Savage v. Secure First Credit Union
MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 5/8/15. (SAC )
2015 May-08 PM 04:00
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SECURE FIRST CREDIT UNION,
CIVIL ACTION NO.
The complaint (Doc. 1) filed by plaintiff, Karen Savage
(“Savage”), against her former employer, defendant Secure First
Credit Union (“Secure First”) contains five counts. Count One
alleges racial discrimination under Title VII and 42 U.S.C. § 1981.
(Doc. 1 at 6-7). Count Two charges retaliation under Title VII and
§ 1981. (Doc. 1 at 9-10). Count Three claims discrimination under
the Age Discrimination in Employment Act (“ADEA”). (Doc. 1 at 1112). Count Four alleges discrimination under the Americans with
Disabilities Act (“ADA”) and the ADA Amendments Act(“ADAAA”). (Doc.
1 at 12-13). Count Five alleged a violation of the Family Medical
Leave Act (“FMLA”) (Doc. 1 at 14-15), but on March 24, 2015, upon
Savage’s motion, the court dismissed Count Five with prejudice
(Doc. 14), leaving Counts One, Two, Three, and Four.
Now before the court is Secure First’s motion to dismiss
Counts Two, Three, and Four. (Doc. 13). Secure First does not seek
dismissal of Count One, which states a plain vanilla claim of race
“motivating factor.” Secure First argues that Savage cannot proceed
on her ADEA claim, her retaliation claim, or her ADA claim without
alleging that one of the said claims is the “but-for” cause of the
adverse employment action she complains of.
As it has pondered the concept of causation, “the law has long
considered [it] a hybrid concept, consisting of two constituent
parts: actual cause and legal cause.” Burrage v. United States, 134
S. Ct. 881, 887 (2014) (citing H. Hart & A. Honore, CAUSATION IN THE
LAW 104 (1959)). To arrive at the actual cause, the “‘but-for’
requirement is part of the common understanding.” Burrage, 134 S.
Ct. at 888. This consistent and common understanding of “but-for”
causation “requires proof that the harm would not have occurred in
Burrage, 134 S. Ct. at 887-888 (quoting Univ. Of Texas Sw. Med.
Ctr. v. Nassar, 133 S. Ct. 2517, 2525 (2013), and RESTATEMENT OF TORTS
§ 431, Comment a (1934)). To illustrate:
Consider a baseball game in which the visiting team's leadoff
batter hits a home run in the top of the first inning. If the
visiting team goes on to win by a score of 1 to 0, every
person competent in the English language and familiar with the
American pastime would agree that the victory resulted from
the home run. This is so because it is natural to say that one
event is the outcome or consequence of another when the former
would not have occurred but for the latter. It is beside the
point that the victory also resulted from a host of other
necessary causes, such as skillful pitching, the coach's
decision to put the leadoff batter in the lineup, and the
league's decision to schedule the game. By contrast, it makes
little sense to say that an event resulted from or was the
outcome of some earlier action if the action merely played a
nonessential contributing role in producing the event. If the
visiting team wound up winning 5 to 2 rather than 1 to 0, one
would be surprised to read in the sports page that the victory
resulted from the leadoff batter's early, non-dispositive home
Burrage, 134 S. Ct. at 888.1
background principles against which Congress legislates.” Burrage,
134 S. Ct. at 881. Therefore, “[w]here there is no textual or
phrases like ‘results from’[,] [‘because of’, and ‘because’] to
“interpretation of statutes that prohibit adverse employment action
workplace discrimination is instructive.” Id. In particular, the
ADEA prohibits employers from discriminating “because of such
individual's age,” 29 U.S.C. § 623; Title VII prohibits employers
from retaliating “because [an employee] has made a charge . . .
individual with a disability because of the disability,” 42 U.S.C.
§ 12112(a) (emphasis added). Consistent interpretation of the
virtually identical causation language in these discrimination
The Supreme Court’s reasoning rejects the approach used by
some courts interpreting “but-for” causation to merely be a
necessary cause. See e.g., Freeman v. Koch Foods of Alabama, 2010
WL 9461668, at *2 (M.D. Ala. June 15, 2010) (Fuller, J.).
statutes ensures that the proscribed discriminatory act is the
“strict but-for” cause2 of a plaintiff’s injury. Burrage, 134 S.
Ct. at 890. The Burrage interpretation of “but-for” causation
balances the need to provide a cognizable remedy for discrimination
super-personnel department . . . to second-guess the wisdom of an
employer's business decisions . . . [n]o matter how medieval a
firm's practices, no matter how high-handed its decisional process,
no matter how mistaken the firm's managers.” Alvarez v. Royal Atl.
Developers, Inc., 610 F.3d 1253, 1266 (11th Cir. 2010) (Title VII
retaliation); Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470
(11th Cir. 1991) (ADEA) and Turner v. United Parcel Serv., 2014 WL
4458917, at *7 (N.D. Ala. Sept. 10, 2014) (ADA).
