Solomon Sims, Jr. v. MVM, Inc.

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-14481
________________________
D.C. Docket No. 1:09-cv-01333-JOF
SOLOMON SIMS, JR.,
Plaintiff-Appellant,
versus
MVM, INC.,
Defendant-Appellee.
__________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(January 17, 2013)
Before DUBINA, Chief Judge, CARNES and ANDERSON, Circuit Judges.
ANDERSON, Circuit Judge:
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This is an Age Discrimination in Employment Act of 1967 (“ADEA”) case.
See 29 U.S.C. §621 et seq. Solomon Sims, Jr., claims that his former employer,
MVM, Inc., discriminated against him on account of his age when it terminated
his employment. MVM defended its decision by denying that Sims’ age, 71, was
the reason for his discharge; rather, he was separated due to a reduction in force
(“RIF”).
Following discovery, the district court granted MVM summary judgment,
concluding that no reasonable fact finder could find that MVM’s decision was
“but-for” his age, i.e., that MVM would have kept him on the job but-for his age.
Sims now appeals, contending that material issues of fact preclude summary
judgment. After thorough review of the record and with the benefit of oral1
argument, we affirm.2
I.
Sims also contends that the district court erred in granting MVM’s motion to1
exclude the affidavit of B.J. Schultz. As it turned out, the district court judge considered the
affidavit and concluded that it did not change his opinion of the case. We agree. Schultz merely
corroborates Sims’ testimony concerning discriminatory animus on the part of Davis.
We review a trial court’s grant of a motion for summary judgment de novo,2
viewing the record and drawing all reasonable inferences in the light most favorable to the non-
moving party. HR Acquisition I Corp. v. Twin City Fire Ins. Co., 547 F.3d 1309, 1313-14 (11th
Cir. 2008). Summary judgment is proper “if the movant shows that there is no genuine dispute
as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a).
2
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In November 2007, MVM contracted with The GEO Group, Inc., to provide
secure custody and transport services for federal prisoners in U.S. Marshals
Service custody that were being held by GEO at various detention centers around
Atlanta, Georgia. It was a start-up contract, meaning that a previous contract did
not exist. Thus, MVM had to acquire a workforce. MVM began performance of
the contract in February 2008. Arnold Perkins, who had come aboard in January
2008, became Project Manager. Tom Davis was hired as Assistant Project
Manager about the same time as Perkins.
Shortly after MVM entered into the contract with GEO, Sims applied for a
job with MVM as Operations Supervisor. On December 7, 2007, he was offered
and accepted the supervisory position at the Robert A. Deyton Detention Facility
in Lovejoy, Georgia. He reported for work in January 2008.
As Operations Supervisor, Sims was responsible for reviewing government
manifest and remand documentation and utilizing information they provided to
make the arrangements and prepare the paperwork necessary for the transportation
of prisoners between different locations. Davis was Sims’ immediate supervisor.
In time, Davis found Sims’ performance deficient in that he made more errors than
other supervisors working on the MVM-GEO contract. In Davis’s view, Sims
never improved his performance or fully grasped his job duties.
3
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When Perkins became Project Manager, the contract was approximately
$485,000 over budget for 2008 due to excessive hiring and costs entailed in
training new hires. In March 2008, MVM Vice President Robert Matthews,
Perkins’ supervisor, notified Perkins that he needed to reduce the number of
supervisors, eight, working on the contract. Perkins disagreed with Matthews’s
assessment and delayed taking any action. On Thursday, August 7, 2008,
Matthews instructed Perkins to cut two positions by the following Monday.
Perkins immediately scheduled a group meeting with all eight supervisors and
Davis. During the meeting, he informed them of Matthews’s RIF directive that
two supervisor positions had to be eliminated. After this group meeting, Perkins
and Davis met with the supervisors individually to advise them of their RIF status.
Perkins advised Schultz and Sims during the individual meetings that they were to
be included in the RIF.
