ANDERSON, Circuit Judge:
This is an Age Discrimination in Employment Act of 1967 ("ADEA") case. See 29 U.S.C. § 621 et seq. Solomon Sims, Jr., claims that his former employer, MVM, Inc., discriminated against him on account of his age when it terminated his employment. MVM defended its decision by denying that Sims' age, 71, was the reason for his discharge; rather, he was separated due to a reduction in force ("RIF").
Following discovery, the district court granted MVM summary judgment, concluding that no reasonable fact finder
In November 2007, MVM contracted with The GEO Group, Inc., to provide secure custody and transport services for federal prisoners in U.S. Marshals Service custody that were being held by GEO at various detention centers around Atlanta, Georgia. It was a start-up contract, meaning that a previous contract did not exist. Thus, MVM had to acquire a workforce. MVM began performance of the contract in February 2008. Arnold Perkins, who had come aboard in January 2008, became Project Manager. Tom Davis was hired as Assistant Project Manager about the same time as Perkins.
Shortly after MVM entered into the contract with GEO, Sims applied for a job with MVM as Operations Supervisor. On December 7, 2007, he was offered and accepted the supervisory position at the Robert A. Deyton Detention Facility in Lovejoy, Georgia. He reported for work in January 2008.
As Operations Supervisor, Sims was responsible for reviewing government manifest and remand documentation and utilizing information they provided to make the arrangements and prepare the paperwork necessary for the transportation of prisoners between different locations. Davis was Sims' immediate supervisor. In time, Davis found Sims' performance deficient in that he made more errors than other supervisors working on the MVM-GEO contract. In Davis's view, Sims never improved his performance or fully grasped his job duties.
When Perkins became Project Manager, the contract was approximately $485,000 over budget for 2008 due to excessive hiring and costs entailed in training new hires. In March 2008, MVM Vice President Robert Matthews, Perkins' supervisor, notified Perkins that he needed to reduce the number of supervisors, eight, working on the contract. Perkins disagreed with Matthews's assessment and delayed taking any action. On Thursday, August 7, 2008, Matthews instructed Perkins to cut two positions by the following Monday. Perkins immediately scheduled a group meeting with all eight supervisors and Davis. During the meeting, he informed them of Matthews's RIF directive that two supervisor positions had to be eliminated. After this group meeting, Perkins and Davis met with the supervisors individually to advise them of their RIF status. Perkins advised Schultz and Sims during the individual meetings that they were to be included in the RIF.
Perkins could not testify precisely as to when he finalized his decision on whom to include in the RIF because he had known
During the individual meetings between the supervisors and Davis and Perkins, Perkins asked the supervisors whom they would recommend for the RIF. Perkins testified that this was just for his knowledge and perspective because his RIF decisions had already been made. On the other hand, based on the fact that Perkins asked each of the eight supervisors for their input before announcing his decision, Davis was of the opinion that Perkins had not made a definitive decision until after seeking input from the supervisors. Nonetheless, it is undisputed that each supervisor except Sims recommended that Sims be included in the RIF.
After notifying Sims that he was included in the RIF, Perkins offered Sims a position as Transportation Officer working at the same facility;
In the charge of age discrimination he filed with the Equal Employment Opportunity Commission ("EEOC"), Sims identified the period of discrimination as May 15, 2008, through August 8, 2008. He alleged that Davis (at some point during that time span) told him that he was "too slow in performing [his] job," that, "If we have a cutback in management, I'm going to recommend you be terminated," and, "mind you, age has nothing to do with it." Although not included in his EEOC charge, Sims also asserts now that Davis at some unknown time stated, "You're old and slow." Sims does not assert that Davis made any other age-related comments that he felt were derogatory. The EEOC charge contained no other allegations aside from Perkins' statement (on August 8) that MVM needed to "cut back on the number of supervisors." Sims never heard any other manager make a derogatory age-related comment to him or about him.