As stated above, under the ADEA “a plaintiff must prove that
age was the ‘but-for’ cause of the employer's adverse decision.”
Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009). Adopting
the “but-for” cause requirement, instead of the “mixed motive”
The Supreme Court has pointed to its interpretation of
“but-for” causation in the employment discrimination context for
guidance in other areas of law, including the criminal context.
Burrage, 134 S. Ct. at 890. When interpreting a penalty
enhancement under the Controlled Substances Act, the Supreme
Court rejected the Government’s permissive interpretation where
“use of a drug distributed by the defendant need not be a but-for
cause of death, nor even independently sufficient to cause death,
so long as it contributes to an aggregate force (such as
mixed-drug intoxication).” Id. at 890-91.
possibility, squares with “the ordinary meaning of the ADEA's
requirement that an employer took adverse action ‘because of’ age[,
which] is that age was the ‘reason’ that the employer decided to
act.” Gross, 557 U.S. at 176. “Because an ADEA plaintiff must
establish ‘but for’ causality, no ‘same decision’ affirmative
defense can exist: the employer either acted ‘because of’ the
plaintiff's age or it did not.” Mora v. Jackson Mem'l Found., Inc.,
597 F.3d 1201, 1204 (11th Cir. 2010). “The only logical inference
to be drawn from Gross is that an employee cannot claim that age is
a motive for the employer's adverse conduct and simultaneously
claim that there was any other proscribed motive involved.” Culver
v. Birmingham Bd. of Educ., 646 F. Supp. 2d 1270, 1271-72 (N.D.
Ala. 2009). Therefore, “a plaintiff must make it perfectly clear in
her pleading that there are no proscribed motivations other than
[the one alleged].” Montgomery v. Bd. of Trustees of the Univ. of
Alabama, 2015 WL 1893471, at *5 (N.D. Ala. Apr. 27, 2015).
Savage fails to allege that her age was the “but-for” cause of
her mistreatment, and instead simply alleges that Secure First
subjected her to “adverse treatment with respect to the terms and
constructive discharge, because of her age.” (Doc. 1 at 11-12).
Despite recieving strong hints from the court, Savage includes
three “other bas[e]s for the adverse action.” Gwin v. BFI Waste
Servs., LLC, 718 F. Supp. 2d 1326, 1327 (N.D. Ala. 2010). She
alleges in Count One that Secure First took its action with the
fact that plaintiff is over 40 years of age as a “substantial or
motivating factor”(Doc. 1 at 7); in Count Two she alleges that she
“engag[ed] in a protected activity” against which Secure First
retaliated in violation of Title VII (Doc. 1 at 9); and in Count
mistreatment(Doc. 1 at 11). By failing to allege that her age
provided the only motive for the complained of employment action,
Savage fails to state a claim under the ADEA upon which relief can
be granted, thereby requiring dismissal.
Title VII Retaliation
Borrowing logically from the analysis in Gross of the ADEA’s
“because of” language, “[t]he text, structure, and history of Title
VII demonstrate that a plaintiff making a retaliation claim under
§ 2000e–3(a) must establish that his or her protected activity was
a but-for cause of the alleged adverse action by the employer.”
Nassar, 133 S. Ct. at 2534.3 Unlike Title VII’s proscription
against race discrimination, which requires showing “only that a
prohibited factor contributed to the employment decision——not that
it was the but-for or sole cause,” a claim of retaliation under
While Savage tries to make something out of the use of the
article “a” instead of the article “the” (Doc. 16 at 8), the
Supreme Court used these articles interchangeably and drew no
distinction between them. See e.g., Nassar, 133 S. Ct. at 2528
(“Title VII retaliation claims require proof that the desire to
retaliate was the but-for cause of the challenged employment
Title VII “must be proved according to traditional principles of
but-for causation . . . [thereby] requir[ing] proof that the
unlawful retaliation would not have occurred in the absence of the
alleged wrongful action or actions of the employer.” Id. at 2533,
2538; see Burrage, 134 S. Ct. at 892. If a plaintiff wants to
pursue a retaliation claim she must in her complaint “indicate that
retaliation was the ‘only,’ or ‘but-for’ motive for her termination
[and] must make it perfectly clear in her pleading that there are
no proscribed motivations other than an intent to retaliate.”
Montgomery, at *5. In other words, there can, in theory and in
logic, be only one “but-for” cause. The days of bushel-basket,
mixed motivation are over if a plaintiff wants to claim retaliation
or age or disability discrimination.
In order to state a claim for retaliation after Nassar Savage
must unequivocally allege that retaliation was the “but-for” cause
of the adverse treatment. While failing to allege retaliation as
the “but-for” causation, Savage expressly claims other motivations.