Perkins could not testify precisely as to when he finalized his decision on
whom to include in the RIF because he had known for five months that he
probably would have to lay off some supervisors and had been constantly
evaluating the poorer performers. However, it is clear that he had reached at least
a tentative decision – during his five-month evaluations and before the meetings
with the supervisors and Davis – that Sims was at the bottom of the list in terms of
4
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performance. One of Perkins’ jobs was to review every “mission” that was put
together, and each mission contained the names of the supervisors that prepared
them. In the course of going through each mission, Perkins knew which
supervisors were having trouble preparing them and which were not. Based on
Perkins’ personal observations, Sims was at the bottom of the list in terms of,
among other factors, total quality and accuracy. In addition, Perkins personally
observed that Sims was uncomfortable using the computers used to produce the
transportation documentation and that it was taking him longer to prepare these
documents than the other supervisors. Other supervisors also told Perkins that
they were occasionally correcting Sims’ documentation before it was submitted to
Perkins for review. Some of the supervisors cited this concern during their
individual meetings with Perkins and Davis on Friday, August 8.
During the individual meetings between the supervisors and Davis and
Perkins, Perkins asked the supervisors whom they would recommend for the RIF.
Perkins testified that this was just for his knowledge and perspective because his
RIF decisions had already been made. On the other hand, based on the fact that
Perkins asked each of the eight supervisors for their input before announcing his
decision, Davis was of the opinion that Perkins had not made a definitive decision
5
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until after seeking input from the supervisors. Nonetheless, it is undisputed that
each supervisor except Sims recommended that Sims be included in the RIF.
After notifying Sims that he was included in the RIF, Perkins offered Sims a
position as Transportation Officer working at the same facility; Perkins believed3
that Sims’ background education and knowledge would be valuable to MVM.
Sims considered the offer a demotion and rejected it. During this conversation,
the matter of Sims’ age came up, but the parties dispute who first brought it up.
However, it is clear that Sims told Perkins his age toward the end of the
conversation.
In the charge of age discrimination he filed with the Equal Employment
Opportunity Commission (“EEOC”), Sims identified the period of discrimination
as May 15, 2008, through August 8, 2008. He alleged that Davis (at some point
during that time span) told him that he was “too slow in performing [his] job,”
that, “If we have a cutback in management, I’m going to recommend you be
terminated,” and, “mind you, age has nothing to do with it.” Although not
included in his EEOC charge, Sims also asserts now that Davis at some unknown
time stated, “You’re old and slow.” Sims does not assert that Davis made any
other age-related comments that he felt were derogatory. The EEOC charge
Perkins also offered Schultz a position as a Transportation Officer; she declined.3
6
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contained no other allegations aside from Perkins’ statement (on August 8) that
MVM needed to “cut back on the number of supervisors.” Sims never heard any
other manager make a derogatory age-related comment to him or about him.
II.
The ADEA prohibits employers from discharging an employee who is at
least 40 years of age because of that employee’s age. 29 U.S.C. §§623(a)(1),
631(a). The ADEA provides, in relevant part, that “[i]t shall be unlawful for an
employer . . . to fail or refuse to hire or to discharge any individual or otherwise
discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s age.” Id.
§623(a)(1). In Gross v. FBL Financial Services, Inc., 557 U.S. 167, 176, 129 S.
Ct. 2343, 2350, 174 L. Ed. 2d 119 (2009), the Supreme Court held that the
language “because of” in the ADEA statute means that a plaintiff must prove that
discrimination was the “but-for” cause of the adverse employment action. See id.
(“To establish a disparate-treatment claim under the plain language of the ADEA,
therefore, a plaintiff must prove that age was the ‘but-for’ cause of the employer’s
adverse decision.”); see also id. (explaining that the claim “cannot succeed unless
the employee’s protected trait actually played a role in [the employer’s decision-
making] process and had a determinative influence on the outcome” (citing Hazen
7
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Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S. Ct. 1701, 1706 (1993)); 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.”).
