                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                Nos. 07-1490/1492
                                  ___________

Jack Gross,                            *
                                       *
      Appellant/Cross-Appellee,        *
                                       *   Appeals from the United States
      v.                               *   District Court for the
                                       *   Southern District of Iowa.
FBL Financial Services, Inc.,          *
                                       *
              Defendant,               *
                                       *
FBL Financial Group, Inc.,             *
                                       *
      Appellee/Cross-Appellant,        *
                                       *
Iowa Farm Bureau Federation; Farm      *
Bureau Mutual Insurance Company;       *
William Oddy,                          *
                                       *
              Defendants.              *

                                  ___________

                             Submitted: November 1, 2007
                                Filed: May 14, 2008 (Corrected May 14, 2008;
                                        June 3, 2008)
                                 ___________

Before MELLOY, COLLOTON, and BENTON, Circuit Judges.
                          ___________

COLLOTON, Circuit Judge.
       FBL Financial Group (FBL) appeals a jury verdict in favor of Jack Gross, an
employee who alleged that FBL violated the Age Discrimination in Employment Act
(ADEA) by demoting him because of his age in 2003. FBL challenges the final jury
instructions adopted by the district court, the district court’s decision to exclude
certain testimony, and the court’s denial of FBL’s motions for judgment as a matter
of law. Gross cross-appeals the district court’s order denying an award of attorney’s
fees. Because we conclude that the jury was not instructed correctly on a material
issue, we reverse and remand for a new trial.

                                         I.

       Jack Gross was born in 1948. He has worked at FBL Financial Group since
1987. He was promoted up the ranks in 1990, 1993, 1997, and 1999, arriving
ultimately at the position of Claims Administration Vice President. During a company
reorganization in 2001, Gross was reassigned to the position of Claims Administration
Director. His job responsibilities did not change, but Gross viewed this reassignment
as a demotion, because it reduced his points under the company’s point system for
salary grades. In 2003, FBL reassigned Gross to the position of Claims Project
Coordinator. At that time, many responsibilities associated with the Claims
Administration Director position were transferred to a new position, entitled Claims
Administration Manager, which was assigned to Lisa Kneeskern, an employee in her
early forties. Gross’s new Claims Project Coordinator position had the same salary
points and pay grade as Kneeskern’s position, but Gross contends that the
reassignment was a demotion, because Kneeskern assumed the functional equivalent
of Gross’s former position, and his new position was ill-defined and lacked a job
description or specifically assigned duties.

      Gross brought suit in April 2004, alleging that FBL demoted him in 2003
because of his age, in violation of the ADEA. After a five-day trial, a jury found in
favor of Gross, and awarded him $46,945 in lost compensation. During trial, the

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district court excluded testimony from FBL’s vice president of claims concerning
information he had received from Gross’s co-workers regarding Gross’s performance.
The court also overruled FBL’s objections to final jury instructions, including those
that set forth the elements of the claim and the burdens of proof, and denied FBL’s
motion for judgment as a matter of law. After trial, the district court denied FBL’s
renewed motion for judgment as a matter of law based on sufficiency of the evidence,
and FBL’s motion for a new trial based on the alleged evidentiary errors. These
matters give rise to the present appeal.

                                          II.

       We consider first FBL’s objection to the final jury instructions concerning the
elements of the claim and the burden of proof. The ADEA makes it unlawful for an
employer to take adverse action against an employee “because of such individual’s
age.” 29 U.S.C. § 623(a). This prohibition was “derived in haec verba from Title
VII,” Lorillard v. Pons, 434 U.S. 575, 584 (1978), which makes it unlawful to
discriminate against an individual “because of such individual’s race, color, religion,
sex, or national origin.” 42 U.S.C. § 2000e-2(a).

