Eighth Circuit indicates its application of Desert Palace v. Costa; says 2 months too long for inference of retaliation
In Trammel v. Simmons Bank (9/23/03), an age discrimination case, the Eighth Circuit, faced with no “direct evidence,” applied the familiar McDonnell-Douglas burden shifting approach. Assuming the plaintiff had presented a prima facie case, it conluded the employer had presented a legitimate, nondiscriminatory reason that the plaintiff failed to prove pretextual. It then said:
“We note that the Supreme Court recently held that under the current language of Title VII . . . a plaintiff may be entitled to a mixed motive jury instruction without presenting direct evidence of discrimination if he or she shows that discrimination was a ‘motivating factor’ in the adverse employment decision. See DesertPa!ace, Inc. v. Costa, 123 S. Ct. 2148, 2155 (2003). In the past we have required direct evidence, which is not present here, to support a mixed motive claim. . . . But even if we assume, without deciding, that the holding in Costa applies to ADEA claims, we do not believe that this helps [the plaintiff] because he has presented insufficient evidence to support a finding that his age was a “motivating factor” in the decision to discharge him.”
It’s far from clear that Costa applies to ADEA claims, as it relied exclusively on the language of the Civil Rights Act of 1991, which is not expressly applicable to such claims. But the court suggests that in applying Costa, it will continue to follow McDonnell-Douglas. So a plaintiff can’t get a mixed motive instruction until he/she either proves discrimination by direct evidence or under McDonnell-Douglas. So what does Costa change?
The court also dealt with a retaliation claim, citing several cases to support its conclusion that a time interval of more tham two months between protected conduct and adverse action is “too long to support an inference of discrimination.”