A plaintiff can establish age discrimination through either direct or
circumstantial evidence. Mora v. Jackson Mem’l Found., Inc., 597 F.3d 1201,
1204 (11th Cir. 2010). Prior to Gross, we consistently evaluated ADEA claims
based on circumstantial evidence of discrimination under the burden-shifting
framework in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817
(1973). See, e.g., Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th Cir. 2000)
(en banc). Under this framework, a plaintiff must first establish a prima facie case
of discrimination. Id. at 1024. Next, the defendant must articulate a legitimate,
non-discriminatory reason for the challenged employment action. Id. If the
defendant articulates one or more such reasons, the plaintiff is afforded an
opportunity to show that the employer’s stated reason is a pretext for
discrimination. See Kragor v. Takeda Pharm. Am., Inc., __ F.3d __, No. 11-
16052, 2012 WL 6618360, at *2 (11th Cir. Dec. 20, 2012) (citing Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S. Ct. 2097, 2106
(2000); McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1925). The burden of
8
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persuasion always remains on the plaintiff in an ADEA case to proffer evidence
sufficient to permit a reasonable fact finder to conclude that the discriminatory
animus was the “but-for” cause of the adverse employment action. See Gross, 557
U.S. at 176, 129 S.Ct. at 2350.
Following Gross, we have continued to evaluate ADEA claims based on
circumstantial evidence under the McDonnell Douglas framework. See Kragor,
__ F.3d at __, 2012 WL 6618360, at *2. This is not only consistent with our pre-
Gross case law, but also it is entirely consistent with Gross, which expressly left
open the question of whether this application is appropriate. Gross, 557 U.S. at
175 n.2, 129 S. Ct. at 2349 n.2 (“[T]he Court has not definitively decided whether
the evidentiary framework of [McDonnell Douglas] utilized in Title VII cases is
appropriate in the ADEA context.”). Gross held that it is improper to shift the
burden of persuasion to the defendant in an age-discrimination case. Id. at 173,
129 S. Ct. at 2348 (“[W]e must first determine whether the burden of persuasion
ever shifts to the party defending an alleged mixed-motives discrimination claim
brought under the ADEA. We hold that it does not.” (footnote omitted)). But the
McDonnell Douglas framework does not shift the burden of persuasion to the
defendant; instead, once the employee establishes a prima facie case of
discrimination, the burden of production is shifted to the employer to articulate a
9
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legitimate, non-discriminatory reason for the adverse employment action. See
Tex. Dep’t of Comm. Affairs v. Burdine, 450 U.S. 248, 254-55, 101 S.Ct. 1089,
1094-95 (1981). If the employer offers a legitimate, non-discriminatory reason,
the employee is afforded an opportunity to show that the employer’s stated reason
is a pretext for discrimination. See id. at 256, 101 S.Ct. at 1095; see also Kragor,
__ F.3d at __, 2012 WL 6618360, at *2. Importantly, throughout this entire
process, the ultimate burden of persuasion remains on the employee. See St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506-07, 113 S.Ct. 2742, 2747 (1993)
(“It is important to note, however, that although the McDonnell-Douglas
presumption shifts the burden of production to the defendant, ‘[t]he ultimate
burden of persuading the trier of fact that the defendant intentionally discriminated
against remains at all times with the plaintiff.’”) (citation omitted); see also Willis
v. Conopco, Inc., 108 F.3d 282, 286 (11th Cir. 1997).
Our continued application of the McDonnell Douglas framework in ADEA
cases is also consistent with all of our sister circuits that have addressed the issue.
See Fleishman v. Cont’l Cas. Co., 698 F.3d 598, 604 (7th Cir. 2012) (citing
Senske v. Sybase, 588 F.3d 501, 506-07 (7th Cir. 2009)); Shelley v. Geren, 666
F.3d 599, 607 (9th Cir. 2012); Gorzynski v. JetBlue Airways Corp., 596 F.3d 93,
106 (2d Cir. 2010); Jackson v. Cal-Western Packaging Corp., 602 F.3d 374, 378
10
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(5th Cir. 2010); Jones v. Okla. City Pub. Sch., 617 F.3d 1273, 1278 (10th Cir.
