I have been absolutely slammed this week, which is why I am so late in getting a blog entry up for the week. Before getting started on the blog entry for the day, I do want to mention that the Department of Justice has now issued a final rule on website accessibility involving Title II entities, which are nonfederal governmental entities. The rule is over 326 pages, including discussion of the comments that were submitted and DOJ’s response. As you can imagine, that will take me some time to weed through. I do plan to blog on that.

 

The blog entry of the day is Akridge v. Alfa Insurance Companies, here. It is a published decision from the 11th Circuit decided on February 16, 2024. The issue is just what is the standard for causation when it comes to the ADA after Bostock, which we discussed here. Is it but for causation? Is it motivating factor? Do but for causation and motivating factor mean different things? The majority opinion answers all that. There is a dissent on causation that is worth talking about as well. As usual, the blog entry is divided into categories and they are: key facts; majority’s reasoning that but for is the ADA causation standard; majority reasoning that pretext cannot be shown; majority reasoning that convincing mosaic alternative is of no help to the plaintiff; majority response to dissent’s view of causation; Judge Abudu’s dissent on majority’s view of causation; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Key Facts

 

In 1989, Akridge began working at Alfa, an insurance company. In 1993, Akridge was diagnosed with MS and began suffering from severe migraines. By 2015, Akridge was promoted to a strategic coordinator position in Alfa’s auto underwriting department. Akridge’s primary task concerned the strategic underwriting program, in which she worked with Alfa’s agents and district managers to identify profitable policies for struggling agents. Akridge also (1) prepared a monthly strategic underwriting report for that program; (2) created manuals for auto and watercraft underwriting; (3) verified proofs of insurance for lawsuits with auto claims; (4) assisted with rate filings for the state insurance department; and (5) taught workshops for agents and district managers. USCA11 Case: 22-12045 Document: 54-1 Date Filed: 02/16/2024 Page: 3 of 51 4 Opinion of the Court 22-12045 By all accounts, Akridge excelled at her job, with excellent performance reviews. In the mid-nineties, Alfa named her employee of the year. Akridge estimated that she reduced Alfa’s losses by $2 million in her first nine months as coordinator of the strategic auto underwriting program. Alfa was self-insured and paid the healthcare costs of its employees. Akridge estimated that it cost Alfa between $10,000 and $12,000 per month to treat her MS and migraines. While it was common knowledge at Alfa that Akridge had MS, no one at Alfa ever said anything to Akridge about her healthcare costs.

 

The decisionmakers discussed eliminating Akridge’s position for one to two weeks before her termination. They ultimately decided to terminate Akridge because some of her responsibilities were now automated and other responsibilities that could not be automated were absorbed by other employees. Akridge’s non-automated responsibilities were given “to other people in the department that had been doing those [tasks] as well.” Chancey testified that Alfa did not have enough spare responsibilities to combine with these non-automated duties to keep Akridge’s position or create a new one for her. Regarding automation, the decisionmakers testified that Alfa had automated the strategic underwriting program, including the report Akridge created. Essentially, Akridge’s interaction with agents and district managers using information from the strategic underwriting report became an automated “pull and a self-service functionality,” allowing agents and district managers in the field to access that information themselves.

 

In December 2016, Coshatt and Plaster informed Akridge in person that Alfa was eliminating her position effective immediately due to the expense of developing Guidewire and in the interest of cutting business expenses companywide. During this meeting, Coshatt and Plaster did not mention Akridge’s disabilities or healthcare costs.

 

After being terminated, Akridge wished to remain at Alfa, but she did not apply to any open positions. Akridge asked Al Dees, Vice President of Marketing, if he could create a new position for her. Dees told Akridge that he already had created marketing positions for two other employees from the underwriting department whose positions were eliminated, and he could not create another position for her. At the time of her termination, there were no openings in the underwriting department. White on her own reviewed openings in other departments, but she did not think Akridge’s skills would be a good fit.

 

In her amended complaint, plaintiff alleged that the defendant violated the ADA by discriminating against her based on her disability by firing her to avoid paying her healthcare costs.

