The opinion of the court was delivered by: Garnett Thomas Eisele United States District Judge
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This Order is entered in substitution for the Court's ruling from the bench at the conclusion of the bench trial on January 10, 2007.*fn1
At issue in this case is whether R.E. Rogers discriminated against the Plaintiff Michael Johnson on the basis of his age, 51, when Rogers failed to select Plaintiff for a GS-11 general attorney position. Mr. Rogers is chief of the Office of Counsel for the U.S. Army Corps of Engineers, Little Rock District. The Court previously issued a Memorandum Opinion and Order, therein discussing the facts surrounding Mr. Johnson's claim. (Order filed 12/21/2006, Docket # 22). The facts presented at trial were consistent with the facts discussed in the Court's prior Order (although the Order did not specifically address Plaintiff's age discrimination claim).
The Court must resolve the following factual disputes: (1) whether Plaintiff's age played a part in Mr. Rogers' decision not to hire the Plaintiff; and (2) whether Plaintiff would have been selected for the position in the absence of any considerations of age. Those factual disputes are discussed in greater detail below.
Legal Analysis - Pretext or Mixed-Motive?
The Age Discrimination in Employment Act (ADEA) (29 U.S.C.A. §§ 621 et seq.) makes it unlawful for an employer to discriminate against an individual with respect to compensation, terms, conditions, or privileges of employment because of an individual's age. Age discrimination cases have typically been analyzed under the same approach used in Title VII cases. Two alternative approaches have developed for analyzing discrimination cases -- the McDonnell/Douglas*fn2 pretext analysis, or the Price-Waterhouse*fn3 mixed-motive analysis.
In a mixed motive case, a plaintiff who proves that a prohibited factor was a motivating factor or played a part in a defendant's decision is entitled to prevail unless the defendant proves that it would have made the same decision even if it had not considered the prohibited factor. See 8th Circuit Model Jury Instruction 5.11B. A mixed motive analysis proceeds on the presumption that a forbidden motive influenced the challenged employment decision.
In Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S.Ct. 2148 (2003), the Supreme Court held that direct evidence is not necessary to prove employment discrimination in mixed motive cases under Title VII. Prior to Desert Palace, some courts had assumed that a mixed motive approach could only be used where a plaintiff could point to direct evidence of discriminatory motive. Desert Palace lessens the focus on "direct evidence" by providing that a discrimination plaintiff "need only present sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that race, color, religion, sex, or national origin was a motivating factor for any employment practice." Id., 123 S.Ct. at 2155 (internal italics omitted). Desert Palace was a Title VII case. To this Court's knowledge, neither the Supreme Court nor the Eighth Circuit have specifically ruled on whether the same standard applies in age discrimination cases. There is an apparent disagreement among the Circuits on the issue. Compare Rachid v. Jack in the Box, Inc., 376 F.3d 305, 311 (5th Cir. 2004)(extending Desert Palace to ADEA) with EEOC v. Warfield-Rohr Casket, Inc., 364 F.3d 160, 164, n.1 (4th Cir. 2004)(expressing doubt that Desert Palace would be applied to the ADEA).
The Court assumes for purposes of this case that if the Eighth Circuit were presented with the issue it would hold that an age discrimination plaintiff is entitled to the benefit of a mixed-motive analysis where the proof justifies such an approach and that it would not require proof of direct evidence to apply such an analysis.*fn4 However, this Court foresees potential problems with extending the Desert Palace analysis to make it easier to apply a mixed motive analysis case without first making some adjustments for the fact that age is different from the Title VII prohibited factors. Age, unlike sex or race, is frequently correlated with legitimate employer concerns such as the impact on an organization of an aging workforce. And so the difficult question arises: how does an employer walk the fine line between legitimate employer concerns and age discrimination. Or, stated otherwise, which age-related factors should it be safe to consider in making employment decisions?
Arguably, the proof in this case is sufficient to trigger analysis under the mixed-motive approach even absent the application of Desert Palace. The decision-maker in this case, Mr. Rogers, made age-related comments that are arguably sufficient to constitute direct evidence of an age based animus. These comments are discussed in greater detail below. The Court concludes that a mixed-motive analysis is appropriate in this case, either because Plaintiff has presented sufficient evidence that age was a motivating factor, as required by Desert Palace, or because Plaintiff has presented direct evidence of age based animus.
Plaintiff Would Not Have Been Selected for the Position
The Court begins by answering the critical question in this case: whether Mr. Johnson would have been hired absent the alleged age discrimination. The Defendant bears the burden of proving that it would have rejected Mr. Johnson's application for the position absent any consideration of Mr. Johnson's age.
The Court concludes that the Plaintiff Michael Johnson would not have been selected for the General Attorney GS 11 position he sought in March of 2001, whether or not Mr. Rogers favored Mr. Petty because of his age or considered Mr. Johnson's age. The Court accepts Mr. Rogers' testimony that Mr. Johnson was not the most qualified of the four candidates considered for the position. The Court also accepts Mr. Rogers' testimony that he would not have offered the position to Mr. Johnson in any event.
Mr. Rogers's testimony on this point is credible. It is supported by the conclusion of the independent panel, which ranked all nine applicants and then passed on the top four rated applicants to Mr. Rogers. Mr. Johnson (age 51) was ranked last with Mr. Benton (age 54) ranked first and Mr. Petty (age 34) and Mr. Hughes (age 52) tied for second. In fact, Mr. Johnson's name came close to not even being submitted since the panel originally intended to send Mr. Rogers a list of the ...