United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 10-1037
___________
Eddy Clark, *
*
Plaintiff-Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Matthews International Corporation, *
*
Defendant-Appellee. *
___________
Submitted: September 20, 2010
Filed: December 27, 2010
___________
Before RILEY, Chief Judge, MELLOY and COLLOTON, Circuit Judges.
___________
MELLOY, Circuit Judge.
Matthews International Corporation ("Matthews") terminated Eddy Clark in
January 2007. Alleging that he was terminated and suffered other adverse
employment actions due to his age, Clark sued Matthews under the Age
Discrimination in Employment Act ("ADEA") and the Missouri Human Rights Act
("MHRA"). The district court granted summary judgment in favor of Matthews, and
Clark appealed. We affirm in part and reverse in part.
I. Background
Matthews is a Pennsylvania corporation whose Graphics Division offers
graphic-design services to commercial vendors. The Graphics Division has facilities
across the United States, including one in St. Louis. The St. Louis Graphics Division
hired Eddy Clark, who was age forty-three at the time, to work as an artist in1992.
Clark was hired to design corrugated-cardboard packaging as a member of the St.
Louis Graphics Division’s Art Department.1
Corrugated-packaging design was the primary service that the St. Louis
Graphics Division offered its clients when it hired Clark. By 2000, however, the
market for corrugated-packaging design had become increasingly competitive. As a
result, not only was Matthews's share of the corrugated-packaging-design market
shrinking, but the profit margin for corrugated-packaging design was shrinking as
well. Thus, Matthews sought to diversify its packaging-design services at the St.
Louis Graphics Division. Specifically, although it had no plans of abandoning its
design of corrugated packaging at that time, Matthews wanted to begin designing
primary packaging at its St. Louis facility.
Primary packaging is substantially different from corrugated packaging.
Primary packaging is the packaging that firms use to enclose their products; as a
result, it is the packaging that consumers actually see. Primary packaging consists of
the colorful labels and packages that are intended to catch a consumer's eye as they
browse products in a retail store. Corrugated packaging, on the other hand, consists
of the cardboard boxes that products are shipped and stored in.
In 2000, to spur development of its primary-packaging-design services at the
St. Louis facility, Matthews hired a person with primary-packaging-design experience,
Randall Peek, to be a manager within the site's Art Department and to oversee the nine
artists who designed packaging. Peek formally divided the artists into three
teams—Blue, Red, and Purple—with three artists per team. The Blue Team designed
1
The Art Department is just one of the departments within the St. Louis
Graphics Division. Other departments include the Customer Service, Plate Making,
Mounting, and Shipping departments.
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basic one- and two-color corrugated packaging, the Red Team designed intermediate-
level corrugated packaging, and the Purple Team designed multi-color primary
packaging.
According to Peek, he formed the teams based upon the artists' previous work
experiences. Peek placed the three artists who had already been designing primary
packaging on the Purple Team. Peek selected Clark, age fifty-one at the time, for the
Blue team. Although Clark had twenty-five years of experience in designing
magazine advertisements, promotional brochures, flyers, catalogs, and corrugated
packaging, Clark did not have the type of experience and training in primary
packaging that the three Purple Team members had. After the division, the ages of the
Purple Team members (27, 28, 37) were relatively lower than the ages of the members
of the Red Team (31, 43, 50) and the Blue Team (35, 51, 54).
After the initial division in 2000, artists generally designed either corrugated
or primary packaging exclusively. This is because, according to Peek, designing
primary packaging requires different experience, training, and natural ability than
designing corrugated packaging. During his deposition, Peek described the difference
between designing these forms of packaging as similar to the difference between
"drawing a cartoon and doing a Picasso." As a consequence, primary-packaging
designers generally need to use different computers and software than corrugated-
packaging designers. Clark asked to join the Purple Team in 2005, but Peek did not
feel Clark was sufficiently skilled to design primary-packaging.
Peek claims his reluctance to place Clark on the Purple Team was due in part
to Clark's performance reviews. From 2000 onward, the St. Louis Graphics Division
consistently tried to increase its sales-per-employee ratio. As a result, artists were
required to produce better work at a quicker pace. However, Clark's performance
reviews indicate he was unable to keep up with these rising expectations. In 2002,
Clark's review indicates he was not meeting the company's standards for volume of
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work produced, that he needed to improve his work on VIP orders, and that he needed
to reduce his number of errors. A 2004 review indicates that Peek told Clark that he
would issue him a written warning if he did not begin working more quickly while
committing fewer errors. Although Clark's review improved slightly in 2005, his
review in 2006 again indicates that he was not meeting the company's productivity
standards.
