No. 13-2546
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
Marjorie Tramp, Appellant
v.
Associated Underwriters, Inc., Appellee
On Appeal from the U.S. District Court
For the District of Nebraska – Omaha (8:11-cv-00371-LSC)
Brief of Amicus Curiae AARP in Support of Appellant
Daniel B. Kohrman*
Laurie A. McCann
AARP Foundation Litigation
*Counsel of Record
Melvin Radowitz
AARP
601 E St., NW
Washington, DC 20049
(202) 434-2060
dkohrman@aarp.org
Attorneys for Amicus Curiae
CORPORATE DISCLOSURE STATEMENT OF AARP
The Internal Revenue Service has determined that AARP is organized and
operated exclusively for the promotion of social welfare pursuant to Section
501(c)(4)(1993) of the Internal Revenue Code and is exempt from income tax.
AARP is also organized and operated as a non-profit corporation pursuant to Title
29 of Chapter 6 of the District of Columbia Code 1951.
Other legal entities related to AARP include AARP Foundation, AARP
Services, Inc., Legal Counsel for the Elderly, and Experience Corps.
AARP has no parent corporation, nor has it issued shares or securities.
i
TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT ........................................................i
TABLE OF AUTHORITIES ................................................................................. iv
STATEMENT OF INTEREST OF AMICUS CURIAE .........................................1
SUMMARY OF ARGUMENT ...............................................................................2
ARGUMENT ...........................................................................................................3
I.
II.
THE DISTRICT COURT MISAPPLIED THE SUPREME
COURT’S DECISIONS IN HAZEN PAPER AND GROSS IN
DISMISSING TRAMP’S ADEA CLAIM ....................................................3
A.
The District Court Erred in Concluding That Hazen Paper
Precludes Tramp’s ADEA Claim ........................................................3
B.
The District Court Misconstrued Gross
to Require an ADEA Plaintiff to Show That
Age Was the Sole Cause of Her Termination .....................................8
THE DISTRICT COURT ERRED IN DISMISSING TRAMP’S
ADA CLAIM BY MISREADING HAZEN PAPER AND IGNORING
THE NEW DEFINITION OF “DISABILITY” ENACTED IN
THE ADAAA ..............................................................................................12
A.
The District Court Erroneously Relied on Hazen Paper to
Dismiss Tramp’s ADA Claim ...........................................................12
B.
The District Court Failed to Apply the ADAAA’s New,
“More Lenient” Proof Standards for Establishing an ADA
“Disability .........................................................................................16
CONCLUSION ......................................................................................................20
ii
ANTI-VIRUS CERTIFICATION .........................................................................21
CERTIFICATE OF COMPLIANCE .....................................................................22
CERTIFICATE OF SERVICE ..............................................................................23
iii
TABLE OF AUTHORITIES
Cases
Christian v. St. Anthony Med. Ctr., Inc., 117 F.3d 1051 (7th Cir. 1997) ..............13
EEOC v. City of Independence, Missouri, 471 F.3d 891 (8th Cir. 2006) ...........4, 5
Gage v. HSM Elec. Prot. Servs., 665 F.3d 821 (8th Cir. 2011) ............................19
Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009) ..................................... passim
Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993) ........................................ passim
Jackson v. Am. Water Works Co.,
2012 U.S. Dist. LEXIS 73805 (D.N.J. May 25, 2012)..................................5
Jones v. Okla. City Pub. Sch., 617 F.3d 1273 (10th Cir. 2010).............................11
Knutson v. Ag Processing, Inc., 394 F.3d 1047 (8th Cir. 2005) ............................18
Lewis v. Humboldt Acquisition Corp., 681 F.3d 312 (6th Cir. 2012)....................11
McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273 (1976) ...........................11
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) ................................2,11
Murray v, Sysco Corp.,
1998 U.S. Dist. LEXIS 68633 (N.D.N.Y. Apr. 2, 1998) ............................19
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) ..............................................10
Raytheon Co. v. Hernandez, 540 U.S. 44 (2003)...................................................13
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000) .........................3
Slathar v. Sather Trucking Corp., 78 F.3d 415 (8th Cir. 1996) ..............................5
Sutton v. United Airlines, 527 U.S. 471 (1999) .....................................................18
Tramp v. Associated Underwriters, Inc.,
2013 U.S. Dist. LEXIS 86318 (D. Neb. June 17, 2013) ..................... passim
iv
Statutes, Rules and Regulations
Age Discrimination in Employment Act (ADEA)
29 U.S.C. §§ 621-634 ....................................................................................1
29 U.S.C. § 623(a)(1) ....................................................................................3
29 U.S.C. § 623(g) .........................................................................................6
ADA Amendments Act of 2008 (ADAAA)
Pub. L. 110-325, 122 Stat. 3553 (2008) ..................................................1, 17
