FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL J. MURRAY, M.D. - a No. 17-16803
married man,
Plaintiff-Appellant, D.C. No.
2:14-cv-01314-
v. SPL
MAYO CLINIC, a Minnesota nonprofit
corporation; MAYO CLINIC ARIZONA, OPINION
an Arizona nonprofit corporation;
WYATT DECKER, M.D. - husband;
GEORGIANNA DECKER, wife; LOIS
KRAHN, M.D. - wife; ERIC GORDON,
M.D. - husband; TERRENCE
TRENTMAN, M.D. - husband;
LARALEE TRENTMAN, wife; WILLIAM
STONE, M.D. - husband; MAREE
STONE, wife; DAVID ROSENFELD,
M.D. - husband; MELISSA
ROSENFELD, M.D. - wife; ROSHANAK
DIDEHBAN, a single woman,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Steven Paul Logan, District Judge, Presiding
Argued and Submitted June 13, 2019
San Francisco, California
2 MURRAY V. MAYO CLINIC
Filed August 20, 2019
Before: Ronald M. Gould and Sandra S. Ikuta, Circuit
Judges, and Benita Y. Pearson, * District Judge.
Opinion by Judge Pearson
SUMMARY **
Employment Discrimination
The panel affirmed the district court’s judgment, after a
jury trial, in favor of the defendants in an employment
discrimination action under Title I of the Americans with
Disabilities Act.
The panel held that the district court correctly instructed
the jury to apply a but for causation standard, rather than a
motivating factor standard. The panel concluded that Head
v. Glacier Northwest, Inc., 413 F.3d 1053 (9th Cir. 2005),
holding that ADA discrimination claims are evaluated under
a motivating factor causation standard, is no longer good law
because its reasoning is clearly irreconcilable with the
Supreme Court’s rulings in Gross v. FBL Fin. Servs., Inc.,
557 U.S. 167 (2009), and Univ. of Texas Southwestern Med.
Ctr. v. Nassar, 570 U.S. 338 (2013). Agreeing with other
circuits, the panel held that an ADA discrimination plaintiff
*
The Honorable Benita Y. Pearson, United States District Judge for
the Northern District of Ohio, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
MURRAY V. MAYO CLINIC 3
bringing a claim under 42 U.S.C. § 12112 must show that
the adverse employment action would not have occurred but
for the disability.
The panel addressed other issues in a simultaneously
filed memorandum disposition.
COUNSEL
Roger L. Cohen (argued), Jaburg Wilk P.C., Phoenix,
Arizona; Scott A. Blaney, Blaney Law PLLC, Phoenix,
Arizona; for Plaintiff-Appellant.
John F. Lomax, Jr. (argued) and Kelly Kszywienski, Snell &
Wilmer L.L.P., Phoenix, Arizona, for Defendants-
Appellees.
OPINION
PEARSON, District Judge:
Plaintiff Michael Murray appeals the district court’s
instruction to the jury on his claim under the Americans with
Disabilities Act (“ADA”), requiring him to prove that he was
discharged because of his disability. Murray claims that our
decision in Head v. Glacier Northwest, Inc., 413 F.3d 1053
(9th Cir. 2005), holding ADA discrimination claims are
4 MURRAY V. MAYO CLINIC
evaluated under a motivating factor causation standard,
remains good law. Because it is not, we affirm. 1
I.
Dr. Murray filed suit against Mayo Clinic, Mayo Clinic
Arizona, Drs. Wyatt Decker, Lois Krahn, Terrence
Trentman, William Stone, and David Rosenfeld, and
Operations Administrator Roshanak Didehban. In
anticipation of trial, the parties submitted joint proposed jury
instructions. The parties disagreed whether Murray’s ADA
discrimination claim should be tried under a but-for
causation standard or a motivating factor causation standard.
Murray argued that our decision in Head required him to
show only that the defendants’ belief that he had a disability
was a motivating factor in their adverse employment
decision. He accordingly requested the following
instruction:
As to Dr. Murray’s claim that his disability
was the reason for Mayo Clinic Arizona’s
decision to discharge him, Dr. Murray has the
burden of proving the following evidence by
a preponderance of the evidence:
...
3. Dr. Murray was discharged because
Defendants regarded him as disabled, which
means that Defendants’ belief that Plaintiff
1
In a memorandum disposition filed simultaneously with this
opinion, we affirm the district court as to all other issues raised by
Murray.