       The Supreme Court, in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), and Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), addressed the burdens
of proof and persuasion that apply to a plaintiff’s claim that he was discriminated
against “because of” an enumerated factor under Title VII. Given the similarity of
language between Title VII and the ADEA, we have applied both decisions to our
analysis of claims under the ADEA. Thomas v. First Nat’l Bank of Wynne, 111 F.3d
64, 66 (8th Cir. 1997); see also Holley v. Sanyo Mfg., Inc., 771 F.2d 1161, 1164 (8th
Cir. 1985) (applying McDonnell Douglas to an ADEA case, “[b]ecause the ADEA
grew out of Title VII . . . and because much of the language of the ADEA parallels
that of Title VII”).



                                         -3-
       McDonnell Douglas established a burden-shifting framework for evaluating
claims of discrimination. Under this framework, a plaintiff must first establish a
prima facie case of discrimination, which creates a rebuttable presumption of a
statutory violation, and shifts the burden of production to the employer. The
employer must rebut this presumption by producing a legitimate, non-discriminatory
reason for its actions. When it does so, the presumption disappears, and “the sole
remaining issue is discrimination vel non.” Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 143 (2000) (internal quotation omitted). The burden of persuasion
remains with the plaintiff throughout this analysis. Id.

        Price Waterhouse was a splintered decision that addressed the proper approach
to causation where an employer is motivated by both permissible and impermissible
considerations. We have held that Justice O’Connor’s opinion concurring in the
judgment is the controlling opinion that sets forth the governing rule of law. See
Erickson v. Farmland Indus., Inc., 271 F.3d 718, 724 (8th Cir. 2001). According to
this rule, to justify shifting the burden of persuasion on the issue of causation to the
defendant, a plaintiff must show “by direct evidence that an illegitimate factor played
a substantial role” in the employment decision. Price Waterhouse, 490 U.S. at 275
(O’Connor, J., concurring in judgment). “Direct evidence” for these purposes is
evidence “showing a specific link between the alleged discriminatory animus and the
challenged decision, sufficient to support a finding by a reasonable fact finder that an
illegitimate criterion actually motivated” the adverse employment action. Thomas,
111 F.3d at 66 (internal quotation and brackets omitted). It does not extend to “stray
remarks in the workplace,” “statements by nondecisionmakers,” or “statements by
decisionmakers unrelated to the decisional process itself.” Price Waterhouse, 490
U.S. at 277 (O’Connor, J., concurring in judgment).

       When a plaintiff makes the requisite showing of direct evidence, the “burden
then rests with the employer to convince the trier of fact that it is more likely than not
that the decision would have been the same absent consideration of the illegitimate

                                           -4-
factor.” Id. at 276. Under this approach, a district court should receive all of the
evidence in a case, and then determine “whether the McDonnell Douglas or Price
Waterhouse framework properly applies to the evidence before it.” Id. at 278. If a
plaintiff fails to present “direct evidence” that an illegitimate criterion played a
“substantial role” in the employment decision, then the case should be decided under
McDonnell Douglas framework, and the burden of persuasion should remain at all
times with the plaintiff. Id. at 278-79.

       The district court in this case charged the jury that Gross had the burden to
prove that (1) FBL demoted Gross to Claims Project Coordinator on January 1, 2003,
and (2) that Gross’s age was “a motivating factor” in FBL’s decision to demote Gross.
Final Jury Instruction No. 11. The instruction continued that the jury’s verdict must
be for FBL, however, “if it has been proved by a preponderance of the evidence that
defendant would have demoted plaintiff regardless of his age.” Id.

