           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           August 21, 2009
                                       No. 08-10168
                                                                       Charles R. Fulbruge III
                                                                               Clerk



DAVID BOYD,

                                                   Plaintiff-Appellant,

versus

GUIDANT SALES CORP.,

                                                   Defendant-Appellee.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                                No. 3:05-CV-1822




Before REAVLEY, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*


       David Boyd sued his employer, Guidant Sales Corporation (“Guidant”), un-
der the Age Discrimination in Employment Act (“ADEA”), alleging wrongful ter-



       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                   No. 08-10168

mination based on age. The jury answered “yes” to the following question: “Do
you find . . . that Defendant would have made the same decision to terminate
Plaintiff’s employment even in the absence of consideration of his age?” Pursu-
ant to the verdict, the district court entered judgment for Guidant.
      After briefing had been completed on appeal, the Supreme Court decided
Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009), holding that “a
mixed-motives jury instruction in a suit brought under the [ADEA] is never
proper . . . .” Id. at 2346. This means that under the ADEA, a plaintiff must es-
tablish but-for causation: that his employer would not have terminated him but
for his age. The jury’s affirmative answer to the but-for interrogatory shown
above dooms Boyd’s chances of reversal or remand.
      Even in light of Gross, Boyd argues for a new trial based on the jury’s “yes”
answers to the following questions:
        Do you find . . . that Plaintiff’s age was a motivating factor in De-
      fendant’s decision to terminate Plaintiff’s employment?

        Do you find . . . that Defendant wilfully violated the [ADEA] by
      discriminating against Plaintiff on the basis of age?

Those answers, however, satisfy only the now-repudiated mixed-motive theory
of ADEA liability. Boyd has had his chance to convince a jury that he would not
have been terminated but for his age, and he is not entitled to a new trial to at-
tempt to establish that element.
      The judgment, albeit reached without benefit of Gross, is correct. The dis-
trict court also did not abuse its discretion in its evidentiary rulings and did not
err as a matter of law in regard to the remaining issues on appeal. The judg-
ment is AFFIRMED.




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