Americans with Disabilities Act (ADA)
42 U.S.C. §§ 12101-12213 ............................................................................1
42 U.S.C. § 12102........................................................................................17
42 U.S.C. § 12102(1)(C) .............................................................................13
42 U.S.C. § 12102(2)(A) .............................................................................18
42 U.S.C. § 12102(3)(A) .........................................................................3, 17
42 U.S.C. § 12102(3)(B) .............................................................................18
42 U.S.C. § 12101(h) ...................................................................................18
42 U.S.C. § 12205(a) ...................................................................................17
Medicare Secondary Payer Act (MSP)
42 U.S.C. § 1395y(b)(i)(II)............................................................................6
29 C.F.R. Part 1630 App. § 1630.2(j) ....................................................................19
29 C.F.R § 1630.2(j)(1)(i) – (ix) ............................................................................17
29 C.F.R § 1630.2(j)(1)(i) ......................................................................................17
29 C.F.R § 1630.2(j)(1)(iii)....................................................................................18
29 C.F.R § 1630.2(j)(1)(ix) ....................................................................................19
Fed. R. App. P. 29(c)(5) ...........................................................................................1
Fed. R. Civ. P. 56(c)...............................................................................................19
Legislative History
S. Rep. No. 97-530 (1982) .......................................................................................6
v
Treatises and Restatements
W. Keeton, D. Dobbs, R. Keeton, & D. Owen,
Prosser and Keeton on Law of Torts 265 (5th ed. 1984) ............................11
Miscellaneous
Br. of Pl., Marjorie Tramp, In Opp’n To Def.’s
Mot. for Summ. J., ECF No. 53.............................................................12, 14
Compl., ECF No.1..................................................................................................13
Tramp. Dep., June 20, 2012 ...................................................................................14
vi
STATEMENT OF INTEREST OF AMICUS CURIAE 1
AARP is a nonpartisan, nonprofit organization with a membership that helps
people turn their dreams into real possibilities, strengthens communities and fights
for issues that matter most to families, such as employment, healthcare, income
security, retirement planning, affordable utilities and protection from financial
abuse. AARP is dedicated to addressing the needs and interests of older workers,
and strives through legal and legislative advocacy to preserve the means to enforce
their rights. Approximately half of AARP members work or are seeking work, and
thus, are protected by laws such as the Age Discrimination in Employment Act
(ADEA), 29 U.S.C. §§ 621-634, and the Americans with Disabilities Act (ADA),
42 U.S.C. §§ 12101-12213. AARP is committed to vigorous enforcement of the
ADEA and the ADA, including provisions of the ADA Amendments Act of 2008
(ADAAA), Pub. L. 110-325 (Sept. 25, 2008), and regulations authorized by the
ADAAA and issued by the Equal Employment Opportunity Commission (EEOC).
The district court’s dismissal of this case because Plaintiff-Appellant
“fail[ed] to establish a prima facie case under either [the ADEA or the ADA],”
Tramp v. Associated Underwriters, Inc., 2013 U.S. Dist. LEXIS 86318 (D. Neb.,
June 17, 2013), at *10, is founded on multiple legal errors, misapplies familiar
1
Pursuant to Fed. R. App. P. 29(c)(5), AARP certifies that no party or party’s
counsel authored this brief in whole or in part; that no party or party’s counsel
contributed money that was intended to fund the brief’s preparation or submission;
and that only Amicus Curiae provided funds to prepare and submit this brief.
1
proof standards established in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), and thus threatens to undermine enforcement off the ADEA and the ADA.
SUMMARY OF ARGUMENT
The district court misapplied two U.S. Supreme Court decisions, Hazen
Paper Co. v. Biggins, 507 U.S. 604 (1993), and Gross v. FBL Financial Services,
Inc., 557 U.S. 167 (2009), in concluding that Plaintiff-Appellant Marjorie Tramp
failed to establish a prima facie case under either statute.
In relying on Hazen Paper, the court ignored a very critical portion of that
decision. For although the Supreme Court did rule in Hazen Paper that “there is
no disparate treatment under the ADEA when the factor motivating the employer is
some feature other than the employee’s age”, 507 U.S. at 609, the Court also ruled
that an employer who assumes a correlation between age and another feature and
targets the employees because of that assumed correlation “engages in age
discrimination.” Id. at 612-13. That is exactly what Tramp alleges and the
evidence submitted supports. Based on its assumption that age and health
insurance premiums were inextricably linked, Associated Underwriters targeted
Tramp and other older workers for termination.