       Under our court’s application of Price Waterhouse, this instruction was not
correct. The Price Waterhouse rule calls for a shift in the burden of persuasion only
upon a demonstration by direct evidence that an illegitimate factor played a
substantial role in an adverse employment decision. See 490 U.S. at 275 (O’Connor,
J., concurring in judgment); Erickson, 271 F.3d at 724. The disputed instruction,
however, provided that if Gross proved by any evidence – direct or otherwise – that
age was “a motivating factor” in the employment decision, then the burden shifted to
FBL to prove that its decision would have been the same absent consideration of
Gross’s age.1 Gross conceded that he did not present “direct evidence” of

      1
       Our court concluded in Glover v. McDonnell Douglas Corp., 981 F.2d 388,
394-95 (8th Cir. 1992), that there was no material difference between the phrases
“substantial role” and “motivating factor,” although Glover was vacated on other
grounds by the Supreme Court, see 510 U.S. 802 (1993), and our court’s subsequent
opinion in Glover did not expressly reaffirm the analysis of the previous opinion,
which has no precedential value. See Glover v. McDonnell Douglas Corp., 12 F.3d
845, 848 n.3 (8th Cir. 1994). It is unnecessary to consider the issue here.

                                         -5-
discrimination, (Appellant’s App. 596), so a mixed motive instruction was not
warranted under the Price Waterhouse rule. Gross’s claim should have been analyzed
under the McDonnell Douglas framework. The burden of persuasion should have
remained with the plaintiff throughout, and the jury should have been charged to
decide whether the plaintiff proved that age was the determining factor in FBL’s
employment action. See Rockwood Bank v. Gaia, 170 F.3d 833, 842-43 (8th Cir.
1999).

        Gross contends that there was no error, because the Civil Rights Act of 1991
and the Supreme Court’s decision in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003),
supersede Price Waterhouse and our precedents applying Price Waterhouse to the
ADEA. Section 107 of the 1991 Act amended Title VII by adding § 2000e-2(m):
“Except as otherwise provided in this subchapter, an unlawful employment practice
is established when the complaining party demonstrates that race, color, religion, sex,
or national origin was a motivating factor for any employment practice, even though
other factors also motivated the practice.” 42 U.S.C. § 2000e-2(m). This section does
supersede Price Waterhouse and its requirement of “direct evidence” in the context
of Title VII claims, and it makes “motivating factor” the touchstone of the analysis for
liability. To obtain a jury instruction under § 2000e-2(m), therefore, a plaintiff need
only present sufficient evidence of any kind for a reasonable jury to find that one of
the enumerated criteria was “a motivating factor” for an employment practice. Desert
Palace, 539 U.S. at 101.

      We conclude, however, that § 2000e-2(m) does not apply to claims arising
under the ADEA. By its terms, the new section applies only to employment practices
in which “race, color, religion, sex, or national origin” was a motivating factor. When
Congress amended Title VII by adding § 2000e-2(m), it did not make a corresponding
change to the ADEA, although it did address the ADEA elsewhere in the 1991 Act.
See Lewis v. Young Men’s Christian Assoc., 208 F.3d 1303, 1305 & n.2 (11th Cir.
2000) (per curiam). Accordingly, the Third Circuit has held that “the Civil Rights


                                          -6-
Act of 1991 does not apply to ADEA cases,” and it continues to apply the Price
Waterhouse framework in that context. Glanzman v. Metro. Mgmt. Corp., 391 F.3d
506, 512 n.3 (3d Cir. 2004). The Eleventh Circuit concluded that the 1991 Act did not
supersede Price Waterhouse as applied to ADEA retaliation claims. Lewis, 208 F.3d
at 1305. The Fourth Circuit has reasoned that “ADEA mixed-motive cases remain
subject to the burden-shifting rules of Price Waterhouse,” EEOC v. Warfield-Rohr
Casket Co., Inc., 364 F.3d 160, 164 n.2 (4th Cir. 2004), and has suggested (without
holding) that the requirement of direct evidence still applies, noting that “maintaining
the higher evidentiary burden in Price Waterhouse for ADEA claims is not
implausible, given that age is often correlated with perfectly legitimate, non-
discriminatory employment decisions.” Mereish v. Walker, 359 F.3d 330, 340 (4th
Cir. 2004). See also Smith v. City of Jackson, 544 U.S. 228, 240 (2005) (observing
that “[w]hile the relevant 1991 amendments expanded the coverage of Title VII, they
did not amend the ADEA or speak to the subject of age discrimination,” and holding
that “the Court’s pre-1991 interpretation of Title VII’s identical language remains
applicable to the ADEA” insofar as the scope of disparate-impact liability is
concerned); cf. Norbeck v. Basin Elec. Power Coop., 215 F.3d 848, 852 (8th Cir.
2000) (holding that the 1991 Act does not apply to retaliation claims).

