Statement of Interest

The U.S. Equal Employment Opportunity Commission (“Commission”) is the federal agency charged by Congress with responsibility for enforcing our nation’s federal prohibitions on employment discrimination, including the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. (“ADEA”). As a federal agency, the Commission is authorized to participate as amicus curiae in the courts of appeals. Fed. R. App. P. 29(a). In relevant part, this appeal presents the questions of how to determine whether a particular witness statement constitutes direct evidence of age discrimination, and how properly to analyze, at the summary judgment stage, claims of age discrimination that rely on direct evidence. Because of the importance of this issue to the effective enforcement of the ADEA and other federal antidiscrimination statutes, the Commission respectfully offers its views to the Court.

Statement of the Case

I. Statement of Facts

Tecumseh Public Schools is a school district located in Tecumseh, Michigan. Robert Scheick served as the principal of Tecumseh High School from 2004-2010. R.34-1, PageID#631-32 (Scheick Dep.). From 2004-2007, Scheick was a direct employee of the school district. In 2007, Scheick opted to take advantage of a state law that allowed public school employees to take retirement status but continue to work for the school district, by contract through a third party, in order to save the local school district money. R.34-1, PageID#636-37 (Scheick Dep.); R.34-2, PageID#776-77 (McAran Dep.). On June 28, 2007, the school district entered into a three-year contract with the Professional Educational Service Group (“PESG”), whereby Scheick would continue to serve as principal of Tecumseh High School but as an employee of PESG. R.34-1, PageID#637-38 (Scheick Dep.).

Throughout his six years as principal, Scheick reported to Superintendent Michael McAran. R.34-2, PageID#771 (McAran Dep.). McAran is the “sole employee” of the Tecumseh school board, and is charged with “oversee[ing] and run[ning] the school district.” R.34-2, PageID#771 (McAran Dep.). At all relevant times, McAran had regular contact with all seven members of the school board. He met with the school board every two weeks at regularly scheduled meetings, and also outside of these meetings; he communicated with the school board president “every two days,” either by phone or in person; and he regularly met with the executive committee of the school board, which is comprised of the school board president and vice president. R.34-2, PageID#772-73 (McAran Dep.).

On February 25, 2010, McAran met with Scheick to discuss Scheick’s job performance evaluation. McAran characterized the evaluation as “good, competent.” R.34-2, PageID#784 (McAran Dep.). McAran rated Scheick as having “highly effective performance” in the areas of general administration and personal skills/characteristics, and “good, competent performance” for his supervision of personnel. R.34-1, PageID#749-50 (Scheick Dep.). McAran also rated Scheick as “need[ing] slight improvement to meet [the] standard” for the areas of supervision and curriculum instruction and community and student relationships. R.34-5, PageID#857-58 (evaluation).

After handing Scheick the performance evaluation, McAran told Scheick that the school board wanted Scheick to retire. R.34-1, PageID#744 (Scheick Dep.). Scheick informed McAran that he intended to keep working as principal for at least two more years. R.34-1, PageID#665 (Scheick Dep.). When Scheick asked what his options were, McAran said that he “would like [Scheick] to stay here and work but I think the board will make [Scheick’s] life hell” if Scheick did not retire. R.34-6, PageID#868-69 (Scheick Interrog.). Scheick then said, “Or the board could force you to fire me,” to which McAran responded, “Yup.” R.34-1, PageID#667 (Scheick Dep.); R.34-6, PageID#868-69 (Scheick Interrog.).

The next morning, McAran stopped by Scheick’s office to discuss Scheick’s Principal position. R.34-1, PageID#669-71 (Scheick Dep.). McAran asked if Scheick was “all right,” and Scheick responded that he was fine and was there to do his job. R.34-1, PageID#669 (Scheick Dep.). McAran told Scheick that he might be eligible for a buyout, and asked if Scheick was interested in retirement. R.34-1, PageID#672 (Scheick Dep.). McAran then told Scheick “they just want somebody younger” for his position. R.34-1, PageID#669 (Scheick Dep.). Scheick testified that McAran was referring to the school board, just as McAran had during the previous day’s conversation about the school board wanting Scheick to retire, because in the context of their conversation “there was nobody else that [McAran] was referring to.” R.34-1, PageID#669-71 (Scheick Dep.).

Scheick received his official letter of termination from Tecumseh Public Schools around March 8, 2010. R.34-1, PageID#683 (Scheick Dep.). Scheick met with McAran on March 15, 2010 to discuss this letter, and McAran told Scheick twice more that “they just want someone younger” than Scheick for the Principal position. R.34-1, PageID#697 (Scheick Dep.).