2010); Geiger v. Tower Auto., 579 F.3d 614, 622 (6th Cir. 2009); Smith v. City of
Allentown, 589 F.3d 684, 690-91 (3d Cir. 2009); Velez v. Thermo King de Puerto
Rico, Inc., 585 F.3d 441, 446-47 (1st Cir. 2009); see also Gibson v. Am. Greetings
Corp., 670 F.3d 844, 855 (8th Cir. 2012) (continuing to apply McDonnell Douglas
to ADEA cases without discussion of Gross), cert. denied, 133 S.Ct. 313 (2012).
Although our Kragor decision and our holding today reaffirm the use of the
McDonnell Douglas framework in ADEA cases, this framework is not the sine
qua non for a plaintiff to survive summary judgment in a discrimination case. See
Smith v. Lockheed Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011). Instead,
“the plaintiff will always survive summary judgment if he presents circumstantial
evidence that creates a triable issue concerning the employer’s discriminatory
intent.” Id. A triable issue of fact exists “if the record, viewed in a light most
favorable to the plaintiff, presents a convincing mosaic of circumstantial evidence
that would allow a jury to infer intentional discrimination by the decisionmaker.”
Id. (footnote omitted) (internal quotation marks omitted).
11
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III.
This case involves circumstantial evidence of discrimination, and we elect4
to apply the McDonnell Douglas framework to Sims’ claims. The record in this
case is clear that Perkins was the decision-maker. Sims makes two arguments on
appeal. First, he argues that Perkins himself was biased. Second, he argues that
Davis was biased and that Perkins acted as a mere cat’s paw for Davis’s
discriminatory animus.
A.
Sims first argues that a reasonable jury could find that Perkins himself was
biased and that his age discrimination was the “but-for” factor in Perkins’ decision
to lay off Sims. We disagree.
Assuming arguendo, as the district court did, that Sims has established a
prima facie case of age discrimination in an RIF claim, Sims cannot sustain his
burden of proving that Perkins’ age discrimination was the “but-for” cause of his
MVM points out that Sims never directly argues that this is a case involving direct4
evidence of discrimination. This is true, and the only “argument” Sims makes that there is direct
evidence of discrimination is one heading titled “direct evidence” in his briefs to this Court. But,
even assuming that this is enough to “argue” that any evidence is direct evidence, direct evidence
must conclusively show that the employee was discriminated against without any inference or
presumption. See Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir. 2004). Under
the heading for “direct evidence,” Sims states that “[s]uch an unsolicited age-based statement
creates an inference of discrimination.” Sims has not presented any direct evidence of
discrimination.
12
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inclusion in the RIF. MVM clearly articulates legitimate, non-discriminatory
reasons for Sims’ inclusion in the RIF – namely, that budget constraints forced it
to eliminate two supervisor positions. See, e.g., Coutu v. Martin Cnty. Bd. of
Cnty. Comm’rs, 47 F.3d 1068, 1073 (11th Cir. 1995) (holding that an RIF based
on budgetary constraints was a legitimate, non-discriminatory reason for
termination).
There is very little, if any, evidence of pretext. There is virtually no
evidence of age bias on the part of Perkins, who was 61 himself at the time.5
Perkins testified that, after he advised Sims that his position had to be eliminated
and offered Sims a position as Transportation Officer, Sims rejected the offer and
asked if his inclusion in the RIF was because of his age. Perkins said it was not;
he told Sims that he was unaware of Sims’ age and that he was the oldest person
working on the project. In reply, Sims told Perkins he was born in 1937 and that
he (Sims) was in fact the oldest on the project. Contrary to Perkins’ testimony,
Sims testified that it was Perkins who, after advising Sims of the RIF, first brought
up age, saying out of the blue, “I’m older than you.” Sims urges us to draw an
In fact, Sims himself testified that he is not aware of any evidence that Perkins5
selected him for the RIF because of his age.
