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Gross v. FBL Fin. Servs.

Supreme Court of the United States

March 31, 2009, Argued; June 18, 2009, Decided

No. 08-441


Justice Thomas delivered the opinion of the Court.

The question presented by the petitioner in this case is whether a plaintiff must present direct evidence of age discrimination  [*170]  in order to obtain a mixed-motives jury instruction in a suit brought under the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, as amended, 29 U.S.C. § 621 et seq. Because we hold that such a jury instruction  [****6] is never proper in an ADEA case, we vacate the decision below.

Petitioner Jack Gross began working for respondent FBL Financial Group, Inc. (FBL), in 1971. As of 2001, Gross held the position of  [***125] claims administration director. But in 2003, when he was 54 years old, Gross was reassigned to the position of claims project coordinator. At that same time, FBL transferred many of Gross' job responsibilities to a newly created position--claims administration manager. That position was given to Lisa Kneeskern, [**2347]  who had previously been supervised by Gross and who was then in her early forties. App. to Pet. for Cert. 23a (District Court opinion). Although Gross (in his new position) and Kneeskern received the same compensation, Gross considered the reassignment a demotion because of FBL's reallocation of his former job responsibilities to Kneeskern.

In April 2004, Gross filed suit in District Court, alleging that his reassignment to the position of claims project coordinator violated the ADEA, which 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). The case proceeded to trial, where Gross introduced evidence suggesting  [****7] that his reassignment was based at least in part on his age. FBL defended its decision on the grounds that Gross' reassignment was part of a corporate restructuring and that Gross' new position was better suited to his skills. See App. to Pet. for Cert. 23a (District Court opinion).

At the close of trial, and over FBL's objections, the District Court instructed the jury that it must return a verdict for Gross if he proved, by a preponderance of the evidence, that FBL "demoted [him] to claims projec[t] coordinator" and  [*171]  that his "age was a motivating factor" in FBL's decision to demote him. App. 9-10. The jury was further instructed that Gross' age would qualify as a "'motivating factor,' if [it] played a part or a role in [FBL]'s decision to demote [him]." Id., at 10. The jury was also instructed regarding FBL's burden of proof. According to the District Court, the "verdict must be for [FBL] . . . if it has been proved by the preponderance of the evidence that [FBL] would have demoted [Gross] regardless of his age." Ibid.  The jury returned a verdict for Gross, awarding him $46,945 in lost compensation. Id., at 8.

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557 U.S. 167 *; 129 S. Ct. 2343 **; 174 L. Ed. 2d 119 ***; 2009 U.S. LEXIS 4535 ****; 77 U.S.L.W. 4531; 106 Fair Empl. Prac. Cas. (BNA) 833; 92 Empl. Prac. Dec. (CCH) P43,584; 21 Fla. L. Weekly Fed. S 958


Subsequent History: On remand at, Remanded by Gross v. FBL Fin. Servs., 588 F.3d 614, 2009 U.S. App. LEXIS 25920 (8th Cir. Iowa, Nov. 30, 2009)


Gross v. FBL Fin. Servs., 526 F.3d 356, 2008 U.S. App. LEXIS 10355 (8th Cir. Iowa, 2008)

Disposition: 526 F.3d 356, vacated and remanded.


mixed-motives, but-for, direct evidence, cases, causation, motive, burden of persuasion, motivating factor, demote, sex, preponderance of evidence, employment decision, age discrimination, plurality opinion, plurality, provisions, marks, adverse employment action, affirmative defense, quotation, words, instructions, reassignment, construing

Labor & Employment Law, Age Discrimination, Scope & Definitions, General Overview, Evidence, Burdens of Proof, Civil Procedure, US Supreme Court Review, Appeals, Reviewability of Lower Court Decisions, Preservation for Review, Disparate Treatment, Discrimination, Title VII Discrimination, Governments, Legislation, Interpretation, Mixed Motives, Burdens of Proof, Burden Shifting