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ADEA Issue of First Impression Discussed, Not Decided

By Gabriella Khorasanee, JD | Last updated on

The Seventh Circuit seems to be a breeding ground for ADEA jurisprudence -- that doesn't get decided. Just this term, the U.S. Supreme Court granted certiorari in Madigan v. Levin, and soon after oral arguments, dismissed the case as improvidently granted.

Last week, the Seventh Circuit had the opportunity to decide an issue of first impression for the circuit. Pump your brakes; don't get too excited because no sooner than the court said "issue of first impression," it also declined to decide the issue.

Here we go again...

Factual Background

James Reynolds worked for the U.S. General Services Administration ("GSA") for more than 30 years, when he was passed up for a promotion. A 62-year-old white man, Reynolds was not selected for the job; instead, Antoine Bell, a 32-year-old black man, got the job. As a result, Reynolds initiated a federal suit alleging violations of the Age Discrimination in Employment Act ("ADEA") for age discrimination, Title VII of the Civil Rights Act for race and sex discrimination, and retaliation claims under both the ADEA and Title VII.

Reynolds' retaliation claims did not survive summary judgment because he failed to exhaust his administrative remedies, and he dropped his Title VII claim. The only claim to survive and go to trial was his ADEA claim. Finding a lack of evidentiary support, the district court rejected the claim, and Reynolds appealed.

Federal-Sector ADEA Claims

Of several issues raised on appeal, the only one of note, and of first impression for the Seventh Circuit was whether ADEA federal-sector claims under § 633a require a showing of causation that is "but-for" or "mixed motives." Reynolds argued that "but-for" causation was not necessary, and relied on a D.C. Circuit case as his only support.

The Seventh Circuit seemed to give more support to the dissenting opinion in the D.C. Circuit case which noted that it would be inapposite to have a standard for the federal government that "was totally at odds with that for a private employer." The court also noted the Supreme Court's "flat declaration" in Gross v. FBL Financial Services Inc. -- that "the mixed-motives theory 'is never proper in an ADEA case.'"

Nonetheless, the Seventh Circuit declined to decide the issue. Because the district court made alternative findings, and found that Reynolds failed to meet both the "but-for" and "mixed-motives" tests, the Seventh Circuit affirmed.


The Seventh Circuit is not the only one to skirt the issue. Both the First and Fifth Circuits have discussed, but not resolved the issue, while the Ninth Circuit has held that for federal-sector ADEA claims, "but-for" causation is required.

If we want an answer from the Seventh Circuit, we'll have to wait for another day.

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