Further, rejecting Tramp’s ADA claim, the court once again misinterpreted
Hazen Paper, insofar as it applies to the ADA, and further, ignored the 2008
amendments to the ADA, in which Congress altered the required legal analysis for
2
whether a plaintiff such as Tramp, alleging employment discrimination, has a
covered “disability.” In particular, the court failed to take into account the
ADAAA’s revised, less extensive requirements for proving a “perceived”
disability, 42 U.S.C. § 12102(3)(A), as well as EEOC regulations interpreting the
ADAAA at the direction of Congress.
ARGUMENT
I.
THE DISTRICT COURT MISAPPLIED THE SUPREME COURT’S
DECISIONS IN HAZEN PAPER AND GROSS IN DISMISSING
TRAMP’S ADEA CLAIM.
A.
The District Court Erred in Concluding that Hazen Paper
Precludes Tramp’s ADEA Claim.
The ADEA commands that “it shall be unlawful for an employer . . . to
discharge any individual or otherwise discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment,
because of such individual’s age.” 29 U.S.C. § 623(a)(1). The Supreme Court
held that an employment decision is taken “because of . . . age” when the
employee’s age “actually played a role in [the employer’s decisionmaking] process
and had a determinative influence on the outcome.” Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 141 (2000) (quoting Hazen Paper Co. v.
Biggins, 507 U.S. 604, 610 (1993)).
The facts in this case show that Tramp’s age “played a role in” and “had a
determinate influence” on the decision of Associated Underwriters to terminate
3
her. Associated Underwriters believed that terminating older workers, including
Tramp, would allow them to pay less for their health insurance. When their plan
did not succeed, they documented their disappointment in an email.
Relying in large part on Hazen Paper, the court ruled incorrectly that Tramp
failed to establish a prima facie case of age discrimination. The Court’s holding in
Hazen Paper, however, was “simply that an employer does not violate the ADEA
just by interfering with an older employee’s pension benefits that would have
vested by virtue of the employee’s years of service.” 507 U.S. at 613. The Court’s
rationale for its ruling was that, “Because age and years of service are analytically
distinct, an employer can take account of one while ignoring the other, and thus it
is incorrect to say that a decision based on years of service is necessarily ‘age
based.’” Id. at 611.
Hazen Paper, however, does not automatically legitimize discrimination
based on a factor that an employer treats as a proxy for age. As this Court astutely
explained, “[T]he ‘correlated’ language in Hazen applies only where the
employer’s decision is ‘wholly’ motivated by factors other than age . . . The key is
what the employer supposes about age: ‘Pension status may be a proxy for age . . .
in the sense that the employer may suppose a correlation between the two factors
[the proxy and age] and act accordingly.’” EEOC v. City of Independence,
Missouri, 471 F.3d 891, 896 (8th Cir. 2006) quoting Hazen Paper, 507 U.S. at 613
4
(emphasis supplied) (internal citation omitted). See also Slathar v. Sather
Trucking Corp., 78 F.3d 415, 418-19 (8th Cir. 1996) (“Age discrimination may
exist when an employer terminates an employee based on a factor such as
experience or salary when the employer presupposes a correlation with age and
uses that factor as a proxy for age.”); Jackson v. Am. Water Works Co., 2012 U.S.
Dist. LEXIS 73805, at **39-40 (D.N.J. May 25, 2012) (“Hazen makes clear that
the ADEA ‘requires the employer to ignore an employee’s age’ in making
employment decisions . . . Thus, if [the employer] presumed a correlation between
Plaintiff’s age and his expected retirement, then [the employer’s] consideration of
‘longevity’ may have, in reality, been a mere proxy for age, which could constitute
a violation of the ADEA.”) (internal citation omitted). The court in this case made
the identical mistake as the district court in EEOC v. City of Independence,
Missouri: it blindly applied the “correlated” language in Hazen Paper and ignored
evidence probative of what the employer supposed about age.
While it is extremely rare to have such clear insight into an employer’s
thinking, in this case, there is clear evidence showing exactly what Associated
Underwriters “supposed about age.” City of Independence, 471 F.3d at 896. In the
summer of 2008, after experiencing a sharp increase in the cost of its group
healthcare plan, Associated Underwriters solicited bids from several different
companies. Tramp v. Associated Underwriters, Inc., 2013 U.S. Dist. LEXIS
5
86318, at *3 (D. Neb. June 17, 2013). One company’s bid came in markedly
lower than the others. But the excitement was short-lived when they realized that
the low bid did not include coverage for the company’s oldest employees, Tramp
and Barb Treadway. The insurance provider, Coventry Healthcare of Nebraska,
informed Associated Underwriters that individuals “over the age of 65 ‘usually
don’t get quoted’ as they are Medicare-eligible.” Id. at *4. So, Chris Hallgren,
one of Associated Underwriters’ co-owner’s, asked Tramp and Treadway to waive
their employer coverage and rely on Medicare. Id. They both declined, which they
were legally entitled to do. Id. at *5.2 Seven months later, both were terminated. Id.
at *7.
