Marjorie Tramp v. Associated Underwriters, Inc. , 768 F.3d 793 ( 2014 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 13-2546
___________________________
Marjorie Tramp
lllllllllllllllllllll Plaintiff - Appellant
v.
Associated Underwriters, Inc.
lllllllllllllllllllll Defendant - Appellee
------------------------------
AARP
lllllllllllllllllllllAmicus on Behalf of Appellant
____________
Appeal from United States District Court
for the District of Nebraska - Omaha
____________
Submitted: May 13, 2014
Filed: October 7, 2014
____________
Before RILEY, Chief Judge, BEAM and SMITH, Circuit Judges.
____________
BEAM, Circuit Judge.
Marjorie Tramp appeals from the district court's grant of summary judgment
in favor of Associated Underwriters, Inc., on Tramp's claims of wrongful termination
on the basis of age and disability in violation of the Age Discrimination in
Employment Act (ADEA), 29 U.S.C. §§ 621 et. seq., and the American with
Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq..1 We affirm the district court's
dismissal of the ADA claim but hold that Tramp has presented a submissible case of
age discrimination for determination by a fact-finder.
I. BACKGROUND
Associated Underwriters hired Tramp in 2000. In August 2007, Greg Gurbacki
and Chris Hallgren purchased the company. At the time, Hallgren served as president
and Gurbacki ran the office, in charge of the hiring and firing of employees. In 2007,
Associated Underwriters operated at a loss; a reality that did not change during the
relevant time period. Because of the existing economic difficulties, Associated
Underwriters underwent a reduction-in-force (RIF) in 2007 and terminated seven
employees. Gurbacki decided who to let go based on his opinion of the quality of the
employees' work. Tramp retained her job at the time, although Gurbacki had
concerns about her job performance.
In July 2008, Associated Underwriters still faced economic difficulties. To
save money, Gurbacki suggested they eliminate the company's health insurance
program. Hallgren disagreed, and the two instead pursued other cost-saving
measures. That same summer, however, Associated Underwriters experienced a
significant increase in its group health care plan premiums. Accordingly, Hallgren
sought proposals from different companies, which required him to provide the
1
Congress made significant changes to the ADA by enacting the ADA
Amendments Act of 2008 (ADAAA), which became effective on January 1, 2009.
See Pub. L. No. 110-325, 122 Stat. 3553 (2008) (codified at 42 U.S.C. § 12101). All
references to the ADA in this opinion are to the Act as amended by the ADAAA.
-2-
demographic information of his employees to obtain the quotes. One quote came
back much lower than others and upon investigation, Hallgren learned that the insurer
had not, in fact, included in its quote Tramp and another employee, Barb Treadway,
who were both over the age of 65. A representative from the insurer explained to
Hallgren that this was because people over the age of 65 "usually don't get quoted"
as they are Medicare eligible. Regardless, Hallgren asked the company to adjust the
quote accordingly to include the two employees and the insurer provided a revised,
and much higher, quote.
Emails between Gurbacki and the insurance company during that time frame
reveal conversations concerning rate discussions specifically as they related to the
health and age of the employees at Associated Underwriters. For example, Gurbacki
asked their provider to "relook" at their rates, specifically noting that two employees
over the age of 50 had left the company.2 Later, Gurbacki updated the demographic
information by sending an email stating, "We have now lost Sue Witchell and Gayla
[M]artin as well," at least one of whom was likewise an older employee. Finally,
Gurbacki made it clear that Associated Underwriters was seeking other bids for
insurance and reiterated "[w]e have lost several of the older, sicker employees and
should have some consideration on this."
It was at this time that Hallgren believed a substantial savings in health
insurance premiums would benefit Associated Underwriters' bottom line. Hallgren
met with Tramp and Treadway in July 2008 and suggested that they utilize Medicare
instead of the company's health care plan. Hallgren claims that in this meeting he
offered to cover 100% of a Medicare supplement, which Hallgren believed would
2
Gurbacki's email states, "I just want you to relook at our rates, Jim & Shari
Devine have left the company effective 8-1-2008. They will not need to be on our
renewal, also Chris advised me that both of them had health issues that we would not
need to be rated for." When forwarded internally, the insurance provider pointed out
that the named employees were 54 and 51 years old.