 

II

Majority’s Reasoning That But For is The ADA Causation Standard

 

  1. When evaluating an ADA claim, the 11th Circuit uses the McDonnell Douglas burden shifting framework that often applies in Title VII claims.
  2. The 11th Circuit has long understood that the ADA imposes a but for causation standard, which means that an adverse employment action would not have occurred but for the plaintiff’s disability.
  3. In 2008, Congress changed the ADA language of from “because of,” to, “on the basis of disability.”
  4. Several circuits have concluded that the amended language of “on the basis of,” means but for causation.
  5. “On the basis of,” is strongly suggestive of a but for causation standard.
  6. The 11th Circuit agrees with other circuits that the switch from “because of,” to “on the basis of,” did not change or affect the but for causation standard.
  7. The motivating factor causation standard of Title VII is a distinct standard and is more forgiving than a but for standard.
  8. A but for standard means that a plaintiff has to show that a particular outcome would not have happened but for the purported cause.
  9. The employee friendly causation standard of motivating factor does not apply to ADA claims because that standard is drawn directly from the statutory text of Title VII.
  10. The ADA does not contain any motivating factor language in its statute.
  11. Even with respect to Title VII, the Supreme Court has pointed out that Congress chose to place the motivating factor language into only a subset of Title VII claims and not into other claims, such as retaliation, which still use but for causation. See this blog entry.
  12. When Congress amended Title VII to add the “motivating factor,” language, it contemporaneously amended the ADA without including motivating factor standard.
  13. An ADA plaintiff can certainly have more than one but for cause for her termination.
  14. Part of the problem is that some case law conflates “motivating factor,” with but for. They are two separate standards.

III

Majority Reasoning That Pretext Cannot Be Shown

 

  1. The reason for termination cannot be proved to be a pretext for discrimination unless it is shown that both the reason was false and that the discrimination was the real reason. Both must be true. The inquiry centers on the employer’s belief and not on the employee’s belief. In other words, the inquiry does not focus on reality as it exists outside the decision-maker’s head.
  2. Plaintiff fails to create a genuine factual dispute that the reasons for firing her was both false and that the true reason was her high healthcare costs. While the decisionmakers knew of her disabilities, the evidence does not show that anyone, and certainly not the decisionmakers, knew of her specific individual healthcare costs.
  3. Even viewing the record in the light most favorable to the plaintiff, the evidence is still based on conjecture or speculation, which isn’t good enough.
  4. Plaintiff’s evidence also does not show that the nondiscriminatory reasons for her termination were false, i.e. that her position was not automated, others were not able to absorb her nonautomated duties, or that the defendant wished to reduce business expenses.

IV

Majority Reasoning That Convincing Mosaic Alternative Is of No Help To The Plaintiff

 

  1. A plaintiff’s convincing mosaic can be made up of many different things (these things are not exclusive): 1) suspicious timing, ambiguous statements, and other bits and pieces from which an inference of discriminatory intent might be drawn; 2) systemically better treatment of similarly situated employees; and 3) evidence that the employer’s justification is pretextual.
  2. Plaintiff worked for the defendant for many years costing the defendant as much as $11,000 per month prior to her termination decades later.
  3. The changing of her COBRA coverage doesn’t work either because the defendant continued to pay $10,000-$12,000 per month for nine months before changing the coverage.
  4. Companywide statements about rising healthcare costs and the general nature of self-insured businesses are too removed from plaintiff’s termination in time and scope for a jury to infer discriminatory intent. This is especially the case given the absence of any comments, ambiguous or otherwise, to the plaintiff or others about her healthcare costs.
  5. Use of comparators is permissible in a convincing mosaic alternative, but the comparators simply don’t hold up on further analysis as being similar.

