In January of 2013, the Eleventh Circuit established two important principles under the Age Discrimination in Employment Act.  First, it joined other circuits in ruling that, following Gross v. FBL Financial Services, Inc., 557 U.S. 167, 176, 129 S. Ct. 2343, 2350, 174 L. Ed. 2d 119 (2009) (“To establish a disparate-treatment claim under the plain language of the ADEA, therefore, a plaintiff must prove that age was the ‘but-for’ cause of the employer’s adverse decision.”), it is still appropriate to follow the burden-shifting framework of McDonnell Douglas Corp. v. Green,  411 U.S. 792 in evaluating circumstantial evidence of age discrimination.   Second, it pointed out that in ADEA cases applying the cat’s paw theory (where an employer is liable where the decision-maker has no discriminatory animus but is influenced but a subordinate supervisor’s action that is the product of discriminatory animus), more is required than a showing of proximate cause.  The ADEA plaintiff must prove that the subordinate supervisor’s animus was a “but-for” cause of the discrimination, not merely a proximate cause.  Sims v. MVM, Inc. ___ F.3d ___ (11th Cir. 2013).



[According to Eleventh Circuit rules, "Unpublished opinions are not considered binding precedent, but they may be cited as persuasive authority."]  A 2011 unpublished decision by the Eleventh Circuit, Horn v.  United Parcel Services, Inc., (11 Cir. 2011), contained a helpful analysis on how to determine when a comparator employee is “similarly situated” to an alleged discriminatee:

A relevant comparator is an employee who is similarly situated to the plaintiff “in all relevant respects.” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1091 (11th Cir. 2004) (citation omitted). In determining whether a comparator is similarly situated, we inquire “whether the employees are involved in or accused of the same or similar conduct and are disciplined in different ways.” Burke-Fowler v. Orange Cnty., 447 F.3d 1319, 1323 (11th Cir. 2006) (quotation omitted). And “[w]hen making that determination, we require that the quantity and quality of the comparator’s misconduct be nearly identical to prevent courts from second-guessing employers’ reasonable decisions.” Id. (alteration and quotation omitted). Although a comparator need not have the same job title as the plaintiff to be a sufficient comparator, material differences in “ranks and responsibilities” may render any comparison impossible without “confusing apples with oranges.” See Rioux v. City of Atlanta, 520 F.3d 1269, 1280-81 (11th Cir. 2008); Maniccia v. Brown, 171 F.3d 1364, 1369 (11th Cir. 1999). Similarly, it is relevant, but not dispositive, that different decisionmakers were involved in administering discipline. See Anderson v. WBMG-42, 253 F.3d 561, 565-66 (11th Cir. 2001).


In November of 2012, Judge King of the Florida Southern District Court granted summary judgment in a “sex-plus” (or “gender-plus”) case, even though he believed the pretext issue raised triable issues of material fact, because he found that the plantiff had failed to establish a prima facie case of discrimination. Llana-Aday v. District Board of Trustees of Miami-Dade College (Fla S.D. 2012). The Supreme Court first recognized the theory of “sex-plus” discrimination in 1971 in Phillips v. Martin Marietta Corp., 400 U.S. 542, 544 (1971). Essentially this theory involves the “classification of employees on the basis of sex plus one other ostensibly neutral characteristic.” Willingham v. Macon Tel. Pub. Co., 507 F.2d 1984, 1089 (5th Cir. 1975). In Llana-Aday, the plaintiff alleged that she was discriminated against on account of her inability to work a split shift because she had young children to care for. Judge King ruled that gender-plus plaintiffs must establish that there is a corresponding subclass of members of the opposite gender who received different treatment; in this case, males with the responsibility of caring for young children. Her failure to prove that there were comparators similarly situated for a sex-plus claim was fatal, even if she identified comparators who were similarly situated for a standard sex discrimination claim.

It is interesting to note that other courts have taken a different view. See Crook v. Chick, LLC, (W.D. Pa. 2013) (the comparator may include any person outside the protected class although they lack the “plus” characteristic).

MAY 2013

In February of 2013, the Eleventh Circuit decided Moore v. Appliance Direct, Inc., ___ F.3d ____ (11th Cir., 2013). The Eleventh Circuit made two important rulings in this case. One issue was whether the majority owner and CEO of the company could qualify as an “employer” and thus be personally liable. The court pointed out that the individual’s “involvement in [the company] included more than a majority ownership interest and office of CEO. At trial there was evidence showing him to have guided company policy and to have given instructions to managers regarding job duties; that he was the ultimate decision maker at the company; that he negotiated leases and vendor contracts; and significantly, that he directed that the Plaintiffs not be given subcontracts for delivery services, among other involvements. “ Therefore, the court found that evidence sufficient to justify the jury’s decision that he was an “employer.”

The other issue was whether an award of liquidated damages is ordinarily mandatory (unless excused by a showing of reasonable good faith by the employer) in an FLSA retaliation case, as it is in the recovery of unpaid minimum wage or overtime. The court determined that it was within the discretion of the trial court to award liquidated damages and that it was not mandatory.

JUNE 2013

Moore v. Appliance Direct, Inc., ___ F.3d ___, (11th Cir. 2013)

The Eleventh Circuit decided an FLSA retaliation case in February that applied settled law on one issue but established new law on another.

The case stemmed from an earlier suit by the plaintiff delivery truck drivers for alleged unpaid overtime. During the pendency of that suit, their corporate employer began changing the employment status of its drivers from employees to independent contractors. While other drivers formerly employed as drivers were offered an independent contractor relationship, the plaintiffs were not, and their employment was terminated because their jobs had been outsourced.

The plaintiffs then filed a separate suit, alleging that they were denied the opportunity to enter into an independent contractor relationship or to become subcontractors of other contractors, because of their involvement in the earlier lawsuit. They brought suit not only against their former corporate employer but also against the CEO and primary owner of that employer.

Regarding the suit against the individual owner, the court repeated the general test that “a corporate officer is personally liable as an FLSA employer if he has ‘operational control of a corporation’s covered enterprise.’” The court noted that at trial there was evidence that the CEO had guided company policy and given instructions to managers concerning job duties; that he was the ultimate decision maker; that he negotiated leases and vendor contractors; and “significantly, that he directed that the Plaintiffs not be given subcontracts for delivery services.” Thus, the court concluded that there was sufficient evidence for a jury to find that the CEO was an FLSA “employer.”

Another issue the court considered was a question of first impression: Does the FLSA mandate the imposition of liquidated damages (doubling the award) for a successful retaliation claim unless the employer shows he acted in good faith and had reasonable grounds for believing his action did not violate the law (the test applied in minimum wage and overtime cases), or does the trial court have discretion over whether to award liquidated damages? Relying on the differing language in the statute concerning the treatment of liquidated damages, depending on the kind of violation found, the court held that an award of liquidated damages in retaliation cases is discretionary with the trial court.

JUNE 2013

The Supreme Court issued two key Title VII decisions on June 24, 2013. In Vance v. Ball State University, No. 11–556 (2013), the Court held that an employer’s vicarious liability for a supervisor’s harassment is limited to those supervisors who have the power to “hire, fire, demote, promote, transfer, or discipline” the victim. More is required than the “ability to direct another employee’s tasks.”

Also, in University of Texas Southwestern Medical Center v. Nassar, No. 12–484 (2013), the Court ruled that Title VII retaliation cases require a plaintiff to prove but-for causation (the conduct would not have been occurred but for an improper motive) rather than to use a simple mixed-motive test (an improper motive was one of several reasons for the conduct). As plaintiffs litigating under the ADEA can attest, the but-for test is far more difficult to prove.