United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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Nos. 07-1490/1492

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Jack Gross, *

*

Appellant/Cross-Appellee, *

* Appeals from the United States

v. * District Court for the 

* Southern District of Iowa. 

FBL Financial Services, Inc., *

*

Defendant, *

*

FBL Financial Group, Inc., *

*

Appellee/Cross-Appellant, *

*

Iowa Farm Bureau Federation; Farm *

Bureau Mutual Insurance Company; *

William Oddy, *

*

Defendants. *

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Submitted: November 1, 2007

Filed: May 14, 2008 (Corrected May 14, 2008;

June 3, 2008)

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Before MELLOY, COLLOTON, and BENTON, Circuit Judges.

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COLLOTON, Circuit Judge.
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FBL Financial Group (FBL) appeals a jury verdict in favor of Jack Gross, an

employee who alleged that FBL violated the Age Discrimination in Employment Act

(ADEA) by demoting him because of his age in 2003. FBL challenges the final jury

instructions adopted by the district court, the district court’s decision to exclude

certain testimony, and the court’s denial of FBL’s motions for judgment as a matter

of law. Gross cross-appeals the district court’s order denying an award of attorney’s

fees. Because we conclude that the jury was not instructed correctly on a material

issue, we reverse and remand for a new trial.

I.

Jack Gross was born in 1948. He has worked at FBL Financial Group since

1987. He was promoted up the ranks in 1990, 1993, 1997, and 1999, arriving

ultimately at the position of Claims Administration Vice President. During a company

reorganization in 2001, Gross was reassigned to the position of Claims Administration

Director. His job responsibilities did not change, but Gross viewed this reassignment

as a demotion, because it reduced his points under the company’s point system for

salary grades. In 2003, FBL reassigned Gross to the position of Claims Project

Coordinator. At that time, many responsibilities associated with the Claims

Administration Director position were transferred to a new position, entitled Claims

Administration Manager, which was assigned to Lisa Kneeskern, an employee in her

early forties. Gross’s new Claims Project Coordinator position had the same salary

points and pay grade as Kneeskern’s position, but Gross contends that the

reassignment was a demotion, because Kneeskern assumed the functional equivalent

of Gross’s former position, and his new position was ill-defined and lacked a job

description or specifically assigned duties.

Gross brought suit in April 2004, alleging that FBL demoted him in 2003

because of his age, in violation of the ADEA. After a five-day trial, a jury found in

favor of Gross, and awarded him $46,945 in lost compensation. During trial, the
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district court excluded testimony from FBL’s vice president of claims concerning

information he had received from Gross’s co-workers regarding Gross’s performance.

The court also overruled FBL’s objections to final jury instructions, including those

that set forth the elements of the claim and the burdens of proof, and denied FBL’s

motion for judgment as a matter of law. After trial, the district court denied FBL’s

renewed motion for judgment as a matter of law based on sufficiency of the evidence,

and FBL’s motion for a new trial based on the alleged evidentiary errors. These

matters give rise to the present appeal.

II.

We consider first FBL’s objection to the final jury instructions concerning the

elements of the claim and the burden of proof. The ADEA 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). This prohibition was “derived in haec verba from Title

VII,” Lorillard v. Pons, 434 U.S. 575, 584 (1978), which makes it unlawful to

discriminate against an individual “because of such individual’s race, color, religion,

sex, or national origin.” 42 U.S.C. § 2000e-2(a).

The Supreme Court, in McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973), and Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), addressed the burdens

of proof and persuasion that apply to a plaintiff’s claim that he was discriminated

against “because of” an enumerated factor under Title VII. Given the similarity of

language between Title VII and the ADEA, we have applied both decisions to our

analysis of claims under the ADEA. Thomas v. First Nat’l Bank of Wynne, 111 F.3d

64, 66 (8th Cir. 1997); see also Holley v. Sanyo Mfg., Inc., 771 F.2d 1161, 1164 (8th

Cir. 1985) (applying McDonnell Douglas to an ADEA case, “[b]ecause the ADEA

grew out of Title VII . . . and because much of the language of the ADEA parallels

that of Title VII”).
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McDonnell Douglas established a burden-shifting framework for evaluating

claims of discrimination. Under this framework, a plaintiff must first establish a

prima facie case of discrimination, which creates a rebuttable presumption of a

statutory violation, and shifts the burden of production to the employer. The

employer must rebut this presumption by producing a legitimate, non-discriminatory

reason for its actions. When it does so, the presumption disappears, and “the sole

remaining issue is discrimination vel non.” Reeves v. Sanderson Plumbing Prods.,

Inc., 530 U.S. 133, 143 (2000) (internal quotation omitted). The burden of persuasion

remains with the plaintiff throughout this analysis. Id.

