             Case: 11-14481   Date Filed: 01/17/2013   Page: 1 of 22

                                                                       [PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                       ________________________

                              No. 11-14481
                        ________________________

                     D.C. Docket No. 1:09-cv-01333-JOF


SOLOMON SIMS, JR.,

                                                              Plaintiff-Appellant,

                                    versus

MVM, INC.,

                                                             Defendant-Appellee.


                       __________________________

                 Appeal from the United States District Court
                     for the Northern District of Georgia
                       _________________________

                              (January 17, 2013)

Before DUBINA, Chief Judge, CARNES and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge:
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       This is an Age Discrimination in Employment Act of 1967 (“ADEA”) case.

See 29 U.S.C. §621 et seq. Solomon Sims, Jr., claims that his former employer,

MVM, Inc., discriminated against him on account of his age when it terminated

his employment. MVM defended its decision by denying that Sims’ age, 71, was

the reason for his discharge; rather, he was separated due to a reduction in force

(“RIF”).

       Following discovery, the district court granted MVM summary judgment,

concluding that no reasonable fact finder could find that MVM’s decision was

“but-for” his age, i.e., that MVM would have kept him on the job but-for his age.

Sims now appeals, contending that material issues of fact preclude summary

judgment.1 After thorough review of the record and with the benefit of oral

argument, we affirm.2

                                               I.



       1
               Sims also contends that the district court erred in granting MVM’s motion to
exclude the affidavit of B.J. Schultz. As it turned out, the district court judge considered the
affidavit and concluded that it did not change his opinion of the case. We agree. Schultz merely
corroborates Sims’ testimony concerning discriminatory animus on the part of Davis.
       2
               We review a trial court’s grant of a motion for summary judgment de novo,
viewing the record and drawing all reasonable inferences in the light most favorable to the non-
moving party. HR Acquisition I Corp. v. Twin City Fire Ins. Co., 547 F.3d 1309, 1313-14 (11th
Cir. 2008). Summary judgment is proper “if the movant shows that there is no genuine dispute
as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a).


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      In November 2007, MVM contracted with The GEO Group, Inc., to provide

secure custody and transport services for federal prisoners in U.S. Marshals

Service custody that were being held by GEO at various detention centers around

Atlanta, Georgia. It was a start-up contract, meaning that a previous contract did

not exist. Thus, MVM had to acquire a workforce. MVM began performance of

the contract in February 2008. Arnold Perkins, who had come aboard in January

2008, became Project Manager. Tom Davis was hired as Assistant Project

Manager about the same time as Perkins.

      Shortly after MVM entered into the contract with GEO, Sims applied for a

job with MVM as Operations Supervisor. On December 7, 2007, he was offered

and accepted the supervisory position at the Robert A. Deyton Detention Facility

in Lovejoy, Georgia. He reported for work in January 2008.

      As Operations Supervisor, Sims was responsible for reviewing government

manifest and remand documentation and utilizing information they provided to

make the arrangements and prepare the paperwork necessary for the transportation

of prisoners between different locations. Davis was Sims’ immediate supervisor.

In time, Davis found Sims’ performance deficient in that he made more errors than

other supervisors working on the MVM-GEO contract. In Davis’s view, Sims

never improved his performance or fully grasped his job duties.


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      When Perkins became Project Manager, the contract was approximately

$485,000 over budget for 2008 due to excessive hiring and costs entailed in

training new hires. In March 2008, MVM Vice President Robert Matthews,

Perkins’ supervisor, notified Perkins that he needed to reduce the number of

supervisors, eight, working on the contract. Perkins disagreed with Matthews’s

assessment and delayed taking any action. On Thursday, August 7, 2008,

Matthews instructed Perkins to cut two positions by the following Monday.

Perkins immediately scheduled a group meeting with all eight supervisors and

Davis. During the meeting, he informed them of Matthews’s RIF directive that

two supervisor positions had to be eliminated. After this group meeting, Perkins

and Davis met with the supervisors individually to advise them of their RIF status.