13
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inference of age bias based on the fact that Perkins followed his bad news with a
denial of knowledge of Sims’ age.
Even assuming Sims’ version of who first mentioned age, we are doubtful
that that gives rise to a reasonable inference of age bias. Even if there were a
weak inference, it would be further weakened in light of Sims’ own testimony that
Perkins expressed surprise after Sims told him that he (Sims) was 71, and in light
of Sims’ deposition testimony that he was aware of no evidence that Perkins
selected him for the RIF because of his age. We conclude that the record reveals
either no evidence at all of age bias on the part of Perkins, or an inference so weak
(especially as compared to the overwhelming evidence of the legitimacy of
Perkins’ decision) that it would fall far short of satisfying Sims’ burden of proving
that age bias on the part of Perkins was the “but-for” cause of Perkins’ selection of
Sims. It is undisputed that Perkins’ own independent evaluation was that Sims
was at the bottom of the list of supervisors when comparing their relative job
performance. It is also undisputed that every supervisor other than Sims himself
thought Sims was one of the two who should be laid off. In sum, the weak or
nonexistent inference of age bias urged by Sims simply cannot carry Sims’ burden
in light of the record evidence.
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B.
Sims also argues that Perkins, the decision-maker, acted as a mere cat’s paw
for Davis’s discriminatory animus, and accordingly MVM is liable. Prior to the6
recent Supreme Court decision in Staub v. Proctor Hospital, __ U.S. __, 131 S.Ct.
1190 (2011), we applied the cat’s paw analysis to ADEA cases. See, e.g., Wright
v. Southland Corp., 187 F.3d 1287, 1304 n.20 (11th Cir. 1999); Pennington v.
City of Huntsville, 261 F.3d 1262, 1270 (11th Cir. 2001); Stimpson v. City of
Tuscaloosa, 186 F.3d 1328, 1331 (11th Cir. 1999) (Title VII case).
Sims argues that the Supreme Court’s decision in Staub modifies our
previous case law applying the cat’s paw theory and lowers the burden for
plaintiffs in cases involving the ADEA. This is an issue of first impression for this
Court. We consider whether, or to what extent, Staub has modified our cat’s paw
analysis in ADEA cases.
We first examine the Supreme Court’s recent Staub decision. In the context
of an employer’s alleged liability under the Uniformed Services Employment and
“Cat’s paw” theory of liability, also referred to as “subordinate bias theory,” is6
liability seeking to hold an employer liable for the animus of a supervisor who was not charged
with making the ultimate employment decision. Staub v. Proctor Hosp., __ U.S. __, 131 S.Ct.
1186, 1190 (2011). For an explanation of how the term “cat’s paw” was derived, see id. at 1190
n.1.
15
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Reemployment Rights Act of 1994 (“USERRA”), the Court defined the7
circumstances under which an employer could be liable when the decision-maker
has no discriminatory animus but is influenced by a subordinate supervisor’s
action that is the product of such discriminatory animus (cat’s paw liability). The
Court held that the employer could be liable only if the subordinate supervisor (1)
performs an act motivated by antimilitary animus that is intended to cause an
adverse employment action, and (2) that act is a proximate cause of the ultimate
employment action. Staub, __ U.S. at __, 131 S.Ct. at 1194.
Sims urges us to apply this analysis to this case. But the text of the
USERRA and the ADEA differ in important respects. The USERRA (and Title
VII) requires that a plaintiff demonstrate discrimination by showing that the8
proscribed bias was a “motivating factor” in the adverse decision. 38 U.S.C.
§4311(c) (USERRA); 42 U.S.C. §§2000e-2(m), 2000e-5(g)(2)(B) (Title VII). As
the Court in Staub emphasized, this “motivating factor” causation standard is
simply the traditional tort law standard of proximate cause, requiring only “some
The USERRA prohibits adverse employment action on the basis of a person’s7
obligation to perform military service where antimilitary animus is a motivating factor in the
employer’s action. 38 U.S.C. §4311(a), (c).