-3-
provide better coverage for the employees, and simultaneously cut costs for the
company. Tramp denies that Hallgren offered to provide such supplemental
coverage. Tramp and Treadway declined Hallgren's offer and remained on
Associated Underwriters' health care plan.
Gurbacki testified that he regularly evaluated his employees, reviewing various
aspects of their competence and success, including how they treated customers and
how they completed assigned tasks. Gurbacki considered Tramp the least efficient
performer among the employees, in part, because she questioned Gurbacki on various
business decisions. Gurbacki added that Tramp did not want to cancel certain
policies because it would have been "harder" on her to do so. Tramp repeatedly failed
to cancel insurance policies when asked to do so and Gurbacki thought Tramp was
incapable of helping customers transition smoothly between their then-current insurer
to Associated Underwriters' insurers.
In October 2008, management formally reprimanded Tramp for poor
performance, providing three examples as documentation: (1) Tramp mistakenly
added the same vehicle on two policies; (2) Tramp cancelled insurance coverage for
a house located in a hurricane zone resulting in a higher premium and deductible
when the customer tried to reinstate coverage; and (3) Tramp failed to cancel policies
in addition to causing renewals to be sent out when the policies had already been
stopped. Along with receipt of the reprimand, Associated Underwriters placed Tramp
on a 90-day probationary period. The probation period ended in January 2009.
Gurbacki further claimed that there were other problems with Tramp's performance
that were not included in the formal reprimand, including her uncooperative attitude,
and that Tramp received additional verbal warnings.
In February 2009, Associated Underwriters underwent another RIF and
Gurbacki made the decision to lay off four employees, including Tramp. The other
three employees terminated at that time were Treadway, 72 years old; Stacy Bell, 38
-4-
years old; and Andrea Altrock, 39 years old. All three worked in a different area than
Tramp. Gurbacki asserted that he did not base his decision to terminate Tramp on her
age, nor because Tramp refused the suggestion for alternative health care coverage.
Instead, Gurbacki stated that he chose to include Tramp in the 2009 RIF because of
her historically poor job performance. Associated Underwriters did not replace
Tramp following her termination, but rather divided her job duties between four
remaining employees in the personal lines department, aged 49, 46, 25, and 66.
In July 2009, additional emails reveal conversations between Gurbacki and the
insurance provider wherein they revisited their health insurance rates. Gurbacki
wrote:
I just received the renewal rates for Associated Underwriters. I[f] I am
reading this correct your proposal shows that we are getting almost a
25% increase. This will not be acceptable. Last year I know we spent
a whole lot of time working and had no plans on remarketing, but if this
is your best pricing we will have to go to market again.
Since last year we have lost our oldest and sickest employees, Jim &
Shari Devine are no longer here, Barb Treadway and Marjorie [Tramp]
are no longer here. Please let me know if this is the best we can do,
what choices we have with you as I know that Chris and Jeff Mann
would like to stay with you but we were expecting a rate decrease from
the group becoming younger and healthier not an increase.
Tramp sued Associated Underwriters, alleging a single theory of recovery,
claiming that she was harassed, retaliated against, and terminated based on her age,
race, disability, and sex.3 As to her claim under the ADA, Tramp asserted that she
3
The district court pointed out, however, that "[d]espite the varied legal
authority cited in [Tramp's] Complaint, she . . . conceded in her response to
[Associated Underwriters] [i]nterrogatories that she is not seeking recovery for any
discrimination based on race or sex," so the district court only addressed the claims
-5-
was disabled under the ADA because of knee pain that limited her ability to perform
her daily tasks. To remedy that pain, she scheduled arthroscopic knee surgery, which
Tramp claimed would have resulted in additional limitations during her period of
recovery. She claimed that Associated Underwriters was aware of this scheduled
procedure and terminated her employment the day before the surgery was to take
place, in violation of the ADA.
The district court granted summary judgment in favor of Associated
Underwriters, relying heavily on the Supreme Court's analysis in Hazen Paper Co. v.
