Blog Post

Gross v. FBL Financial Services, No. 07-1490 (8th Cir. Nov. 30, 2009)

Posted by: Paul Mollica
November 30, 2009
Topic: Daily Developments in EEO Law

Jack Gross, of recent U.S. Supreme Court fame, will return to the district court for a new trial on liability and back pay on his age discrimination claim. But will the Gross-fix bill pending in Congress ride to the rescue?

Gross v. FBL Financial Services, No. 07-1490 (8th Cir. Nov. 30, 2009): On remand from the Supreme Court, following the 5-4 decision in Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009), the panel rejects plaintiff's further arguments in favor of the verdict and remands for a jury trial on limited issues.

The panel summarizes what occurred at the first trial:

"Jack Gross sued his employer, FBL Financial Group, Inc. ('FBL'), alleging that FBL violated the Age Discrimination in Employment Act ('ADEA') and the Iowa Civil Rights Act ('ICRA') by demoting him because of his age in 2003. The case was tried to a jury, and the district court gave one marshalling instruction that applied to both causes of action. The jury returned a verdict in favor of Gross, and awarded him damages of $20,704 in lost past salary and $26,241 in lost past stock options, for a total of $46,945 in lost compensation. The jury awarded no damages for emotional distress, and found that FBL's conduct was not 'willful.'"

Gross argues that his verdict, though deficient under the ADEA (because the instruction shifted the burden to the employer in the event that the jury found a "motivating factor"), could -- alternatively -- be upheld under the state law, the Iowa Civil Rights Act. The panel, though, is unconvinced. It concludes, based on a review of the Iowa Supreme Court's decisions through DeBoom v. Raining Rose, Inc., 772 N.W.2d 1 (Iowa 2009), that state law would track federal law on the issue of whether the burden would shift to the employer in the event of a "motivating factor" finding. Under Iowa law, the panel holds that at most the burden of proof would not shift "in a mixed-motive case unless the plaintiff shows by direct evidence that age was a motivating factor in the employer's decision." Gross conceded that there was no "direct" evidence in his case, so the original jury charge (which provided for an unconditional shift in the burden of proof) was not an accurate statement of the law.

Now pending in Congress is a fix-bill, the Protecting Older Workers Against Discrimination Act, which would retrospectively allow employees to seek liability for a "motivating factor" adverse action under the ADEA and other statutes. If passed before the new trial, it would be a nice question (to say the least) whether the Eighth Circuit's mandate would still be effective.

Gross also sought to include willfulness and compensatory damages in the remand, two issues that he lost in the first trial. But the panel concludes that because Gross failed to take his own appeal from the first verdict, these issues were forfeited.