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Ge Zhang v. the Children's Hospital of


March 14, 2011


The opinion of the court was delivered by: L.FELIPE Restrepo United States Magistrate Judge


In this employment discrimination and retaliation action brought by Plaintiff, Dr. Ge Zhang, against Defendant, Children's Hospital of Philadelphia ("CHOP"), the parties have requested that the Court decide the following legal issue in advance of trial: whether, with respect to Plaintiff's claim under the anti-retaliation provision of Title VII, the Court may charge the jury with a "mixed-motive" or "motivating factor"*fn1 instruction if warranted by the evidence.*fn2

In deciding this difficult legal question, the Court has carefully considered the parties' respective letter briefs (Doc. Nos. 43, 44), as well as Plaintiff's response letter (Doc. No. 46). Plaintiff argues that, pursuant to Walden v. Georgia-Pacific Corp., 126 F.3d 506 (3d Cir. 1997), a mixed-motive instruction can be appropriate in Title VII retaliation cases if warranted by the evidence. Defendant contends that, according to Woodson v. Scott Paper Co., 109 F.3d 913 (3d Cir. 1997), and the reasoning of the United States Supreme Court in Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009), a mixed-motive instruction cannot be used in the context of a Title VII retaliation claim. For the reasons that follow, the Court finds that it would be improper to charge the jury with a "mixed-motive" or "motivating factor" instruction relating to Plaintiff's Title VII retaliation claim.

The Court looks to the Third Circuit's Model Civil Jury Instructions, which serve as the foundation of Plaintiff's argument, as an initial point of reference on this issue. Indeed, the Comment section of the Instructions on Title VII retaliation claims notes that under Walden, a mixed-motive standard could be appropriate in Title VII retaliation cases "if warranted by the evidence." See Third Circuit Model Civil Jury Instructions § 5.1.7 (2010 ed.). However, the comments go on to explain that the Third Circuit's Committee on Model Civil Jury Instructions ("Committee") has not yet determined what implications the Supreme Court's reasoning in Gross may have on the continued viability of mixed-motive retaliation claims under Title VII. Id. And notably, the comments conclude with the suggestion thatthe "users of these instructions should consider that question." Id. In light of this suggestion by the Committee, the Court feels compelled to consider the impact of Gross on the question now before the Court: whether a mixed-motive instruction is ever proper in a Title VII retaliation case.

The Supreme Court in Gross decided a parallel question to that presently before the court; specifically, the Court examined whether the mixed-motive framework could apply to Age Discrimination in Employment Act (ADEA) claims. The Court noted that unlike Title VII, which explicitly authorized discrimination claims brought under a mixed-motive framework, the ADEA had no such provision.*fn3 Gross, 129 S. Ct. at 2349. Further, the text of the ADEA prohibits an employer from taking adverse action against an employee "because of" age. Id. at 2350. Citing to the "ordinary meaning" of "because of," which is defined as "by reason of," the Court held that the ADEA requires a plaintiff to prove that age was the "but-for" cause of the employer's adverse action. Id. at 2350-51. Mixed-motive discrimination claims were thus improper under the ADEA. Id. at 2352.

In this District, the Supreme Court's reasoning in Gross has been extended to bar mixed-motive retaliation claims under the Americans with Disabilities Act (ADA). Warshaw v. Concentra Health Services, 719 F. Supp. 2d 484 (E.D. Pa. 2010). In Warshaw, the Honorable Louis H. Pollak concluded that the language of the ADA*fn4 , like the ADEA and unlike Title VII, "does not expressly allow a plaintiff to recover 'by showing that [the protected characteristic] was simply a motivating factor.'" Id. at 503. And like the ADEA, the language of the ADA uses the term "because" to describe the causal connection required between an employee's protected activity and an employer's adverse action.*fn5 Id. Therefore, under the Supreme Court's reasoning in Gross -- that the phrase "because of" in the ADEA calls for but-for causation -- the Court held that the language of the ADA barred mixed-motive retaliation claims. Id.

Turning to the present case, the Third Circuit has held, and the parties do not dispute, that the 1991 Amendment to Title VII explicitly permitting mixed-motive discrimination claims does not extend to retaliation claims. Woodson, 109 F.3d at 935. As a result, the Court must only decide whether Title VII mixed-motive retaliation claims brought under Price Waterhouse are still viable after Gross, an open question in this Circuit.

Following the analytical framework laid out in Gross, the Court looks to the text of Title VII's anti-retaliation provision:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

42 U.S.C. § 2000e-3(a) (emphasis added). In all material respects, the above language is indistinguishable from the anti-retaliation provision of the ADA. Most importantly, like the ADA and the ADEA, this provision employs the use of the term "because" to describe the causal connection needed for a finding of prohibited discrimination or retaliation.

Persuaded by Judge Pollak's reasoning and his ultimate conclusion in Warshaw, the Court finds no compelling reason to define "because," as used in Title VII's anti-retaliation provision, any differently than the Supreme Court defined the phrase "because of" in Gross. Accordingly, the Court finds that § 2000e-3(a) requires Plaintiff to show that his protected activity was the "but-for" cause of the employer's adverse action. Plaintiff may not satisfy his burden merely by showing that his protected activity was a "motivating factor" in the employer's decision, since mixed-motive retaliation claims are no longer viable under Title VII after Gross.

For the foregoing reasons, the Court will not charge the jury with a mixed-motive instruction relating to Plaintiff's retaliation claim. An implementing order follows.

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