Biggins, 507 U.S. 604, 611 (1993), to resolve Tramp's claim under the ADEA. The
district court held that Tramp's own evidence demonstrated that age and health care
costs were analytically distinct in this case and thus Associated Underwriters was
motivated by factors other than age in its termination of Tramp. The court noted that
because Associated Underwriters' premiums were in fact not reduced after Tramp's
termination during the 2009 RIF, factors other than age necessarily affected health
care costs and thus age could not have been the "but-for" cause of Tramp's
termination. As to the ADA claim, the district court held that even assuming an issue
of fact remained as to whether Tramp is disabled under the ADA in the first instance,
which the court highly doubted, Tramp did not establish that her termination was
motived by her disability. The court arrived at the latter determination by again
applying Hazen Paper, ruling that like the ADEA claim, Tramp's evidence
demonstrated that Associated Underwriters terminated her to save health care costs,
and not because she was disabled–that the two are analytically distinct.
II. DISCUSSION
We review de novo the district court's grant of summary judgment to
Associated Underwriters, viewing the facts in the light most favorable to Tramp and
under the ADEA and ADA. We follow suit.
-6-
giving her the benefit of all reasonable inferences. Robinson v. Am. Red Cross, 753
F.3d 749, 754 (8th Cir. 2014). "We may affirm only if there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law." Id.
(internal quotation omitted). As relevant to her claims, "[t]he ADEA prohibits
discrimination against employees, over the age of 40, because of their age," Holmes
v. Trinity Health, 729 F.3d 817, 821 (8th Cir. 2013), and the ADA makes it unlawful
for a covered employer to discriminate against any "qualified individual on the basis
of disability." 42 U.S.C. § 12112(a).
A. Dispute Regarding the Factual Standard
Tramp first claims that the district court erred in failing to consider her
submitted facts; what she labeled as "additional material facts" in her brief opposing
summary judgment. Tramp alleges, without reference to specific legal or statutory
authority, that even though local rule 56.1(b)(1) states that "[p]roperly referenced
material facts in the movant's statement are considered admitted unless controverted
in the opposing party's response," Neb. Civ. R. 56.1(b)(1), the same is true for any
additional facts alleged by the non-moving party. Tramp deduces that because this
court views the facts in the light most favorable to the non-moving party in a
summary judgment determination, any additional factual allegations made by that
non-moving party cannot be disputed–that if the non-moving party includes proper
references to the submitted record, her facts are to be "deemed admitted" and viewed
in her favor.
At the outset, Tramp fails to acknowledge that the rules clearly require that she
respond in kind, and in a specific fashion, to the statement of undisputed facts
asserted by Associated Underwriters in their motion for summary judgment.
Nebraska's rule concerning summary judgment procedure places clear requirements
on the moving and opposing parties. The moving party, for example, "must include
in the brief in support of the summary judgment motion a separate statement of
-7-
material facts," that "consist[s] of short numbered paragraphs, each containing
pinpoint references to affidavits, pleadings, discovery responses, deposition testimony
(by page and line), or other materials that support the material facts stated in the
paragraph." Neb. Civ. R. 56.1(a)(1) & (2). Associated Underwriters complied with
this rule.
The rules then state that, as the opposing party, Tramp must:
include in [her] brief a concise response to the moving party's statement
of material facts. Each material fact in the response must be set forth in
a separate numbered paragraph, must include pinpoint references to
affidavits, pleadings, discovery responses, deposition testimony (by
page and line), or other materials upon which [Tramp] relies, and, if
applicable, must state the number of the paragraph in the movant's
statement of material facts that is disputed. Properly referenced material
facts in the movant's statement are considered admitted unless
controverted in the opposing party's response.
Neb. Civ. P. 56.1(b)(1). Tramp's inclusion of "additional material facts" in her
opposing brief did not comply with these requirements. Although numbered and
referenced with pinpoint references, nowhere in Tramp's fact section does she dispute
any undisputed fact advanced by Associated Underwriters. Accordingly, the district
court properly considered the movant's material facts admitted.
Possibly, Tramp means to argue that all of her additional facts were, indeed,
additional, and that she, in fact, had no dispute as to the facts set out by Associated
Underwriters so there was no need to reference any disputed paragraphs; that she
truly included additional facts that the district court wholly failed to consider. Yet,
there are many paragraphs in Tramp's "additional material facts" portion of her brief
that directly seek to refute those advanced by Associated Underwriters. Per the local
rules, the additional facts, when possible, should have referenced the exact paragraph
-8-
of the "undisputed facts" at issue so as to avoid the very problem we now face–that
is, discerning which of Tramp's additional facts are truly additional and which
respond to facts advanced by Associated Underwriters, thus placing them in dispute.
