Gross v. FBL Remand: Eighth Circuit Considers Additional Issues
On November 30, 2009, the U.S. Court of Appeals for the Eighth Circuit issued an opinion on the remand of Gross v. FBL Financial Group, Inc. We have discussed the Gross case in several previous posts (here, here, and here). The case has particular local interest because it was tried in the Southern District of Iowa, appealed to the U.S. Court of Appeals for the Eighth Circuit, and ultimately to the U.S. Supreme Court. 
In a decision that surprised many in the employment law community, the Supreme Court held that an age discrimination plaintiff always has the burden of proving that age was the "but for" cause of the adverse employment action, regardless whether the employer had a "mixed motive", and regardless whether there is "direct evidence" of discrimination. Under Gross, the burden of persuasion never shifts to the defendant. The trial judge's instructions were in error, the Court concluded, because FBL was required to prove it would have made the same decision regardless of Gross' age. The case was remanded for a new trial.
Despite the Supreme Court's ruling, Gross argued to the Eighth Circuit on remand that his original jury verdict should stand because the jury was correctly instructed under the Iowa Civil Rights Act (ICRA). Notably, this was the first time the ICRA issue had come up in the case. The reason: between the date of the U.S. Supreme Court's decision in Gross and the Eighth Circuit's remand opinion, the Iowa Supreme Court issued an opinion in the case of DeBoom v. Raining Rose, Inc. One of the significant issues decided in DeBoom was that an employer is liable under the ICRA if the jury finds unlawful discrimination was "a motivating factor" in the employment decision. Gross argued that it did not matter under the ICRA whether the burden shifted to FBL to prove the "same decision" defense, because liability attaches once the jury concludes discrimination was "a motivating factor."
We predicted back in September that DeBoom would have a significant impact on the litigation of age discrimination cases in Iowa, because the standard under the ICRA was different than under the ADEA. We did not realize at the time, however, that the issue would come up in the Gross case itself.
Interestingly, Judge Colloton, writing for the Court, did not agree with Gross' contention that the jury was instructed consistent with the Iowa Civil Rights Act, and thus remanded for a trial on both the ICRA and ADEA claims. Why? The primary reason was that DeBoom was a "pretext" case, and not a "mixed motive" case. In mixed motive cases, the Eighth Circuit concluded that Iowa precedent requires the same approach as the Eighth Circuit did pre-Gross. That is, the defendant has the burden of proving the same decision defense only if there is direct evidence of discrimination. Thus, the jury instruction was still in error, despite DeBoom.
This matter is far from settled,and will likely result in further litigation in the Iowa Courts for years to come. It is not clear the Iowa Supreme Court intended the DeBoom case to be as limiting as the Eighth Circuit purported to make it.
