                           In the

United States Court of Appeals
              For the Seventh Circuit

No. 08-4010

K ATHLEEN A. SERWATKA,
                                                Plaintiff-Appellee,
                               v.

R OCKWELL A UTOMATION, INC.,
                                            Defendant-Appellant.


           Appeal from the United States District Court
              for the Eastern District of Wisconsin.
              No. 06 C 1012—Lynn Adelman, Judge.



     A RGUED M AY 14, 2009—D ECIDED JANUARY 15, 2010




  Before R OVNER and E VANS,              Circuit    Judges,   and
V AN B OKKELEN, District Judge.
  R OVNER, Circuit Judge. Kathleen A. Serwatka filed suit
against her former employer, Rockwell Automation, Inc.
(“Rockwell”), under the Americans with Disabilities Act,
42 U.S.C. §§ 12101, et seq. (the “ADA”), alleging that



  The Honorable Joseph S. Van Bokkelen, of the Northern
District of Indiana, sitting by designation.
2                                                  No. 08-4010

Rockwell discharged her because it regarded her as being
disabled, despite her ability to perform the essential
functions of her job. A jury agreed with Serwatka, ans-
wering “Yes” to the following question on the special
verdict form: “Did defendant terminate plaintiff due to
its perception that she was substantially limited in her
ability to walk or stand?” R. 115 at 1. But the jury also
answered “Yes” to this follow-up question: “Would
defendant have discharged plaintiff if it did not believe
she was substantially limited in her ability to walk
or stand, but everything else remained the same?” R. 115
at 1-2.
  The district court treated the jury’s answers to these
two questions as a mixed-motive finding, that is, a
finding that Rockwell’s decision to fire Serwatka was
the product of both lawful and unlawful motives. Serwatka
v. Rockwell Automation, Inc., 583 F. Supp. 2d 994, 996 (E.D.
Wis. 2008). See generally Price Waterhouse v. Hopkins, 490
U.S. 228, 109 S. Ct. 1775 (1989). On appeal, Rockwell has
taken issue with this characterization of the jury’s
special verdict, but we have no reason to question the
district court’s understanding of what the jury found, and,
in any event, Rockwell did not make this contention
below in its post-trial brief opposing Serwatka’s request
for relief based on the jury’s verdict. R. 122; see, e.g., Int’l
Prod. Specialists, Inc. v. Schwing Am., Inc., 580 F.3d 587, 598
(7th Cir. 2009) (arguments not made to the district court
are waived). The more pertinent issue is whether the
jury’s mixed-motive finding entitles Serwatka to judg-
ment in her favor and to the relief that the district court
awarded her. Rockwell contends that it does not, given the
No. 08-4010                                                  3

provisions of the ADA and the Supreme Court’s recent
decision in Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343
(2009). We agree. Our analysis of this issue begins with
Price Waterhouse.
   In Price Waterhouse, a plurality of the Supreme Court
recognized that an employer may violate Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et. seq. (“Title
VII”), when it relies upon one of the grounds that
the statute forbids employers from considering in em-
ployment decisions (i.e., race, color, religion, sex, or
national origin), even if the proscribed criterion was not
the sole reason for the employer’s decision. “Title VII [was]
meant to condemn even those decisions based on a
mixture of legitimate and illegitimate considerations.” 490
U.S. at 241, 109 S. Ct. at 1785. But in recognition of the
balance that Congress struck between eliminating invidi-
ous employment discrimination and preserving an em-
ployer’s prerogative to employ whomever it wishes, the
Court’s majority also held that an employer would bear
no liability for a mixed-motive employment decision if it
would have made the same decision absent the illegal
motive. Id. at 242, 244-45, 258, 109 S. Ct. at 1786, 1787-88,
1795 (plurality); id. at 261 n.*, 109 S. Ct. at 1796 n* (White,
J., concurring in the judgment); id. at 261, 279, 109 S. Ct. at
1796, 1806 (O’Connor, J., concurring in the judgment).
The Court assigned the burden of persuasion on that
point to the employer. Thus, once a plaintiff has proven
that a proscribed criterion played a motivating role in
the employer’s adverse decision, the employer assumes
the burden of proving by a preponderance of the
evidence that it would have made the same decision
4                                                 No. 08-4010