MURRAY V. MAYO CLINIC 5
had a disability was a motivating factor in
Defendants’ decision to terminate him.
The district court instead instructed the jury to apply a but-
for causation standard to Murray’s ADA claim. The
instruction provided that Murray must prove he was
discharged because of his disability:
As to Dr. Murray’s claim that his disability
was the reason for Mayo Clinic Arizona’s
decision to discharge him, Dr. Murray has the
burden of proving the following evidence by
a preponderance of the evidence:
...
3. Dr. Murray was discharged because of his
disability.
In denying Murray’s motion for reconsideration, the district
court found that the Supreme Court’s rulings in Gross v. FBL
Financial Services, Inc., 557 U.S. 167 (2009), and
University of Texas Southwestern Medical Center v. Nassar,
570 U.S. 338 (2013), abrogated our reasoning in Head. The
district court concluded that the but-for causation standard
applied.
At trial, the jury returned a verdict for Defendants on all
claims. Following entry of judgment, Murray timely filed a
notice of appeal.
II.
“A district court’s formulation of the jury instructions is
reviewed for ‘abuse of discretion.’ If, however, ‘the
instructions are challenged as a misstatement of the law, they
6 MURRAY V. MAYO CLINIC
are then reviewed de novo.’” Duran v. City of Maywood,
221 F.3d 1127, 1130 (9th Cir. 2000) (per curiam) (citation
omitted) (quoting Gilbrook v. City of Westminster, 177 F.3d
839, 860 (9th Cir. 1999), as amended on denial of reh’g
(July 15, 1999)). Jury instructions must fairly and
adequately cover the issues presented and must not be
misleading. Gantt v. City of Los Angeles, 717 F.3d 702, 706
(9th Cir. 2013).
A.
Title I of the ADA provides that “[n]o covered entity
shall discriminate against a qualified individual on the basis
of disability in regard to job application procedures, the
hiring, advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, and
privileges of employment.” 42 U.S.C. § 12112(a) (emphasis
added).
Title I of the ADA also contains an enforcement
provision, which cross-references specific portions of
Title VII:
The powers, remedies, and procedures set
forth in sections 2000e-4, 2000e-5, 2000e-6,
2000e-8, and 2000e-9 of [Title VII] shall be
the powers, remedies, and procedures this
subchapter provides to . . . any person
alleging discrimination on the basis of
disability in violation of any provision of this
chapter . . . .
42 U.S.C. § 12117(a). Of the cross-referenced sections, only
§ 2000e-5 references a causation standard. Specifically, that
section provides: “[o]n a claim in which an individual proves
a violation under section 2000e-2(m) of this title and a
MURRAY V. MAYO CLINIC 7
respondent demonstrates that the respondent would have
taken the same action in the absence of the impermissible
motivating factor,” the court may award only limited relief.
42 U.S.C. § 2000e-5(g)(2)(B). Section 2000e-2(m), in turn,
provides that “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.”
B.
We first analyzed the standard for causation in a Title I
ADA discrimination action in Head v. Glacier Northwest,
Inc. In that case, we addressed “whether the ADA’s use of
the causal language ‘because of,’ ‘by reason of,’ and
‘because’ means that discriminatory and retaliatory conduct
is proscribed only if it was solely because of, solely by reason
of, or solely because an employee was disabled or requested
an accommodation.” Head, 413 F.3d at 1063–64. We
concluded that, under the “plain language of the ADA . . .
‘solely’ [was] not the appropriate causal standard under any
of the ADA’s liability provisions.” Id. at 1065.
Considering whether the ADA instead requires but-for
causation, or merely a showing that the disability was a
motivating factor of the discrimination, we joined seven
other circuits in concluding that “a ‘motivating factor’
standard [was] most consistent with the plain language of the
statute and the purposes of the ADA.” Id. We thus held “the
ADA outlaws adverse employment decisions motivated,
even in part, by animus based on a plaintiff’s disability or
request for an accommodation—a motivating factor
standard.” Id.
8 MURRAY V. MAYO CLINIC
In so holding, we relied in part on the reasoning of our
sister circuits. See id. at 1065 n.63. The Fifth and Eighth
Circuits had held the motivating factor standard applied to
the ADA by virtue of the ADA’s incorporation in § 12117
of Title VII’s remedies in § 2000e-5. 2 See Buchanan v. City
of San Antonio, 85 F.3d 196, 200 (5th Cir. 1996); Pedigo v.