V

Majority Response to Dissent’s View of Causation

 

  1. The dissent simply gets it wrong for several reasons that follow below.
  2. There can be multiple but for causes of an adverse employment action.
  3. But for causation simply requires that a disability be shown to be determinative rather than the sole decision-making factor. There certainly can be more than one such cause for an adverse employment action.
  4. But for causation is distinct from a motivating factor, and the Supreme Court in Bostock, which we discussed here, said as much.
  5. The dissent mistakenly relies on the ADA’s incorporation of different Title VII provisions with respect to motivating factor language being incorporated into the ADA. Such an approach ignores that several circuits have expressly held that while the ADA incorporates some Title VII provisions, it does not incorporate the motivating factor causation standard found in Title VII.
  6. Even after the 2008 amendments, many circuits have held that but for causation applies to ADA claims despite the change in terminology by Congress.
  7. The Supreme Court has held that the motivating factor standard does not apply to all Title VII claims. For example, the Supreme Court has held, in the case that we discussed here, that retaliation claims under Title VII are governed by a but for causation standard.
  8. Legislative history is not a work around for the plain meaning of a statute’s text.
  9. Congress could have simply added motivating factor language, like it did in the 1991 amendment to Title VII, if it wanted the ADA to utilize a motivating factor standard. It didn’t do that. As a result, one has to presume that the choice not to do that was intentional.

VI

Judge Abudu’s Dissent On Majority’s View Of Causation

 

  1. After Price Waterhouse, Congress amended Title VII to explicitly allow for a mixed motive standard of causation.
  2. Congress enacted the ADA shortly after passing into law the mixed motive amendments.
  3. Congress also incorporated by reference Title VII’s powers, remedies, and procedures linking the two statutes.
  4. The ADA contains no other enforcement remedies provision besides those explicitly incorporated from Title VII, and those remedy sections specifically incorporate a plaintiff’s ability to proceed under mixed motive causation.
  5. Congress changing “because of,” to “on the basis of,” has to mean something. In particular, it must mean that Congress sought to retain the motivating factor causation standard.
  6. Before and after the amendments to the ADA, sister circuits applied and continue to apply a motivating factor standard in ADA cases.
  7. Legislative history shows that the purpose of the amendment was not to disturb the original causation standard that has been appropriately interpreted by the 11th Circuit and other circuits, but to instead decrease the debate about what constitutes a disability.
  8. Strong and enforceable standards are ones that deter discrimination and not condone it. Raising the bar to a but for causation standard is contrary to the ADA’s direct link to Title VII, historical contexts, legislative history, and purpose.
  9. Even assuming motivating factor applies to this case, plaintiff did not bring forth evidence to get by summary judgment even under that more liberal standard. In particular, there was no evidence showing that any of the decisionmakers knew of plaintiff’s healthcare costs. She also did not present any evidence showing or genuinely questioning whether the head of human resources had any access to her healthcare costs during those years.

VII

Thoughts/Takeaways

 

  1. The decision is published.
  2. A petition for rehearing en banc was filed but ultimately denied.
  3. The majority approach is that but for and motivating factor are two completely different standards.
  4. It is not easy to prove pretext when you have to show both the reason was false and the discrimination was the real reason. To my mind, that comes close to sole cause. The court would have been better off using “but for cause,” instead of “real reason,” or “true reason.”
  5. I once had a plaintiff attorney tell me that motivating factor was an impossible standard for a jury to figure out, and he actually preferred the but for standard.
  6. Why would Congress change causation language if the meaning of the change was superfluous?
  7. The Rehabilitation Act uses a solely by reason of standard, and it is becoming clearer every day that that standard really means what it says.
  8. You can have more than one but for causation. Anything that is a determining factor satisfies the but for causation standard.
  9. Convincing mosaic in the 11th Circuit is an alternative to McDonnell Douglas.
  10. If motivating factor is not a thing with the ADA, then how can you use McDonnell Douglas for deciding summary judgment motions in the first place?
  11. It is not correct to say that the ADA incorporate title VII as the sole enforcement remedy because the ADA is more than just Title I. For example, Title II of the ADA incorporates the remedies associated with the Rehabilitation Act, i.e. Title VI. The causation logic of the dissent would not hold up with respect to title II of the ADA because “by reason of,” (title II), and “solely by reason of,” (§504 of the Rehabilitation Act), are quite clearly two very different causation concepts.
  12. Absolutely true that retaliation is governed by a but for standard, as mentioned above.
  13. It would seem to me that if you get rid of motivating factor from the equation of using McDonnell Douglas for deciding motions for summary judgment, you are left with a convincing mosaic standard. See this blog entry.