Dawson v. Wal Mart Stores East LP

Filing 15

MEMORANDUM OPINION AND ORDER Because Dawson has made clear that he will not allege that his age, or his disability, or Wal-Mart's retaliatory motive was the "but-for" reason for his termination, Wal-Marts motion to dismiss insofar as i t is directed at plaintiff's ADEA, ADA, and retaliation claims is GRANTED, and the said claims are DISMISSED WITH PREJUDICE. Dawson's race discrimination claim brought under 42 U.S.C. § 1981 survives the current challenge because it requires no "but-for" causation. Dawson's oral motion for a stay is GRANTED. This case is STAYED pending the outcome of Savage in the Eleventh Circuit. Signed by Judge William M Acker, Jr on 1/19/16. (SAC )

FILED
2016 Jan-19 PM 04:07
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
WILLIE J. DAWSON,
Plaintiff,
v.
WAL-MART STORES EAST, LP,
Defendant.

}
}
}
}
}
}
}
}
}

CIVIL ACTION NO.
2:15-cv-1799-WMA

MEMORANDUM OPINION AND ORDER
This is another in the ever lengthening parade of employment
discrimination cases that require an application of the concept of
“but-for”

causation

as

an

essential

to

the

viability

of

the

statutory claim. The above entitled action, brought by Willie J.
Dawson, is a dead ringer for, or the clone of, Savage v. Secure
First Credit Union, 107 F. Supp. 3d 1212 (N.D. Ala. 2015), decided
by this court and now pending on appeal in the Eleventh Circuit.
Both plaintiff Savage and plaintiff Dawson insist on a right to
bring mixed-motive complaints charging more than one statutorily
proscribed motivation for their employer’s decision to terminate
them. They both allege that the adverse decision is alternatively
traceable (1) to the plaintiff’s race, (2) to the plaintiff’s age,
(3) to the plaintiff’s disability, and (4) in retaliation for
protected activity by the plaintiff.
At a preliminary hearing conducted on January 8, 2016, the
court promptly informed Dawson’s counsel that it had not changed

1

its mind since it decided Savage and that Dawson therefore could
expect to lose in this court, except for his claim of race
discrimination that does not require “but-for” causation. The court
disclaimed any authority to remedy what Dawson’s counsel describe
as a terribly unfair situation. But the court did agree with
counsel that the issues they present here that appear in Savage are
very important issues that cannot be covered with a band-aid. The
reach of “but-for” calls for resolution even without the EEOC’s
saying how important it is in its brief amicus curiae filed in
Savage.
After delivering the bad news, the court struck a deal with
Dawson’s counsel to grant their oral motion for a stay of the case
pending the outcome of Savage after the court dismisses their
ineffectual “but-for” claims. Accordingly, the court will grant the
Rule 12(b)(6) motion to dismiss for failure to state a claim filed
by Dawson’s former employer, defendant Wal-Mart Stores East, LP.
(“Wal-Mart”), but will not force Dawson to take an interlocutory
appeal that was required of Savage in order to preserve her legal
positions.
The

requirement

of

“but-for”

causation

came

into

being

with Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009), in
which the Supreme Court dealt with an employee who was seeking to
proceed under a mixed-motives theory. One of the alleged proscribed
motives

for

the

defendant’s

adverse

2

employment

action

was

plaintiff’s being over 40 years of age, a violation of the Age
Discrimination in Employment Act (ADEA).
At the preliminary hearing held on January 8, the court held
up and read from the synopsis introducing Gross as follows:

HOLDING:
The
Supreme
Court,
Justice Thomas, held that mixedmotives jury instruction is never
proper in ADEA case.

Gross, 129 S. Ct. at 2343 (emphasis added). This one sentence
captures

the

essence

of

Gross

and

lays

the

groundwork

for

subsequent rulings regarding “but-for” causation. The Reporter of
Opinions is, of course, not a member of the Supreme Court, but he
or she is skilled at comprehending, articulating, and summarizing
the holdings of the Court. The reporter here performed the task
perfectly. It could have hardly been done better.
After counsel had a chance to digest what the court had shared
with them, the court asked Dawson’s counsel if their client’s ADEA
claim is a “mixed-motive” claim. Counsel hesitated to the point of
demurrer. They did agree with the court that Justice Thomas is an
Associate Justice of the Supreme Court of the United States and
that he spoke for the majority of the Supreme Court in Gross. They
offered no way around the undeniable fact that Gross precludes ADEA
3

claims from being “mixed-motive” claims.
If in a particular case there is no arguable basis for
liability for an adverse employment action other than an employee’s
age, the employee has no problem in proceeding solely under the
ADEA, alleging his age as the “but-for” cause. But, he cannot
proceed under other theories, whether or not they require “butfor,” and at the same time proceed with an ADEA claim. There is no
escape from the clear embrace of Gross.
In Gross the Supreme Court recognized that it is bound by the
congressional use of the pregnant words “because of.” A fortiori
for all claims that rely for their viability upon proof that the
adverse action was “because of” a particular fact, pleading and
proving