       Gross argues nonetheless that the decision in Desert Palace shows that the
Price Waterhouse analysis no longer should govern his ADEA claim. Gross relies in
particular on a Fifth Circuit decision, Rachid v. Jack in the Box, Inc., 376 F.3d 305,
312-13 (5th Cir. 2004), which applied the analysis of Desert Palace to claims under
the ADEA. Rachid held that because the relevant language in the ADEA – “because
of such individual’s age” – is “silent as to the heightened direct evidence standard,”
a plaintiff need not present “direct evidence” of discrimination to receive a mixed-
motives analysis for an ADEA claim.2

      2
        Insofar as summary judgment is concerned, Rachid is inconsistent with our
circuit precedent. The Fifth Circuit in Rachid concluded that Desert Palace, which
involved jury instructions in a Title VII case, dictated a change in the standard for

                                          -7-
       We are not persuaded that Desert Palace dictates a modification of our
precedents regarding the ADEA. Desert Palace did hold that the Price Waterhouse
framework is inapplicable to claims arising under Title VII and § 2000e-2(m). But
the Court began its analysis by specifying that the case presented the “first opportunity
to consider the effects of the 1991 Act on jury instructions in mixed motive cases.”
539 U.S. at 98 (emphasis added). The Court then rejected the employer’s argument
that the 1991 Act did nothing to abrogate Justice O’Connor’s opinion in Price
Waterhouse (assuming that opinion is controlling), because the employer’s contention
was “inconsistent with the text of § 2000e-2m.” Id. The Court observed that § 2000e-
2m requires only that the plaintiff “demonstrat[e]” that the employer used a forbidden
consideration, that the 1991 Act explicitly defines the term “demonstrates,” and that
the text of the new statute thus left “little doubt that no special evidentiary showing”
– such as “direct evidence” – is required. Id. at 99.

       While Desert Palace gave weight to the fact that § 2000e-2m, on its face, “does
not mention, much less require, that a plaintiff make a heightened showing through
direct evidence,” id. at 98-99, the opinion focused on the particular text of the 1991
Act and the effects of that statute on jury instructions in mixed motive cases. When
the Court previously addressed statutory text comparable to the ADEA in Price
Waterhouse – “because of such individual’s . . . sex,” 42 U.S.C. §§ 2000e-2(a)(1), (2)
(emphasis added) – the result was a fragmented decision from which our court
adopted Justice O’Connor’s concurring opinion as the controlling rule. The Court in
Desert Palace declined to address which opinion in Price Waterhouse was
controlling, 539 U.S. at 98, or to revisit Price Waterhouse’s interpretation of a statute,
unadorned by § 2000e-2m, that prohibits discrimination “because of” an enumerated


summary judgment decisions under the ADEA. Our court has held, however, that
because Desert Palace involved jury instructions after a trial, the decision does not
affect our court’s analysis of motions for summary judgment under Title VII, much
less under the ADEA. See Griffith v. City of Des Moines, 387 F.3d 733, 736 (8th Cir.
2004).