McAran testified that “[t]he board as a whole did not give [him] direction” to terminate Scheick’s employment. R.34-2, PageID#785 (deposition). When asked whether “anything that any board member said to [him] helped [him] along the process of making the decision to terminate Mr. Scheick’s employment,” McAran testified “I listened to them, yes.” R.34-2, PageID#795 (McAran Dep.). McAran also testified that through his discussions with the board and/or board members there was a “consensus” that the board did not want Scheick’s contract renewed. R.34-2, PageID#786-87 (McAran Dep.). McAran testified that “besides [himself] and the board president” he had “some discussion individually with board members about a nonrenewal” of Scheick’s contract. R.34-2, PageID#786 (McAran Dep.). McAran also testified that “well before” he provided Scheick with the February 25, 2010, job evaluation, McAran informed the school board president of McAran’s intention to use the performance evaluation “to set up the termination of the relationship with Mr. Scheick.” R.34-2, PageID#786 (McAran Dep.). McAran told the school board president that he would “pick out” Scheick’s performance problems to highlight during his performance evaluation, and that he would “ask for nonrenewal of the contract with PESG.” R.34-2, PageID#786 (McAran Dep.).

In July, 2010, when Scheick’s contract lapsed and was not renewed, the school district eliminated Scheick’s Principal position and McAran assumed Scheick’s principal job duties until August, 2010, when the school board received enough funding to reinstate the Principal position and hire a new principal. R.34-2, PageID#792 (McAran Dep.). As a result of hiring a new principal, the school district incurred higher costs for the Principal position than it had incurred previously when Scheick held that job through the school district’s contract with PESG. R.34-2, PageID#808 (McAran Dep.).

McAran testified that the decision to terminate Scheick “had nothing to do with the finances of the school,” R.34-2, PageID#800 (McAran Dep.), and that the initial plan for replacing Scheick was to “go out and post for somebody new,” which “wouldn’t have been” a cost savings for the school district. R.34-2, PageID#786 (McAran Dep.). McAran also testified that the idea of McAran assuming Scheick’s principal duties “didn’t hatch until after” McAran gave Scheick his February 25, 2010, job evaluation, and that this Superintendent-adoption-of-principal-duties plan was not conceived until sometime in March 2010. R.34-2, PageID#786 (McAran Dep.).

Scheick ultimately filed suit, alleging that the school district and PESG violated the ADEA by not renewing his employment contract. R.1, PageID#1-5 (Complaint).

II. District Court Decision

On summary judgment, the district court rejected Scheick’s argument that McAran’s statement that “they just want somebody younger” for Scheick’s position was direct evidence of age discrimination. R.40, PageID#1207 (Order). The court observed that “the ‘younger’ statement could mean that McAran made his decision on the number of years [Scheick] stated he was willing to work, not on [his] age.” Id. The court noted that “[w]hile there is a correlation between number of years left to work and age, in context, too many inferences must be drawn and this statement is not direct evidence of age discrimination.” Id.

The court further found the term “they” to be ambiguous, characterizing Scheick as having “assumed” McAran was referring to the school board, and that this was a “reasonable inference.” R.40, PageID#1208 (Order). The court stated, however, that McAran had testified he only spoke to three school board members and Scheick had not suggested otherwise, and therefore to consider the statement direct evidence would require an inference that those three board members’ comments represented the position of the board as a whole. R.40, PageID#1208-09 (Order). The district court added that the statement did not constitute direct evidence because there was evidence that McAran was the sole decisionmaker in regard to the nonrenewal of Scheick’s contract. R.40, Page ID#1209 (Order).

The district court further concluded that even if McAran’s statement were direct evidence of age discrimination, summary judgment would still be appropriate because of the financial problems faced by Tecumseh Public Schools. R.40, PageID#1209-10 (Order). As support, the court cited Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000), for the proposition that “[i]n direct evidence cases” once the plaintiff presents direct evidence of discrimination “the burden of production and persuasion shifts to the employer to prove that it would have terminated the employee even if it had not been motivated by impermissible discrimination.” R.40, PageID#1209-10 (Order). The court stated that the school district had a two million dollar deficit and an “already-in-place plan to eliminate several principalships and cut programs.” R.40, PageID#1210 (Order). After rejecting Scheick’s direct evidence argument, the court further ruled that he had also failed to establish a circumstantial case of age discrimination. R.40, PageID#1210-16 (Order).

Scheick then filed a motion for reconsideration of the court’s summary judgment ruling. R.42, PageID#1218 (Motion). In rejecting that motion, the court ruled that even if McAran’s comment was in fact direct evidence of age discrimination, Scheick had failed to “show that [the defendants’] reasons [for not renewing Scheick’s contract] were pretext for age discrimination.” R.45, Page ID#1236-37 (Order on Reconsideration).