Nw. Bank & Trust Co. v. First Ill. Nat'l Bank, 354 F.3d 721, 725 (8th Cir. 2003)
(noting that the "concision and specificity required by [local rules] seek to aid the
district court in passing upon a motion for summary judgment, reflecting the
aphorism that it is the parties who know the case better than the judge").
District courts have discretion to enforce local rules and we do not fault the
district court for doing so in this case. Reasonover v. St. Louis Cnty., Mo., 447 F.3d
569, 579 (8th Cir. 2006). At the same time, however, it is apparent from the district
court's order that the court exercised lenity, as it can, and considered facts contained
in Tramp's brief in opposition to Associated Underwriters motion for summary
judgment. Accordingly, the court did not ignore Tramp's facts, it just did not spend
any time parsing through them to discern which were included to refute facts
advanced by Associated Underwriters. Importantly, the court references Tramp's
filing, and many facts therein, throughout its analysis. For example, the court
analyzed the emails from Gurbacki that Tramp argues bolsters her discrimination
claims in this matter. We hold the district court committed no abuse of discretion and
we likewise exercise lenity in similar fashion, reviewing facts presented by Tramp as
relevant to our analysis herein.
B. ADEA
Tramp claims that Associated Underwriters terminated her because her age
affected its employee health insurance costs. To establish a claim under the ADEA,
"[a] plaintiff must prove by a preponderance of the evidence (which may be direct or
circumstantial) that age was the 'but-for' cause of the challenged employer decision."
Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177-78 (2009). The familiar McDonnell
-9-
Douglas test still applies in ADEA cases. Applying that test to this reduction-in-force
situation,
[Tramp] must first establish a four-part prima facie case of age
discrimination. To establish a prima facie case of age discrimination in
a reduction-in-force, [Tramp] must show that (1) [s]he is over 40 years
old, (2) [s]he met the applicable job qualifications, (3) [s]he suffered an
adverse employment action, and (4) there is some additional evidence
that age was a factor in the employer's termination decision. Once
[Tramp] establishes a prima facie case, the burden of production shifts
to the employer to articulate a legitimate, nondiscriminatory reason for
its adverse employment action. If the employer does so, [Tramp] must
show that the employer's proffered reason was pretext for
discrimination.
Rahlf v. Mo-Tech Corp., 642 F.3d 633, 637 (8th Cir. 2011). "At all times, [Tramp]
retains the burden of persuasion to prove that age was the 'but-for' cause of the
termination." Id.; Gross, 557 U.S. at 177-78.
Here, the first three elements are undisputed. As to the fourth element, and
ultimately to prevail on her burden of proving that age was the but-for cause of
Associated Underwriters adverse decision, Tramp claims that Gurbacki's
correspondence with the company's health care provider months before and months
after Tramp's termination provides the additional evidence necessary for a fact-finder
to deduce that there was a direct correlation between employee age and the
termination decision–that it was the but-for cause of her termination. Gross, 557 U.S.
at 177-78. We agree that an issue of fact remains given the record evidence.
As noted above, during the summer of 2008, seven months prior to Tramp's
termination, it became apparent to management that its health care premiums were
affected by the demographics of its employees. In correspondence with the health
care provider, Gurbacki wrote: "We have lost several of the older, sicker employees
-10-
and should have some consideration on this. If you have provided us with your final
rates then that is what we will use in our decision." Then, in August 2008, Hallgren
met with Tramp and others and suggested that they utilize Medicare instead of the
company's health care plan. Nearly five months after Tramp's termination, there is
again email correspondence between Gurbacki and the health care provider
discussing the high renewal rates for Associated Underwriters. In it, as relevant here,
Gurbacki writes, "[s]ince last year we have lost our oldest and sickest employees . . . .
Please let me know if this is the best we can do . . . ."
Tramp claims that Associated Underwriters' expected reduction in health care
premiums demonstrates that the but-for cause in Tramp's termination was not poor
performance but rather her age. The district court held that Tramp failed in this
endeavor of proving but-for causation, determining that this evidence, too, ultimately
proves that Associated Underwriters' decision was motivated purely by health care
costs, which are positively correlated with age, but analytically distinct. See Hazen
Paper, 507 U.S. at 611.