Price Waterhouse was a splintered decision that addressed the proper approach

to causation where an employer is motivated by both permissible and impermissible

considerations. We have held that Justice O’Connor’s opinion concurring in the

judgment is the controlling opinion that sets forth the governing rule of law. See

Erickson v. Farmland Indus., Inc., 271 F.3d 718, 724 (8th Cir. 2001). According to

this rule, to justify shifting the burden of persuasion on the issue of causation to the

defendant, a plaintiff must show “by direct evidence that an illegitimate factor played

a substantial role” in the employment decision. Price Waterhouse, 490 U.S. at 275

(O’Connor, J., concurring in judgment). “Direct evidence” for these purposes is

evidence “showing a specific link between the alleged discriminatory animus and the

challenged decision, sufficient to support a finding by a reasonable fact finder that an

illegitimate criterion actually motivated” the adverse employment action. Thomas,

111 F.3d at 66 (internal quotation and brackets omitted). It does not extend to “stray

remarks in the workplace,” “statements by nondecisionmakers,” or “statements by

decisionmakers unrelated to the decisional process itself.” Price Waterhouse, 490

U.S. at 277 (O’Connor, J., concurring in judgment). 

When a plaintiff makes the requisite showing of direct evidence, the “burden

then rests with the employer to convince the trier of fact that it is more likely than not

that the decision would have been the same absent consideration of the illegitimate
1

Our court concluded in Glover v. McDonnell Douglas Corp., 981 F.2d 388,

394-95 (8th Cir. 1992), that there was no material difference between the phrases

“substantial role” and “motivating factor,” although Glover was vacated on other

grounds by the Supreme Court, see 510 U.S. 802 (1993), and our court’s subsequent

opinion in Glover did not expressly reaffirm the analysis of the previous opinion,

which has no precedential value. See Glover v. McDonnell Douglas Corp., 12 F.3d

845, 848 n.3 (8th Cir. 1994). It is unnecessary to consider the issue here.

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factor.” Id. at 276. Under this approach, a district court should receive all of the

evidence in a case, and then determine “whether the McDonnell Douglas or Price

Waterhouse framework properly applies to the evidence before it.” Id. at 278. If a

plaintiff fails to present “direct evidence” that an illegitimate criterion played a

“substantial role” in the employment decision, then the case should be decided under

McDonnell Douglas framework, and the burden of persuasion should remain at all

times with the plaintiff. Id. at 278-79.

The district court in this case charged the jury that Gross had the burden to

prove that (1) FBL demoted Gross to Claims Project Coordinator on January 1, 2003,

and (2) that Gross’s age was “a motivating factor” in FBL’s decision to demote Gross.

Final Jury Instruction No. 11. The instruction continued that the jury’s verdict must

be for FBL, however, “if it has been proved by a preponderance of the evidence that

defendant would have demoted plaintiff regardless of his age.” Id.

Under our court’s application of Price Waterhouse, this instruction was not

correct. The Price Waterhouse rule calls for a shift in the burden of persuasion only

upon a demonstration by direct evidence that an illegitimate factor played a

substantial role in an adverse employment decision. See 490 U.S. at 275 (O’Connor,

J., concurring in judgment); Erickson, 271 F.3d at 724. The disputed instruction,

however, provided that if Gross proved by any evidence – direct or otherwise – that

age was “a motivating factor” in the employment decision, then the burden shifted to

FBL to prove that its decision would have been the same absent consideration of

Gross’s age.1

 Gross conceded that he did not present “direct evidence” of
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discrimination, (Appellant’s App. 596), so a mixed motive instruction was not

warranted under the Price Waterhouse rule. Gross’s claim should have been analyzed

under the McDonnell Douglas framework. The burden of persuasion should have

remained with the plaintiff throughout, and the jury should have been charged to

decide whether the plaintiff proved that age was the determining factor in FBL’s

employment action. See Rockwood Bank v. Gaia, 170 F.3d 833, 842-43 (8th Cir.

1999).

Gross contends that there was no error, because the Civil Rights Act of 1991

and the Supreme Court’s decision in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003),

supersede Price Waterhouse and our precedents applying Price Waterhouse to the

ADEA. Section 107 of the 1991 Act amended Title VII by adding § 2000e-2(m):

“Except as otherwise provided in this subchapter, an unlawful employment practice

is established when the complaining party demonstrates that race, color, religion, sex,

or national origin was a motivating factor for any employment practice, even though

other factors also motivated the practice.” 42 U.S.C. § 2000e-2(m). This section does

supersede Price Waterhouse and its requirement of “direct evidence” in the context

of Title VII claims, and it makes “motivating factor” the touchstone of the analysis for

liability. To obtain a jury instruction under § 2000e-2(m), therefore, a plaintiff need

only present sufficient evidence of any kind for a reasonable jury to find that one of

the enumerated criteria was “a motivating factor” for an employment practice. Desert

Palace, 539 U.S. at 101.