Counts One, Two, Three, and Four flatly contradict any “but-for”
cause for her adverse treatment. (Doc. 1 at 12-13). By failing to
allege retaliation as the sole cause for her adverse treatment,
Savage fails to state a claim under the retaliation provision of
Title VII, thereby requiring dismissal.
Before the Gross and Nassar decisions, the Eleventh Circuit
held that “the ‘because of’ component of the ADA liability standard
imposes no more restrictive standard than the ordinary, everyday
meaning of the words would be understood to imply . . . convey[ing]
the idea of a factor that made a difference in the outcome . . . a
‘but-for’ liability standard.” McNely v. Ocala Star-Banner Corp.,
99 F.3d 1068, 1077 (11th Cir. 1996). While recognizing that the
ADA’s statutory text requires “but-for” causation, the Court in
McNely found that “but-for” causation was “not to mean ‘solely
because of’ . . . [but rather] liability whenever the prohibited
motivation makes the difference in the employer’s decision.” Id. at
1076. However, in light of the Supreme Court’s Gross, Nassar, and
Burrage decisions rejecting the mixed-motive possibilities, under
statutes that employ virtually the same language, “reliance on
McNely for this point is of dubious merit.” July v. Bd. of Water &
Sewer Comm'rs of City of Mobile 2012 WL 5966637, at *12 (S.D. Ala.
Nov. 29, 2012) (Steele, J.); Parsons v. First Quality Retail
Servs., LLC, 2012 WL 174829, at *8 (M.D. Ga. Jan. 20, 2012) (Royal,
J.) (“whether a mixed motive theory is cognizable under the ADA is
still an open question in this circuit . . . [and] [w]hile the
Eleventh Circuit has not addressed the issue, several circuits have
expanded the reasoning of Gross to the ADA because it contains very
similar language”). When in 2012 Judge Royal of the Middle District
of Georgia said that the question is open in the Eleventh Circuit,
he did not have available to him what the Supreme Court said 2
years later in Burrage, which eliminated any lingering doubt about
whether the reasoning in Gross and Nassar applies to the ADA. The
props under McNely have been removed, so that the Eleventh Circuit
cannot rely on McNely. The governing jurisprudential principle is
expressed as recently as April 30, 2015 by Chief Judge Carnes in
Santiago-Lugo v. Warden, – F.3d –, 2015 WL 1936707, at *3 (11th
Cir. Apr. 30, 2015), in which the Eleventh Circuit recognizes that
a prior precedent is only binding “unless and until it is overruled
or undermined to the point of abrogation by the Supreme Court . .
.” (quoting United States v. Lopez, 562 F.3d 1309, 1312 (11th Cir.
2009). Like the ADEA in Gross, “the ADA renders employers liable
for employment decisions made ‘because of’ a person's disability,
and Gross construes ‘because of’ to require a showing of but-for
discriminatory discharge under the ADA must show that his or her
employer would not have fired him but for his actual or perceived
disability.” Serwatka v. Rockwell Automation, Inc., 591 F.3d 957,
962 (7th Cir. 2010) (emphasis added); see also Bolmer v. Oliveira,
594 F.3d 134 (2d Cir.2010).
Given the ADA’s “but-for” requirement, mirroring Gross and
Nassar, in order to state a claim of disability discrimination
Savage must specifically allege that her disability was the “butfor” cause of her adverse treatment. Not only does Savage fail to
allege “but-for” causation, but affirmatively alleges that Secure
First mistreated her for other proscribed reasons. Savage has not
stated an ADA claim upon which relief can be granted, thereby
While Savage argues she is permitted to plead alternative and
inconsistent theories of recovery (Doc. 16 at 9), there is a
recognized distinction between the pleading of alternative theories
of liability and irreconcilable contradictions and concessions as
to an essential element of a particular claim. See Selby v. Goodman
Mfg. Co., LP, 2014 WL 2740317, at *6 (N.D. Ala. June 17, 2014)
(Proctor, J.) and Selman v. CitiMortgage, Inc., 2013 WL 838193, at
distinguishing between pleading in the alternative and conceding
the existence of a contract while simultaneously and inconsistently
making an unjust enrichment claim).
For the reasons elaborated, Secure First’s motion will be
granted unless by May 15, 2015 Savage amends her complaint to
eliminate all claims except her ADEA claim, or to eliminate all
claims except her ADA claim, or to eliminate all claims except her
retaliation claim, and to allege that “but-for” her age, or “butfor” her disability, or “but-for” defendant’s retaliatory motive,
there would have been no adverse employment action. In other words,
unless Savage chooses to pursue only one of the claims contained in
Counts Two, Three, and Four, as the “but-for” cause and dismisses
Count One, defendant’s motion will be granted and Savage will be
allowed to proceed only under Count One.
defendant’s partial motion to dismiss Counts Two, Three, and Four.
Defendant’s request for attorney’s fees will be ruled upon after
plaintiff makes her election.
DONE this 8th day of May, 2015.
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE
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