"[T]he ordinary meaning of the ADEA's requirement that an employer took
adverse action 'because of' age is that age was the 'reason' that the employer decided
to act." Gross, 557 U.S. at 176; see also Hazen Paper, 507 U.S. at 610 ("Whatever
the employer's decisionmaking process, a disparate treatment claim cannot succeed
unless the employee's protected trait actually played a role in that process and had a
determinative influence on the outcome." (emphasis added)). There can be no
discrimination under the ADEA "[w]hen the employer's decision is wholly motivated
by factors other than age . . . even if the motivating factor is correlated with age," at
least when age is analytically distinct from the motivating factor. Hazen Paper, 507
U.S. at 611. The ADEA statute does not permit mixed-motives age discrimination
claims. Gross, 557 U.S. at 177 n.3. This is not to say that age must have been the
only factor in the employer's decisionmaking process, but only that, as among several
-11-
factors, age was the factor that made a difference. Wilkerson v. Shinseki, 606 F.3d
1256, 1266 (10th Cir. 2010).
In Hazen Paper, the plaintiff claimed that in an attempt to avoid paying his
benefits, the company terminated him shortly before his pension was to vest based on
his years of service with the company. 507 U.S. at 606-07. The Court explained that
"[i]t is the very essence of age discrimination for an older employee to be fired
because the employer believes that productivity and competence decline with old
age." Id. at 610. So, "[t]he employer cannot rely on age as a proxy for an employee's
remaining characteristics, such as productivity, but must instead focus on those
factors directly." Id. at 611. As noted by the district court, "[w]hen the employer's
decision is wholly motivated by factors other than age, the problem of inaccurate and
stigmatizing stereotypes disappears. This is true even if the motivating factor is
correlated with age, as pension status typically is." Id. In Hazen Paper, the Court
held that because pension plans typically provide that an employee's benefits accrue,
or "vest," once the employee completes a sum certain of years of service with the
employer, it is often, but certainly not always, correlated with age. Id. As the Court
explains, "an employee's age is analytically distinct from his years of service." Id.
For example, "[a]n employee who is younger than 40, and therefore outside the class
of older workers as defined by the ADEA . . . may have worked for a particular
employer his entire career, while an older worker may have been newly hired." Id.
In that instance, an employer can thus take into account one factor while ignoring the
other and in that sense, the two are analytically distinct. Because of that distinction,
the Court held that it is thus "incorrect to say that a decision based on years of service
is necessarily 'age based'" in violation of the ADEA. Id.
The same analysis, however, is not true for age and health care costs. Most
accurately in this case, Associated Underwriters' perception of insurance premiums
are not divorced from age in the same sense that pension benefits are divorced from
age. Here, there remains at least a question of fact as to Associated Underwriters'
-12-
motivations for terminating Tramp. Age and health care costs are not so analytically
distinct if Associated Underwriters presumed the rise in one necessitated a rise in the
other. See Erie Cnty. Retirees Ass'n v. Cnty. of Erie, Pa., 220 F.3d 193, 211 (3d Cir.
2000) (discussing a case involving Medicare status as a direct proxy for age parallel
to the "special case" mentioned by the Court in Hazen Paper, where an adverse action
is taken against a person because of a particular event that occurs because the person
has attained a certain age). Certain considerations, such as health care costs, could
be a proxy for age in the sense that if the employer supposes a correlation between
the two factors and acts accordingly, it engages in age discrimination. Hazen Paper,
507 U.S. at 612-13. Here, it is possible that a reasonable jury could conclude from
the evidence that Associated Underwriters believed the two considerations were not
analytically distinct. EEOC v. City of Independence, Mo., 471 F.3d 891, 896 (8th
Cir. 2006) ("The key is what the employer supposes about age . . . ."). This is not to
say that discrimination occurred here, but that summary judgment prematurely
disposed of the issue.