Matthews also tried to boost its sales-per-employee ratio at the St. Louis
Graphics Division by routinely conducting reductions-in-force ("RIF"). The
terminations for the RIF relevant to this case occurred from August 18, 2006, through
January 31, 2007. Prior to the RIF, Matthews officials determined how many
employees needed to be cut at the St. Louis Graphics Division. Then, Peek2 and
Matthews's Vice-President of Operations, Kerry Beaver, claimed that they compiled
a list of employees who should be cut at the St. Louis facility based upon the fit
between their skills and the future work to be performed with a reduced staff. They
then sent this list to the Regional Human Resources Manager, who claimed she
reviewed the list to compare those selected for the RIF with those who were not
selected to ensure terminations were based upon job performance.
Clark, age fifty-seven at the time, was selected for the RIF and terminated on
January 31, 2007. According to Peek, Clark was chosen, at least in part, because he
did not have the skills for primary-packaging design, which had a greater profit
margin than corrugated-packaging design. Additionally, Peek claimed Clark's
performance reviews indicating poor productivity contributed to his termination.
For a number of reasons, however, Clark believes his selection for the RIF was
due to his age, not his abilities. First, fourteen of the fifteen employees terminated
2
By the time of the RIF terminations, Peek had been promoted to Production
Manager at the St. Louis facility.
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from August 18, 2006, to January 31, 2007, were over the age of forty. Second, Clark
alleges that, shortly before his termination, Peek asked him and another employee if
they were "just trying to make it to retirement" and suggested to the other employee
that "he could always get a job at Wal-Mart as a greeter." Third, Clark claims that
Matthews sent employees unsolicited mailings from AARP when they turned fifty-six
years old. Finally, Clark claims that Matthews retained employees who were younger
than him even though they also received poor performance reviews.
After his termination, Clark received notices of his right to sue Matthews from
the U.S. Equal Employment Opportunity Commission and the Missouri Commission
on Human Rights. Clark then brought this action against Matthews in the United
States District Court for the Eastern District of Missouri. Clark alleged that Matthews
violated both federal and Missouri anti-age-discrimination laws. Matthews brought
a motion for summary judgment, and the district court granted the motion on all of
Clark's claims. Clark now appeals, arguing that Matthews committed age
discrimination in violation of the ADEA in two ways. First, Clark argues that
Matthews committed age discrimination by conducting a RIF that disparately
impacted employees over the age of forty. Second, Clark argues that he suffered
disparate-treatment age discrimination because Matthews denied his request to design
primary packaging and ultimately terminated him because of his age. Finally, Clark
also argues that Matthews committed age discrimination in violation of the MHRA
because his age was a contributing factor in Matthews's decision to terminate him.
II. Discussion
"We review a district court's grant of summary judgment de novo." Anderson
v. Durham D & M, L.L.C., 606 F.3d 515, 518 (8th Cir. 2010). Summary judgment
is appropriate if the evidence, viewed in the light most favorable to the non-movant,
shows that there is no genuine issue of material fact and that the moving party is
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entitled to judgment as a matter of law. Schultz v. Windstream Commc'ns, Inc., 600
F.3d 948, 951 (8th Cir. 2010). "A genuine issue of material fact exists if a reasonable
jury could return a verdict for the party opposing the motion." Humphries v. Pulaski
County Special Sch. Dist., 580 F.3d 688, 692 (8th Cir. 2009).
A. Age Discrimination in Employment Act
The ADEA generally prohibits employers from discriminating against
employees, age forty and over, because of their age. 29 U.S.C. §§ 623(a)(1), (2);
631(a). Under the ADEA, a plaintiff may prove age discrimination on either a
disparate-treatment or disparate-impact theory. According to the disparate-treatment
theory, a plaintiff must prove that his employer intentionally discriminated against
him because of his age. Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2350 (2009).
According to the disparate-impact theory, however, proof of intent is not required.