Summary of the Argument

The district court erred in concluding that McAran’s statements to Scheick that “they just want somebody younger” did not constitute direct evidence of age discrimination. McAran’s statements, made to Scheick in the context of their ongoing conversation about the school district’s decision to terminate Scheick’s employment, are fully probative of the school district’s age-based motivation behind its termination of Scheick’s employment, without requiring resort to any manner of inference. The comments were made by McAran—a decisionmaker and agent of the school board—in the context of Scheick’s termination; related to the decisionmaking process behind Scheick’s termination; were not vague or ambiguous; and were made proximate in time to Scheick’s termination. Moreover, the comments at issue are almost identical to evidence that this Court recently held, in Sharp v. Aker Plant Services Group, No. 11-5419, (6th Cir. Aug. 9, 2013), did constitute direct evidence of age discrimination.

The district court further erred when it applied a burden-shifting analysis in the context of the plaintiff’s direct evidence argument, and in otherwise relying upon outdated ADEA precedent that has been superseded by the Supreme Court’s decision in Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009). After Gross, if the defendant moves for summary judgment on the plaintiff’s ADEA-based disparate treatment claim and the plaintiff produces direct evidence that the employer would not have taken adverse action against the plaintiff but for his age, summary judgment should be denied. There is no burden-shifting between the parties to determine liability.[1]

Argument

I. McAran’s Statement to Scheick That “They Just Want Someone Younger” than Scheick is Direct Evidence of Age Discrimination.

The ADEA makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual . . . because of such individual’s age.” 29 U.S.C. § 623(a). In order to establish liability under the ADEA, “[a] plaintiff must prove by a preponderance of the evidence (which may be direct or circumstantial), that age was the ‘but-for’ cause of the challenged employer decision.” Gross, 557 U.S. at 177-78; see also Geiger v. Tower Auto., 579 F.3d 614, 621 (6th Cir. 2009) (same). Post-Gross, the plaintiff may not simply prove that age was a motivating factor in the challenged employment decision, as the Sixth Circuit had previously required. See, e.g., Geiger, 579 F.3d at 620-21. Instead, on summary judgment, the plaintiff’s burden is to present sufficient evidence for a reasonable jury to conclude that age was not only a motivating factor, but was the but-for cause of the contested employment action. Id. at 621.

An ADEA plaintiff may prove age discrimination through introduction of direct or circumstantial evidence. Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 570 (6th Cir. 2003) (en banc). This Court has defined direct evidence as evidence “which is probative of an alleged fact without requiring further inference.” Rowan v. Lockheed Martin Energy Sys., Inc., 360 F.3d 544, 548 (6th Cir. 2004). “‘Direct evidence of discrimination is evidence which, if believed, requires the conclusion that unlawful discrimination was [the] motivating factor in the employer’s actions.’” Sharp, No. 11-5419, Slip Op. at 10 (alteration in original) (quoting Wexler, 317 F.3d at 570).

It is well established that when a plaintiff presents direct evidence of discrimination, the burden-shifting analytical framework, set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), for claims relying on circumstantial evidence plays no role in assessing whether the plaintiff has met his burden to show that the ADEA has been violated. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985) (“The McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination.”); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002) (recognizing that, under a notice pleading system, a plaintiff need not plead facts establishing a prima facie case, in part because “the McDonnell Douglas framework does not apply in every employment discrimination case. For instance, if a plaintiff is able to present direct evidence of discrimination, he may prevail without proving all the elements of a prima facie case”) (citing Trans World Airlines, 469 U.S. at 121).

“The shifting burdens of proof set forth in McDonnell Douglas are designed to assure that the ‘plaintiff has his day in court despite the unavailability of direct evidence.’” Trans World Airlines, 469 U.S. at 121 (citation omitted). “‘Where the evidence for a prima facie case consists . . . of direct testimony that defendants acted with a discriminatory motivation, if the trier of fact believes the prima facie evidence the ultimate issue of discrimination is proved; no inference is required.’” Blalock v. Metals Trades, Inc., 775 F.2d 703, 707 (6th Cir. 1985) (quoting Lee v. Russell County Bd. of Educ., 684 F.2d 769, 774 (11th Cir. 1982)). As such, “[t]he direct evidence and circumstantial evidence paths are mutually exclusive; the plaintiff can meet her burden with either method of proof.” Weberg v. Franks, 229 F.3d 514, 523 (6th Cir. 2000) (citing Johnson v. Univ. of Cincinnati, 215 F.3d 561, 572-73 (6th Cir. 2000)). “A plaintiff need only [use] one or the other, not both.”[2] Johnson, 215 F.3d at 572.

Accordingly, when a plaintiff presents direct evidence of discrimination, the court should not inquire into whether the plaintiff has established a prima facie case sufficient to create a presumption of discrimination, whether the defendant has proffered a legitimate, nondiscriminatory reason for its action, or whether there is evidence showing that such proffered explanation is a mere pretext for discrimination, as is required under the McDonnell Douglas approach.[3]

Applying these well-established standards to the evidentiary record in this case shows that Scheick presented direct evidence that the school district terminated his employment contract because of his age, making summary judgment inappropriate. McAran’s statement that “they just want somebody younger” for Scheick’s position is a clear example of direct evidence. No inferences are required for a reasonable jury to conclude from this statement that the school board (the “they” referred to by McAran) wanted McAran to replace Scheick with someone younger than Scheick—a quintessential example of age-based motivation. Further, McAran made this statement while discussing Scheick’s termination—a fact providing context for McAran’s statement that further indicates that the school district terminated Scheick because of his age.