Although the Supreme Court did not directly extend its holding in Staub to Title8
VII cases, it acknowledged that “[t]he [USERRA] statute is very similar to Title VII.” Staub, __
U.S. at __, 131 S.Ct. at 1189.
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direct relation between the injury asserted and the injurious conduct alleged, and
excludes only those link[s] that are too remote, purely contingent, or indirect.” __
U.S. at __, 131 S.Ct. at 1192 (internal quotation marks omitted). By contrast, the
ADEA states that it is unlawful if an employee suffers adverse employment action
“because of such individual’s age.” 29 U.S.C. §623(a)(1) (emphasis added).
Thus, “to establish a disparate-treatment claim under the plain language of the
ADEA, . . . a plaintiff must prove that age was the ‘but-for’ cause of the
employer’s adverse decision.” Gross, 557 U.S. at 176, 129 S.Ct. at 2350. As
noted above, a “but-for” cause requires a closer link than mere proximate
causation; it requires that the proscribed animus have a determinative influence on
the employer’s adverse decision. Id.
As the Supreme Court cautions, “we ‘must be careful not to apply rules
applicable under one statute to a different statute without careful and critical
examination.’” Id. at 174, 129 S.Ct. at 2349 (quoting Fed. Exp. Corp. v.
Holowecki, 552 U.S. 389, 393, 128 S Ct. 1147, 1153 (2008)). And the ADEA
requires more than what must ordinarily be proven under an analogous Title VII or
USERRA action. See Simmons v. Sykes Enters., Inc., 647 F.3d 943, 949-50 (“If9
Congress amended Title VII in 1991, adding that the discriminatory animus must9
be the “motivating factor” of the adverse action. 42 U.S.C. §2000e–2(m); see also Gross, 557
U.S. at 174, 129 S.Ct. at 2349. But, even though it contemporaneously amended the ADEA in
several ways, Congress did not add such a provision to the ADEA. Gross, 557 U.S. at 174, 129
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we were to apply Staub directly to an age-discrimination case, the plaintiff would
then only need to prove her supervisor’s animus was somehow related to the
termination and not that the animus was necessary to bring about the
termination.”). Because the ADEA requires a “but-for” link between the
discriminatory animus and the adverse employment action as opposed to showing
that the animus was a “motivating factor” in the adverse employment decision, we
hold that Staub’s “proximate causation” standard does not apply to cat’s paw cases
involving age discrimination. In so holding, we follow the same holding by the
Tenth Circuit in Simmons, 647 F.3d at 949-50.
However, Staub is primarily a case about agency principles and vicarious
liability, and nothing in Gross is inconsistent with the application of agency
principles to cat’s paw claims under the ADEA. All relevant case law, including
our own prior case law applying the cat’s paw theory in ADEA cases and the
Court’s decision in Staub, suggests that it is appropriate to apply agency principles
in determining vicarious liability of an employer. We have, for example, applied
agency principles to determine the definition of an “employer” under the ADEA.
See, e.g., Garcia v. Copenhaver, Bell & Assocs., M.D.’s, P.A., 104 F.3d 1256,
S. Ct. at 2349. As the Court indicated in Gross, “[w]hen Congress amends one statutory
provision but not another, it is presumed to have acted intentionally.” Id. (citing EEOC v.
Arabian Am. Oil Co., 499 U.S. 244, 256, 111 S.Ct. 1227, 1234 (1991)).
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1266-67 (11th Cir. 1997); Daughtrey v. Honeywell, Inc., 3 F.3d 1488, 1495-96
(11th Cir. 1993).
