FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

APR 13 2000

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 99-12255

Non-Argument Calendar

________________________

D. C. Docket No. 98-01799-CV-BU

GRACE LEWIS,

Plaintiff-Appellant,

versus

YOUNG MEN’S CHRISTIAN ASSOCIATION, a corporation, 

Defendant,

YOUNG MEN’S CHRISTIAN ASSOCIATION,

SOUTHSIDE BRANCH, a corporation,

Defendant-Appellee.

________________________

Appeal from the United States District Court

for the Northern District of Alabama

_________________________

(April 13, 2000)

Before BIRCH and CARNES, Circuit Judges, and RONEY, Senior Circuit Judge.

PER CURIAM:
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The principal issue in this case is whether 42 U.S.C. § 2000e-5(g)(2)(B),

adopted by the Civil Rights Act of 1991, overrules the application of Price

Waterhouse v. Hopkins, 490 U.S. 228 (1989), to mixed-motive retaliation claims

under the Age Discrimination in Employment Act (“ADEA”). In Price Waterhouse

the Supreme Court held that an employer would not be liable for sex discrimination

under Title VII if it could prove by a preponderance of the evidence that it would have

made the same disputed employment decision even in the absence of the alleged

discrimination. Subsequently Congress passed § 2000e-5(g)(2)(B), which provides

that although an employer may limit plaintiff’s remedies in a mixed-motive case

involving race, color, religion, sex or national origin discrimination, it may no longer

foreclose liability absolutely in those cases. This is a retaliation case under the age

discrimination statute, a type of discrimination not specifically covered by § 2000e5(g)(2)(B). We hold that 42 U.S.C. § 2000e-5(g)(2)(B) does not apply to mixedmotive retaliation claims under the ADEA, and that the decision in Price Waterhouse

and our subsequent decisions require that the summary judgment for the defendant be

affirmed. See Lewis v. YMCA, 53 F.Supp.2d 1253, 1263 (N.D. Ala. 1999).

The facts, which are recited in detail by the district court, see 53 F.Supp.2d at

1255-57, are summarized as follows: Plaintiff was employed as an aerobics instructor

by the YMCA beginning approximately in April 1988. After she was taken off the
 1

29 U.S.C. § 623(d) states:

It shall be unlawful for an employer to discriminate against any of his employees or

applicants for employment, for an employment agency to discriminate against any

individual, or for a labor organization to discriminate against any member thereof or

applicant for membership, because such individual, member or applicant for

membership has opposed any practice made unlawful by this section, or because

such individual, member or applicant for membership has made a charge, testified,

assisted, or participated in any manner in an investigation, proceeding, or litigation

under this chapter. 

3

aerobics schedule in August 1995 for alleged misconduct, she filed a lawsuit claiming

that she had been discriminated against because of her age. Her case was dismissed

in April 1997. In November 1997, plaintiff applied and was turned down for

employment at a different YMCA branch.

Plaintiff filed another lawsuit in the district court, claiming that the YMCA had

failed to hire her in retaliation for her previous age discrimination lawsuit, in violation

of the retaliation clause of the ADEA, 29 U.S.C. § 623(d).1

 The YMCA moved for

summary judgment, arguing that, in relevant part, even if the failure to hire plaintiff

had been partially retaliatory, under the doctrine of Price Waterhouse as applied to

ADEA retaliation claims, an employer can escape liability by establishing that it

would have made the same employment decision even absent a retaliatory motive.

The YMCA presented evidence that plaintiff would have been turned down in any

event because of her previous misconduct. In response, plaintiff contended that the

Price Waterhouse defense as applied to ADEA retaliation claims had been overruled
4

by 42 U.S.C. § 2000e-5(g)(2)(B), enacted by § 107(b) of the Civil Rights Act of 1991,

Pub. L. No. 102-166, 105 Stat. 1071, 1075 (1991). Alternatively, plaintiff argued that

even if Price Waterhouse applied, the YMCA failed to show that she would not have

been hired in the absence of a retaliatory motive. The district court granted summary

judgment, on the ground that § 2000e-5(g)(2)(B) was inapplicable and the YMCA had

established a Price Waterhouse defense. See 53 F.Supp.2d at 1262-63.

We review the district court’s grant of summary judgment de novo. Harris v.

Board of Educ., 105 F.3d 591, 595 (11th Cir. 1997).