Perkins advised Schultz and Sims during the individual meetings that they were to

be included in the RIF.

      Perkins could not testify precisely as to when he finalized his decision on

whom to include in the RIF because he had known for five months that he

probably would have to lay off some supervisors and had been constantly

evaluating the poorer performers. However, it is clear that he had reached at least

a tentative decision – during his five-month evaluations and before the meetings

with the supervisors and Davis – that Sims was at the bottom of the list in terms of


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performance. One of Perkins’ jobs was to review every “mission” that was put

together, and each mission contained the names of the supervisors that prepared

them. In the course of going through each mission, Perkins knew which

supervisors were having trouble preparing them and which were not. Based on

Perkins’ personal observations, Sims was at the bottom of the list in terms of,

among other factors, total quality and accuracy. In addition, Perkins personally

observed that Sims was uncomfortable using the computers used to produce the

transportation documentation and that it was taking him longer to prepare these

documents than the other supervisors. Other supervisors also told Perkins that

they were occasionally correcting Sims’ documentation before it was submitted to

Perkins for review. Some of the supervisors cited this concern during their

individual meetings with Perkins and Davis on Friday, August 8.

      During the individual meetings between the supervisors and Davis and

Perkins, Perkins asked the supervisors whom they would recommend for the RIF.

Perkins testified that this was just for his knowledge and perspective because his

RIF decisions had already been made. On the other hand, based on the fact that

Perkins asked each of the eight supervisors for their input before announcing his

decision, Davis was of the opinion that Perkins had not made a definitive decision




                                         5
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until after seeking input from the supervisors. Nonetheless, it is undisputed that

each supervisor except Sims recommended that Sims be included in the RIF.

      After notifying Sims that he was included in the RIF, Perkins offered Sims a

position as Transportation Officer working at the same facility;3 Perkins believed

that Sims’ background education and knowledge would be valuable to MVM.

Sims considered the offer a demotion and rejected it. During this conversation,

the matter of Sims’ age came up, but the parties dispute who first brought it up.

However, it is clear that Sims told Perkins his age toward the end of the

conversation.

      In the charge of age discrimination he filed with the Equal Employment

Opportunity Commission (“EEOC”), Sims identified the period of discrimination

as May 15, 2008, through August 8, 2008. He alleged that Davis (at some point

during that time span) told him that he was “too slow in performing [his] job,”

that, “If we have a cutback in management, I’m going to recommend you be

terminated,” and, “mind you, age has nothing to do with it.” Although not

included in his EEOC charge, Sims also asserts now that Davis at some unknown

time stated, “You’re old and slow.” Sims does not assert that Davis made any

other age-related comments that he felt were derogatory. The EEOC charge


      3
             Perkins also offered Schultz a position as a Transportation Officer; she declined.

                                              6
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contained no other allegations aside from Perkins’ statement (on August 8) that

MVM needed to “cut back on the number of supervisors.” Sims never heard any

other manager make a derogatory age-related comment to him or about him.

                                          II.

      The ADEA prohibits employers from discharging an employee who is at

least 40 years of age because of that employee’s age. 29 U.S.C. §§623(a)(1),

631(a). The ADEA provides, in relevant part, that “[i]t shall be unlawful for an

employer . . . to fail or refuse to hire or to discharge any individual or otherwise

discriminate against any individual with respect to his compensation, terms,

conditions, or privileges of employment, because of such individual’s age.” Id.

§623(a)(1). In Gross v. FBL Financial Services, Inc., 557 U.S. 167, 176, 129 S.

Ct. 2343, 2350, 174 L. Ed. 2d 119 (2009), the Supreme Court held that the

language “because of” in the ADEA statute means that a plaintiff must prove that

discrimination was the “but-for” cause of the adverse employment action. See id.

(“To establish a disparate-treatment claim under the plain language of the ADEA,

therefore, a plaintiff must prove that age was the ‘but-for’ cause of the employer’s

adverse decision.”); see also id. (explaining that the claim “cannot succeed unless

the employee’s protected trait actually played a role in [the employer’s decision-

making] process and had a determinative influence on the outcome” (citing Hazen


                                           7
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Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S. Ct. 1701, 1706 (1993)); W.

Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on Law of Torts

265 (5th ed. 1984) (“An act or omission is not regarded as a cause of an event if

the particular event would have occurred without it.”).

      A plaintiff can establish age discrimination through either direct or

circumstantial evidence. Mora v. Jackson Mem’l Found., Inc., 597 F.3d 1201,

1204 (11th Cir. 2010). Prior to Gross, we consistently evaluated ADEA claims

based on circumstantial evidence of discrimination under the burden-shifting

framework in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817

(1973). See, e.g., Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th Cir. 2000)

(en banc). Under this framework, a plaintiff must first establish a prima facie case

of discrimination. Id. at 1024. Next, the defendant must articulate a legitimate,

non-discriminatory reason for the challenged employment action. Id. If the

defendant articulates one or more such reasons, the plaintiff is afforded an

opportunity to show that the employer’s stated reason is a pretext for

discrimination. See Kragor v. Takeda Pharm. Am., Inc., __ F.3d __, No. 11-

16052, 2012 WL 6618360, at *2 (11th Cir. Dec. 20, 2012) (citing Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S. Ct. 2097, 2106

(2000); McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1925). The burden of


                                          8
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persuasion always remains on the plaintiff in an ADEA case to proffer evidence

sufficient to permit a reasonable fact finder to conclude that the discriminatory

animus was the “but-for” cause of the adverse employment action. See Gross, 557

U.S. at 176, 129 S.Ct. at 2350.

      Following Gross, we have continued to evaluate ADEA claims based on

circumstantial evidence under the McDonnell Douglas framework. See Kragor,

__ F.3d at __, 2012 WL 6618360, at *2. This is not only consistent with our pre-

Gross case law, but also it is entirely consistent with Gross, which expressly left

open the question of whether this application is appropriate. Gross, 557 U.S. at

175 n.2, 129 S. Ct. at 2349 n.2 (“[T]he Court has not definitively decided whether

the evidentiary framework of [McDonnell Douglas] utilized in Title VII cases is

appropriate in the ADEA context.”). Gross held that it is improper to shift the

burden of persuasion to the defendant in an age-discrimination case. Id. at 173,

129 S. Ct. at 2348 (“[W]e must first determine whether the burden of persuasion

ever shifts to the party defending an alleged mixed-motives discrimination claim

brought under the ADEA. We hold that it does not.” (footnote omitted)). But the

McDonnell Douglas framework does not shift the burden of persuasion to the

defendant; instead, once the employee establishes a prima facie case of

discrimination, the burden of production is shifted to the employer to articulate a


                                           9
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legitimate, non-discriminatory reason for the adverse employment action. See

Tex. Dep’t of Comm. Affairs v. Burdine, 450 U.S. 248, 254-55, 101 S.Ct. 1089,

1094-95 (1981). If the employer offers a legitimate, non-discriminatory reason,

the employee is afforded an opportunity to show that the employer’s stated reason

is a pretext for discrimination. See id. at 256, 101 S.Ct. at 1095; see also Kragor,

__ F.3d at __, 2012 WL 6618360, at *2. Importantly, throughout this entire

process, the ultimate burden of persuasion remains on the employee. See St.

Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506-07, 113 S.Ct. 2742, 2747 (1993)

(“It is important to note, however, that although the McDonnell-Douglas

presumption shifts the burden of production to the defendant, ‘[t]he ultimate

burden of persuading the trier of fact that the defendant intentionally discriminated

against remains at all times with the plaintiff.’”) (citation omitted); see also Willis

v. Conopco, Inc., 108 F.3d 282, 286 (11th Cir. 1997).

      Our continued application of the McDonnell Douglas framework in ADEA

cases is also consistent with all of our sister circuits that have addressed the issue.