This conclusion is fully supported by this Court’s recent decision in Sharp, where the plaintiff’s evidence, including testimony that he was told that he was selected for termination because “we want someone younger,” No. 11-5419, Slip Op. at 6, constituted direct evidence of age discrimination, making summary judgment for the defendant improper. In Sharp, the plaintiff, Tommy Sharp, alleged that his employer had selected him for termination because of his age. Sharp marshaled evidence, including his own testimony, that after he was told he would be laid off, his supervisor had two conversations with him regarding the reason he was selected for layoff. No. 11-5419, Slip Op. at 2-3. In relevant part, the supervisor told Sharp that he was laid off because “we want someone younger,” “it is the fact that [the employee selected to stay in the job] is younger,” and, in reference to why a younger employee was not laid off, the reason was “his age.” Id. at 6-7. The supervisor also told Sharp that his job performance had “never been a problem.” Id. at 6. The district court granted summary judgment to the defendant, ruling in part that Sharp had not produced direct evidence of age discrimination. Id. at 8.

On appeal, this Court reversed, rejecting the employer’s assertion that the comments were stray remarks unrelated to the decisionmaking process. Instead, this Court concluded the comments “were offered to explain the very decision at the heart of this lawsuit. They specifically described [the employer’s] rationale in choosing which employees to fire and which to retain.” Id. at 11. This Court further characterized the comments as “a retrospective description of the decision-making process that led to the terminations” that was “both ‘temporally [and] topically related’ to the decision to choose Sharp” for layoff, adding “[i]f there ever was a window into the mind of an employment decision maker, that was it.” Id. at 12 (alteration in original).

The evidence presented by Scheick in his case—that McAran informed him that he had lost his job because the school board “just wanted someone younger”—is functionally indistinguishable from the direct evidence identified in Sharp as sufficient to withstand summary judgment. Just as in Sharp, Scheick was engaged in a conversation with his supervisor regarding his employer’s decision to terminate his employment. During that conversation—which followed by one day McAran’s providing Scheick with a job performance evaluation that McAran characterized as “good, competent” and McAran’s informing Scheick that he “would like [Scheick] to stay here and work” but the school board wanted Scheick to retire—McAran told Scheick “they just want somebody younger” for his position. R.34-1, PageID#669, 744 (Scheick Dep.); R.34-6, PageID#868-69 (Scheick Interrog.); R.34-2, PageID#784 (McAran Dep.). Scheick testified that when McAran said “they,” McAran was referring to the school board, just as he had during the previous day’s conversation about the school board wanting Scheick to retire, because in the context of their conversation “there was nobody else that [McAran] was referring to.” R.34-1, PageID#669-71 (Scheick Dep.). A few weeks later, Scheick met with McAran to discuss Scheick’s receipt of his official letter of termination and McAran told Scheick twice more that “they just want someone younger” than Scheick for the Principal position. R.34-1, PageID#697 (Scheick Dep.).

Like the remarks in Sharp, McAran’s comments to Scheick that the school district refused to renew his contract because the school board “just want[s] someone younger” were “offered to explain the very decision at the heart of this lawsuit,” “specifically describe [the school district’s] rationale in choosing” to terminate Scheick, and as such offer “a window into the mind of the employment decision maker.” Sharp, No. 11-5419, Slip Op. at 11-12. Thus, as did the remarks at issue in Sharp, McAran’s remarks constitute direct evidence of age discrimination. [4]

The conclusion that McAran’s statements constitute direct evidence of age discrimination is also fully consistent with how other courts have treated similar statements. See Hawkins v. Frank Gillman Pontiac, 102 F. App’x 394, 399 (5th Cir. 2004) (unpublished) (finding an employer’s statement that the company is looking for “new blood . . . you know, younger people” to fill plaintiff’s position is direct evidence of age discrimination); Fakete v. Aetna, Inc., 308 F.3d 335, 339 (3d Cir. 2002) (holding that a decisionmaker telling an employee that “they are looking for younger single people” may constitute direct evidence of age discrimination sufficient to defeat summary judgment); Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406, 1410-11 (9th Cir. 1996) (holding that the plaintiff offered direct evidence of age discrimination through testimony that the employer told him three times that it wanted someone younger for his position); Lindsey v. Am. Cast Iron Pipe Co., 772 F.2d 799, 802 (11th Cir. 1985) (“[Plaintiff]’s testimony that [his supervisor] told him the company wanted a younger person to fill [his] position, if believed, constitutes sufficient direct evidence to remove this case from the ambit of McDonnell Douglas.”).