When Associated Underwriters’ health insurance rates did not go down,
despite the terminations, Greg Gurbacki, Associated Underwriters’ other co-owner,
expressed surprised and dismay in an email to Claire Adams, an account manager
with Coventry: “Since last year we have lost our oldest and sickest employees [lists
employees including Plaintiff Tramp] . . . we were expecting a rate decrease from
the group becoming younger and healthier . . . .” Id. at *17. It is hard to fathom a
2
Employers are required to provide, to their employees and their spouses who are
age 65 and over, coverage under the same conditions that apply, pursuant to the
employers’ group plans, to under-65 employees and their spouses. The choice of
which coverage is primary rests with the employee. S. Rep. No. 97-530, at 414
(1982). From 1982 to 1989, this requirement was included as § 4(g), 29 U.S.C.
§ 623(g), of the ADEA. This provision is now contained in the Medicare Second
Payer Act (MSP). 42 U.S.C. § 1395y(b)(i)(II).
6
better example of an employer “suppos[ing] a correlation” between age and
another factor and “act[ing] accordingly.” Hazen Paper, 507 U.S. at 613.
Associated Underwriters supposed that its older employees were causing its health
insurance rates to be higher and terminated them in an attempt to lower them.
The court summarily dismissed this clear evidence that Associated
Underwriters had “suppose[d] a correlation,” id., between age and health care costs
as merely “crude” and “insensitive” language but not age discrimination. Tramp,
2013 U.S. Dist. Lexis 86318, at *18. Ignoring the most relevant portion of Hazen
Paper, the court instead concluded mistakenly that age and health care costs are
“analytically distinct,” id. (quoting Hazen Paper, 507 U.S. at 611). Hazen Paper,
however, instructs that in order for two factors to be “analytically distinct,” the
“employer [must be able to] take account of one while ignoring the other. . . .” Id.
The evidence proffered by Tramp in this case clearly shows that Associated
Underwriters did not ignore age when trying to decrease its healthcare costs. And,
the fact that it failed in its goal of reducing those costs by eliminating its “oldest
and sickest employees,” Tramp, 2013 U.S. Dist. LEXIS 86318, at *17, does not
make its action any less illegal.
7
B.
The District Court Misconstrued Gross To Require An ADEA Plaintiff
To Show That Age Was The Sole Cause Of Her Termination.
The last sentence of the court’s ADEA analysis demonstrates the fallacy of
all that precedes it. In an apparent effort to summarize its analysis rendering
judgment for Associated Underwriters, the court instead undermined its prior
reasoning and misconstrued Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009).
For these reasons, in addition to those stated above, this Court should reverse the
court’s dismissal of Tramp’s ADEA claim and remand this case for reconsideration
based on an accurate account of the record and the law.
For the most part, the district court premised its dismissal of Tramp’s ADEA
claim on its insistence – despite record evidence and briefing to the contrary – that
“Plaintiff’s ‘additional showing’ of age discrimination relies on allegations that
Defendant’s decision . . . was motivated purely by health care costs. . . .” Tramp,
2013 U.S. Dist. LEXIS 86318, at *18 (emphasis supplied). But at the last moment,
the court reversed course, suggesting precisely the opposite. That is, the court
faulted Tramp for identifying more than one cause for her dismissal: “Because the
[ADEA] does not permit [challenges to] mixed-motives age discrimination,
Plaintiff has not met her burden under the ADEA.” Id. at *19. The court thereby
repeated words it had previously quoted from Gross. See id. at *11 (quoting and
paraphrasing Gross, 557 U.S. at 176). But in doing so, the court confused the
Supreme Court’s meaning.
8
Most of the court’s ADEA discussion is premised on the idea that the statute
does not permit single motive age discrimination claims where the sole motive is a
factor other than age itself. But then the court complains that Tramp asserted
“mixed motives.” Yet this case is not now, and never has been one in which
Tramp alleged that her employer was motivated “purely” by a non-age (and nondisability) factor. Rather, it turns on whether the age portion (and the disability
component) of Tramp’s evidence is significant enough to pose a genuine issue as
to the validity of her employer’s contention that it was motivated solely, i.e.,
“purely,” by saving health care costs, and not at all by age and/or disability.