See Fleishman v. Cont’l Cas. Co., 698 F.3d 598, 604 (7th Cir. 2012) (citing

Senske v. Sybase, 588 F.3d 501, 506-07 (7th Cir. 2009)); Shelley v. Geren, 666

F.3d 599, 607 (9th Cir. 2012); Gorzynski v. JetBlue Airways Corp., 596 F.3d 93,

106 (2d Cir. 2010); Jackson v. Cal-Western Packaging Corp., 602 F.3d 374, 378


                                          10
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(5th Cir. 2010); Jones v. Okla. City Pub. Sch., 617 F.3d 1273, 1278 (10th Cir.

2010); Geiger v. Tower Auto., 579 F.3d 614, 622 (6th Cir. 2009); Smith v. City of

Allentown, 589 F.3d 684, 690-91 (3d Cir. 2009); Velez v. Thermo King de Puerto

Rico, Inc., 585 F.3d 441, 446-47 (1st Cir. 2009); see also Gibson v. Am. Greetings

Corp., 670 F.3d 844, 855 (8th Cir. 2012) (continuing to apply McDonnell Douglas

to ADEA cases without discussion of Gross), cert. denied, 133 S.Ct. 313 (2012).

      Although our Kragor decision and our holding today reaffirm the use of the

McDonnell Douglas framework in ADEA cases, this framework is not the sine

qua non for a plaintiff to survive summary judgment in a discrimination case. See

Smith v. Lockheed Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011). Instead,

“the plaintiff will always survive summary judgment if he presents circumstantial

evidence that creates a triable issue concerning the employer’s discriminatory

intent.” Id. A triable issue of fact exists “if the record, viewed in a light most

favorable to the plaintiff, presents a convincing mosaic of circumstantial evidence

that would allow a jury to infer intentional discrimination by the decisionmaker.”

Id. (footnote omitted) (internal quotation marks omitted).




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                                                III.

       This case involves circumstantial evidence of discrimination,4 and we elect

to apply the McDonnell Douglas framework to Sims’ claims. The record in this

case is clear that Perkins was the decision-maker. Sims makes two arguments on

appeal. First, he argues that Perkins himself was biased. Second, he argues that

Davis was biased and that Perkins acted as a mere cat’s paw for Davis’s

discriminatory animus.

                                                A.

       Sims first argues that a reasonable jury could find that Perkins himself was

biased and that his age discrimination was the “but-for” factor in Perkins’ decision

to lay off Sims. We disagree.

       Assuming arguendo, as the district court did, that Sims has established a

prima facie case of age discrimination in an RIF claim, Sims cannot sustain his

burden of proving that Perkins’ age discrimination was the “but-for” cause of his



       4
                MVM points out that Sims never directly argues that this is a case involving direct
evidence of discrimination. This is true, and the only “argument” Sims makes that there is direct
evidence of discrimination is one heading titled “direct evidence” in his briefs to this Court. But,
even assuming that this is enough to “argue” that any evidence is direct evidence, direct evidence
must conclusively show that the employee was discriminated against without any inference or
presumption. See Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir. 2004). Under
the heading for “direct evidence,” Sims states that “[s]uch an unsolicited age-based statement
creates an inference of discrimination.” Sims has not presented any direct evidence of
discrimination.

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inclusion in the RIF. MVM clearly articulates legitimate, non-discriminatory

reasons for Sims’ inclusion in the RIF – namely, that budget constraints forced it

to eliminate two supervisor positions. See, e.g., Coutu v. Martin Cnty. Bd. of

Cnty. Comm’rs, 47 F.3d 1068, 1073 (11th Cir. 1995) (holding that an RIF based

on budgetary constraints was a legitimate, non-discriminatory reason for

termination).

       There is very little, if any, evidence of pretext. There is virtually no

evidence of age bias on the part of Perkins, who was 61 himself at the time.5

Perkins testified that, after he advised Sims that his position had to be eliminated

and offered Sims a position as Transportation Officer, Sims rejected the offer and

asked if his inclusion in the RIF was because of his age. Perkins said it was not;

he told Sims that he was unaware of Sims’ age and that he was the oldest person

working on the project. In reply, Sims told Perkins he was born in 1937 and that

he (Sims) was in fact the oldest on the project. Contrary to Perkins’ testimony,

Sims testified that it was Perkins who, after advising Sims of the RIF, first brought

up age, saying out of the blue, “I’m older than you.” Sims urges us to draw an




       5
               In fact, Sims himself testified that he is not aware of any evidence that Perkins
selected him for the RIF because of his age.