The ADEA prohibits employers from discharging an employee who is at least 40 years of age because of that employee's age. 29 U.S.C. §§ 623(a)(1), 631(a). The
A plaintiff can establish age discrimination through either direct or circumstantial evidence. Mora v. Jackson Mem'l Found., Inc., 597 F.3d 1201, 1204 (11th Cir.2010). Prior to Gross, we consistently evaluated ADEA claims based on circumstantial evidence of discrimination under the burden-shifting framework in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See, e.g., Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th Cir.2000) (en banc). Under this framework, a plaintiff must first establish a prima facie case of discrimination. Id. at 1024. Next, the defendant must articulate a legitimate, non-discriminatory reason for the challenged employment action. Id. If the defendant articulates one or more such reasons, the plaintiff is afforded an opportunity to show that the employer's stated reason is a pretext for discrimination. See Kragor v. Takeda Pharm. Am., Inc., 702 F.3d 1304, 1307, No. 11-16052, 2012 WL 6618360, at *2 (11th Cir. Dec. 20, 2012) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 2106, 147 L.Ed.2d 105 (2000); McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825). The burden of persuasion always remains on the plaintiff in an ADEA case to proffer evidence sufficient to permit a reasonable fact finder to conclude that the discriminatory animus was the "but-for" cause of the adverse employment action. See Gross, 557 U.S. at 176, 129 S.Ct. at 2350.
Following Gross, we have continued to evaluate ADEA claims based on circumstantial evidence under the McDonnell Douglas framework. See Kragor, 702 F.3d at 1308, 2012 WL 6618360, at *2. This is not only consistent with our pre-Gross case law, but also it is entirely consistent with Gross, which expressly left open the question of whether this application is appropriate. Gross, 557 U.S. at 175 n. 2, 129 S.Ct. at 2349 n. 2 ("[T]he Court has not definitively decided whether the evidentiary framework of [McDonnell Douglas] utilized in Title VII cases is appropriate in the ADEA context."). Gross held that it is improper to shift the burden of persuasion to the defendant in an age-discrimination case. Id. at 173, 129 S.Ct. at 2348 ("[W]e must first determine whether the burden of persuasion ever shifts to the party defending an alleged mixed-motives discrimination claim brought under the ADEA. We hold that it does not." (footnote omitted)). But the McDonnell Douglas framework does not shift the burden of persuasion to the defendant; instead,
Our continued application of the McDonnell Douglas framework in ADEA cases is also consistent with all of our sister circuits that have addressed the issue. See Fleishman v. Cont'l Cas. Co., 698 F.3d 598, 604 (7th Cir.2012) (citing Senske v. Sybase, 588 F.3d 501, 506-07 (7th Cir.2009)); Shelley v. Geren, 666 F.3d 599, 607 (9th Cir. 2012); Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 106 (2d Cir.2010); Jackson v. Cal-Western Packaging Corp., 602 F.3d 374, 378 (5th Cir.2010); Jones v. Okla. City Pub. Sch., 617 F.3d 1273, 1278 (10th Cir.2010); Geiger v. Tower Auto., 579 F.3d 614, 622 (6th Cir.2009); Smith v. City of Allentown, 589 F.3d 684, 690-91 (3d Cir.2009); Velez v. Thermo King de Puerto Rico, Inc., 585 F.3d 441, 446-47 (1st Cir.2009); see also Gibson v. Am. Greetings Corp., 670 F.3d 844, 855 (8th Cir.2012) (continuing to apply McDonnell Douglas to ADEA cases without discussion of Gross), cert. denied, ___ U.S. ___, 133 S.Ct. 313, 184 L.Ed.2d 154 (2012).
Although our Kragor decision and our holding today reaffirm the use of the McDonnell Douglas framework in ADEA cases, this framework is not the sine qua non for a plaintiff to survive summary judgment in a discrimination case. See Smith v. Lockheed Martin Corp., 644 F.3d 1321, 1328 (11th Cir.2011). Instead, "the plaintiff will always survive summary judgment if he presents circumstantial evidence that creates a triable issue concerning the employer's discriminatory intent." Id. A triable issue of fact exists "if the record, viewed in a light most favorable to the plaintiff, presents a convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination by the decisionmaker." Id. (footnote omitted) (internal quotation marks omitted).
This case involves circumstantial evidence of discrimination,
Sims first argues that a reasonable jury could find that Perkins himself was biased and that his age discrimination was the "but-for" factor in Perkins' decision to lay off Sims. We disagree.
Assuming arguendo, as the district court did, that Sims has established a prima facie case of age discrimination in an RIF claim, Sims cannot sustain his burden of proving that Perkins' age discrimination was the "but-for" cause of his inclusion in the RIF. MVM clearly articulates legitimate, non-discriminatory reasons for Sims' inclusion in the RIF — namely, that budget constraints forced it to eliminate two supervisor positions. See, e.g., Coutu v. Martin Cnty. Bd. of Cnty. Comm'rs, 47 F.3d 1068, 1073 (11th Cir.1995) (holding that an RIF based on budgetary constraints was a legitimate, non-discriminatory reason for termination).
