Remember Jack Gross? Back in 2003 he claimed a demotion from his management job at West Des Moines based FBL Financial Services constituted age discrimination. A federal jury in the Southern District of Iowa agreed and awarded him $47,000 in damages. From there his case had a remarkable journey: first stopping in St. Louis at the Eighth Circuit, then to Washington, D.C. and the U.S. Supreme Court, back to St. Louis for another stop at the Eighth Circuit, and ultimately back to Des Moines for another jury trial. In the meantime, Gross became moderately famous, testifying before Congress about his case and inspiring legislation to change the law.
About two weeks ago Gross presented his case to a second jury. This time, however, Gross ran out of luck. The jury found in favor of FBL Financial Services.
Why the long journey with all the stops along the way? Because of two phrases: “a motivating factor” and “but for”. In the first trial, the court instructed the jury that, under the federal Age Discrimination in Employment Act (ADEA), they must find for Gross if his age was “a motivating factor” in the demotion decision. The Supreme Court ruled that was the wrong instruction. In the second trial, the jury was instructed to find for Gross on his ADEA claim if FBL would have not demoted him “but for” his age.
Did a few words in the jury instructions result in a different outcome in the second trial? While it is impossible to know for certain, there probably is more to it than that. What has generally gone unreported about the Gross case is that he also claimed his demotion violated the Iowa Civil Rights Act. In both the first and second trials, the jury was instructed they must find for Gross on the ICRA claim if his age was "a motivating factor" in the decision. Thus, the same question was presented to both juries, but with a different result.
The case may not be over yet. It appears grounds may exist to appeal this decision as well. In particular, the instruction incorporated a version of the “same decision” defense for the ICRA claim. In other words, not only did Gross have to prove his age was “a motivating factor”, but also had to prove “the adverse action would not have otherwise occurred.” As we have discussed here previously, it is far from clear that the "same decision" defense is available under the ICRA.
We will be watching to see what happens…