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inference of age bias based on the fact that Perkins followed his bad news with a

denial of knowledge of Sims’ age.

      Even assuming Sims’ version of who first mentioned age, we are doubtful

that that gives rise to a reasonable inference of age bias. Even if there were a

weak inference, it would be further weakened in light of Sims’ own testimony that

Perkins expressed surprise after Sims told him that he (Sims) was 71, and in light

of Sims’ deposition testimony that he was aware of no evidence that Perkins

selected him for the RIF because of his age. We conclude that the record reveals

either no evidence at all of age bias on the part of Perkins, or an inference so weak

(especially as compared to the overwhelming evidence of the legitimacy of

Perkins’ decision) that it would fall far short of satisfying Sims’ burden of proving

that age bias on the part of Perkins was the “but-for” cause of Perkins’ selection of

Sims. It is undisputed that Perkins’ own independent evaluation was that Sims

was at the bottom of the list of supervisors when comparing their relative job

performance. It is also undisputed that every supervisor other than Sims himself

thought Sims was one of the two who should be laid off. In sum, the weak or

nonexistent inference of age bias urged by Sims simply cannot carry Sims’ burden

in light of the record evidence.




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                                                B.

       Sims also argues that Perkins, the decision-maker, acted as a mere cat’s paw

for Davis’s discriminatory animus, and accordingly MVM is liable.6 Prior to the

recent Supreme Court decision in Staub v. Proctor Hospital, __ U.S. __, 131 S.Ct.

1190 (2011), we applied the cat’s paw analysis to ADEA cases. See, e.g., Wright

v. Southland Corp., 187 F.3d 1287, 1304 n.20 (11th Cir. 1999); Pennington v.

City of Huntsville, 261 F.3d 1262, 1270 (11th Cir. 2001); Stimpson v. City of

Tuscaloosa, 186 F.3d 1328, 1331 (11th Cir. 1999) (Title VII case).

       Sims argues that the Supreme Court’s decision in Staub modifies our

previous case law applying the cat’s paw theory and lowers the burden for

plaintiffs in cases involving the ADEA. This is an issue of first impression for this

Court. We consider whether, or to what extent, Staub has modified our cat’s paw

analysis in ADEA cases.

       We first examine the Supreme Court’s recent Staub decision. In the context

of an employer’s alleged liability under the Uniformed Services Employment and



       6
                “Cat’s paw” theory of liability, also referred to as “subordinate bias theory,” is
liability seeking to hold an employer liable for the animus of a supervisor who was not charged
with making the ultimate employment decision. Staub v. Proctor Hosp., __ U.S. __, 131 S.Ct.
1186, 1190 (2011). For an explanation of how the term “cat’s paw” was derived, see id. at 1190
n.1.

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Reemployment Rights Act of 1994 (“USERRA”),7 the Court defined the

circumstances under which an employer could be liable when the decision-maker

has no discriminatory animus but is influenced by a subordinate supervisor’s

action that is the product of such discriminatory animus (cat’s paw liability). The

Court held that the employer could be liable only if the subordinate supervisor (1)

performs an act motivated by antimilitary animus that is intended to cause an

adverse employment action, and (2) that act is a proximate cause of the ultimate

employment action. Staub, __ U.S. at __, 131 S.Ct. at 1194.

       Sims urges us to apply this analysis to this case. But the text of the

USERRA and the ADEA differ in important respects. The USERRA (and Title

VII)8 requires that a plaintiff demonstrate discrimination by showing that the

proscribed bias was a “motivating factor” in the adverse decision. 38 U.S.C.