This conclusion is also consistent with how courts have assessed direct evidence in the context of claims raised under other federal antidiscrimination statutes. See, e.g., Johnson v. Maestri-Murrell Prop. Mgmt., LLC, 487 F. App’x 134, 135-37 (5th Cir. 2012) (unpublished) (holding that a statement made by a manager that she did not think “they would want to hire someone who was black” was direct evidence of race discrimination sufficient to preclude summary judgment).

The district court erred in concluding otherwise. First, the district court’s conclusion that McAran’s use of the term “younger” “could mean that McAran made his decision [based] on the number of years that [Scheick] stated he was willing to work, not on [his] age,” see R.40, PageID#1207 (Order), contravenes well-established summary judgment standards. Viewed in the light most favorable to Scheick, and in the absence of any evidence suggesting a contrary interpretation, McAran’s statement must be taken at face value for what it clearly conveys—that the school board wanted Scheick replaced because of his age. A reasonable jury could find there is no ambiguity in, or room for misinterpretation of, McAran’s use of the term “younger.”

Just as in Sharp, McAran’s “comments, when viewed in the light most favorable to [Scheick], boil down to one theme”: Scheick was terminated because the school board wanted a “younger” principal. Sharp, No. 11-5419, Slip Op. at 13. Moreover, as noted above, courts routinely recognize that evidence of an employer’s desire to replace current employees with “younger” employees constitutes direct evidence of age discrimination. See, e.g., Hawkins, 102 F. App’x. at 398; Fakete, 308 F.3d at 339; Schnidrig, 80 F.3d at 1410-11. The district court’s counterintuitive interpretation of McAran’s use of the term “younger” is thus legally infirm for summary judgment purposes.

The court’s interpretation of McAran’s comments is also factually unsupportable. There is no evidence that when McAran first met with Scheick and conveyed the school board’s desire that Scheick leave the Principal position, either McAran or the school board had any idea how long Scheick intended to keep working. Nor is there any evidence that either McAran or the school board took Scheick’s future longevity as principal into account when the school district decided to terminate Scheick’s employment. To the contrary, the record evidence only suggests that the school board and McAran had already decided to replace Scheick before they learned how long Scheick desired to continue working. See supra pp. 3-4 (citing evidence that during the same conversation in which Scheick informed McAran of how long Scheick planned to keep working, McAran told Scheick that the school board wanted him to retire).

The court also incorrectly interpreted McAran’s “they want somebody younger” statement when it analogized the comment to cases where courts have addressed the conceptual difference between an employee’s “years of service” and age. See R.40, PageID#1207-08 (Order). Certain factors, such as an individual’s years of service, pension status, seniority, or wage rate, are analytically distinct from age, and therefore a decisionmaker’s reliance on such factors does not necessarily implicate the subject’s age. Hazen Paper Co. v. Biggins, 507 U.S. 604, 611 (1993); Allen v. Diebold, Inc., 33 F.3d 674, 676 (6th Cir. 1994) (same); see also Sharp, No. 11-5419, Slip Op. at 12-15 (discussing Hazen Paper). Courts have also recognized that in certain circumstances, such factors can be “direct prox[ies] for age” and “do[] not merely correlate with age.” Erie County Retirees Ass’n v. County of Erie, Pa., 220 F.3d 193, 211-13 (3d Cir. 2000) (citations omitted). If a decision is premised on such a factor or characteristic that is in fact a proxy for age, that decision is, accordingly, an age-based decision. Hazen Paper, 507 U.S. at 611; Sharp, No. 11-5419, Slip Op. at 13; Allen, 33 F.3d at 676.

However, such caselaw is inapposite here, where there is no reasonable basis for interpreting the record evidence to refer to anything other than Scheick’s age. In expressing the school board’s sentiments, McAran did not refer to Scheick’s “years of service” or to the amount of time Scheick wanted to continue working. Instead, McAran explicitly referenced only a desire for someone “younger”—a clear and unambiguous reference to Scheick’s age.

The district court further erred in concluding that McAran’s reference to the school board as “they” was ambiguous. See R.40, PageID#1208 (Order). A reasonable jury could find that the evidence leaves no doubt that McAran was referring to the school board. When McAran met with Scheick on February 25, 2010, to discuss his performance evaluation, he told Scheick that the school board wanted him to retire. R.34-1, PageID#744 (Scheick Dep.). The following morning, while McAran and Scheick were discussing Scheick’s Principal position, McAran told Scheick that “they just want somebody younger.” R.34-1, PageID#669 (Scheick Dep.). Scheick further testified that when McAran told Scheick that “they just want somebody younger,” McAran was referring to the school board, just as McAran had during their conversation the day before, as “there was nobody else that [McAran] was referring to.” R.34-1, PageID#669-71 (Scheick Dep.). No inference is required to conclude that in this context, when McAran said “they,” he was referring to the school board. No reasonable jury could conclude otherwise, as on this record there is no one else to whom McAran could possibly have been referring.

