but for

First off, I hope that everybody who celebrated Good Friday and Easter had a happy one. Today’s case, Gentry v. East-West Partners Club Management Company, Inc. is a published decision from the Fourth Circuit, which came down on March 4, 2016. I don’t believe in all my blog entries that I have ever taken the position that a plaintiff might want to consider appealing to the United States Supreme Court, particularly on an employment matter, but there is a first time for everything. For the reasons to be explained below, the plaintiff may very well want to consider appealing this to the United States Supreme Court assuming they don’t seek an en banc rehearing first. As in my usual practice, I have broken down the blog entry into categories. They are: facts; the jury instructions; court’s reasoning causation jury instruction; court’s reasoning definition of disability jury instruction; court’s reasoning regarded as jury instruction; court’s reasoning record of jury instruction; why the plaintiff may want to think about appealing this to the United States Supreme Court; and takeaways. The reader is free as always to focus on any or all of the categories.

I

Facts

Plaintiff was an executive housekeeper at the Maggie Valley Club and Resort supervising a staff of 8 to 10 housekeepers at an annual salary of $39,381. In July 2007, she fell at work, injuring her left foot and ankle. She filed for workers compensation benefits. In January 2010 or so, the club’s insurance carrier offered to settle her workers compensation claim, but she declined expressing concern that she might be terminated if she accepted, and instead pursued mediation. In November 2010, her workers compensation claim was ultimately settled at mediation. In December 2010, she was terminated. The club presented evidence that they had been losing money since its inception and was particularly hard-hit during the recession, operating a net loss of approximately $2 million in both 2008 and 2009. They maintained that her position was eliminated solely to reduce costs. However, the plaintiff testified that after her termination she met with an executive of the club who informed her that the club had admitted to terminating her because of the issues with her ankle and because she could be a liability to the club. This testimony was also confirmed by the EEOC investigator, though the executive denied making those statements to the investigator. Plaintiff also presented evidence undercutting the club’s cost-saving rationale, including that the person who had assumed the responsibilities performed only minimal maintenance duties and that his pay eventually increased to be only $4000-$5000 less than hers. She also established that there was no memorialization of the spring and summer 2010 meeting that discussed the club’s restructuring plan, which included a discussion of her termination. Additionally, an executive of the club testified that he only learned of her impending termination in the fall 2010, when the club’s general manager called to inform him of her workers compensation claim. No one contended that she was terminated for reasons related to her work performance or that anyone had ever criticized or complained about her performance. An executive of the club described her as an outstanding employee who did an excellent job. She sued the club and East-West partners for: disability discrimination under the ADA and North Carolina law; sex discrimination under title VII and North Carolina, law; retaliation against the plaintiff for pursuing a workers compensation claim in violation of the North Carolina, law; and a tortious interference claim. After a weeklong trial, the jury found East-West liable for workers compensation retaliation and awarded her $10,000. They also found liability against East-West and the club’s general manager for tortuously interfering with her employment and awarded separate damages of $5000 against each of those. The jury found in favor of the defendants on all other claims. After the plaintiff moved for a new trial, which was denied, she appealed. She argued that the District Court incorrectly instructed jury with respect to the ADA claims (the appeal did involve other issues, but we are just focusing on the ADA ones).

II

The Jury Instructions

1. The jury was instructed that the plaintiff has to demonstrate that her disability was the but for cause of her termination.
2. An impairment substantially limits a major life activity if it prevents or significantly restricts a person from performing the activity, compared to an average person in the general population.
3. Disability discrimination laws are designed to protect individuals who may be perceived as disabled from being discriminated against in the workplace and that you must decide whether a perception that she was disabled was the but for reason that the defendant terminated her employment.
4. An individual has a record of a disability if the individual has a history of a mental or physical impairment that substantially limits one or more major life activities.