P.A.M. Transp., Inc., 60 F.3d 1300, 1301 (8th Cir. 1995). 3
The Second and Seventh Circuits had concluded that
ADA discrimination claims, like Title VII discrimination
claims, only required a showing that discrimination
motivated an employer’s adverse employment action. This
is because ADA and Title VII, at the time, both used the
words “because of” to indicate causation, suggesting
Congress intended the statutes to employ the same causation
standard. See Parker v. Columbia Pictures Indus., 204 F.3d
326, 337 (2d Cir. 2000), overruled by Natofsky v. City of
New York, 921 F.3d 337 (2d Cir. 2019); Foster v. Arthur
Andersen, LLP, 168 F.3d 1029, 1033 (7th Cir. 1999),
overruled by Serwatka v. Rockwell Automation Inc.,
591 F.3d 957 (7th Cir. 2010). Both courts acknowledged
that, although § 2000e-2(m) is not, by its terms, specifically
applicable to ADA cases, Congress intended the mixed-
motive framework to apply to ADA claims. Parker,
204 F.3d at 337; Foster, 168 F.3d at 1033.
2
Similarly, the Fourth Circuit had found the motivating factor
standard applied in a Title II ADA case through the ADA’s incorporation
in 42 U.S.C. § 12133 of the remedies set forth in 29 U.S.C. § 794a,
which, in turn, incorporated the remedies in 42 U.S.C. § 2000e-5. Baird
ex rel. Baird v. Rose, 192 F.3d 462, 470 (4th Cir. 1999).
3
The First Circuit relied on Pedigo, without additional analysis, in
applying the motivating factor standard. Katz v. City Metal Co., 87 F.3d
26, 33 (1st Cir. 1996).
MURRAY V. MAYO CLINIC 9
C.
Four years after our decision in Head, the Supreme Court
decided Gross v. FBL Financial Services, Inc. The Court
held that the Age Discrimination in Employment Act
(“ADEA”)—which makes it unlawful for an employer to
discharge or discriminate against any individual “because of
such an individual’s age”—requires the plaintiff to “prove
that age was the ‘but-for’ cause of the employer’s adverse
decision.” Gross, 557 U.S. at 177–78. In so doing, the Court
declined to extend 4 the “motivating factor” standard of
causation to employment discrimination cases brought under
the ADEA. Id. Four years after Gross, the Supreme Court
in Nassar again declined to extend the motivating factor
standard, this time to Title VII retaliation claims. 570 U.S.
at 362–63.
Against this backdrop, “circuits have retreated from the
motivating factor standard of causation in ADA cases.”
Bukiri v. Lynch, 648 F. App’x 729, 731 n.1 (9th Cir. 2016)
(collecting cases). We have not yet decided whether Gross
and Nassar have “eroded Head’s vitality.” Mendoza v.
Roman Catholic Archbishop of L.A., 824 F.3d 1148, 1150
n.1 (9th Cir. 2016) (per curiam). We do so now.
D.
Murray contends that the motivating factor standard
applies because we are bound by our decision in Head. We
disagree.
4
The Supreme Court recognized the “motivating standard” of
causation as the appropriate standard for employment discrimination
actions brought under Title VII of the Civil Rights Act of 1964. Price
Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989) (plurality opinion).
10 MURRAY V. MAYO CLINIC
Generally, a three-judge panel may not overrule a prior
decision of the court. Miller v. Gammie, 335 F.3d 889, 899
(9th Cir. 2003) (en banc). If, however, “an intervening
Supreme Court decision undermines an existing precedent
of the Ninth Circuit, and both cases are closely on point,” the
three-judge panel may then overrule prior circuit authority.
Id. (quoting Galbraith v. Cty. of Santa Clara, 307 F.3d 1119,
1123 (9th Cir. 2002)). The issue decided by the higher court
need not be identical. Id. at 900. The appropriate test is
whether the higher court “undercut the theory or reasoning
underlying the prior circuit precedent in such a way that the
cases are clearly irreconcilable.” Id.
“The ‘clearly irreconcilable’ requirement is ‘a high
standard.’” United States v. Robertson, 875 F.3d 1281, 1291
(9th Cir. 2017) (quoting Rodriguez v. AT & T Mobility Servs.
