LUCERO, Circuit Judge.
Judy F. Jones appeals from the district court's grant of summary judgment in favor of her employer, Oklahoma City Public Schools ("OKC"), dismissing her claim of discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq. Although the district court found that Jones produced sufficient evidence to establish a prima facie case of discrimination and submitted
Jones began working for OKC as a teacher in 1969. She then served as a principal of an elementary school for approximately fifteen years. In 2002, Jones was promoted to Executive Director of Curriculum and Instruction. Colleagues evaluated Jones' performance in this position as satisfactory or better. For the 2006-2007 fiscal year, Jones' negotiated salary was $98,270, with a daily pay rate of $396.25 per day.
In July 2006, Linda Brown became OKC's interim superintendent. Brown altered OKC protocol such that Jones reported first to Manny Soto and later to Linda Toure, two of OKC's five executive directors in charge of schools and support services. Over the course of the next year, both Soto and Toure asked Jones when she was going to retire. On one occasion, Brown also questioned Jones about her retirement plans.
OKC eventually hired John Porter as its permanent superintendent in spring 2007. Porter was to start full-time work in July 2007, but was employed as a consultant during the months of May and June. According to Porter, he and Brown "worked closely" during this period "to ensure a smooth transition into the position of Superintendent." After reviewing the district's organizational chart, Porter determined that OKC's executive team should be reorganized. In particular, he decided that Jones' position could be eliminated and its duties absorbed by other directors. This elimination would allow Porter to reorganize the district's administration in a budget-neutral manner. Porter directed Michael Shanahan, OKC's senior human resources officer, to notify Jones that her position would be eliminated and she would be reassigned as an elementary school principal. Brown was present during this exchange, but averred that she did not have any input into Porter's decision.
Jones met with Shanahan in early June 2007. Shanahan communicated Porter's orders and informed Jones that her salary would stay the same for the ensuing school year only.
After her reassignment and during her first year of employment as an elementary school principal, Jones retained her previous salary level. Her vacation benefits, however, were affected immediately. After Jones completed her first year as principal, her salary was decreased by approximately $17,000. This pay cut had the effect of reducing her retirement benefits. Jones' daily pay rate was also reduced by roughly five dollars per day.
One month after Jones' reassignment, Porter decided to create a new OKC executive
In May 2008, Jones filed suit in the District Court for the Western District of Oklahoma alleging OKC violated the ADEA when it demoted her to the position of elementary school principal.
Analyzing Jones' claims under the traditional McDonnell Douglas
In response, Jones noted that funding for her previous position stayed on the books for the 2007-2008 fiscal year, and staff in her former department continued working in that department before and after the position of Executive Director of Teaching and Learning was created. Moreover, Jones stressed the similarities between her previous position and the new position created just after her demotion. She also stated under oath that fellow OKC directors, including Brown, made age-related comments regarding her retirement plans and that these comments occurred outside of the context of a normal course of conversation. Viewing the evidence in the light most favorable to Jones, the district court determined that a reasonable factfinder could conclude that OKC's proffered reasons for Jones' reassignment were inconsistent or unworthy of belief.
Quoting Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000), however, the court reasoned: "[T]here will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude that the action was discriminatory." According to the district court, Jones' case fell within this exception. Her evidence for pretext was not "particularly strong" and "a reasonable juror could very
We review a district court's grant of summary judgment de novo, applying the same legal standard used by the lower court. McKenzie v. Dovala, 242 F.3d 967, 969 (10th Cir.2001). Summary judgment is proper only if "there is no genuine issue as to any material fact" and "the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "We examine the factual record and reasonable inferences therefrom in the light most favorable to [Jones], who opposed summary judgment." Thomas v. Int'l Bus. Machs., 48 F.3d 478, 484 (10th Cir.1995).
Before reaching the merits of parties' arguments, we must first determine whether the Supreme Court's holding in Gross v. FBL Financial Services, Inc., ___ U.S. ___, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009), decided after the district court issued its summary judgment order, affects our analysis on appeal. OKC argues that Gross compels dismissal of Jones' claim because it requires an ADEA plaintiff to provide some evidence that her employer was motivated solely by age when making an adverse employment decision.
OKC's argument is flawed on several levels, but we need address only one: It conflates two separate standards for causation. The ADEA, like other anti-discrimination statutes, includes a causation requirement. It prohibits employers from "discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1) (emphasis added). The statute, however, does not define the phrase "because of," and before Gross, it was unclear which causal standard applied. Gross clarified that the ADEA requires "but-for" causation. 129 S.Ct. at 2351. Consequently, to succeed on a claim of age discrimination, a plaintiff must prove by a preponderance of the evidence that her employer would not have taken the challenged action but for the plaintiff's age. Id. OKC argues that in mandating but-for causation, Gross established that "age must have been the only factor" in the employer's decision-making process.