The court erred in assuming that Gross forbids all ADEA challenges to
“mixed-motives age discrimination.” Tramp, 2013 U.S. Dist. LEXIS 86318, at
*19. Rather, Gross declared beyond the ADEA’s scope the burden-shifting
approach to “mixed-motives discrimination” that is required in Title VII cases.
This forbidden fruit the Court described as a “mixed-motives age discrimination
claim.” Id. at *11 (quoting and paraphrasing Gross, 557 U.S. at 175).
The Court in Gross struck down shifting the burden of persuasion from
employee-plaintiff to employer-defendant in any ADEA disparate treatment case,
not just ADEA suits premised on evidence suggesting an employer acted with
more than one motive. 557 U.S. at 177-78 (“the burden of persuasion necessary to
establish employer liability is the same in alleged mixed-motives cases as in any
9
other ADEA disparate-treatment action. A plaintiff must prove by a preponderance
of the evidence . . . that age was the ‘but-for’ cause of the challenged employer
decision.”). Thus, the Court expressly envisioned federal courts dealing with
mixed-motives ADEA cases, i.e., challenges to “mixed-motives age
discrimination” in the future, even as it foreclosed burden shifting, i.e., mixed
motives age discrimination claims.
In distinguishing the ADEA from Title VII, the Court explained that Price
Waterhouse v. Hopkins, 490 U.S. 228 (1989), had recognized a burden-shifting
regime for mixed-motives discrimination under Title VII. Gross, 557 U.S. at 17374. The Court further recounted that in 1991, Congress codified a modified Price
Waterhouse burden-shifting regime for “mixed-motives” Title VII claims. Id. But
Congress in 1991 did not similarly amend the ADEA. Id. at 174-75, 178 n.5.
Thus, the Court concluded that an ADEA plaintiff challenging mixed-motives age
bias, or any other form of age bias, “retains the burden of persuasion to establish
that age was the ‘but-for’ cause of the employer's adverse action.” 557 U.S. at 177.
See id. at 180 (recognizing the continuing validity of challenges to mixed-motives
age discrimination, albeit without any shift in the burden of persuasion) (“The
burden of persuasion does not shift to the employer to show that it would have
taken the action regardless of age, even when a plaintiff has produced some
evidence that age was one motivating factor in that decision.”).
10
Just as multiple influences on an employer each may be a “motivating
factor” for the same employer conduct, multiple factors can be a “but-for” cause of
an adverse employment action. That is, multiple independent factors “may be
regarded as a cause of an event if the particular event would [not] have occurred
without [them]." Gross, 557 U.S. at 176-77 (quoting cf. W. Keeton, D. Dobbs, R.
Keeton, & D. Owen, Prosser and Keeton on Law of Torts 265 (5th ed. 1984)). It
follows that "Gross does not disturb longstanding . . . precedent by placing a
heightened evidentiary requirement on ADEA plaintiffs to prove that age was
the sole cause of the adverse employment action." Jones v. Okla. City Pub.
Sch., 617 F.3d 1273, 1278 (10th Cir. 2010).
Indeed, nearly four decades ago, in McDonald v. Santa Fe Trail Transp.
Co., the Court made clear that Title VII does not require proof that an employer’s
reliance on a protected characteristic was the sole cause of an adverse employment
action. 427 U.S. 273, 282 n.10 (1976) (explaining that the proof of “pretext”
requirement “does not mean, of course, that the Title VII plaintiff must show that
he would have in any event been rejected or discharged solely on the basis of his
race,” discussing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973)
(emphasis supplied)). Nor does the ADA require a plaintiff to prove that disability
was the sole cause of a defendant’s adverse conduct. Lewis v. Humboldt
11
Acquisition Corp., 681 F.3d 312, 315 (6th Cir. 2012) (en banc) (collecting
decisions from eleven other circuit courts).
Employment cases, including ADEA and ADA cases, often involve multiple
employer motives. The Supreme Court did not ignore or abandon this common
sense understanding in Gross. This Court should ignore the district court’s
contrary suggestion and reverse its ruling that evidence of multiple motives alone
warrants dismissal of this ADEA (and ADA) disparate treatment case.
II.
THE DISTRICT COURT ERRED IN DISMISSING TRAMP’S ADA
CLAIM BY MISREADING HAZEN PAPER AND IGNORING THE
NEW DEFINITION OF “DISABILITY” ENACTED IN THE ADAAA.
A.
The District Court Erroneously Relied on Hazen Paper to Dismiss
Tramp’s ADA Claim.
The court’s reliance on Hazen Paper to dismiss Tramp’s ADA claim is
flawed in ways closely tracking the trial court’s treatment of her ADEA claim.
The court was clearly wrong to conclude that Tramp “concedes that Defendant
terminated her to save health care costs, and not because she was disabled.”