In Price Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989), the Supreme Court

held that an employer would not be liable for sex discrimination under Title VII if it

could prove by a preponderance of the evidence that it would have made the same

disputed employment decision even in the absence of the alleged discrimination. In

later cases, this circuit and others extended the holdings of Title VII cases to

discrimination cases brought under other statutes, including the ADEA. See, e.g.,

Grigsby v. Reynolds Metals Co., 821 F.2d 590, 594 (11th Cir. 1987). Prior to the

passage of the Civil Rights Act in 1991, therefore, Price Waterhouse governed the

treatment of mixed-motive cases involving ADEA retaliation. 
5

To determine whether § 2000e-5(g)(2)(B) overruled the holding of Price

Waterhouse as applied to ADEA retaliation claims, we start, as always, with the

language of the statute:

On a claim in which an individual proves a violation

under section 2000e-2(m) of this title and a respondent

demonstrates that the respondent would have taken the

same action in the absence of the impermissible motivating

factor, the court-

(i) may grant declaratory relief, injunctive relief

(except as provided in clause (ii)), and attorney’s fees and

costs demonstrated to be directly attributable only to the

pursuit of a claim under section 2000e-2(m) of this title;

and

(ii) shall not award damages or issue an order

requiring any admission, reinstatement, hiring, promotion,

or payment, described in subparagraph (A).

42 U.S.C. § 2000e-5(g)(2)(B) (emphasis added). 

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). With respect to mixed-motive cases involving the types of

discrimination listed in § 2000e-2(m)--race, color, religion, sex and national origin--

§ 2000e-5(g)(2)(B) by its terms clearly rolls back the holding of Price Waterhouse.

An employer may limit plaintiff’s remedies, but may no longer foreclose liability
6

absolutely, by showing that it would have taken the same disputed action in the

absence of discrimination on the basis of race, color, religion, sex or national origin.

Retaliation prohibited by the ADEA under 29 U.S.C. § 623(d), however, is not

among the unlawful employment practices listed in 42 U.S.C. § 2000e-2(m). That

omission is significant because § 2000e-5(g)(2)(B) applies by its terms only to

“claim[s] in which an individual proves a violation under section 2000e-2(m) of this

title.”

In two previous cases, we addressed whether § 2000e-5(g)(2)(B) applied to

discrimination claims based upon unlawful employment practices not listed in §

2000e-2(m). In Mabra v. United Food & Commercial Workers, 176 F.3d 1357, 1357-

58 (11th Cir. 1999) and Harris v. Shelby County Bd. of Educ., 99 F.3d 1078, 1084 n.5,

1085 (11th Cir. 1996), we decided that § 2000e-5(g)(2)(B) did not apply to

discrimination claims brought under § 42 U.S.C. § 1981 and § 1983, respectively,

based on the lack of reference to those sections in § 2000e-2(m). We noted in Mabra

that other parts of the Civil Rights Act of 1991 explicitly amended § 1981, which

suggested that its omission in § 2000e-2(m) was intentional, not inadvertent. See

Russello v. United States, 464 U.S. 16, 23 (1983) (quotation omitted) (“Where

Congress includes particular language in one section of a statute but omits it in
 2

 § 115 of the Civil Rights Act of 1991 states that:

Section 7(e) of the Age Discrimination in Employment Act of 1967 (29

U.S.C. 626(e)) is amended-

(1) by striking paragraph (2);

(2) by striking the paragraph designation in paragraph (1);

(3) by striking “Sections 6 and” and inserting “Section”; and

(4) by adding at the end the following:

“If a charge filed with the Commission under this Act is dismissed or the

proceedings of the Commission are otherwise terminated by the Commission, the

Commission shall notify the person aggrieved. A civil action may be brought under

this section by a person defined in section 11(a) against the respondent named in the

charge within 90 days after the date of the receipt of such notice.”. 

7

another section of the same [a]ct, it is generally presumed that Congress acts

intentionally and purposely in the disparate inclusion or exclusion.”).

Similarly, the Civil Rights Act of 1991 makes reference to the ADEA in other

sections, see, e.g., § 1152

, but not to ADEA retaliation claims in § 2000e-2(m).

Section 2000e-5(g)(2)(B), therefore, does not change the treatment of mixed-motive

cases of retaliation under the ADEA.

Since § 2000e-5(g)(2)(B) is inapplicable, this case is analyzed under Price

Waterhouse. There was no error in the district court’s conclusion that the YMCA

would not have hired plaintiff even in the absence of discrimination. As the district

court explained in detail, plaintiff’s submission of a false certification and her taking

of the personnel file without permission would have led the YMCA to deny her

employment in any event. See Lewis v. YMCA, 53 F.Supp.2d at 1262-63.

AFFIRMED.