Meacham v. Knolls Atomic Power Lab., 554 U.S. 84, 95–96 (2008). Instead, an
employer is liable for age discrimination on a disparate-impact theory if one of its
policies has had an adverse effect upon employees age forty and over which is
"functionally equivalent to intentional discrimination," regardless of whether the
employer actually had a discriminatory intent. Evers v. Alliant Techsystems, Inc.,
241 F.3d 948, 953 (8th Cir. 2001) (quoting Watson v. Fort Worth Bank & Trust, 487
U.S. 977, 987 (1988)). In this case, Clark seeks to use both disparate-treatment and
disparate-impact theories to prove that Matthews committed age discrimination.
i. Disparate-Impact Claim
Clark first argues that Matthews’s RIF disparately impacted employees age
forty and over at the St. Louis Graphics Division. To establish a prima facie case of
age discrimination on a disparate-impact theory, a plaintiff must (1) identify a
specific, facially neutral employment practice and then (2) present "statistical evidence
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of a kind and degree sufficient" to show (3) that the practice caused an adverse
employment action (4) that disparately affected workers over age forty. Evers, 241
F.3d at 953. If the plaintiff's prima facie case is met, the burden then shifts to the
employer to demonstrate that the policy identified by the plaintiff was based on a
"reasonable factor other than age" that was intended to achieve a legitimate goal.
Smith v. City of Jackson, 544 U.S. 228, 242 (2005). For the reasons that follow,
Clark has not established a prima facie case of disparate-impact age discrimination.
The employment practice that Clark argues caused a disparate impact on
workers age forty and over was the RIF from August 18, 2006, to January 31, 2007.
To determine whether the RIF had a disparate impact on older employees, we must
first determine the relevant pool of workers who were subject to the RIF. Stidham v.
Minn. Mining & Mfg., Inc., 399 F.3d 935, 938 (8th Cir. 2005); see also Smith v.
Xerox Corp., 196 F.3d 358, 368 (2d Cir. 1999), overruled on other grounds by
Meacham v. Knolls Atomic Power Lab., 461 F.3d 134, 139–41 (2d Cir. 2006), rev'd,
554 U.S. 84 (2008). Although fourteen of the fifteen employees who were terminated
from August 18, 2006, to January 31, 2007, were over age forty, the pool of
terminated employees is not the relevant pool for determining whether a RIF has
disparately impacted older employees. See Chambers v. Metro. Prop. & Cas. Ins. Co.,
351 F.3d 848, 856 (8th Cir. 2003). Moreover, contrary to Clark's argument, the pool
cannot be limited to just those employees who worked with Clark in the Art
Department. Although these employees were the ones who Peek and Beaver
compared with Clark when selecting employees for termination, the Art Department
is only one department within the St. Louis Graphics Division. During the RIF,
Matthews terminated employees at the St. Louis Graphics Division who worked
outside the Art Department. Thus, we cannot agree with Clark that only the St. Louis
Graphics Division's Art Department was subject to the RIF. Instead, we agree with
the district court that the relevant pool of workers consists of all of the non-
management employees at the St. Louis facility.
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Whether older workers in the pool of non-management employees at the St.
Louis Graphics Division were disparately impacted by the terminations requires
consideration of the percentage of older employees in the group before and after the
RIF. See id.; EEOC v. McDonnell Douglas Corp., 191 F.3d 948, 952 (8th Cir. 1999)
(noting that the important statistic "is the difference in the percentage of older
employees in the work force before and after the RIF"); see also Xerox Corp., 196
F.3d at 368. Prior to the terminations on January 31, 2007, the St. Louis Graphics
Division employed 43 non-management employees, 35 of whom were over age forty.
After the nine terminations on January 31, 2007, the St. Louis facility employed 34
non-management employees, 26 of whom were over age forty. Thus, the percentage
of employees over age forty in this pool dropped from 81.4% to 76.5% after January
31, 2007.
The percentage of employees over age forty drops at a similar rate even if we
expand the size of the pool. For example, if we consider the 6 employees who were
terminated between August 18, 2006, and January 30, 2007, to be part of the same RIF
that the 43 were subject to on January 31, then 49 non-management employees were
subject to the RIF, and, at most, 40 of these employees would have been over age
forty. Thus, the percentage of non-management employees over age forty would have
dropped, at most, from 81.6% prior to August 18, 2006, to 76.5% after January 31,
2007. Finally, even if we consider managerial employees to have been subject to the
RIF (except Peek, who was making the decisions), the ratio of employees in the
protected age group at the St. Louis facility would have gone from, at most, 44 of 53
prior to August 18, 2006, to 30 of 38 after January 31, 2007. This was a drop of, at
most, 4%.3
3
We say "at most" in this paragraph because five of these employees (including
one of those terminated between August 18, 2006, and January 31, 2007) might not
have been forty years old on August 18, 2006. The record indicates that these five
employees were born in 1966, but it does not indicate what month and day they were
born. If any of these employees had still been under age forty prior to August 18,
2006, each of the drops in percentage of employees over age forty would have been
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The issue then is whether, in a pool of forty-two to fifty-three workers, a 4-5%
drop in the employment rate of workers age forty and over is sufficient to establish
that the RIF terminations disparately impacted employees over age forty. To establish
that a RIF had a disparate impact on older employees, there must have been a
"sufficiently substantial" drop in the employment rate of those over age forty to create
an inference that employees were terminated because of their age. Watson, 487 U.S.