                                           -8-
factor. Even if some of the analysis in Desert Palace may seem inconsistent with the
controlling rule from Price Waterhouse, the Court did not speak directly to the vitality
of this previous decision, and it continues to be controlling where applicable. See
Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989).
Our cases have concluded that because Price Waterhouse interpreted language
identical to that found in the ADEA, we should follow the Price Waterhouse rule in
ADEA cases. Desert Palace does not undermine the rationale of these decisions. We
thus conclude that the Price Waterhouse rule continues to govern mixed motive
instructions in an ADEA case.3

       Under our court’s interpretation of Price Waterhouse, the final instruction in
this case was not correct. Because the instruction shifted the burden of persuasion on
a central issue in the case, the error cannot be deemed harmless. M.M. v. Special Sch.
Dist. No. 1, 512 F.3d 455, 459 (8th Cir. 2008); West Platte R-II Sch. Dist. v. Wilson,
439 F.3d 782, 785 (8th Cir. 2006). Accordingly, we reverse and remand for a new
trial.

                                          III.

       We briefly address the other instructional and evidentiary issues raised by FBL,
because they may recur in a new trial. See Andrews v. Neer, 253 F.3d 1052, 1062 (8th
Cir. 2001).



      3
        Even were we to accept Gross’s argument that Desert Palace undermines the
Price Waterhouse distinction between “direct” and other evidence for purposes of the
ADEA (as opposed to Title VII), that conclusion would not necessarily support the
disputed jury instruction in this case. We would be left to consider the meaning of
“because of such individual’s age” anew, without any distinction between direct and
other evidence, but also without the “motivating factor” standard for liability set forth
in § 2000e-2m, and without the corresponding partial affirmative defense of 42 U.S.C.
§ 2000e-5(g)(2)(B).

                                          -9-
        FBL requested that the district court give a final instruction to the jury that
included this sentence: “Defendant is entitled to make its own subjective personnel
decisions, absent intentional age discrimination, even if the factor motivating the
decision is typically correlated with age, such as pension status, salary or seniority.”
The court’s final instruction included only the first half of this sentence, omitting the
italicized clause.

        We do not think the district court’s instruction on this point was an abuse of
discretion. “The form and language of jury instructions are committed to the sound
discretion of the district court so long as the jury is correctly instructed on the
substantive issues in the case.” White v. Honeywell, Inc., 141 F.3d 1270, 1278 (8th
Cir. 1998) (internal quotation omitted). The court’s formulation allowed FBL to argue
that it demoted Gross for any reason “absent intentional age discrimination.” The
court was not required to list examples of such reasons in a jury instruction.

        FBL also appeals the district court’s decision to exclude testimony from FBL’s
vice president of claims, Andy Lifland, about complaints that he heard from Gross’s
coworkers about Gross’s performance in the workplace. In a post-trial order, the court
agreed with FBL that our precedent allows testimony about such complaints when the
employer shows that it took action on the basis of the information. See Crimm v. Mo.
Pac. R.R. Co., 750 F.2d 703, 709 (8th Cir. 1984). The court defended its ruling,
however, on the ground that the record at trial, including FBL’s offer of proof, was
insufficient to establish that Lifland received and relied on the complaints. As such,
the dispute now seems focused on whether FBL laid a sufficient foundation for the
presentation of Lifland’s testimony, not on the legal question whether Lifland’s
proposed testimony would be inadmissible hearsay if there were adequate foundation
for it. FBL will have a new opportunity to lay an adequate foundation in a new trial,
and we do not think it would be productive to offer an opinion at this time concerning
the sufficiency of the previous offer of proof.



                                          -10-
       FBL also contends that the district court should have granted judgment as a
matter of law in its favor. Because we remand the case for a new trial, we need not
consider whether there was sufficient evidence for a hypothetical jury, properly
instructed, to return a verdict in favor of Gross. See Dennis v. Dillard Dept. Stores,
Inc., 207 F.3d 523, 526 (8th Cir. 2000); Hauser v. Krupp Steel Producers, Inc., 761
F.2d 204, 206 n.1 (5th Cir. 1985). We also need not consider Gross’s cross appeal
concerning attorney’s fees.

      For the foregoing reasons, we reverse and remand for a new trial.
                      ______________________________




                                        -11-