Tramp, 2013 U.S. Dist. LEXIS 86318, at *22 (emphasis supplied). Nor did the
court explain its ruling that Tramp “has not established that her termination was
motivated by her disability.” Id.
To be sure, Tramp condemned her termination in part as “a heartless attempt
to reduce the costs of [Associated Underwriters’s] health insurance premiums.”
Br. of Pl., Marjorie Tramp, In Opp’n To Def.’s Mot. for Summ. J. (Pl’s Summ. J.
12
Opp’n), at 21. But that is not all she said. Tramp’s Complaint and summary
judgment brief both specifically challenge Associated Underwriters’ attention to
her disability as a basis for discharging her. Tramp documents the company’s
decision to fire her in significant part due to a conclusion that she would incur
health care costs related to her impending surgery, that is, related to what the
company perceived to be a disability. By explicit references to her disability,
Tramp asserts, Associated Underwriters showed it believed that a non-disabled
(and younger) employee would not incur such health care costs. Tramp is correct
that this states a violation of the ADA, and is not governed by Hazen Paper. 3
The Complaint asserts that Associated Underwriters violated the ADA by
discharging her because the company “regarded [her] as having” a disabling
“impairment.” 42 U.S.C. § 12102(1)(C). Tramp alleged, inter alia, that:
Defendant wrongfully, and incorrectly, terminated the
Plaintiff’s employment based upon a perception of physical
disability resulting from the Plaintiff’s arthroscopic knee
surgery.
Compl. (ECF No.1) at 4 (¶12) (emphasis supplied). Tramp also stated that she
“was harassed, retaliated against, and terminated for actions set forth herein on the
basis of her . . . disability . . . .” Id. (¶15). Although these “actions” include AU’s
3
The district court assumed that Hazen Paper applies to the ADA based on
Christian v. St. Anthony Med. Ctr., Inc., 117 F.3d 1051, 1053 (7th Cir. 1997). See
Tramp, 2013 U.S. Dist. 86318, at *22. A more recent U.S. Supreme Court ruling
supports this conclusion. See Raytheon Co. v. Hernandez, 540 U.S. 44, 55 n.6
(2003).
13
efforts to convince Tramp to voluntarily forego health insurance to which she was
entitled as an AU employee, Tramp charged that the company’s concerns about
health care costs derived (in part) from its conclusion that Tramp had a disability.
Thus, the Complaint plainly does not “concede” that Associated Underwriter’s
motivations related solely to health care costs, to the exclusion of attention to
Tramp’s alleged disability. Rather, as with the factor of age, Tramp’s ADA claim
hinges on the assertion that the company “suppose[ed] a correlation” between
disability and health insurance costs and “act[ed] accordingly.” Hazen Paper, 507
U.S. at 613.
At summary judgment Tramp argued that Associated Underwriters “was
aware of her disability,” as well as that the company knew of her “impending
disability” related to upcoming knee surgery. Pl’s Summ. J. Opp’n 22-23.
Associated Underwriters did not dispute these assertions. Tramp also stated that
Associated Underwriters “discharged [her] based on her age and disability in an
attempt to save money on the company health insurance coverage.” Id. at 23. 4
Thus, the record cannot sustain the district court’s conclusion, without a single
citation, that Tramp “concedes” that Associated Underwriters fired her “to save
4
See also Pl.’s Summ. J. Opp’n 21 (“When the Defendant terminated Marjorie
Tramp, it was aware she was scheduled for arthroscopic knee surgery. (Tramp
Dep. 30:6-33:5, June 20, 2012). The Defendant knew of this procedure and in light
of its concern about insurance costs, sought to terminate prior to the surgery. This
surgery for a recognized disability constitutes a protected act, within the ADA.”)
(emphasis supplied).
14
health care costs and not because she was disabled.” Tramp, 2013 U.S. Dist.
LEXIS 86318, at *22 (emphasis supplied).
While Tramp acknowledges a connection between disability and health costs
in the company’s motivations for terminating her, she insists that these motivations
were multiple, not one and the same. Associated Underwriters, she contends,
“suppose[ed] a correlation” between disability and health insurance costs, Hazen
Paper, 507 U.S. at 613, but did not treat them as identical.
Thus, Tramp does not contend that Associated Underwriters discriminated
against her on grounds of disability (and age) simply because the company
dismissed her to save health care costs. In other words, Tramp does not maintain
that disability and health care costs are “analytically [in]distinct,” and thus, “a
decision based on [health care costs] is necessarily [disability]-based.” See Tramp,
2013 U.S. Dist. LEXIS 86318, at *13 (quoting Hazen Paper, 507 U.S at 611)
(bracketing supplied to introduce circumstances of this case). Yet that would have
to be so, as the court concluded, the reasoning of Hazen Paper applies to preclude
Tramp’s disability bias claim.