The district court also erred in premising its ruling on the notion that McAran only spoke with three members of the school board (and not the entire board) regarding Scheick’s continued employment. See R.40, PageID#1208-09 (Order). McAran did testify that he spoke with three specific, identified board members regarding their individual concerns about Scheick’s performance. However, he did not testify that he only spoke to some, but not all, of the board members; rather, he testified that he spoke to board members “individually”—as opposed to collectively, such as he might have at a regular board meeting—regarding Scheick’s continued employment. R.34-2, PageID#786 (McAran Dep.).

McAran testified that he spoke with the school board president about how Scheick’s February 2010 evaluation would “lay the groundwork” for Scheick’s termination, that McAran would “pick out” Scheick’s performance problems and “would ask for nonrenewal of the contract with PESG,” and that McAran had discussed this with the school board president “well before this [the evaluation] took place.” R.34-2, PageID#786 (McAran Dep.). McAran also testified that “besides [himself] and the board president” he had “some discussion[s] individually with board members about a nonrenewal” of Scheick’s contract. R.34-2, PageID#786 (McAran Dep.) (emphasis added). McAran added that based on those conversations, he concluded that there was a “consensus” among the board members for Scheick’s removal.[5] R.34-2, PageID#786-87 (McAran Dep.).

Similarly, the district court erred in concluding that McAran’s statement about the board’s age-based motivation is not direct evidence because there is evidence that McAran himself made the decision not to renew Scheick’s contract. See R.40, PageID#1209 (Order). While McAran did so testify, see R.34-2, PageID#785 (McAran Dep.), there was also ample contrary evidence to support a reasonable jury’s conclusion that McAran’s act of not renewing Scheick’s contract was made because of the school board’s preference for a younger principal.

Scheick testified that McAran stated that if the choice of what to do with Scheick’s contract was left up to McAran, McAran would keep Scheick in the position, and that “they”—the school board—“just want somebody younger” for principal. R.34-6, PageID#868-69 (Scheick Interrog.). In addition, when McAran was asked whether “anything that any board member said to [him] helped [him] along the process of making the decision to terminate Mr. Scheick’s employment,” McAran testified “I listened to them, yes.” R.34-2, PageID#795 (McAran Dep.). McAran also acknowledged to Scheick that the school board could “force [him] to fire [Scheick].” R.34-1, PageID#667 (Scheick Dep.); R.34-6, PageID#868-69 (Scheick Interrog.). And, as stated previously, McAran acknowledged that he spoke with school board members individually about not renewing Scheick’s contract, and that there was a “consensus” among the board members in support of nonrenewal. See supra p. 5. This evidence suggests that McAran did not in fact consider himself the sole decisionmaker in regard to Scheick’s termination, and instead was acting contrary to his own preference but in accordance with the preference of his employer, the school board.

Based on all this evidence, including Scheick’s testimony that McAran told him that his contract was not being renewed because “they just want somebody younger,” there is certainly sufficient evidence for a fact finder reasonably to conclude that McAran was not in fact the sole decisionmaker, and that the school district terminated Scheick’s contact because the school board wanted a younger principal.

II. Scheick’s Direct Evidence of Age Discrimination Precludes the Entry of Summary Judgment in Favor of the Defendants.

When an ADEA plaintiff presents direct evidence that he suffered an adverse employment action because of his age, that evidence is, by definition, sufficient to permit a factfinder to conclude that age was the but-for cause of the challenged adverse employment action. Sharp, No. 11-5419, Slip Op. at 10. For summary judgment purposes, under such circumstances the court’s analysis of the claim is at an end, and summary judgment for the defendant must be denied. Geiger, 579 F.3d at 620-21.

Accordingly, given the direct evidence that McAran told Scheick that Scheick’s employment was being terminated because the school board wanted a younger principal, the court should have denied the defendants’ summary judgment motion without any further analysis. Instead, the district court ruled that even if McAran’s comments to Scheick are direct evidence of age discrimination, summary judgment for the defendants was nevertheless still appropriate because of the financial difficulties the school district was facing. See R.40, PageID#1209-10 (Order). In so analyzing the merits of Scheick’s claim the court committed both factual and legal errors.