at 994–95. Although there is no "rigid mathematical formula," id., our court has
previously held that a 4% drop in the employment rate of over-age-forty employees
is not sufficient for purposes of establishing that age was a factor in a termination
decision. Stidham, 399 F.3d at 938. Nor are we convinced in this case that a 4-5%
drop in the employment rate of workers in the protected age group is sufficiently
substantial to create an inference that Clark and other employees were terminated
because of their age. Thus, Clark has failed to prove a prima facie case of disparate-
impact age discrimination.
ii. Disparate-Treatment Claims
Clark also argues that he suffered disparate-treatment age discrimination
because Matthews intentionally selected him for termination and denied him the
opportunity to design primary-packaging because of his age. To establish a disparate-
treatment claim of age discrimination under the ADEA, Clark must prove that his age
was the "but-for" cause of Matthews's challenged decisions. Gross, 129 S. Ct. at
2350. In other words, Clark must show that if it were not for his age, he would not
have been terminated and he would have become a primary-packaging designer.
Clark is required to prove that his age was the "but-for" cause of Matthews's
challenged decisions regardless of whether he uses direct or circumstantial evidence
to prove his age-discrimination claims. Id. at 2351.
lower. Since we view the evidence in the light most favorable to Clark, however, we
will assume that all five of these employees were over age forty.
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After the Supreme Court's decision in Gross, it is unclear whether Clark may
prove his age-discrimination claims through use of the evidentiary framework of
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Baker v. Silver Oak Senior
Living Mgmt. Co., 581 F.3d 684, 688 (8th Cir. 2009). Under this framework, if Clark
establishes a four-part prima facie case of age discrimination, then Matthews must
articulate a legitimate, nondiscriminatory reason for its actions. Thomas v. Corwin,
483 F.3d 516, 528 (8th Cir. 2007). If Matthews does so, then Clark must show that
Matthews's proffered reason was pretextual. Id. The Supreme Court in Gross
declined to answer whether use of this evidentiary framework is appropriate in the
context of ADEA claims. Gross, 129 S. Ct. at 2349 n.2. Other circuits, however, have
continued to apply it. See, e.g., Gorzynski v. Jetblue Airways Corp., 596 F.3d 93, 106
(2d Cir. 2010); Geiger v. Tower Auto., 579 F.3d 614, 622 (6th Cir. 2009); Smith v.
City of Allentown, 589 F.3d 684, 691 (3d Cir. 2009).
The district court did not apply the McDonnell Douglas framework in this case
because Clark did not argue for its application. In his response to Matthews's motion
for summary judgment, Clark simply stated that a "'But-for' analysis regarding [his]
discrimination allegations" was necessary. On appeal, Clark now argues the district
court committed error by not applying the framework. Even now, however, Clark has
not argued that he has established a prima facie case of age discrimination under the
framework, nor has he argued that Matthews's proffered reasons for terminating him
are pretextual.4 Thus, we decline to apply the McDonnell Douglas framework in this
4
In his brief on appeal, Clark's only reference to the framework is a statement
that "[he], of course, maintains that the evidentiary provisions of McDonnell Douglas
apply . . . and, accordingly, Matthews is required to produce evidence that its actions
or failure to act involving employees in the protected age group were not motivated
by age discriminatory motives." Even if this were enough to invoke application of the
McDonnell Douglas framework, this is an inaccurate description of how we apply it.
Merely "maintain[ing]" that the evidentiary provisions of the McDonnell Douglas
framework apply does not require an employer to provide legitimate, non-
discriminatory reasons for its decisions. Before an employer faces this burden, the
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case. Smith v. City of Des Moines, 99 F.3d 1466, 1473 (8th Cir. 1996) (noting that
we do not "reverse a grant of summary judgment on the basis of an argument not
presented below").5 As a result, Clark must prove that his age was the "but for" cause
of Matthews's challenged decisions without use of the McDonnell Douglas
framework.6 For the reasons that follow, Clark has failed to raise a genuine issue of
material fact on these issues.
