Last summer’s United States Supreme Court’s decision in Gross v. FBL Financial Services left many unanswered questions about whether the burden-shifting framework of McDonnell Douglas Corp. v. Green would continue to apply to claims arising under the Age Discrimination in Employment Act (ADEA). 

Under McDonnell Douglas, the plaintiff in an ADEA case bears the burden of proof and the initial burden of production of demonstrating a prima facie case of discrimination by showing first, that the plaintiff is 40 years of age or older; second, that the defendant took an adverse employment action against the plaintiff; third, that the plaintiff was qualified for the position in question; and fourth, that the plaintiff was ultimately replaced by another employee who was sufficiently younger to support an inference of discriminatory animus.  Once the plaintiff satisfies these elements, the burden of production shifts to the employer to identify a legitimate, non-discriminatory reason for the adverse employment action.  If the employer does so, the burden of production returns to the plaintiff to demonstrate that the employer's proffered rationale was a pretext for age discrimination.  At all times, however, the burden of persuasion rests with the plaintiff.  In Gross, the Supreme Court expressed ambivalence, although no clear edict, about the utility of the McDonnell Douglas burden shifting framework as applied to ADEA claims.

In a decision rendered shortly before the holidays, the Third Circuit Court of Appeals, however, affirmed that the McDonnell Douglas burden shifting framework would continue to apply to ADEA cases in our federal circuit.  In Smith v. City of Allentown, the City of Allentown argued that Gross rendered McDonnell Douglas' burden-shifting inapplicable to ADEA cases and that the Third Circuit should dispose of the appeal solely by inquiring whether the terminated employee would have retained his job but for the alleged age discrimination.  The Third Circuit refused to do so, holding that the Supreme Court’s decision in Gross was not in conflict with its prior decisions applying McDonnell Douglas to ADEA cases.    

The Third Circuit interpreted Gross as standing for the proposition that it is improper to shift the burden of persuasion to the defendant in an age discrimination case.  According to the appellate court, McDonnell Douglas, however, imposes no shift in that particular burden, but provides that, once the employee establishes a prima facie case, the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for the employer's adverse employment decision.  If the employer makes that showing, the burden of production shifts once again to the employee to establish that the employer's proffered justification for the adverse action is pretextual. Throughout this burden-shifting exercise, the burden of persuasion, "including the burden of proving 'but for' causation or causation in fact, remains on the employee."  Hence, Gross, which prohibits shifting the burden of persuasion to an ADEA defendant, does not forbid adherence to Third Circuit precedent applying McDonnell Douglas to age discrimination claims. The Third Circuit also noted that its holding adhering to McDonnell Douglas was in conformity with the decisions of the Second and Sixth Circuits. 

After evaluating the plaintiff's ADEA claim pursuant to McDonnell Douglas, the Third Circuit found that he had not produced sufficient evidence to establish that the City of Allentown’s proffered rationale for terminating him was a pretext for age-based discrimination.

This newsletter is a publication of Nochumson P.C. and is intended for general information only. It should not be construed as legal advice with respect to any particular situation, and readers should not act upon information contained in this newsletter without first consulting an attorney. Copyright © 2009.