§4311(c) (USERRA); 42 U.S.C. §§2000e-2(m), 2000e-5(g)(2)(B) (Title VII). As

the Court in Staub emphasized, this “motivating factor” causation standard is

simply the traditional tort law standard of proximate cause, requiring only “some



       7
               The USERRA prohibits adverse employment action on the basis of a person’s
obligation to perform military service where antimilitary animus is a motivating factor in the
employer’s action. 38 U.S.C. §4311(a), (c).
       8
                Although the Supreme Court did not directly extend its holding in Staub to Title
VII cases, it acknowledged that “[t]he [USERRA] statute is very similar to Title VII.” Staub, __
U.S. at __, 131 S.Ct. at 1189.

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direct relation between the injury asserted and the injurious conduct alleged, and

excludes only those link[s] that are too remote, purely contingent, or indirect.” __

U.S. at __, 131 S.Ct. at 1192 (internal quotation marks omitted). By contrast, the

ADEA states that it is unlawful if an employee suffers adverse employment action

“because of such individual’s age.” 29 U.S.C. §623(a)(1) (emphasis added).

Thus, “to establish a disparate-treatment claim under the plain language of the

ADEA, . . . a plaintiff must prove that age was the ‘but-for’ cause of the

employer’s adverse decision.” Gross, 557 U.S. at 176, 129 S.Ct. at 2350. As

noted above, a “but-for” cause requires a closer link than mere proximate

causation; it requires that the proscribed animus have a determinative influence on

the employer’s adverse decision. Id.

       As the Supreme Court cautions, “we ‘must be careful not to apply rules

applicable under one statute to a different statute without careful and critical

examination.’” Id. at 174, 129 S.Ct. at 2349 (quoting Fed. Exp. Corp. v.

Holowecki, 552 U.S. 389, 393, 128 S Ct. 1147, 1153 (2008)). And the ADEA

requires more than what must ordinarily be proven under an analogous Title VII or

USERRA action.9 See Simmons v. Sykes Enters., Inc., 647 F.3d 943, 949-50 (“If

       9
               Congress amended Title VII in 1991, adding that the discriminatory animus must
be the “motivating factor” of the adverse action. 42 U.S.C. §2000e–2(m); see also Gross, 557
U.S. at 174, 129 S.Ct. at 2349. But, even though it contemporaneously amended the ADEA in
several ways, Congress did not add such a provision to the ADEA. Gross, 557 U.S. at 174, 129

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we were to apply Staub directly to an age-discrimination case, the plaintiff would

then only need to prove her supervisor’s animus was somehow related to the

termination and not that the animus was necessary to bring about the

termination.”). Because the ADEA requires a “but-for” link between the

discriminatory animus and the adverse employment action as opposed to showing

that the animus was a “motivating factor” in the adverse employment decision, we

hold that Staub’s “proximate causation” standard does not apply to cat’s paw cases

involving age discrimination. In so holding, we follow the same holding by the

Tenth Circuit in Simmons, 647 F.3d at 949-50.

       However, Staub is primarily a case about agency principles and vicarious

liability, and nothing in Gross is inconsistent with the application of agency

principles to cat’s paw claims under the ADEA. All relevant case law, including

our own prior case law applying the cat’s paw theory in ADEA cases and the

Court’s decision in Staub, suggests that it is appropriate to apply agency principles

in determining vicarious liability of an employer. We have, for example, applied

agency principles to determine the definition of an “employer” under the ADEA.

See, e.g., Garcia v. Copenhaver, Bell & Assocs., M.D.’s, P.A., 104 F.3d 1256,

S. Ct. at 2349. As the Court indicated in Gross, “[w]hen Congress amends one statutory
provision but not another, it is presumed to have acted intentionally.” Id. (citing EEOC v.
Arabian Am. Oil Co., 499 U.S. 244, 256, 111 S.Ct. 1227, 1234 (1991)).


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1266-67 (11th Cir. 1997); Daughtrey v. Honeywell, Inc., 3 F.3d 1488, 1495-96

(11th Cir. 1993).