III

Court’s Reasoning Causation Jury Instruction

1. After discussing in a footnote where the motivating factor standard originated, the court relies on Gross v. FBL Financial Services, Inc., which held that but for was the standard with respect to Age Discrimination in Employment cases.
2. The 1991 act that added motivating factor standard to title VII also amended provisions of the ADA but did not add motivating factor to the ADA.
3. While the ADA does contain language incorporating title VII enforcement provisions, that language does not incorporate the specific sections establishing mixed motive as unlawful employment practices.
4. No meaningful textual difference exists between “on the basis of,” and “because of.” The court cited to University of Texas Southwestern Medical Center v. Nassar as a case supporting this proposition.
5. While it is true, that legislative history says that “on the basis of,” was inserted so that the emphasis and question of disability discrimination is properly on the critical inquiry of whether a qualified person with a disability had been discriminated against on the basis of that disability takes away the focus on the preliminary question of whether they had a disability in the first place, nothing in that legislative history suggests that the language suggests that the language was meant to lower the causation standard.
6. The “on the basis of,” language was enacted before Gross, and therefore, is not in response to the causation analysis in that case.
7. The court also cited to the dictionary, both the new Oxford American dictionary and Merriam-Webster, to say that on the basis of essentially means the same thing as because of.

III

Court’s Reasoning Definition of Disability

1. The plaintiff did not object to the jury instruction that said an impairment substantially limits a major life activity if it prevents or significantly restricts a person from performing the activity, compared to an average person in the general population and therefore, the jury instruction can only be reviewed for plain error.
2. To establish plain error, she has to show that: 1) that the District Court erred; 2) that the error was plain; and 3) that the error affected her substantial rights. That is there must be a reasonable probability that the error affected the outcome of the trial.”
3. Even if the assumption was made that the court’s instruction was erroneous and that the error was plain, she had not shown that it affected her substantial rights as she offered little to suggest that her disability discrimination claims failed because the jury believed that her impairment did not meet the District Court’s definition of substantially limits. She did not contend that the defendants argued to the jury that the standard for disability was demanding or that her impairment was not severe enough. For that matter, she did not demonstrate that the extent of her impairment was a seriously contested issue at trial. There were also plenty of facts from which the jury could have found that her termination was not the result of an impairment to her foot, regardless of how severe. After all, she was not terminated until more than three years after injury and more than two years after her surgery. Further, at no point did her employer complain about her ability to perform her job duties, and in fact, thought she was an outstanding employee. Finally, the plaintiff offered no argument as to how failure to correct this instruction resulted in a miscarriage of justice or seriously affected the fairness, integrity, or public reputation of the judicial proceedings.

IV

Court’s Reasoning Regarded As Jury Instruction

1. There is a question as to whether the plaintiff promptly preserved an objection to this particular instruction. In any event, the court did not see how she was prejudiced by the instruction as the instruction implicitly conveyed that the plaintiff did not actually have to be disabled.
2. The District Court acted within its discretion when it determined that the full regarded as instruction proposed by the plaintiff was not warranted under the circumstances of the case after he heard all of the evidence and mindful that the jury was already dealing with complex and nuanced instructions on multiple discrimination and related claims under state and federal law. In particular, the court felt that the jury would get there any way if they believed there was discrimination on the basis of disability.

V

Court’s Reasoning on “Record of,” Jury Instruction

1. Her contention was that the EEOC regulations contain an additional phrase that a record of having a disability includes a person who was misclassified as having a disability and that phrase was not included by the court in its jury instructions. However, the plaintiff did not object to this instruction, and on appeal, she did not explain how the omitted language applied to her case. Therefore, the court had no basis for finding that the District Court erred or otherwise abused his discretion with respect to this jury instruction.

VI

Why the Plaintiff May Want to Think about Appealing This to the United States Supreme Court