LLC, 728 F.3d 975, 979 (9th Cir. 2013)). “It is not enough
for there to be ‘some tension’ between the intervening higher
authority and prior circuit precedent, or for the intervening
higher authority to ‘cast doubt’ on the prior circuit
precedent.” Lair v. Bullock, 697 F.3d 1200, 1207 (9th Cir.
2012) (internal citation omitted) (quoting United States v.
Orm Hieng, 679 F.3d 1131, 1140–41 (9th Cir. 2012), and
United States v. Delgado-Ramos, 635 F.3d 1237, 1239 (9th
Cir. 2011) (per curiam)). If the court can apply prior circuit
precedent without running afoul of the intervening authority,
it must do so. Id.
Because Head’s reasoning is clearly irreconcilable with
Gross and Nassar, we overrule Head’s holding that a
plaintiff bringing a discrimination claim under Title I of the
ADA need show only that a disability was a motivating
factor of the adverse employment action. We hold instead
that an ADA discrimination plaintiff bringing a claim under
MURRAY V. MAYO CLINIC 11
42 U.S.C. § 12112 must show that the adverse employment
action would not have occurred but for the disability.
In Head, we relied on the reasoning of our sister circuits
and our existing precedent in finding that a motivating factor
was most consistent with the ADA’s plain language and
purpose. Head, 413 F.3d at 1065 & nn.63–64. Our prior
precedent, however, provides no further analysis of the text
or purpose of the ADA in support of applying a motivating
factor causation standard. See Hernandez v. Hughes Missile
Sys. Co., 362 F.3d 564, 568 (9th Cir. 2004); Snead v. Metro.
Prop. & Cas. Ins. Co., 237 F.3d 1080, 1094 (9th Cir. 2001). 5
Additionally, Gross and Nassar undercut the reasoning set
forth by our sister circuits.
Gross held that the ADEA, which also used “because of”
to indicate causation, did not permit mixed-motive claims
because “the ADEA’s text does not provide that a plaintiff
may establish discrimination by showing that age was
simply a motivating factor.” 557 U.S. at 174. The Court
rejected the argument that Title VII decisions governed
interpretation of the ADEA on the basis that the two statutes
were distinguishable. Id. (“[W]e ‘must be careful not to
apply the rules applicable under one statute to a different
statute without careful and critical examination.’” (quoting
5
Head noted Hernandez’s characterization of the burden on an
ADA plaintiff as “proving that ‘disability actually played a role in the
employer’s decisionmaking process and had a determinative influence
on the outcome.’” Head, 413 F.3d at 1065 (quoting Hernandez, 362 F.3d
at 568 (emphasis in Head)). Head also observed Snead’s statement that
a plaintiff must demonstrate that “a discriminatory reason more likely
motivated the employer.” Head, 413 F.3d at 1065 (quoting Snead,
237 F.3d at 1094 (emphasis in Head)). Neither statement requires a
motivating factor standard.
12 MURRAY V. MAYO CLINIC
Fed. Exp. Corp. v. Holowecki, 552 U.S. 389, 393 (2008)).
The Court explained,
Unlike Title VII, which has been amended to
explicitly authorize discrimination claims
where an improper consideration was a
‘motivating factor’ for the adverse action, the
ADEA does not provide that a plaintiff may
establish discrimination by showing that age
was simply a motivating factor. Moreover,
Congress neglected to add such a provision to
the ADEA when it added §§ 2000e-2(m) and
2000e-5(g)(2)(B) to Title VII, even though it
contemporaneously amended the ADEA in
several ways.
Id. (citations omitted).
Gross’s reasoning directly contradicts the textual
reasoning Head and other courts applied to conclude that
Title VII’s motivating factor standard applied to ADA
claims. See Parker, 204 F.3d at 337; Foster, 168 F.3d
at 1033. Like the ADEA, and unlike Title VII, the ADA
does not contain any explicit “motivating factor” language.