even if the illegal factor had played no role in its
decisionmaking. See id. at 258, 109 S. Ct. at 1795 (plurality);
id. at 259-69, 109 S. Ct. at 1795 (White, J., concurring in the
judgment); id. at 276, 109 S. Ct. at 1804 (O’Connor, J.,
concurring in the judgment).
  Although Price Waterhouse dealt solely with Title VII,
lower courts, including our own, have applied its princi-
ples to cases brought under other anti-discrimination
statutes. See McNutt v. Bd. of Trustees of U. of Ill., 141 F.3d
706, 707 (7th Cir. 1998). The ADA is of course among
those statutes. See Parker v. Columbia Pictures Indus., 204
F.3d 326, 336-37 (2d Cir. 2000) (Sotomayor, J.) (coll. ADA
cases applying Price Waterhouse methodology, including
Foster v. Arthur Andersen, LLP, 168 F.3d 1029, 1033-34 (7th
Cir. 1999)); but see Hedrick v. W. Reserve Case Sys., 355
F.3d 444, 457 (6th Cir. 2004) (plaintiff must show that his
or her disability was the sole reason for the adverse
employment action).
  When Congress enacted the Civil Rights Act of 1991, it
took two actions with respect to the then-recent Price
Waterhouse decision that have particular relevance here.
Section 107(a) of the Act added a provision to Title VII
which expressly deemed unlawful any employment
practice motivated by a person’s race, color, religion, sex,
or national origin, “even though other factors also moti-
vated the practice,” thereby codifying that aspect of Price
Waterhouse. P.L. 102-166, 105 Stat. 1071, 1075, codified at
42 U.S.C. § 2000e-2(m). But whereas the Supreme
Court’s holding relieved an employer of all liability for
a mixed-motive decision once it convinced the factfinder
No. 08-4010                                                 5

that it would have taken the same adverse employment
action in the absence of the illegal motive, Congress
amended Title VII to authorize limited relief to the
plaintiff in such cases. Specifically, section 107(b) of the
Act added a second provision to the statute stating that
in mixed-motive cases, when an employer has shown
that it would have taken the same action in the absence
of the illegal motive, a court may award the plaintiff
both declaratory and injunctive relief, along with her
attorney’s fees and costs, but may not award damages
nor order the plaintiff hired, reinstated to her former
position, or promoted. 105 Stat. at 1075-76, codified at 42
U.S.C. § 2000e-5(g)(2)(B).
  The enforcement provision of the ADA incorporates
certain of the remedies provided for employment dis-
crimination in Title VII:
    The powers, remedies, and procedures set forth in
    sections 2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9
    shall be the powers, remedies, and procedures this
    subchapter provides to . . . any person alleging dis-
    crimination on the basis of disability in violation of any
    provision of this chapter . . . concerning employment.
42 U.S.C. § 12117. Among the provisions of Title VII cross-
referenced is section 2000e-5, which, in relevant part and as
we have just noted, authorizes a court to award certain
types of relief to a plaintiff based on a mixed-motive
finding.
  In light of the jury’s mixed-motive finding here, and
section 12117’s cross-reference to the remedies authorized
by Title VII, the district court concluded that Serwatka
6                                              No. 08-4010

was entitled to no damages, but was entitled to the
other sorts of relief authorized by section 2000e-
5(g)(2)(B)(i). 583 F. Supp. 2d 994. The court granted
Serwatka declaratory relief in its judgment order, which
noted that her discharge had been motivated in part by
Rockwell’s perception that she was disabled. Id. at 996-97,
1000; R. 134. It also granted her injunctive relief in the
form of a directive that Rockwell place a copy of the
judgment in Serwatka’s personnel file. 583 F. Supp. 2d at
996-97, 1000. The court found further that Serwatka was
entitled to an award of attorney’s fees and costs. It rea-
soned that her suit had “some merit,” in view of the
jury’s mixed-motive finding, and had “served the public
purpose of discouraging discrimination in employment.”
583 F. Supp. 2d at 998. “Plaintiff also obtained some,
although minimal, non-monetary relief.” Id. But given
the modest nature of the relief Serwatka had won and
the lack of evidence that Rockwell bore any “unwar-
ranted animus” toward her or had engaged in a pattern
of disability discrimination, the court found that she
was not entitled to fees for all of the time her attorneys
had spent litigating the case nor to all of her costs. Id.
After determining that Serwatka had reasonably
incurred fees and costs in the total amount of $153,290.54,
id. at 999, the court reduced that total by eighty percent
and awarded her fees and costs in the amount of
$30,658.11, id. at 1000.
  Rockwell’s appeal challenges both the declaratory and
injunctive relief that the district court granted to
Serwatka as well as the award of fees and costs. Despite
the jury’s finding that Rockwell’s perception of Serwatka’s
No. 08-4010                                               7