In Hazen Paper, the plaintiff argued that “a decision based on years of
service is necessarily ‘age-based.’” 507 U.S. at 611. In effect, Mr. Biggins said,
age and years of service were “analytically [in]distinct.” Id. The Court disagreed,
15
explaining that “[b]ecause age and years of service are analytically distinct, an
employer can take account of one while ignoring the other.” Id.
In its essence, this case is fundamentally different from Hazen Paper.
Tramp asserts that Associated Underwriters explicitly acted (at least in part) on the
basis of disability and age. Thus, she never has had to rely on contentions that the
company discharged her based on a factor (such as health care costs) that “is
necessarily” age-based or disability-based. Id. Likewise, because the record
shows that Associated Underwriters “suppose[ed] a correlation” between disability
(and age) and health insurance costs and “act[ed] accordingly,” Hazen Paper, 507
U.S. at 613, Tramp never has had to argue that disability (or age) and health care
costs are “analytically [in]distinct.” Id. at 611
Amicus Curiae submits that the summary judgment record does not resolve,
but rather, establishes at least an issue of fact whether, Associated Underwriters
was “wholly motivated by factors other than [disability].” Tramp, 2013 U.S. Dist.
LEXIS 86318, at *12 (quoting Hazen Paper v. Biggins, 507 U.S. at 611).
B.
The District Court Failed to Apply the ADAAA’s New, “More
Lenient” Proof Standards for Establishing an ADA “Disability.”
Because the company terminated Tramp in February 2009, her claim to have
a covered “disability” is governed by what the district court acknowledged to be
the more lenient standards of the ADA Amendments Act of
2008 (“ADAAA”), which became effective on January 1, 2009.
16
See 42 U.S.C. § 12102; Pub. L. No. 110-325, § 8, 122 Stat.
3553, 3559 (2008).
Tramp, 2013 U.S. Dist. LEXIS 86318, at *21. The most important respect in
which ADAAA standards for proving a “regarded as” disability are “more lenient”
is that a claimant only need now show an “impairment”:
An individual meets the requirement of “being regarded as
having such an impairment” if the individual establishes that he
or she has been subjected to an action prohibited under this
chapter because of an actual or perceived physical or mental
impairment whether or not the impairment limits or is
perceived to limit a major life activity.
42 U.S.C. § 12102(3)(A) (emphasis supplied). The court failed to follow this
standard and instead applied the more onerous “substantially limits” and “major
life activities” requirements. See Tramp, 2013 U.S. Dist. LEXIS 86318, at *20.
Moreover, in applying these tougher standards, the court ignored “rules of
construction” embodied in the ADAAA that call for a “more lenient” approach. 5
Such errors call for a full reconsideration of Tramp’s ADA claim. 6
5
The U.S. Equal Employment Opportunity Commission (EEOC), the agency
directed by Congress to promulgate regulations implementing the ADAAA, see 42
U.S.C. § 12205a, has derived from the ADAAA’s text and legislative history nine
“Rules of Construction” critical to proper application of the “substantially limits”
requirement. See 29 C.F.R § 1630.2(j)(1)(i) – (ix). These include: “‘substantially
limits’ shall be construed broadly in favor of expansive coverage, to the maximum
extent permitted by the terms of the ADA,” id. § 1630.2(j)(1)(i), and “[t]he primary
object of attention in cases brought under the ADA should be whether covered
entities have complied with their obligations, not whether an individual's
impairment substantially limits a major life activity. Accordingly, the threshold
17
In addition, the court simply assumed that “the major life activity at issue
[wa]s working.” Id. Yet neither the Complaint nor Tramp’s summary judgment
brief makes such a claim. And in its cursory discussion of the “substantially
limits” standard in the context of the major life activity of “working,” the court
cites authority pre-dating the ADAAA that itself relies on Sutton v. United
Airlines, 527 U.S. 471 (1999), one of the decisions largely disavowed by Congress
in the ADAAA. See Tramp, 2013 U.S. Dist. LEXIS 86318, at *20 (quoting
Knutson v. Ag Processing, Inc., 394 F.3d 1047. 1051 (8th Cir. 2005)).
Other, easier to prove, ADA-covered “major life activit[ies]” seemingly
applicable to Tramp include “walking” and “standing.” See 42 U.S.C.
issue of whether an impairment `substantially limits' a major life activity should
not demand extensive analysis,” id. § 1630.2(j)(1)(iii). The District Court
considered none of these rules of construction and should do so on remand.