that

fact

as

the

only

reason

for

the

conduct

being

complained of is a new, if unpleasant, fact of life for litigants
like Savage and Dawson unless and until they can persuade Congress
to re-create “mixed-motive” cases. As this court explained in
Savage, the new regime ushered in by Gross requires sometimes
difficult choices by a plaintiff at the earliest stage of the case.
The author of Savage is not the only court who recognizes the
necessary implication of Gross, which was logically followed by
University of Texas Southwestern Medical Center v. Nassar, 133 S.
Ct. 2517 (2013), and by Burrage v. United States, 134 S. Ct. 881
(2014). Not known as a court which leans over backward to help
defendants, the Second Circuit, as recently as September 2, 2015,
4

expressed itself as follows on the subject at hand:
Unlike Title VII discrimination claims, however, for an
adverse retaliatory action to be “because” a plaintiff
made a charge, the plaintiff must plausibly allege that
the retaliation was a “but-for” cause of the employer's
adverse action. See Nassar, 133 S. Ct. at 2533. It is not
enough
that
retaliation
was
a
“substantial”
or
“motivating” factor in the employer's decision. See id.
Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 90-91 (2d
Cir. 2015) (emphasis added). Because the principles in Nassar and
Vega apply equally to ADEA cases, the Eastern District of New York
in an ADEA case on November 6, 2015, followed the Second Circuit
and said:
To state a claim pursuant to the ADEA a plaintiff must
allege that age was the “but for” cause of the employer's
adverse action, and not merely that it was a motivating
factor. See Vega, 801 F.3d at 86 (citing Gross, 557 U.S.
at 177) (noting that a plaintiff alleging age
discrimination must allege that age was the but-for cause
of the adverse action). While a plaintiff need not
specifically plead each and every element of a prima
facie case of discrimination to survive a motion to
dismiss, the standard provides a framework for analyzing
whether the plaintiff's claims for relief are plausible.
Dechberry v. N.Y.C. Fire Dep't, No. 14–CV–2130, 2015 WL
4878460, at *16 (E.D.N.Y. Aug. 14, 2015). At the pleading
stage, a plaintiff must plausibly allege that (1) his
employer took an adverse employment action against her,
and (2) his age “was the ‘but-for’ cause of the
employer's adverse action.” See Vega, 801 F.3d at 86; see
also Ingrassia v. Health & Hosp. Corp., No. 14–CV–1900,
2015 WL 5229444, at *6 (E.D.N.Y. Sept. 8, 2015) (“Vega .
. . require[s] a plaintiff alleging an ADEA violation to
plausibly allege that the employer took adverse action
against her and that age was the ‘but for’ cause in the
employment decision.”).
Powell v. Delta Airlines, No. 15-CV-2254(MKB), 2015 WL 6867185, at
*6 (E.D.N.Y. Nov. 6, 2015) (emphasis added).
5

What about Dawson’s ADA claim? There is one thing the court
did

not

Savage

point

opinion.

out

in

Whoever

its

discussion

drafted

the

of

current

the

ADA

Eleventh

in

its

Circuit

Pattern Jury Instructions obviously understood that a claim brought
under the Americans with Disabilities Act cannot be distinguished
from ADEA claims or retaliation claims, insofar as the “but-for”
requirement is concerned. Proof of this proposition is found at pp.
194-95 of the 2013 Civil Pattern Jury Instructions, which reads as
follows (eliminating extraneous language):
Definition of “Because of Plaintiff's Disability”
Finally, if you find that plaintiff had a “disability,”
was a “qualified individual,” and that defendant took an
adverse employment action, you must decide whether
defendant took that action “because of” plaintiff's
disability. Put another way, you must decide whether
plaintiff's
disability
was
the
main
reason
for
defendant's decision.
(emphasis added). The court’s guess is that the drafters were
trying to preserve some sort of mixed-motive possibility for ADA
plaintiffs. They not only failed to accomplish the impossible but
laid a trap for the unwary. The essential “but-for” element cannot
be replaced by the words “main reason,” which cannot substitute for
“but-for,” and which require an evaluation of relative importance
of reasons. The words “main reason” imply the existence of other
actionable reasons. If this court is being too critical of the
ersatz creation of the drafters of this jury instruction, the court
apologizes.
6

Because Dawson has made clear that he will not allege that his
age, or his disability, or Wal-Mart’s retaliatory motive was the
“but-for” reason for his termination, Wal-Mart’s motion to dismiss
insofar as it is directed at plaintiff’s ADEA, ADA, and retaliation
claims is GRANTED, and the said claims are hereby DISMISSED WITH
PREJUDICE. Dawson’s race discrimination claim brought under 42
U.S.C. § 1981 survives the current challenge because it requires no
“but-for” causation.
Dawson’s oral motion for a stay is GRANTED. Accordingly, this
case is hereby STAYED pending the outcome of Savage in the Eleventh
Circuit.
DONE this 19th day of January, 2016.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

7