limitations played some role in its decision to discharge
her, the company contends that the additional finding
that it would have terminated Serwatka regardless of that
perception compels the entry of judgment in its favor
rather than Serwatka’s. Rockwell argues that the mixed-
motive analysis that the district court relied on as a basis
for its decision to grant Serwatka limited relief is inap-
plicable to the ADA. It raises other arguments as well in
its challenge to the forms of relief that the court awarded,
but in view of the Supreme Court’s opinion in Gross,
decided shortly after we heard oral argument in this case,
the applicability of the mixed-motive framework is the
only argument that we need to address.
  Gross held that because the Age Discrimination in
Employment Act, 29 U.S.C. §§ 621 et seq. (“ADEA”), lacks
the language found in Title VII expressly recognizing
mixed-motive claims, such claims are not authorized by
the ADEA. Although such language was also missing
from the pre-1991 version of Title VII that the Court had
applied in Price Waterhouse, the Court found it significant
that in the wake of its Price Waterhouse decision, Congress
had amended Title VII to explicitly authorize mixed-
motive discrimination claims. See § 2000e-2(m). Congress
had also specified a limited set of remedies for such mixed-
motive claims in section 2000e-5(g)(2)(B). But Congress
had not similarly amended the ADEA. Its failure to do so
suggested to the Court that Congress had decided not to
authorize mixed-motive claims in age discrimination
cases. 129 S. Ct. at 2349. Consequently, the burden-
shifting framework that the Court had set forth in Price
Waterhouse did not apply in ADEA cases. Id. at 2349-50.
The governing standard instead derived from the
8                                                   No. 08-4010

language of the ADEA that forbids an employer from
taking adverse action against any individual “because of
such individual’s age.” 29 U.S.C. § 623(a)(1) (emphasis
supplied). “The words ‘because of’ mean ‘by reason of: on
account of.’ Thus, the ordinary meaning of the ADEA’s
requirement that an employer took adverse action
‘because of’ age is that age was the ‘reason’ that the
employer decided to act.” 129 S. Ct. at 2350 (citations
omitted). In order to prevail on a claim of disparate
treatment under the ADEA, then, “a plaintiff must prove
that age was the ‘but-for’ cause of the employer’s adverse
decision.” Id.; see also id. at 2351, 2352. In other words, proof
that the plaintiff’s age was a motivating factor, but not a
determinative factor, in the employer’s decision, will not
suffice to establish the employer’s liability. See id. at 2352.
  Although the Gross decision construed the ADEA, the
importance that the court attached to the express incorpo-
ration of the mixed-motive framework into Title VII
suggests that when another anti-discrimination statute
lacks comparable language, a mixed-motive claim
will not be viable under that statute. Our recent decision
in Fairley v. Andrews, which dealt with a First Amend-
ment claim brought under 42 U.S.C. § 1983, reflects that
understanding of the Supreme Court’s decision: “Gross . . .
holds that, unless a statute . . . provides otherwise, demon-
strating but-for causation is part of the plaintiff’s burden
in all suits under federal law.” 578 F.3d 518, 525-26
(7th Cir. 2009), petition for cert. filed (U.S. Dec. 21, 2009)
(No. 09-745).
  Whether the ADA permits a mixed-motive claim (and
corresponding relief) therefore turns on the language of
No. 08-4010                                                       9

the statute and the presence or absence of text akin to that
of Title VII which authorizes mixed-motive claims. The
version of the ADA applicable to this case in relevant
part provides that “[n]o covered entity shall discriminate
against a qualified individual with a disability because
of the disability of such individual in regard to job ap-
plication procedures, the hiring, advancement, or dis-
charge of employees, employee compensation, job training,
and other terms, conditions, and privileges of employ-
ment.” 42 U.S.C. § 12112(a) (2008) (emphasis supplied).1
(The term “disability,” of course, is defined to in-