6
The “more lenient” standards applicable to a “regarded as” disability do not
“apply to impairments that are transitory and minor.” 42 U.S.C. § 12102(3)(B).
The ADA defines “[a] transitory impairment [a]s an impairment with an actual or
expected duration of 6 months or less.” Id. The ADAAA does not define “minor.”
The district court did not address issues raised by potential application of the
‘transitory and minor” exception. Moreover, to the extent Tramp suggested she
would need “reasonable accommodation” following her surgery impending at the
time of her dismissal, the ADAAA does not entitle her to them, insofar as her ADA
claim is founded solely on a “regarded as” disability. 42 U.S.C. § 12201(h). The
district court also did not address this issue. Such issues might be addressed on
remand.
18
§ 12102(2)(A). 7 The court should not have ignored these, among others, given its
duty to review the record “in the light most favorable to the non-moving party.”
Tramp. 2013 U.S. Dist. LEXIS 86318, at*8 (citing Gage v. HSM Elec. Prot. Servs.,
665 F.3d 821, 825 (8th Cir. 2011) (quoting Fed. R. Civ. P. 56(c)).
Overall, the court seemingly made no more than a de minimus effort to
apply standards established by the ADAAA. See Tramp, 2013 U.S. Dist. LEXIS
86318, at *21 (declaring, summarily, that “Plaintiff presents no evidence that
would satisfy the ADA, even under the more lenient standards of the [ADAAA].”).
The court’s legal authority consisted of two unreported ADA decisions from
another judicial circuit, one of which predates the ADAAA by a decade and relied
on standards abandoned by the EEOC in the wake of the new statute. See id. at
*21-22 (citing Murray v, Sysco Corp., 1998 U.S. Dist. LEXIS 68633 (N.D.N.Y.
Apr. 2, 1998), for the proposition that “a knee injury requiring surgery did not have
the required duration or long-term impact to qualify as a disability.”). Cf. 29
C.F.R. § 1630.2(j)(1)(ix) (“The effects of an impairment lasting or expected to last
7
The district court’s choice is highly questionable “in light of the expanded
definition of disability established by the Amendments Act,” which dictates that
“th[e] major life activity [of working] will be used in only very targeted
situations.” 29 C.F.R. Part 1630 App. § 1630.2(j) (“Substantially Limited in
Working”). “In most instances, an individual with a disability will be able to
establish coverage by showing substantial limitation of a major life activity other
than working; impairments that substantially limit a person's ability to work
usually substantially limit one or more other major life activities.” Id.
19
fewer than six months can be substantially limiting”). The court’s superficial
analysis of the issue of “disability” was wholly inadequate to the task of properly
addressing the new standards enacted by Congress in the ADAAA of 2008.
CONCLUSION
For the reasons set forth above the Court should reverse the summary
judgment for Appellee Associated Underwriters and remand to the district court for
further consideration of the ADEA and ADA claims of Appellant Tramp.
Dated: September 20, 2013
Respectfully submitted,
/s/Daniel B. Kohrman
Daniel B. Kohrman*
Laurie A. McCann
AARP Foundation Litigation
*Counsel of Record
Melvin Radowitz
AARP
601 E St., NW
Washington, DC 20049
(202) 434-2060
dkohrman@aarp.org
20
ANTI-VIRUS CERTIFICATION
I, Daniel Kohrman, hereby certify that I have scanned the foregoing Brief of
Amicus Curiae AARP in Support of Appellant for viruses using Symantec
Endpoint Protection and that no viruses were detected.
Dated: September 20, 2013
/s/Daniel B. Kohrman
Counsel for Amicus Curiae
21
CERTIFICATE OF COMPLIANCE
1.
This brief complies with the type-volume limitation of Fed. R. App. P.
28.1(e)(2) or 32(a)(7)(B) because this brief contains 4,865 words, excluding the
parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
2.
This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this
brief has been prepared in a proportionally spaced typeface using Microsoft Word
2010 in 14 point font Times New Roman.
Dated: September 20, 2013
/s/ Daniel B. Kohrman
Counsel for Amicus Curiae
22
CERTIFICATE OF SERVICE
I certify that on this the 30th day of September, 2013, I caused 10 hard
copies of the foregoing brief, to be sent to the court, and 1 copy to the following
counsel, via Three Day service:
John Paul Weis
SODORO & DALY
200 Century Professional Plaza
7000 Spring Street Omaha, NE 68106
Counsel for Appellant
Kathryn J. Derr
Berkshire & Burmeister Law Offices
1301 S. 75th Street, Suite 100
Omaha, NE 68124
Counsel for Appellee
Dated: September 30, 2013
/s/ Daniel B. Kohrman
Counsel for Amicus Curiae
23