See Gross, 557 U.S. at 174. Rather, Title I of the ADA
provides that a plaintiff must show discrimination “on the
basis of disability.” 42 U.S.C. § 12112(a). Under Gross, the
phrase “on the basis of disability” indicates but-for
causation. Gross, 557 U.S. at 176; see also Nassar, 570 U.S.
at 350 (explaining Gross’s holding that “because of,” “by
MURRAY V. MAYO CLINIC 13
reason of,” “on account of,” and “based on” all indicate a
but-for causal relationship). 6
Nassar’s reasoning likewise directly undercuts the
reasoning of courts that relied on the ADA’s incorporation
in § 12117 of § 2000e-5. See Buchanan, 85 F.3d at 200;
Pedigo, 60 F.3d at 1301; cf. Baird ex rel. Baird v. Rose,
192 F.3d 462, 470 (4th Cir. 1999) (ADA Title II’s
incorporation of § 2000e-5). Nassar rejected the argument
that § 2000e-2(m), Title VII’s motivating factor causation
provision, applies to Title VII retaliation claims. Nassar,
570 U.S. at 353. The Court emphasized that “the text of the
motivating-factor provision, while it begins by referring to
‘unlawful employment practices,’ then proceeds to address
only five of the seven prohibited discriminatory actions—
actions based on the employee’s status, i.e., race, color,
religion, sex, and national origin.” Id. According to Nassar,
the plain language of § 2000e-2(m) barred its application to
retaliation claims, and “it would be improper to conclude
that what Congress omitted from the statute is nevertheless
within its scope.” Id.
The same logic applies to Title I ADA discrimination
claims. Relief under § 2000e-5(g)(2)(B) is available only if
6
Title I of the ADA was amended in 2008 to prohibit discrimination
“on the basis of” disability, rather than “because of” disability. We find
no meaningful textual difference in the two phrases with respect to
causation. The Second and Fourth Circuits likewise found no
meaningful textual difference between the two standards and found
nothing in the legislative history suggesting Congress intended to modify
the ADA’s standard for causation. Natofsky v. City of New York,
921 F.3d 337, 349–50 (2d Cir. 2019); Gentry v. E.W. Partners Club
Mgmt. Co., 816 F.3d 228, 234 (4th Cir. 2016) (noting that the ADA
amendment was enacted before Gross, and was therefore not in response
to Gross’s causation analysis).
14 MURRAY V. MAYO CLINIC
the plaintiff proves a violation under § 2000e-2(m). Section
2000e-2(m) narrowly prohibits the consideration of race,
color, religion, sex, or national origin as a motivating factor
for any employment practice. It does not prohibit the
consideration of disability. Congress’s express listing of
these status-based considerations under § 2000e-2(m) is best
understood as an exclusion of all other considerations. See,
e.g., Silvers v. Sony Pictures Entm’t, Inc., 402 F.3d 881, 885
(9th Cir. 2005) (“The doctrine of expressio unius est exclusio
alterius ‘as applied to statutory interpretation creates a
presumption that when a statute designates certain persons,
things, or manners of operation, all omissions should be
understood as exclusions.’” (quoting Boudette v. Barnette,
923 F.2d 754, 756–57 (9th Cir. 1991))). Section 2000e-
2(m), by its plain language, is inapplicable to claims of
disability discrimination.
Because Head’s reasoning—whether based on the
ADA’s cross-reference to § 2000e-5(g)(2)(B) or on the
ADA’s text—is irreconcilable with subsequent Supreme
Court precedent, it cannot stand.
III.
Our decision comports with the decisions of all of our
sister circuits that have considered this question after Gross
and Nassar. The Second, Fourth, and Seventh Circuits
found the Supreme Court’s intervening jurisprudence to be
dispositive of the issue. See Natofsky, 921 F.3d at 348
(“Gross and Nassar dictate our decision here.”); Gentry v.
E.W. Partners Club Mgmt. Co., 816 F.3d 228, 234 (4th Cir.
2016) (“The Supreme Court’s analysis in Gross dictates the
outcome here.”); Serwatka, 591 F.3d at 963 (“But in view of
the Court’s intervening decision in Gross, it is clear that the
district court’s decision . . . cannot be sustained.”). The
Sixth Circuit, following en banc review, similarly held that
MURRAY V. MAYO CLINIC 15
Gross’s reasoning was controlling. Lewis v. Humboldt
Acquisition Corp., 681 F.3d 312, 318 (6th Cir. 2012) (en
banc) (“[Gross’s] rationale applies with equal force to the
ADA.”).
We agree. Gross and Nassar undermine Head’s
reasoning such that the cases are clearly irreconcilable. We
join our sister circuits in holding that ADA discrimination
claims under Title I must be evaluated under a but-for
causation standard.
AFFIRMED.