims. There was therefore no basis for the court here to insist that Savage choose one claim and dismiss the others. Even if the court’s interpretation of Gross and Nassar were correct, that would simply mean that she would ultimately have to prove that the challenged employment decision was caused by age or disability or retaliation or race. The rules clearly permit her to allege that the decision was caused by any or all of those factors. Cf. Leal, 731 F.3d at 414-15 (noting that even the defendant in that case recognized that “‘Gross and its progeny concern a plaintiff’s ultimate proof burden in ADEA claims, not the pleading burden’”) (quoting defendant’s brief) (emphasis in Leal).[5]

In reaching its contrary decision, the district court cited two unpublished district court decisions, Selby v. Goodman Manufacturing Co., 2014 WL 2740317 (N.D. Ala. June 17, 2014), and Selman v. CityMortgage, 2013 WL 838193 (S.D. Ala. March 5, 2013). Memorandum at 10-11. In both cases, the court had dismissed a claim of unjust enrichment as fatally inconsistent with a breach of contract claim, reasoning that unjust enrichment assumes no contract existed but it was undisputed that a contract did in fact exist. But cf. Lass v. Bank of Am., 695 F.3d 129, 140-41 (1st Cir. 2012) (noting that although “damages for breach of contract and unjust enrichment are mutually exclusive,” it is “accepted practice to pursue both theories at the pleading stage” since Rule 8(d) permits pleading inconsistent legal theories).

Whatever the merit of those decisions, they are inapposite to this case. Here, the defendant disputes that it discriminated on any ground. Unlike the claims in Selby and Selman, Memorandum at10, therefore, the various claims alleged in Savage’s complaint do not present “irreconcilable contradictions and concessions as to an essential element of a particular claim.” Thus, even under the reasoning in Selby and Selman, Savage should be permitted to plead in the alternative that she was the victim of discrimination and/or retaliation based on age, protected activity. and/or disability.

The Commission therefore urges this Court to clarify that there is no discrimination exception to Rule 8(d). Plaintiffs like Savage cannot be compelled to choose one theory of discrimination to the exclusion of others, particularly at the pleading stage. Instead, their complaints, like those of other plaintiffs, may include as many separate claims as they have, regardless of consistency.

CONCLUSION

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

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

_______________________________

BARBARA L. SLOAN

Attorney

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of General Counsel

131 M Street N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4721

barbara.sloan@eeoc.gov

CERTIFICATE OF COMPLIANCE

I certify that this brief complies with the type-volume limitation of Federal Rule of Appellate Procedure 32(a)(7)(B) because it contains 4,829 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

I further certify that this brief complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and the type style requirements of Rule 32(a)(6) because it has been prepared in a proportionally spaced typeface using Times New Roman font, 14-point type.

Dated: October 16, 2015 ____________________________

Barbara L. Sloan

[1] The Commission takes no position on any other issue in this case.

[2] The complaint also included a claim under the Family and Medical Leave Act, but Plaintiff voluntarily dismissed that claim. R.12 (Motion); 14 (Order).

[3] The district court mistakenly assumed that the ADA still uses the phrase “because of” disability. Memorandum at 3. In fact, in 2008, the ADA Amendments Act changed “because of” to “on the basis of” in the ADA. 42 U.S.C. §12112(a). However, that change is not material to the analysis here. The exact statutory language the Supreme Court was construing in Burrage was “results from.” 134 S. Ct. at 885. As noted above, the Court treated that term, as well as “because,”“based on,” and “by reason of,” as all meaning “but for.” Id. at 889.

[4] Race claims under Title VII no longer need to satisfy a “but-for” standard. In 1991, Congress amended the statute to add 42 U.S.C. §2000e-2(m), which states that “an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice.”

[5] In fact, Leal expressly criticized this judge’s rulings, noting, “Lower court cases that have held [that plaintiffs must plead that age was the sole cause of their injury to survive a motion to dismiss] are unpersuasive.” 731 F.3d at 415 n.10 (citing Culver, 646 F. Supp. 2d at 1271–72 (Acker, D.J.)).