Following the Gross decision, courts in this Circuit have disagreed on whether the Supreme Court foreclosed a plaintiff's ability to simultaneously pursue claims under the ADEA and another anti-discrimination statute for the same employment decision. Compare Culver v. Birmingham Bd. Of Educ., 646 F. Supp. 2d 1272 (N.D. Ala. 2009) ("Prior to Gross, it was permissible to allege alternative proscribed employer motives, one of which is plaintiff's age. That permission has now been withdrawn by the Supreme Court."), with McQueen v. Wells Fargo Home Mortg., 955 F. Supp. 2d 1256, 1284 (N.D. Ala. 2013) (holding that "under the ADEA, the plaintiff can allege that the alleged discriminatory acts were committed both because of her age and race").
Following the Gross decision, courts in this Circuit disagreed on whether the Supreme Court had foreclosed a plaintiff's ability to simultaneously pursue claims under the ADEA and another anti-discrimination statute for the same employment decision. Compare Culver v. Birmingham Bd. of Educ., 646 F. Supp. 2d 1272 (Mem.) (N.D. Ala. 2009) ("Prior to Gross, it was permissible to allege alternative proscribed employer motives, one of which is plaintiff's age. That permission has now been withdrawn by the Supreme Court."), with McQueen v. Wells Fargo Home Mortg., 955 F. Supp. 2d 1256, 1284 (N.D. Ala. 2013) (emphasis in original) (holding that "under the ADEA, the plaintiff can allege that the alleged discriminatory acts were committed both because of her age and race").
Defendant urges us to ignore these opinions from our own district and instead follow Culver v. Birmingham Board of Education, where the Alabama district court's perfunctory holding aligns with Defendant's reading of Gross. 646 F. Supp. 2d 1272, 1272 (N.D. Ala. 2009). We find Culver distinctly unpersuasive.
In a footnote, the Goodridge court noted that it "is aware of the holding of Culver v. Birmingham Bd. Of Educ., 646 F. Supp. 2d 1272 (N.D. Ala. 2009) but is not persuaded by it." Goodridge, 276 F.R.D. at 542 n.1.
Furthermore, a plaintiff's complaint alleging a cause of action under the ADEA need not allege that age was the but-for reason for his termination. See Renfrow v. Sanborn Map Co., 2011 WL 1102834 (E.D. Mo. March 23, 2011) (noting that decision in Gross concerned evidentiary standard needed at trial and was not about sufficiency of complaint); see also DeAngelo v. DentalEZ, Inc., 738 F.Supp.2d 572, 578-79 (E.D. Pa. 2010) (finding that plaintiff may pursue alternative theories of discrimination - including age discrimination - through summary judgment stage, but must decide prior to conclusion of trial which theory to base claim upon); but see Culver v. Birmingham Bd. of Educ., 646 F.Supp.2d 1272 (N.D. Ala. 2009) (finding that it is no longer permissible to allege alternative theories in ADEA cases). Based on the forgoing, this Court finds that plaintiff's discussion of his whistle blowing claim in his complaint cannot be used to show that age was not the but-for reason for his termination.
Thus, although, after Gross (and Twombly and Iqbal ), a plaintiff who brings a claim under the ADEA must allege facts sufficient to support a reasonable inference that age was the " but for" cause of the adverse employment action challenged under that claim,Gross does not in any way limit a plaintiff's ability to plead alternative facts and alternative theories. The court is aware of the holding of Culver v. Birmingham Bd. Of Educ., 646 F.Supp.2d 1272 (N.D.Ala.2009) but is not persuaded by it, and it is not binding on this court. The Clerk is DIRECTED to send a copy of this Order and all future orders to Plaintiff at her address of record.
Compare Whitaker v. Tennessee Valley Auth. Bd. of Dirs., No. 08-1225, 2010 WL 1493899, at *9 (M.D.Tenn. Apr. 14, 2010) ("Post-Gross, it is incongruous to posit such alternate theories because the very presentation of different reasons for an action suggest that age was not the sole reason for the action.") (emphasis in original)); Culver v. Birmingham Bd. of Educ., 646 F.Supp.2d 1272, 1272 (N.D.Ala. 2009) ("Prior to Gross, it was permissible to allege alternative proscribed employer motives, one of which is plaintiff's age. That permission has now been withdrawn by the Supreme Court."); with Houchen v. Dallas Morning News, Inc., No. 08-1251, 2010 WL 1267221, at *3 (N.D.Tex. Apr. 1, 2010) (holding that, on summary judgment, "[w]hile issues of proof may prevent Plaintiffs from prevailing on both theories, the court does not find the mere fact of pleading sex and age discrimination claims together a basis for dismissing the age discrimination claims."); and Siegel v. Inverness Med. Innovations, Inc., No. 09-1791, 2010 WL 1957464, at *6 (N.D. Ohio May 14, 2010) ("[Plaintiff] may pursue alternative claims at this [summary judgment] stage of the case; what Gross prohibits is an age discrimination verdict based on a mixed-motive jury instruction."); Belcher v. Service Corp. Int'l, No. 07-285, 2009 WL 3747176, at *3 (E.D.Tenn.
Post-Gross, it is incongruous to posit such alternate theories because the very presentation of different reasons for an action suggest that age was not the sole reason for the action. See, McFadden v. Krause, 2009 WL 4837805 at *1 (9th Cir. 2009) (after Gross there "is no basis for recognizing a combined age/sex discrimination claim, as a different analytical framework applies to each statute"); Huff v. Power Partners, Inc., 2010 WL 797201 at *7 (M.D. Ga. 2010) (italics added) ("the ADEA does not authorize a mixed-motive age discrimination claim, so even if Plaintiff had shown that age was a motivating factor in the decision to terminate him . . . he still could not show that he was terminated because of his age"); Culver v. Birmingham Bd. of Educ., 646 F. Supp. 2d 1272, 1272 (N.D. Ala. 2009) ("Prior toGross, it was permissible to allege alternative proscribed employer motives, one of which is plaintiff's age" but "[t]hat permission has now been withdrawn by the Supreme Court."). In sum, Defendant has articulated a legitimate reason for its non-selection of Plaintiff and Plaintiff has offered nothing from which a jury could conclude that the stated reason (Plaintiff's low score) was a lie, or from which a jury could conclude that Plaintiff's age was the real reason for its decision.
WILLIAM ACKER JR., District Judge In accordance with the accompanying memorandum opinion, and because plaintiff, Billy Culver, has been forced to abandon his claim under the Age Discrimination in Employment Act pursuant to this court's order entered on August 6, 2009 646 F.Supp.2d 1272 (N.D.Ala. 2009), the above-entitled action, insofar as it presents a claim pursuant to the Age Discrimination in Employment Act, is hereby DISMISSED WITH PREJUDICE. Culver's other claims are unaffected. The court hereby expressly finds and determines that there is no just reason for delay in the entry of final judgment, and the Clerk is DIRECTED to enter final judgment in favor of all defendants and against plaintiff as to his claim brought pursuant to the Age Discrimination in Employment Act. MEMORANDUM OPINION