We disagree. The Tenth Circuit has long held that a plaintiff must prove but-for causation to hold an employer liable under the ADEA. See EEOC v. Prudential Fed. Sav. & Loan Ass'n, 763 F.2d 1166, 1170 (10th Cir.1985) (quoting Perrell v. Financeamerica Corp., 726 F.2d 654, 656 (10th Cir.1984)). Moreover, we have concluded that this causal standard does "not require[ ] [plaintiffs] to show that age was the sole motivating factor in the employment decision." Wilkerson v. Shinseki, 606 F.3d 1256, 1266 (10th Cir.2010) (quotations omitted). Instead, an employer may be held liable under the ADEA if other factors contributed to its taking an adverse action, as long as "age was the factor that made a difference." Id.; accord Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993)
A more nuanced question is whether Gross rendered the McDonnell Douglas framework of proving discrimination inapplicable to claims brought pursuant to the ADEA. Under McDonnell Douglas, a plaintiff may survive summary judgment by providing circumstantial rather than direct evidence of discrimination. See 411 U.S. at 802-04, 93 S.Ct. 1817. To do so, the plaintiff must first demonstrate a prima facie case of unlawful discrimination. Id. at 802, 93 S.Ct. 1817. If she succeeds at this first stage, the burden of production then shifts to the employer to identify a legitimate, nondiscriminatory reason for the adverse employment action. Id. Once the employer advances such a reason, the burden shifts back to the plaintiff to prove the employer's proffered reason was pretextual. See Reeves, 530 U.S. at 143, 120 S.Ct. 2097.
This circuit has long held that plaintiffs may use the McDonnell Douglas three-step analysis to prove age discrimination under the ADEA. See Danville v. Reg'l Lab Corp., 292 F.3d 1246, 1249 (10th Cir.2002); Ellis v. United Airlines, Inc., 73 F.3d 999, 1004 (10th Cir.1996). We will not overrule our prior decisions applying this framework to ADEA claims unless those decisions are in conflict with Gross. See United States v. Edward J., 224 F.3d 1216, 1220 (10th Cir.2000) ("Under the doctrine of stare decisis, this panel cannot overturn the decision of another panel of this court barring en banc reconsideration, a superseding contrary Supreme Court decision, or authorization of all currently active judges on the court." (quotation and citation omitted)).
But rather than barring our use of the McDonnell Douglas paradigm, Gross expressly left open the question of "whether the evidentiary framework of [McDonnell Douglas], utilized in Title VII cases[,] is appropriate in the ADEA context." Gross, 129 S.Ct. at 2349 n. 2; see also Reeves, 530 U.S. at 142, 120 S.Ct. 2097 (2000) (applying McDonnell Douglas to an ADEA claim "[b]ecause the parties do not dispute the issue"). Gross accordingly does not overturn circuit precedent applying McDonnell Douglas to ADEA cases.
Moreover, the rule articulated in Gross has no logical effect on the application of McDonnell Douglas to age discrimination claims. Gross held that "the burden of persuasion [n]ever shifts to the party defending an alleged mixed-motives discrimination claim brought under the ADEA." 129 S.Ct. at 2348. McDonnell Douglas, however, does not shift the burden of persuasion from the plaintiff to the defendant. Rather, it shifts only the burden of production. Doebele v. Sprint/United Mgmt. Co., 342 F.3d 1117, 1135 (10th Cir.2003). Throughout the three-step process, "[t]he plaintiff ... carries the full burden of persuasion to show that the defendant discriminated on [an] illegal basis." Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1125 (10th Cir.2005).
Although we recognize that Gross created some uncertainty regarding burden-shifting in the ADEA context, we conclude that it does not preclude our continued application of McDonnell Douglas to ADEA claims. See Phillips v. Pepsi Bottling Group, 373 Fed.Appx. 896, 899 (10th Cir.2010) (unpublished) ("[Gross] did not overrule circuit precedents in which we
Having concluded that McDonnell Douglas applies to ADEA claims, we must now address the issue of whether Jones demonstrated a prima facie case of age discrimination. To prove a prima facie case of age discrimination, a plaintiff must show: "1) she is a member of the class protected by the [ADEA]; 2) she suffered an adverse employment action; 3) she was qualified for the position at issue; and 4) she was treated less favorably than others not in the protected class." Sanchez v. Denver Pub. Schs., 164 F.3d 527, 531 (10th Cir.1998). The parties do not dispute that Jones demonstrated she was a member of the class protected by the ADEA, that she was qualified for her former position, and that she was treated less favorably than others not in the protected class.
"The Tenth Circuit liberally defines the phrase `adverse employment action.' Such actions are not simply limited to monetary losses in the form of wages or benefits. Instead, we take a `case-by-case approach,' examining the unique factors relevant to the situation at hand." Sanchez, 164 F.3d at 532 (citations omitted). Although we do not deem "a mere inconvenience or an alteration of job responsibilities to be an adverse employment action," id. (quotation omitted), the prong is satisfied by a "significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits," Hillig v. Rumsfeld, 381 F.3d 1028, 1032-33 (10th Cir.2004) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)).