Clark has not disputed a number of important issues of fact regarding his skills,
the nature of the packaging-design industry, and Matthews's business goals. First,
Clark does not dispute that he was selected as part of a RIF that Matthews hoped
would boost the St. Louis Graphics Division's sales-per-employee ratio. Next, Clark
does not dispute either that primary-packaging design has a higher profit margin than
corrugated-packaging design, or that primary-packaging design was the type of
packaging that the St. Louis Graphics Division planned to emphasize after the RIF.
Third, Clark does not dispute that he designed corrugated packaging, not primary
packaging. And finally, although he claims that he competently designed corrugated
packaging, he does not dispute that he received performance reviews in 2002, 2004,
and 2006 in which he received low marks for productivity. See Evers, 241 F.3d at 957
(noting that terminating an employee based upon poor performance reviews, even if
erroneous, is not unlawful).
Nonetheless, Clark claims that certain remarks made by Peek and mailings sent
by Matthews indicate that Clark would not have been terminated if it were not for his
plaintiff must allege and prove a four-part prima facie case of age discrimination.
Clark has failed to do either of these things before the district court or this court.
5
We express no opinion regarding whether the McDonnell Douglas framework
is otherwise applicable in the ADEA context.
6
Even if the McDonnell Douglas framework applied in this case, Clark would
still ultimately have to prove that his age was the "but for" cause of Matthews's
challenged decisions. Gross, 129 S. Ct. at 2350.
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age. Clark first claims that Matthews sent unsolicited mailings from the AARP to
workers when they turned fifty-six years old. We have held that isolated inquiries into
the retirement plans of an employee that are reasonable and not unduly excessive are
insufficient to establish age discrimination. Betz v. Chertoff, 578 F.3d 929, 934 (8th
Cir. 2009); Cox v. Dubuque Bank & Trust Co., 163 F.3d 492, 497 (8th Cir. 1998).
Sending an AARP mailing is a reasonable way for an employer to try to determine the
retirement plans of employees, which an employer has a legitimate interest in
knowing. Id. Thus, these mailings cannot establish age discrimination.
In addition to the AARP mailing, however, Clark claims that Peek asked him
if he was "just trying to make it to retirement" and suggested to another worker that
he could "always become a Wal-Mart greeter." Age-related comments made by a
decisionmaker, such as Peek, generally require closer scrutiny than comments made
by non-decisionmakers. See King v. United States, 553 F.3d 1156, 1160–61 (8th Cir.
2009) (noting cases that distinguished comments by decisionmakers from comments
by non-decisionmakers). However, isolated remarks regarding retirement and age
generally are insufficient to prove age discrimination, especially when it is unclear
what context the statements were made in. Sprenger v. Fed. Home Loan Bank of Des
Moines, 253 F.3d 1106, 1112–13 (8th Cir. 2001). In this case, although Peek uttered
the remarks, there is no showing that he made the remarks in reference to a
termination decision. Moreover, the other employee to whom Peek made the
comments indicated that Peek made them in a joking manner. Generally, an isolated
joke, without more, is insufficient to prove age discrimination. See, e.g., Montgomery
v. John Deere & Co., 169 F.3d 556, 560–61 (8th Cir. 1999).
Clark seeks to bolster his case by noting that Peek did not select for termination
two younger employees who also had some poor performance reviews. Clark argues
that the only difference between these retained employees and himself was that the
retained employees were younger than him. However, even assuming these two
employees received performance reviews that were similar to Clark's, we do not agree
that age was the only difference between Clark and the two retained employees. In
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fact, there was a very important difference: these two employees had primary-
packaging design experience, whereas Clark did not. In the context of a RIF, age
discrimination cannot necessarily be inferred from the fact that an employer retained
younger employees. Ward v. Int'l Paper Co., 509 F.3d 457, 461 (8th Cir. 2007). This
is especially true, as here, where the employer has retained the younger employees to
perform work that the plaintiff had not been performing. Id. Thus, Clark has failed
to create a triable issue of fact regarding whether he was intentionally selected for
termination during the RIF because of his age.7
Apart from his termination-based disparate-treatment claim, Clark finally
argues that, because of his age, Matthews failed to initially assign him to the Purple
Team, failed to subsequently put him on the Purple Team, and denied him the same
equipment and software that was available to Purple Team members. Clark does not
dispute, however, that the initial three members of the Purple Team were the only
three artists at the St. Louis Graphics Divisions who had primary-packaging design
experience. Nor does Clark dispute that only primary-packaging designers received
the equipment and software that Clark alleges he was not provided.8 Moreover,
7
As noted earlier in this opinion, Clark relies on the drop in percentage of over-
age-forty employees to prove his disparate-impact age-discrimination claim. Reading
Clark's brief, it is unclear whether Clark also relies on this evidence for his disparate-
treatment claim. To the extent Clark argues that a 4-5% drop in the percentage of
over-age-forty employees at the St. Louis Graphics Division is proof that he was
terminated because of his age, we again note that this drop is not sufficient for
purposes of establishing age discrimination. Stidham, 399 F.3d at 938. Thus, this
evidence fails to create a triable issue of fact on whether Clark was terminated because
of his age.
