United States District Court, N.D. Mississippi, Aberdeen Division
DAWN L. BEST PLAINTIFF
WILLIAM D. JOHNSON, PRESIDENT AND CHIEF EXECUTIVE OFFICER OF TENNESSEE VALLEY AUTHORITY DEFENDANT
B. BIGGERS, JR. UNITED STATES DISTRICT JUDGE.
cause comes before the court upon Defendant's motion to
limit the trial on remand to a pure gender claim. Upon due
consideration of the motion, response and applicable
authority, the court finds as follows:
Dawn Best filed the instant suit and asserted claims against
her employer, Defendant Tennessee Valley Authority
(“TVA”), for gender discrimination under Title
VII of the Civil Rights Act and age discrimination under the
Age Discrimination in Employment Act (“ADEA”). In
particular, Best argued that were it not for her age,
fifty-six years at the time of the employment decision, or
that she is a female, TVA would have selected her as the next
General Manager of its Mississippi district.
close of the testimony at trial, the court found that Best
had failed to prove her age discrimination claim by a
preponderance of the credible evidence and issued a judgment
in favor of the defendant dismissing that claim. The Title
VII claim of gender discrimination was submitted to the jury
and a verdict in TVA's favor was returned. Best
subsequently appealed. The Fifth Circuit Court of Appeals
affirmed the court's findings on the age discrimination
claim but reversed and remanded for a new trial on the claim
for gender discrimination.
particular, the Fifth Circuit held that the Allen
charge given to the jury after it first reported that one
juror would not agree with the others caused undue pressure
on that one juror; but a careful reading of the record shows
that all the Allen charge did was to clarify to the
holdout juror that age discrimination was no longer an issue
for the jury, but rather the sole issue for the jury was
Best's gender discrimination claim. Therefore, the
second Allen charge was given merely to allow the
jury to discuss the case further and clarify the issues left
for the jury to decide; however, it is unfortunate that the
plaintiff did not point out to the appellate court the real
reason the hold-our juror was disagreeing, nor did the
appellate court catch that in its review of the record.
moves to limit the trial on remand to a pure gender claim. In
so moving, TVA requests that Best be precluded from
presenting any age-based evidence or advancing a
“gender-plus-age” theory to support her Title VII
claim. When Best filed her complaint in this case, she
asserted two separate causes of action-one for gender
discrimination and one for age discrimination. After the
court found that she was not entitled to a jury trial on her
age claim, and less than two weeks before trial, Best argued
for the first time that she had been discriminated against
because she was an “older female, ” and attempted
to advance a claim for gender-plus-age discrimination.
1964, Congress enacted Title VII which prohibits, among other
things, gender discrimination in the workplace. See
42 U.S.C. § 2000e-2(a). Just a few years later, in 1967,
Congress decided to protect employees from discrimination
based upon one's age. Congress could have amended Title
VII to include age as an additional protected class under the
statute but, instead, it chose to enact the ADEA.
See 29 U.S.C. §633a. Because Congress chose to
protect the two characteristics in completely separate
statutory schemes, allowing Best to pursue her
“gender-plus-age” claim at trial would constitute
improper judicial legislation. Courts have declined to
recognize such “plus” claims on this basis alone.
See Bauers-Toy v. Clarence Central Sch. Dist., 2015
WL 13574291 (W.D.N.Y. Sep. 30, 2015) (finding that it would
be creating an entirely new cause of action which does not
currently exist if it were to recognize a Title VII claim
based upon both one's age and gender); Luce v.
Dalton, 166 F.R.D. 457 (S.D. Cal. 1996) (reasoning that
plaintiff could not pursue an “age-plus” claim
because Congress chose to protect age, disability and
religion under separate statutes).
Title VII and the ADEA contain significant differences as to
procedures, rights and remedies, further illustrating the
difficulties that would arise in recognizing a
“gender-plus-age” claim. The most important
difference between the two statutes is their respective
standards of causation. The ADEA imposes the strict
“but for” standard while Title VII allows for the
more lenient “mixed-motive” standard. See
Gross v. FBL Fin. Serv., 557 U.S. 167 (2009); Turner
v. Baylor Richardson Med. Ctr., 476 F.3d 337 (5th Cir.
2007). Consequently, “[a]llowing [P]laintiff here to
present evidence of age discrimination under the auspices her
Title VII gender discrimination claim . . . would be
tantamount to allowing [P]laintiff to argue age
discrimination in the context of a mixed-motive theory,
” and would “provide an end-run around the
heightened standards set forth by Congress under the
ADEA.” Bauers-Toy, 2015 WL 13574291, at *6.
no appellate court has recognized the type of claim advanced
by Best. See Sherman v. Am. Cyanamid Co., 1999 WL
70191182, at *5 (6th Cir. Sep. 1, 1999) (declining to
recognize plaintiff's claim for
“sex-plus-age” discrimination after noting that
“no [f]ederal [c]ourt of [a]ppeals  nor the Supreme
Court has recognized such a cause of action”).
Additionally, this court has previously found that it
“does not recognize an ‘older female' as a
distinct class for purposes of [Title VII].” Brewer
v. Alliance Healthcare Services, 2013 WL 1896132, at *4
n.1 (N.D. Miss. May 6, 2013) (after noting that “the
Fifth Circuit has reviewed cases involving both age and
another characteristic, but has failed to extend coverage
under the ADEA or Title VII to combined classifications, i.e.
older women.”). Moreover, in its opinion reversing and
remanding the instant case, the Fifth Circuit acknowledged
that it had “not yet” recognized “a claim
for sex-plus-age discrimination as gender discrimination
under Title VII.” Best v. Johnson, 2018 WL
773149, at *4 (5th Cir. Feb. 7, 2018).
opposing TVA's motion, Best relies heavily on
Jefferies v. Harris County Community Action
Association¸ 615 F.2d 1025 (5th Cir. 1980), and
Doucette v. Morrison County, Minnesota, 763 F.3d 978
(8th Cir. 2014). Such reliance, however, is misplaced. In
Jefferies, the court recognized that a
“gender-plus-race” claim is cognizable under
Title VII. 615 F.2d at 1032. In so holding, the court
reasoned that Title VII prohibits employment discrimination
on the basis of “race, color, religion, sex or
national origin, ” thus evidencing Congressional intent
“to prohibit employment discrimination based on any or
all of the listed characteristics. Id. Crucial to
the court's holding in Jefferies was the fact
that both characteristics-sex and race- were protected under
Title VII. Id. In Doucette, the court did
hold that the plaintiff's claim for sex-plus-age
discrimination was cognizable. 763 F.3d at 978. However, the
court was not presented with a Title VII claim in that case.
Id. Rather, the plaintiff had filed a discrimination
claim pursuant to a Minnesota statute which explicitly
prohibited discrimination based upon both sex and age.
on the foregoing discussion, the court finds that
Defendant's motion to limit the trial on remand to a pure
gender claim is well-taken and is, therefore,
GRANTED. To not grant Defendant's motion
would be contrary to the current caselaw, and also would be
contrary to the ruling by this court that the plaintiff
failed in her burden to prove age discrimination at the
previous trial and contrary to the holding of the Fifth
Circuit Court of Appeals affirming that decision.
Accordingly, Best is precluded from presenting any age-based
evidence or advancing her “gender-plus-age”
theory of discrimination at trial.
ORDERED AND ADJUDGED.