First, the court’s analysis appears to have inappropriately relied upon overruled, pre-Gross caselaw that shifted the burden to the defendant (once the plaintiff had established, through direct or circumstantial evidence, that age was a motivating, but not necessarily a but-for, factor in the defendant’s decisionmaking process) to prove that, absent its discriminatory motive, it nevertheless would have taken the same adverse action against the plaintiff. See R.40, PageID#1209-10 (Order, citing Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000), for the proposition that “[i]n direct evidence cases” once the plaintiff presents direct evidence of discrimination “the burden of production and persuasion shifts to the employer to prove that it would have terminated the employee even if it had not been motivated by impermissible discrimination”).[6]

However, as described previously, after Gross, in ADEA disparate treatment suits the burden of proof does not shift to the defendant at any time; the burden always remains on the plaintiff to establish that age was a but-for cause of the challenged employment decision. See supra, pp. 11-15. Accordingly, the court erred in concluding that “even if” there was direct evidence of discrimination, further analysis of the claim was warranted and the employer could escape liability if it showed that it would have made the same decision absent a discriminatory motive.

This, of course, is not to say that evidence that the employer would have taken the same action against the plaintiff regardless of its age-based motivation plays no role in the analysis. Such evidence goes directly to the question of whether age was actually a but-for cause of the adverse action, or rather simply a mere motivating factor, and is to be taken into account by the factfinder in determining the motivation of the defendant. If the factfinder determines that age was the but-for cause—that absent the discriminatory motive, the adverse action would not have occurred, Gross, 557 U.S. at 176-77—then it has necessarily rejected the defendant’s evidence that it would have taken the same action regardless of the plaintiff’s age. Similarly, if the factfinder concludes that the defendant would have taken the adverse action regardless of the plaintiff’s age, then the plaintiff has not proven that age was the but-for cause of that action.

Applying this proper analytical approach to this case displays how the district court’s conclusion on this point was based not only on an invalid, overruled analytical approach, but was also contrary to the record evidence. When viewed under proper summary judgment principles, the evidence indicates that when the school board expressed to McAran its desire that he replace Scheick with a “younger” principal and McAran acted on that direction by informing Scheick that his contract would not be renewed, it did so before McAran and the school board realized that the school district was facing financial difficulty and would need to consider eliminating Scheick’s Principal position. As such, these proffered financial concerns could not possibly have played a role in the school district’s decisionmaking process that culminated in McAran’s telling Scheick on February 25, 2010 that his contract would not be renewed.

It is well settled that when an employer takes an adverse employment action against an employee, such as terminating his employment contract, because of his age and in violation of the ADEA, the violation of the statute occurs upon the date the employer communicates to the employee its intention to terminate his employment, and not when the consequences of that decision are most painfully felt (such as when the victim actually leaves his job). See, e.g., Amini v. Oberlin Coll., 259 F.3d 493, 498-99 (6th Cir. 2001) (holding, in the context of Title VII and ADEA charge filing timeliness requirements, that the discriminatory act of an employer is the unlawful decision and its communication to the victim, not the subsequent consequences (such as actual departure from the workforce), because the focus should be “on the discriminatory act”) (citing Del. State Coll. v. Ricks, 449 U.S. 250, 258 (1980)); EEOC v. United Parcel Serv., Inc., 249 F.3d 557, 561-62 (6th Cir. 2001) (per curiam) (same). Accordingly, in this matter, the adverse employment action that allegedly violated the ADEA occurred on February 25, 2010, when McAran informed Scheick that the school board wanted him to retire and his contract would not be renewed. See supra, pp. 3-4.

There is no evidence that the school district had even contemplated eliminating Scheick’s position as a cost-saving measure at that time. There is, however, ample evidence that it did not consider eliminating the position for financial reasons until after it had taken adverse action against Scheick. McAran testified that when he first made the decision to terminate Scheick’s contract, his decision “had nothing to do with the finances of the school.” R.34-2, PageID#800 (McAran Dep.). In fact, the school board expected that it would be more expensive for it to replace Scheick than to renew his contract. McAran also testified that the idea of McAran assuming Scheick’s Principal duties “didn’t hatch until after” McAran gave Scheick his February 25, 2010, job evaluation, and that this Superintendent-adoption-of-principal-duties plan was not conceived until sometime in March, 2010.[7] R.34-2, PageID#786 (McAran Dep.) (emphasis added).

As such, the evidence was more than sufficient to show, for summary judgment purposes, that potential cost savings played no role whatsoever in the district’s decision to terminate Scheick, and that the but-for cause of the school district’s decision to terminate Scheick was exactly as McAran stated—the school board just wanted “somebody younger” than Scheick. The district court erred in concluding otherwise.

Conclusion

For the aforementioned reasons, the Commission respectfully requests that the Court reverse the district court’s grant of summary judgment and remand the matter for trial.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

LORRAINE C. DAVIS

Acting Associate General Counsel

DANIEL T. VAIL

Acting Assistant General Counsel

s/ James M. Tucker

JAMES M. TUCKER

Attorney

U.S. EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

131 M St. NE, Rm. 5NW10P

Washington, D.C. 20507

(202) 663-4870

E-mail: James.Tucker@EEOC.gov

Attorneys for amicus curiae

U.S. Equal Employment

Opportunity Commission

[1] The Commission expresses no opinion as to any other issue in this appeal.