We conclude, however, that § 2000e-2(m) does not apply to claims arising

under the ADEA. By its terms, the new section applies only to employment practices

in which “race, color, religion, sex, or national origin” was a motivating factor. When

Congress amended Title VII by adding § 2000e-2(m), it did not make a corresponding

change to the ADEA, although it did address the ADEA elsewhere in the 1991 Act.

See Lewis v. Young Men’s Christian Assoc., 208 F.3d 1303, 1305 & n.2 (11th Cir.

2000) (per curiam). Accordingly, the Third Circuit has held that “the Civil Rights
2

Insofar as summary judgment is concerned, Rachid is inconsistent with our

circuit precedent. The Fifth Circuit in Rachid concluded that Desert Palace, which

involved jury instructions in a Title VII case, dictated a change in the standard for

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Act of 1991 does not apply to ADEA cases,” and it continues to apply the Price

Waterhouse framework in that context. Glanzman v. Metro. Mgmt. Corp., 391 F.3d

506, 512 n.3 (3d Cir. 2004). The Eleventh Circuit concluded that the 1991 Act did not

supersede Price Waterhouse as applied to ADEA retaliation claims. Lewis, 208 F.3d

at 1305. The Fourth Circuit has reasoned that “ADEA mixed-motive cases remain

subject to the burden-shifting rules of Price Waterhouse,” EEOC v. Warfield-Rohr

Casket Co., Inc., 364 F.3d 160, 164 n.2 (4th Cir. 2004), and has suggested (without

holding) that the requirement of direct evidence still applies, noting that “maintaining

the higher evidentiary burden in Price Waterhouse for ADEA claims is not

implausible, given that age is often correlated with perfectly legitimate, nondiscriminatory employment decisions.” Mereish v. Walker, 359 F.3d 330, 340 (4th

Cir. 2004). See also Smith v. City of Jackson, 544 U.S. 228, 240 (2005) (observing

that “[w]hile the relevant 1991 amendments expanded the coverage of Title VII, they

did not amend the ADEA or speak to the subject of age discrimination,” and holding

that “the Court’s pre-1991 interpretation of Title VII’s identical language remains

applicable to the ADEA” insofar as the scope of disparate-impact liability is

concerned); cf. Norbeck v. Basin Elec. Power Coop., 215 F.3d 848, 852 (8th Cir.

2000) (holding that the 1991 Act does not apply to retaliation claims).

Gross argues nonetheless that the decision in Desert Palace shows that the

Price Waterhouse analysis no longer should govern his ADEA claim. Gross relies in

particular on a Fifth Circuit decision, Rachid v. Jack in the Box, Inc., 376 F.3d 305,

312-13 (5th Cir. 2004), which applied the analysis of Desert Palace to claims under

the ADEA. Rachid held that because the relevant language in the ADEA – “because

of such individual’s age” – is “silent as to the heightened direct evidence standard,”

a plaintiff need not present “direct evidence” of discrimination to receive a mixedmotives analysis for an ADEA claim.2
summary judgment decisions under the ADEA. Our court has held, however, that

because Desert Palace involved jury instructions after a trial, the decision does not

affect our court’s analysis of motions for summary judgment under Title VII, much

less under the ADEA. See Griffith v. City of Des Moines, 387 F.3d 733, 736 (8th Cir.

2004).

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We are not persuaded that Desert Palace dictates a modification of our

precedents regarding the ADEA. Desert Palace did hold that the Price Waterhouse

framework is inapplicable to claims arising under Title VII and § 2000e-2(m). But

the Court began its analysis by specifying that the case presented the “first opportunity

to consider the effects of the 1991 Act on jury instructions in mixed motive cases.”

539 U.S. at 98 (emphasis added). The Court then rejected the employer’s argument

that the 1991 Act did nothing to abrogate Justice O’Connor’s opinion in Price

Waterhouse (assuming that opinion is controlling), because the employer’s contention

was “inconsistent with the text of § 2000e-2m.” Id. The Court observed that § 2000e2m requires only that the plaintiff “demonstrat[e]” that the employer used a forbidden

consideration, that the 1991 Act explicitly defines the term “demonstrates,” and that

the text of the new statute thus left “little doubt that no special evidentiary showing”

– such as “direct evidence” – is required. Id. at 99. 