Under the facts of this case, the district court correctly determined that Jones suffered an adverse employment action. Jones' reassignment letter specifically stated that her salary level would remain the same for the ensuing school year only, and Jones suffered a $17,000 decrease in salary the following year. Her vacation benefits were reduced immediately upon reassignment, and her retirement
We thus consider the ultimate question of whether OKC was entitled to summary judgment. Despite holding that Jones established a prima facie case of discrimination and demonstrated that OKC's proffered reasons for her reassignment were pretextual, the district court granted OKC's motion for summary judgment. It concluded that Jones' claim fell within the exception outlined in Reeves because, "even when the evidence is viewed in the light most favorable to [Jones], no reasonable juror could find that [OKC's] decision to reassign her was based on her age." Jones argues that this determination constitutes reversible error because the rare conditions necessary to establish the Reeves exception are not present in this case. We agree.
In Reeves, the Supreme Court rejected the so-called "pretext plus" standard that required plaintiffs using the McDonnell Douglas framework to both show pretext and produce "additional evidence of discrimination" in order to avoid summary judgment. Id. at 146-48, 120 S.Ct. 2097. Reeves expressly held that "a plaintiff's prima facie case [of discrimination], combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Id. at 148, 120 S.Ct. 2097. No additional evidence is necessary to show discrimination because "[p]roof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination." Id. at 147, 120 S.Ct. 2097.
Consistent with Reeves, the Tenth Circuit has "definitively rejected a `pretext plus' standard." Swackhammer v. Sprint/United Mgmt. Co., 493 F.3d 1160, 1168 (10th Cir.2007). Consequently, "once a plaintiff presents evidence sufficient to create a genuine factual dispute regarding the veracity of a defendant's nondiscriminatory reason, we presume the jury could infer that the employer acted for a discriminatory reason and must deny summary judgment." Bryant, 432 F.3d at 1125. A plaintiff produces sufficient evidence of pretext when she shows "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons." Jaramillo v. Colo. Judicial Dep't, 427 F.3d 1303, 1308 (10th Cir. 2005). When evaluating the sufficiency this evidence, we look to several factors, "includ[ing] the strength of the [employee's] prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered" on a motion for summary judgment. Reeves, 530 U.S. at 148-49, 120 S.Ct. 2097.
OKC proffered two legitimate reasons for Jones' reassignment: Porter's desire to undertake a reorganization of OKC's executive team in a revenue-neutral fashion and his belief that Jones' former position contained only narrow duties that could be absorbed by other directors. With respect
Second, Jones presented evidence that a new position, Executive Director of Teaching and Learning, was created shortly after her transfer. As noted supra, this position's job responsibilities were strikingly similar to those of Jones' former position as Executive Director of Curriculum and Instruction. Although OKC argues that the new position entailed more responsibility, it also admits that the position reabsorbed many of the same duties of Jones' former position and was filled by someone thirteen years Jones' junior. Together, this evidence was sufficient to satisfy McDonnell Douglas's third step, and the district court's grant of summary judgment was therefore improper.
In reversing the district court, we recognize that Reeves carved out a narrow exception to our general rule against a "pretext plus" requirement. Under Reeves, "there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude that the action was discriminatory." 530 U.S. at 148, 120 S.Ct. 2097. For example, an employer would be entitled to summary judgment "if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred." Id. (emphasis added).
But the Reeves exception does not apply here. In reasoning that Jones generated only a weak question of fact regarding whether OKC's proffered reasons were pretextual, the district court improperly favored OKC's version of the facts. It stated, for instance, that "[o]f the persons who [inquired into Jones' retirement plans], only one, Ms. Brown, was even arguably involved in the reassignment decision, but [OKC] strongly argues she had no role in the decision process." After noting that "Brown's own testimony clearly states that the decision regarding [Jones'] reassignment was made by . . . Porter," the court concluded that Jones' "lack of evidence from which a reasonable jury could find discrimination. . . place[d][her] case squarely within the contours of the Reeves exception."
However, the district court was required to view the facts in the light most favorable to Jones. See Thomas, 48 F.3d at 484. Accordingly, it should have credited Shanahan's statement that four other directors were involved in the decision to reassign Jones. Properly considered at the summary judgment stage, Jones' evidence of discrimination therefore included age-related comments by three executive directors, all involved in the reassignment decision.
Rather than properly applying Reeves, the district court erroneously held Jones to the discredited "pretext plus" standard. The court faulted Jones for not presenting "additional evidence" that age was a determining factor in her reassignment. But after showing that OKC's reasons for her transfer were pretextual, Jones was under no obligation to provide additional evidence of age discrimination. See Reeves, 530 U.S. at 147, 120 S.Ct. 2097; accord Swackhammer, 493 F.3d at 1168. Accordingly, because we agree with Jones that the rare conditions necessary to satisfy the Reeves exception are not present, we