Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 129 S. Ct. 2343 (2009)

Jack Gross worked for FBL as a claims administration director until he was reassigned to the position of claims project coordinator. At the time of his reassignment, many of Gross’s job responsibilities were transferred to a newly created position (claims administration manager) that was filled by Lisa Kneeskern, one of Gross’s former subordinate employees who was then in her early 40’s. Gross was 54 years old at the time. Although Gross and Kneeskern received the same compensation after the reassignment, Gross considered the job action to be a demotion because of FBL’s reallocation of some of his job responsibilities to Kneeskern. At trial, the jury returned a verdict for Gross in the amount of $46,945 in lost compensation after receiving a “mixed motive” instruction from the judge (i.e., that Gross was required to prove that “age was a motivating factor” in FBL’s decision to demote him). The Supreme Court vacated the lower court opinion and held that under the Age Discrimination in Employment Act the plaintiff must prove by a preponderance of the evidence that age was the “but-for” cause of the challenged adverse employment action, and the burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in the employer’s decision. Compare Browning v. United States, 567 F.3d 1038 (9th Cir. 2009) (district court did not err in failing to give jury instruction explicitly addressing pretext in race discrimination case).