       Sims urges us to apply Staub’s agency principles as they relate to scienter,

and suggests that the Supreme Court in Staub set forth agency principles that

constitute a lower burden for plaintiffs in establishing cat’s paw, vicarious

employer liability, as compared to our prior ADEA case law. However, in this

case we need not, and do not, decide whether Staub changes in any way our prior

cat’s paw ADEA cases with respect to agency principles as they relate to scienter,

because we can accept Sims’ invitation and assume arguendo that the Staub

standard with respect to such agency principles does apply in the analysis for

determining an employer’s vicarious liability in ADEA cases. Even with this

assumption, Sims cannot prevail because Sims cannot satisfy the required

causation standard. In other words, with respect to agency principles relevant to

the scienter element, we can assume arguendo that Sims must prove only Staub’s

agency standard (i.e., that Davis performed an act motivated by discriminatory

animus that Davis intended to cause Sims’ lay off),10 and we can assume arguendo


       10
               The Court in Staub left open the issue of whether the biased supervisor must
intend the precise adverse employment action that resulted or whether it would suffice to have
intended an adverse, though different, employment action. See Staub, __ U.S. at __, 131 S.Ct. at
1192 n.2. Here, it is clear that Davis recommended that Sims be laid off and intended that Sims
be laid off.

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that Sims has satisfied such proof. However, as noted above, an ADEA plaintiff

must prove “but-for” causation – not mere proximate causation. Thus, to prevail,

Sims must prove that Davis’s animus was a “but-for” cause of, or a determinative

influence on, Perkins’ ultimate decision. For the reasons set out below, Sims

cannot satisfy this causation standard.

       Assuming arguendo that a reasonable juror could find, as set forth in the

Staub analysis, that Davis was motivated by discriminatory animus that was

intended to cause Sims’ lay off,11 we hold that a reasonable juror could not

conclude that Davis’s animus was a “but-for” cause of Sims’ termination. First,

Perkins testified that, because he had been aware for approximately five months

that he could not indefinitely put off the RIF, he had been constantly evaluating

the supervisors and their relative performance. Second, he testified unequivocally

that the decision was his own decision based on his own observations and

evaluations. In his opinion and based on his own personal observations, Sims was

at the bottom of the list of supervisors in terms of quality and accuracy of their

work product. Third, although he had consulted Davis in that they had been

       11
                We note that the evidence of discriminatory animus is rather weak. Sims asserts
in his deposition, but not in his EEOC charge, that Davis told him at some unknown time that he
was “old and slow.” In May 2008, Davis allegedly said that Sims was slower in his work and
that, if there was a cutback in staff, he would recommend Sims to be terminated, but, “Mind you,
age has nothing to do with it.” These are the only two instances where Sims alleges that Davis
made discriminatory age-related remarks.

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continually discussing the performance of all the supervisors, Perkins testified that

Davis’s opinion about Sims had been exactly the same as his own, thus merely

confirming Perkins’ own independent opinion. Fourth, in the individual meetings

which Perkins and Davis held with each of the eight supervisors, in which each

was asked for a recommendation as to the two who should be included in the RIF,

every supervisor except for Sims himself recommended that Sims should be one of

the two who had to be laid off. In sum, everyone whom Perkins consulted

recommended that Sims be one of the two who had to be laid off – that is,

everyone except Sims himself. In light of Perkins’ own five-month long

evaluations, in light of Perkins’ own independent judgment that Sims was at the

bottom of the list on performance, and in light of the unanimous opinion of all

persons consulted (except for Sims himself), we conclude that a reasonable juror

could not find that Davis’s animus was a “but-for” cause of Sims’ termination. It

is clear that Davis’s recommendation, even assuming arguendo it was tainted with

some discriminatory animus, was not a “determinative influence” on Perkins’

decision. See Gross, 557 U.S. at 176, 129 S.Ct. at 2350.




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                                       IV.

      Because Sims has not established that a reasonable juror could find that

Perkins’ discriminatory animus was the “but-for” cause of his termination, and

because Sims has similarly not established that Perkins acted as a mere cat’s paw

for Davis’s discriminatory animus, we affirm the district court’s grant of summary

judgment in favor of MVM.

      AFFIRMED.




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