Sims urges us to apply Staub’s agency principles as they relate to scienter,
and suggests that the Supreme Court in Staub set forth agency principles that
constitute a lower burden for plaintiffs in establishing cat’s paw, vicarious
employer liability, as compared to our prior ADEA case law. However, in this
case we need not, and do not, decide whether Staub changes in any way our prior
cat’s paw ADEA cases with respect to agency principles as they relate to scienter,
because we can accept Sims’ invitation and assume arguendo that the Staub
standard with respect to such agency principles does apply in the analysis for
determining an employer’s vicarious liability in ADEA cases. Even with this
assumption, Sims cannot prevail because Sims cannot satisfy the required
causation standard. In other words, with respect to agency principles relevant to
the scienter element, we can assume arguendo that Sims must prove only Staub’s
agency standard (i.e., that Davis performed an act motivated by discriminatory
animus that Davis intended to cause Sims’ lay off), and we can assume arguendo10
The Court in Staub left open the issue of whether the biased supervisor must10
intend the precise adverse employment action that resulted or whether it would suffice to have
intended an adverse, though different, employment action. See Staub, __ U.S. at __, 131 S.Ct. at
1192 n.2. Here, it is clear that Davis recommended that Sims be laid off and intended that Sims
be laid off.
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that Sims has satisfied such proof. However, as noted above, an ADEA plaintiff
must prove “but-for” causation – not mere proximate causation. Thus, to prevail,
Sims must prove that Davis’s animus was a “but-for” cause of, or a determinative
influence on, Perkins’ ultimate decision. For the reasons set out below, Sims
cannot satisfy this causation standard.
Assuming arguendo that a reasonable juror could find, as set forth in the
Staub analysis, that Davis was motivated by discriminatory animus that was
intended to cause Sims’ lay off, we hold that a reasonable juror could not11
conclude that Davis’s animus was a “but-for” cause of Sims’ termination. First,
Perkins testified that, because he had been aware for approximately five months
that he could not indefinitely put off the RIF, he had been constantly evaluating
the supervisors and their relative performance. Second, he testified unequivocally
that the decision was his own decision based on his own observations and
evaluations. In his opinion and based on his own personal observations, Sims was
at the bottom of the list of supervisors in terms of quality and accuracy of their
work product. Third, although he had consulted Davis in that they had been
We note that the evidence of discriminatory animus is rather weak. Sims asserts11
in his deposition, but not in his EEOC charge, that Davis told him at some unknown time that he
was “old and slow.” In May 2008, Davis allegedly said that Sims was slower in his work and
that, if there was a cutback in staff, he would recommend Sims to be terminated, but, “Mind you,
age has nothing to do with it.” These are the only two instances where Sims alleges that Davis
made discriminatory age-related remarks.
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continually discussing the performance of all the supervisors, Perkins testified that
Davis’s opinion about Sims had been exactly the same as his own, thus merely
confirming Perkins’ own independent opinion. Fourth, in the individual meetings
which Perkins and Davis held with each of the eight supervisors, in which each
was asked for a recommendation as to the two who should be included in the RIF,
every supervisor except for Sims himself recommended that Sims should be one of
the two who had to be laid off. In sum, everyone whom Perkins consulted
recommended that Sims be one of the two who had to be laid off – that is,
everyone except Sims himself. In light of Perkins’ own five-month long
evaluations, in light of Perkins’ own independent judgment that Sims was at the
bottom of the list on performance, and in light of the unanimous opinion of all
persons consulted (except for Sims himself), we conclude that a reasonable juror
could not find that Davis’s animus was a “but-for” cause of Sims’ termination. It
is clear that Davis’s recommendation, even assuming arguendo it was tainted with
some discriminatory animus, was not a “determinative influence” on Perkins’
decision. See Gross, 557 U.S. at 176, 129 S.Ct. at 2350.
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IV.
Because Sims has not established that a reasonable juror could find that
Perkins’ discriminatory animus was the “but-for” cause of his termination, and
because Sims has similarly not established that Perkins acted as a mere cat’s paw
for Davis’s discriminatory animus, we affirm the district court’s grant of summary
judgment in favor of MVM.
AFFIRMED.
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