1
  Pursuant to the ADA Amendments Act of 2008, Congress has
made substantial changes to the ADA which took effect on
January 1, 2009. Among other revisions, the language of the
statute has been modified to prohibit an employer from dis-
criminating against an individual “on the basis of disability.” 42
U.S.C. § 12112(a) (2009) (emphasis supplied). Whether “on the
basis of” means anything different from “because of,” and
whether this or any other revision to the statute matters in
terms of the viability of a mixed-motive claim under the ADA,
are not questions that we need to consider in this appeal. The
amendments took effect nearly a year after this case was tried
in February 2008 and nearly four and one-half years after
Serwatka was discharged in June 2004. To the extent that any
of the revisions might support a mixed-motive claim where the
language of the prior version of the statute did not, they
presumptively would not apply to conduct which took place
prior to their effective date absent a clear indication from
Congress that the changes were intended to apply retroactively.
See Landgraf v. USI Film Prods., 511 U.S. 244, 280, 114 S. Ct. 1483,
1505 (1994); Kiesewetter v. Caterpiller Inc., 295 Fed. Appx. 850,
851 (7th Cir. 2008).
10                                              No. 08-4010

clude perceived as well as actual limitations. 42 U.S.C.
§ 12102(3).) Gross makes clear that in the absence of any
additional text bringing mixed-motive claims within the
reach of the statute, the statute’s “because of” language
demands proof that a forbidden consideration—here, the
employee’s perceived disability—was a “but for” cause
of the adverse action complained of.
   There is no provision in the governing version of the
ADA akin to Title VII’s mixed-motive provision. See Parker,
supra, 204 F.3d at 336 (“the ADA includes no explicit
mixed-motive provision”); Foster, supra, 168 F.3d at 1033
(“Congress omitted the ADA from the purview of
Section 107[(a) [of the Civil Rights Act [of 1991]”). The
closest thing to such a provision is section 12117(a), which
as we have noted makes available to ADA plaintiffs the
same “powers, remedies, and procedures set forth in
sections 2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9”
for Title VII plaintiffs. In that respect, the ADA is
different from the ADEA, which lacks a similar cross-
reference.2 Yet, although section 12117(a) cross-references
the remedies set forth in section 2000e-5(g)(2)(B) for mixed-
motive cases, it does not cross-reference the provision
of Title VII, section 2000e-2(m), which renders employers
liable for mixed-motive employment decisions. See John L.
Flynn, Note, Mixed-Motive Causation Under the ADA:



2
  The ADEA, see 29 U.S.C. § 626(b), instead cross-references
the powers, remedies, and procedures of the Fair Labor Stan-
dards Act, which itself lacks a mixed-motives provision, see
29 U.S.C. § 215.
No. 08-4010                                              11

Linked Statutes, Fuzzy Thinking, and Clear Statements, 83
Geo. L. J. 2009, 2042 (1995) (“The motivating factor amend-
ment [to Title VII] is not a power, remedy, or procedure;
it is, instead, a substantive standard of liability.”). Like
the ADEA, the ADA renders employers liable for em-
ployment decisions made “because of” a person’s disabil-
ity, and Gross construes “because of” to require a showing
of but-for causation. Thus, in the absence of a cross-refer-
ence to Title VII’s mixed-motive liability language or
comparable stand-alone language in the ADA itself, a
plaintiff complaining of discriminatory discharge under
the ADA must show that his or her employer would
not have fired him but for his actual or perceived disabil-
ity; proof of mixed motives will not suffice.
  Our decision in McNutt, supra, 141 F.3d 706, drives this
point home. The plaintiff in McNutt sued his employer
under Title VII, alleging that his job assignments were
the product of both race discrimination and retaliation
for the assertion of his statutory rights. Although a jury
rejected his claim of race discrimination, it did agree
that retaliation was a factor in the job assignments he
was given. However, the jury also found that he would
have been given the same assignments even if retaliation
had not figured into his employer’s decisionmaking.
Based on the jury’s mixed-motive finding as to retalia-
tion, the district court granted the plaintiff injunctive
relief barring any additional retaliation and awarded
the plaintiff his attorney’s fees and costs. We vacated
the judgment order, concluding that this relief was not
authorized by Title VII. Absent from the language
added to Title VII by the Civil Rights Act of 1991 was any
12                                              No. 08-4010