1. It is absolutely true that Gross, held that but for was the standard for causation with respect to age discrimination in employment act cases. It is also absolutely true that University of Texas Southwestern Medical Center v. Nassar, held that but for causation was the standard with respect to retaliation claims. However, as discussed in this blog entry, which is one of two that is the most popular blog entry of mine of all time, that does not mean that the answer is the same with respect to status-based discrimination. In Nassar, Justice Kennedy is quite clear about the distinction between status-based claim and retaliation claims. Second, Justice Kennedy mentioned that if Congress wanted mixed motive to apply to retaliation claims, it could have inserted the motivating factor provision as part of the section applying to all such claims, such as 42 U.S.C. § 2000 e- 5. The ADA specifically references this provision as the remedies available to a plaintiff alleging discrimination on the title I of the ADA per 42 U.S.C. § 12117(a). Finally, Justice Kennedy specifically cites to the ADA when he says that the ADA is also a comprehensive statutory scheme and that Congress and the ADA clearly spoke to retaliation separate and apart from status-based claims.
2. As discussed in my blog entry discussing the Nassar case, referenced above, the legislative history clearly mentions that Congress wanted to make clear that the indirect burden of proof, which presumes a motivating factor, was still in play.
3. It is true that you can find a case from the United States Supreme Court saying that “on the basis of,” and “because of,” are synonymous terms as discussed in this blog entry of mine. However, the person that wrote that decision, Justice Scalia, is no longer with us. Also, his statement in that decision is most assuredly dicta.
4. All it takes for the court to agree to hear the case is four Justices. There is also the possibility that by sometime next calendar year the Justices may have a very different configuration (keep in mind, I have not yet had the time to do an analysis of Judge Garland’s decisions involving the ADA and the Rehabilitation Act. Also, any such analysis, irregardless of what it might show, is not necessarily a predictor of what he would do on the Supreme Court).
5. The U.S. District Court clearly got it wrong when it comes to the jury instruction talking about substantially limits. The “prevents or significantly restricts,” language clearly comes from Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, a standard specifically overruled by the ADA amendments act. In particular, the amendment to the ADA specifically states that the EEOC standard, which was far higher than the Toyota Motor standard, was still too high. Also, the amendments act to the ADA specifically gave regulatory bodies the authority to implement definitional terms. When the EEOC took advantage of that authority in 29 C.F.R. § 1630.2(j)(ii), it defined substantially limits as being a matter of whether the person is substantially limited in a major life activity as compared to most people in the general population. That said, the plaintiff in this case with respect to the definition of what is a disability will still have a major problem because the objection to the jury instruction was not properly preserved, and there is a serious question as to whether the facts were such that substantial rights of hers were affected.
6. Since the EEOC had the authority to implement definitional terms, an argument exists that the record of jury instruction was in plain error because of the absence of the misclassified language. However, even so, the plaintiff did not bring forth evidence to show how that particular absence affected anything.
7. I don’t think the court’s jury instruction was sufficiently clear with respect to what it means to be perceived as having a disability. That is, the full definition of what it means to be perceived or regarded as having a disability would have clarified things immensely. That said, was the jury instruction such so as to rise to plain error in the absence of an ambiguous preserved objection to the particular instruction?
8. The court relies on the decision of Lewis v. Humboldt Acquisition Corporation, Inc. from the Sixth Circuit. However, while it is true that the majority opinion adopted in that case adopted the but for standard, it is also true that there were vigorous concurring opinions as well as dissents, and questions were raised about what but for actually means. That is, for example, but for might mean the same thing as substantial factor in torts cases.

VII

Takeaways

1. If you are not satisfied with a jury instruction that the court comes up with, make sure there is an unambiguous objection to that jury instruction in order to preserve your appeal.
2. Jury instructions should reference the ADA as amended in addition to any applicable case law.
3. I do believe it may be worthwhile to take this case up with the Supreme Court, particularly with respect to the mixed motive portion of the jury instruction. Even if Judge Garland is not confirmed, Justice Kennedy has very strong language in University of Texas Southwestern Medical Center v. Nassar making it clear that disability discrimination is status-based discrimination and should be treated differently than retaliation causes of action. To hold that mixed motive does not apply to title I cases would mean that Justice Kennedy would have to disagree with his reasoning in a prior case (if that holds, that would mean in a configuration without Judge Garland, it would still go 5-3 in favor of the plaintiff on the mixed motive question). It would also be interesting to see how the Supreme Court views whether objections to the jury instructions were properly preserved and whether plain error exists. The jury instructions and what actually should have been used are sufficiently different that reasonable jurists might disagree on whether plain error occurred. Also, in the case of the regarded as jury instruction, it was ambiguous as to whether the objection was properly preserved and reasonable jurists may disagree on whether it was preserved or not.