[2] In an unpublished decision this Court stated, in dicta and without further explanation, that “it is conceivable that following Gross, McDonnell Douglas may be found to apply to all age discrimination claims regardless of their evidentiary basis.” Bartlett v. Gates, 421 F. App’x. 485, 489 n.2 (6th Cir. 2010) (unpublished). On this point, the Commission respectfully disagrees with Bartlett. As described above, the Supreme Court has unequivocally held that the McDonnell Douglas analytical framework is not applicable to direct evidence cases. Gross did nothing to disturb that precedent. In Gross, the Supreme Court simply explained that the ADEA requires a showing of but-for causation. See 557 U.S. at 175-80. Further, the Court in Gross explicitly stated that the plaintiff could show such but-for causation with either direct or circumstantial evidence. Id. at 177-78. Since the McDonnell Douglas framework only applies in circumstantial evidence cases—and Gross acknowledged but-for causation can also be shown with direct evidence—the Court in Gross could not possibly have intended to indicate that McDonnell Douglas must now be applied in every ADEA case. The Commission is unaware of any other court of appeals that has endorsed, or suggested, applying the McDonnell Douglas analysis in a direct evidence-based ADEA suit post-Gross. Nor has the Sixth Circuit made any further mention of the possibility of such an approach in any of its several post-Bartlett ADEA decisions. See, e.g., Sharp, No. 11-5419, Slip Op.

[3] For this reason, the district court erred on reconsideration when it applied a de facto McDonnell Douglas analysis to Scheick’s direct evidence argument, concluding that even if Scheick had produced direct evidence of age discrimination he failed to show that the defendants’ asserted explanations for his termination were pretextual. See R.45, PageID#1237 (Order on Reconsideration).

[4] Relatedly, this Court applies a four-factor test to determine whether particular age-related remarks are probative evidence of an employer’s age bias in its decisionmaking process (as opposed to mere “stray remarks”). See, e.g., Peters v. Lincoln Elec. Co., 285 F.3d 456, 477-78 (6th Cir. 2002). These four factors are: (1) whether the statements were made by a decisionmaker or by an agent within the scope of employment; (2) whether the statements were related to the decisionmaking process; (3) whether the statements were more than merely vague, ambiguous, or isolated remarks; and (4) whether they were made proximate in time to the act of termination. Id. (citing Cooley v. Carmike Cinemas, Inc., 25 F.3d 1325, 1330 (6th Cir. 1994)); see also Sharp, No. 11-5419, Slip Op. at 11-12 (discussing, and rejecting, employer’s stray remark argument). No individual factor is dispositive; rather, all of the factors “must be evaluated as a whole, taking all of the circumstances into account.” Peters, 285 F.3d at 478. While the district court did not directly address this question, McAran’s statement does satisfy this four-factor test. First, it is uncontested that McAran is an agent of the school board, and Scheick’s testimony was that on three occasions McAran made his comment about the school board’s age-based motivation, each while discussing with Scheick his termination. Second, the comment was directly related to the decisionmaking process, in that it was offered as the school board’s reasoning behind the decision to terminate Scheick’s employment. Third, the statement was not a vague, ambiguous, or isolated remark, as McAran made the same remark repeatedly, and each time clearly expressed the preference for a “younger” principal in the context of explaining the school board’s reasoning behind Scheick’s termination. Fourth, McAran made the statement proximate in time to plaintiff’s termination, first the day after McAran had informed Scheick that the school district would not be renewing his contract, and twice more approximately two weeks later.

[5] McAran testified as to these discussions in response to questioning about whether, “besides [himself] and the board president, was anyone aware that it was the intention of the school district to sever further relationships involving Mr. Scheick.” R.34-2, PageID#786 (McAran Dep.). Accordingly, the context of this questioning and testimony regarding the “intent” of the school district to terminate Scheick’s employment indicates that the discussions occurred at some time before McAran informed Scheick that his contract would not be renewed.

[6] We say the court “appears” to have relied on this approach because, in its limited discussion of this issue, the court does not specifically state that it is relying on such an analytical approach, or otherwise explain its reasoning beyond citation to Nguyen as standing for such a burden-shifting approach.

[7] While the question of whether or not the employer would have ultimately terminated the plaintiff’s employment for some other, non-age-based reason, and at a later date, is not relevant for purposes of establishing liability, it may have some bearing on damages, similar to the after-acquired evidence doctrine. See, e.g., Brenneman v. MedCentral Health Sys., 366 F.3d 412, 416 n.2 (6th Cir. 2004) (holding, in the context of an Americans with Disabilities Act discriminatory termination claim, that while an employer’s “post-hoc, additional ground for plaintiff’s termination may be relevant to the calculation of any damages, it is irrelevant to the determination of whether the defendant improperly terminated the plaintiff”) (citing McKennon v. Nashville Banner Publ’g Co., 513 U.S. 352, 361-62 (1995)).