recognition that an adverse employment decision moti-
vated in part by retaliation but also by one or more legiti-
mate factors constituted a violation of Title VII; mixed-
motive decisions based in part on race, color, religion, sex,
and national origin were mentioned in section 2000e-2(m),
but mixed-motive decisions based on retaliation were
not. Id. at 707-08. “The omission of retaliation claims
from this new provision affects the relief that courts can
grant.” Id. at 708. Whereas section 2000e-5(g)(2)(B) autho-
rized a court to grant declaratory and injunctive relief
and an award of a plaintiff’s attorney’s fees and costs in
the types of mixed-motive cases listed in section 2000e-
2(m), the omission of retaliation from that list meant
that such relief was unavailable to a plaintiff who
had shown that retaliation was a motivating but not a but-
for cause of the adverse employment action taken against
him. Id. at 708-09. We noted in McNutt that two other
courts of appeals had reached this conclusion, id. at 709,
and when we subsequently reaffirmed McNutt’s holding
in Speedy v. Rexnord Corp., 243 F.3d 397, 406-07 (7th Cir.
2001), we noted that additional circuits had reached the
same conclusion.
  McNutt confirms the import of explicit statutory lan-
guage rendering an employer liable for employment
decisions that were motivated in part by a forbidden
consideration but which the employer still would have
made in the absence of that proscribed motive. In the
absence of such language, the limited remedies that
Title VII otherwise makes available to plaintiffs in such
cases (and which are cross-referenced by the ADA) are
foreclosed. Only by proving that a forbidden criterion
No. 08-4010                                                  13

was a but-for cause of the decision can the plaintiff avail
herself of relief. In that respect, McNutt is consistent
with the Supreme Court’s subsequent decision in Gross.
  Serwatka did not show that her perceived disability
was a but-for cause of her discharge. Although the jury
agreed with her that Rockwell’s perception of her limita-
tions contributed to the discharge, it also found
that Rockwell would have terminated Serwatka notwith-
standing the improper consideration of her (perceived)
disability. Relief is therefore not available to her under
the ADA, and Rockwell was entitled to judgment in its
favor. Cf. McNutt, 141 F.3d at 709.
  The district court certainly cannot be faulted for not
anticipating the Supreme Court’s decision in Gross; our
own prior decisions had held that mixed-motive claims
were viable under ADA. See, e.g., Foster, 168 F.3d at 1033-
34. But in view of the Court’s intervening decision in
Gross, it is clear that the district court’s decision to award
Serwatka declaratory and injunctive relief along with a
portion of her attorney’s fees and costs cannot be sus-
tained. The relief awarded to Serwatka was premised
solely on the jury’s mixed-motive finding,3 and as we



3
  There is a separate provision of the ADA granting the district
court the discretion to award attorney’s fees and costs to a
prevailing party other than the United States. 42 U.S.C.
§ 12205(a). But the court did not rely on this provision in
awarding Serwatka a portion of her fees and costs, see 583
F. Supp. 2d at 997, and Serwatka herself has never claimed to
                                                 (continued...)
14                                              No. 08-4010

have explained, given the lack of a provision in the ADA
recognizing mixed-motive claims, such claims do not
entitle a plaintiff to relief for disability discrimination.
  The judgment is therefore V ACATED , and the case is
R EMANDED to the district court with directions to enter
judgment in favor of Rockwell. The parties shall bear
their own costs of appeal.




3
  (...continued)
qualify as a prevailing party who is entitled to her fees and
costs under this provision. See Serwatka Br. 17.



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