There is very little, if any, evidence of pretext. There is virtually no evidence of age bias on the part of Perkins, who was 61 himself at the time.
Even assuming Sims' version of who first mentioned age, we are doubtful that that gives rise to a reasonable inference of age bias. Even if there were a weak inference, it would be further weakened in light of Sims' own testimony that Perkins expressed surprise after Sims told him that he (Sims) was 71, and in light of Sims' deposition testimony that he was aware of no evidence that Perkins selected him for the RIF because of his age. We conclude that the record reveals either no evidence at all of age bias on the part of Perkins, or an inference so weak (especially as compared to the overwhelming evidence of the legitimacy of Perkins' decision) that it would fall far short of satisfying Sims' burden of proving that age bias on the part of Perkins was the "but-for" cause of Perkins' selection of Sims. It is undisputed that Perkins' own independent evaluation was that Sims was at the bottom of the list of supervisors when comparing their relative job performance. It is also undisputed that every supervisor other than Sims himself thought Sims was one of the two who should be laid off. In sum, the weak or nonexistent inference of age bias urged by Sims simply cannot carry Sims' burden in light of the record evidence.
Sims also argues that Perkins, the decision-maker, acted as a mere cat's paw
Sims argues that the Supreme Court's decision in Staub modifies our previous case law applying the cat's paw theory and lowers the burden for plaintiffs in cases involving the ADEA. This is an issue of first impression for this Court. We consider whether, or to what extent, Staub has modified our cat's paw analysis in ADEA cases.
We first examine the Supreme Court's recent Staub decision. In the context of an employer's alleged liability under the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA"),
Sims urges us to apply this analysis to this case. But the text of the USERRA and the ADEA differ in important respects. The USERRA (and Title VII)
As the Supreme Court cautions, "we `must be careful not to apply rules applicable under one statute to a different statute without careful and critical examination.'" Id. at 174, 129 S.Ct. at 2349 (quoting Fed. Exp. Corp. v. Holowecki, 552 U.S. 389, 393, 128 S.Ct. 1147, 1153, 170 L.Ed.2d 10 (2008)). And the ADEA requires more than what must ordinarily be proven under an analogous Title VII or USERRA action.
However, Staub is primarily a case about agency principles and vicarious liability, and nothing in Gross is inconsistent with the application of agency principles to cat's paw claims under the ADEA. All relevant case law, including our own prior case law applying the cat's paw theory in ADEA cases and the Court's decision in Staub, suggests that it is appropriate to apply agency principles in determining vicarious liability of an employer. We have, for example, applied agency principles to determine the definition of an "employer" under the ADEA. See, e.g., Garcia v. Copenhaver, Bell & Assocs., M.D.'s, P.A., 104 F.3d 1256, 1266-67 (11th Cir.1997); Daughtrey v. Honeywell, Inc., 3 F.3d 1488, 1495-96 (11th Cir.1993).
Sims urges us to apply Staub's agency principles as they relate to scienter, and suggests that the Supreme Court in Staub set forth agency principles that constitute a lower burden for plaintiffs in establishing cat's paw, vicarious employer liability, as compared to our prior ADEA case law. However, in this case we need not, and do not, decide whether Staub changes in any way our prior cat's paw ADEA cases with respect to agency principles as they relate to scienter, because we can accept Sims' invitation and assume arguendo that the Staub standard with respect to such agency principles does apply in the analysis for determining an employer's vicarious liability in ADEA cases. Even with this assumption, Sims cannot prevail because Sims cannot satisfy the required causation standard. In other words, with respect to agency principles relevant to the scienter element, we can assume arguendo that Sims must prove only Staub's agency standard (i.e., that Davis performed an act motivated by discriminatory animus that Davis intended to cause Sims' lay off),
Assuming arguendo that a reasonable juror could find, as set forth in the Staub analysis, that Davis was motivated by discriminatory animus that was intended to cause Sims' lay off,
Because Sims has not established that a reasonable juror could find that Perkins' discriminatory animus was the "but-for" cause of his termination, and because Sims has similarly not established that Perkins acted as a mere cat's paw for Davis's discriminatory animus, we affirm the district court's grant of summary judgment in favor of MVM.
AFFIRMED.