While Desert Palace gave weight to the fact that § 2000e-2m, on its face, “does

not mention, much less require, that a plaintiff make a heightened showing through

direct evidence,” id. at 98-99, the opinion focused on the particular text of the 1991

Act and the effects of that statute on jury instructions in mixed motive cases. When

the Court previously addressed statutory text comparable to the ADEA in Price

Waterhouse – “because of such individual’s . . . sex,” 42 U.S.C. §§ 2000e-2(a)(1), (2)

(emphasis added) – the result was a fragmented decision from which our court

adopted Justice O’Connor’s concurring opinion as the controlling rule. The Court in

Desert Palace declined to address which opinion in Price Waterhouse was

controlling, 539 U.S. at 98, or to revisit Price Waterhouse’s interpretation of a statute,

unadorned by § 2000e-2m, that prohibits discrimination “because of” an enumerated
3

Even were we to accept Gross’s argument that Desert Palace undermines the

Price Waterhouse distinction between “direct” and other evidence for purposes of the

ADEA (as opposed to Title VII), that conclusion would not necessarily support the

disputed jury instruction in this case. We would be left to consider the meaning of

“because of such individual’s age” anew, without any distinction between direct and

other evidence, but also without the “motivating factor” standard for liability set forth

in § 2000e-2m, and without the corresponding partial affirmative defense of 42 U.S.C.

§ 2000e-5(g)(2)(B).

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factor. Even if some of the analysis in Desert Palace may seem inconsistent with the

controlling rule from Price Waterhouse, the Court did not speak directly to the vitality

of this previous decision, and it continues to be controlling where applicable. See

Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989).

Our cases have concluded that because Price Waterhouse interpreted language

identical to that found in the ADEA, we should follow the Price Waterhouse rule in

ADEA cases. Desert Palace does not undermine the rationale of these decisions. We

thus conclude that the Price Waterhouse rule continues to govern mixed motive

instructions in an ADEA case.3

Under our court’s interpretation of Price Waterhouse, the final instruction in

this case was not correct. Because the instruction shifted the burden of persuasion on

a central issue in the case, the error cannot be deemed harmless. M.M. v. Special Sch.

Dist. No. 1, 512 F.3d 455, 459 (8th Cir. 2008); West Platte R-II Sch. Dist. v. Wilson,

439 F.3d 782, 785 (8th Cir. 2006). Accordingly, we reverse and remand for a new

trial.

III.

We briefly address the other instructional and evidentiary issues raised by FBL,

because they may recur in a new trial. See Andrews v. Neer, 253 F.3d 1052, 1062 (8th

Cir. 2001). 
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FBL requested that the district court give a final instruction to the jury that

included this sentence: “Defendant is entitled to make its own subjective personnel

decisions, absent intentional age discrimination, even if the factor motivating the

decision is typically correlated with age, such as pension status, salary or seniority.”

The court’s final instruction included only the first half of this sentence, omitting the

italicized clause.

We do not think the district court’s instruction on this point was an abuse of

discretion. “The form and language of jury instructions are committed to the sound

discretion of the district court so long as the jury is correctly instructed on the

substantive issues in the case.” White v. Honeywell, Inc., 141 F.3d 1270, 1278 (8th

Cir. 1998) (internal quotation omitted). The court’s formulation allowed FBL to argue

that it demoted Gross for any reason “absent intentional age discrimination.” The

court was not required to list examples of such reasons in a jury instruction. 

FBL also appeals the district court’s decision to exclude testimony from FBL’s

vice president of claims, Andy Lifland, about complaints that he heard from Gross’s

coworkers about Gross’s performance in the workplace. In a post-trial order, the court

agreed with FBL that our precedent allows testimony about such complaints when the

employer shows that it took action on the basis of the information. See Crimm v. Mo.

Pac. R.R. Co., 750 F.2d 703, 709 (8th Cir. 1984). The court defended its ruling,

however, on the ground that the record at trial, including FBL’s offer of proof, was

insufficient to establish that Lifland received and relied on the complaints. As such,

the dispute now seems focused on whether FBL laid a sufficient foundation for the

presentation of Lifland’s testimony, not on the legal question whether Lifland’s

proposed testimony would be inadmissible hearsay if there were adequate foundation

for it. FBL will have a new opportunity to lay an adequate foundation in a new trial,

and we do not think it would be productive to offer an opinion at this time concerning

the sufficiency of the previous offer of proof.
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FBL also contends that the district court should have granted judgment as a

matter of law in its favor. Because we remand the case for a new trial, we need not

consider whether there was sufficient evidence for a hypothetical jury, properly

instructed, to return a verdict in favor of Gross. See Dennis v. Dillard Dept. Stores,

Inc., 207 F.3d 523, 526 (8th Cir. 2000); Hauser v. Krupp Steel Producers, Inc., 761

F.2d 204, 206 n.1 (5th Cir. 1985). We also need not consider Gross’s cross appeal

concerning attorney’s fees.

For the foregoing reasons, we reverse and remand for a new trial.

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