8
We note that even though the computer hardware and software that Clark was
assigned to use was not the same as the primary-packaging designers', Clark always
had the ability to use the same equipment that primary-packaging designers used.
This is because one of the primary-packaging designers worked nights, so his
computer was available for Clark and others to use during the day. Apparently, Clark
chose not to use this computer.
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although Clark alleges that all three of the artists who were selected for the Purple
Team after 2000 were under age forty and that at least one of these artists had no prior
experience in primary-packaging, Clark has failed to create a triable issue of fact
regarding his own qualifications to join the Purple Team. See Grayson v. City of
Chicago, 317 F.3d 745, 748 (7th Cir. 2003) (noting that in the context of a
discriminatory failure-to-promote claim, plaintiffs must not only show that they are
qualified for the promotion, but that they were as qualified or more qualified than the
persons who received the promotions); see also Cardenas v. AT & T Corp., 245 F.3d
994, 998 (8th Cir. 2001) (noting that the plaintiff must show that he is qualified for
the promotion). Therefore, Clark has failed to create a triable issue of fact regarding
whether his age was the but-for cause of either his preclusion from the Purple Team
or his inability to receive certain software and equipment.
B. Missouri Human Rights Act
Like the ADEA, the MHRA generally prohibits employers from discriminating
against employees because of their age.9 Mo. Ann. Stat. § 213.055(1). The standard
for proving age discrimination under the MHRA, however, is less demanding than the
ADEA's standard. Baker, 581 F.3d at 689–90. Whereas Gross requires plaintiffs to
prove that their age was the "but for" cause of an adverse employment action to
establish age discrimination under the ADEA, the MHRA only requires plaintiffs to
prove that their age was a "contributing factor" in the adverse employment action.
Daugherty v. City of Md. Heights, 231 S.W.3d 814, 820 (Mo. 2007).
Under the MHRA's "contributing factor" standard, Clark is not required to
prove that his age was the "determining" factor or even a "substantial" factor in
Matthews's decisions to keep him off the Purple Team and to ultimately terminate
him. All Clark must prove is that his age played "a part in producing" these decisions.
9
The protected age group under the MHRA is forty to seventy. Mo. Ann. Stat.
§ 213.010(1).
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Williams v. Trans States Airlines, Inc., 281 S.W.3d 854, 867 (Mo. Ct. App. 2009)
(quoting McBryde v. Ritenour Sch. Dist., 207 S.W.3d 162, 170 (Mo. Ct. App. 2006)).
Thus, the difference between the ADEA and the MHRA is that the former requires
that age must have been "the reason" for the adverse employment action, while the
latter merely requires that age was "a reason" for the action.
We are unsure whether a Missouri court would find that there is a genuine issue
of material fact regarding whether Clark's age was a contributing factor in his
termination or the rejection of his request to join the Purple Team. The Missouri
courts developed the contributing-factor standard only recently. Although it is clear
that the MHRA standard is less demanding than the ADEA standard, the Missouri
courts have had few opportunities to apply the standard in the context of age-
discrimination claims. Thus, since "the claim raises a novel or complex issue of State
law," 28 U.S.C. § 1367(c)(1), we think the prudent decision in this case is to let the
Missouri courts decide the matter. See EEOC v. Con-Way Freight, Inc., 622 F.3d
933, 938 (8th Cir. 2010); Gregory v. Dillard's, Inc., 565 F.3d 464, 477 (8th Cir. 2009);
Birchem v. Knights of Columbus, 116 F.3d 310, 314 (8th Cir. 1997).
III. Conclusion
For these reasons, we affirm the judgment of the district court on Clark's ADEA
claims and remand the judgment with directions to dismiss Clark's MHRA claim
without prejudice.
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