We agree with the district court that at the very least Gurbacki's choice of
words–questioning whether "this is the best we can do" after pointing out that they
had lost their "oldest and sickest employees," and how Associated Underwriters
expected a rate decrease "from the group becoming younger and healthier"–was crude
and perhaps an insensitive way to describe the composition of the then-current
employees to the health care provider. But, there remains a possibility that these
statements could also be a manifestation of discriminatory intent in the process used
by Associated Underwriters to be rid of its older (and/or oldest) employees in general.
The emails are open to interpretation and on a motion for summary judgment, they
must be viewed in the light most favorable to Tramp. One could deduce from
Associated Underwriters' own inquiries that it believed that as the age of employees
-13-
increased so too did health care premiums.4 Tramp raises a genuine issue of material
fact as to what Associated Underwriters supposed about age in making its
employment decisions. Hazen Paper, 507 U.S. at 612.
Associated Underwriters additionally argues that the six-month "gap" that
transpired between Tramp's refusal to use her Medicare benefits in place of the
company's health care plan and her termination is too long as a matter of law to
establish a causal connection, and that Tramp offers nothing else to establish that
element. Yet, the gap may not be so big, especially when Tramp is not relying solely
on a claim for retaliation, but rather discrimination, generally, based on her age.
There remains a question of fact here, too. Already discussed, there are emails from
the summer of 2008 revealing a dialogue between Gurbacki and Associated
Underwriters' health care provider regarding the loss of the older, sicker employees
and the expectation of consideration for that loss in the way of reduced premiums.
Additionally, Tramp highlights the request from Hallgren in July 2008 for Tramp to
go on Medicare with the addition of supplemental insurance from Associated
Underwriters, along with the formal reprimand and subsequent probationary period
for Tramp beginning in October 2008 and ending in January 2009, and Tramp's
ultimate termination a few days later in February 2009, shortly after being taken off
probationary status. Tramp also provides deposition testimony to argue that prior to
her written reprimand and probationary status, Associated Underwriters did not give
any such reprimands, verbal or written, to any other employee, and that Gurbacki
4
The district court pointed out that, in fact, such a supposition is not true, as
evidenced by the fact that Associated Underwriters' health care provider was unable
to lower its premiums despite Tramp's termination because the 2009 RIF reduced
enrollment in Associated Underwriters' health plan and thus the premiums were to
increase even more. This evidence certainly demonstrates that factors other than age
affect health care costs, but this post-termination evidence does nothing to allay or
resolve what Associated Underwriters itself believed to be the correlation when it was
making its termination decisions in the first instance–the crux of the instant query.
-14-
could not remember any other employee prior to Tramp being placed on probation.
Then, in the summer of 2009 when discussing renewal rates, there are additional
emails regarding Associated Underwriters' desire for a reduction in premiums while
simultaneously pointing out that it had "lost [its] oldest and sickest employees."
We do not need to exhaust the record to deduce that a reasonable jury could
arrive at different conclusions regarding Associated Underwriters' intent on these
facts, and others, presented in the record. Again, this is not to say that Tramp has
established her claim as a matter of law; just that there remains an issue of fact. Even
though a gap in time between protected activity and an adverse employment action
can weaken an inference of retaliation, there is great difficulty in placing too much
reliance on timing as evidence of causation. Stewart v. Ind. Sch. Dist. No. 196, 481
F.3d 1034, 1044 (8th Cir. 2007). Most often, temporal proximity is discussed in
retaliation claims, where there is a protected activity claimed to have triggered an
adverse employment action. See Lors v. Dean, 746 F.3d 857, 865-66 (8th Cir. 2014)
(discussing the import of temporal proximity in retaliation cases). Here, there may
not even be a "gap" such as is usually contemplated by the jurisprudence discussing
temporal proximity, given the presentation of ongoing occurrences in this
discrimination action. We thus leave it to the fact-finder to place weight, if any, on
the time frame at play as it relates to Tramp's retaliation and discrimination claims.
Tramp has additionally created an issue of fact as to pretext. Associated
Underwriters claim that it terminated Tramp due to the 2009 RIF and that Tramp was
chosen because she was the poorest performer in her group. Yet, if believed, Tramp's
written reprimand and probationary status were imposed contrary to Associated
Underwriters' practice. That is, she argues that there was no such practice prior to the
process imposed on Tramp in the fall of 2008. Perhaps more tenuously, Tramp
argues that Associated Underwriters did not need to engage in the RIF resulting in
-15-
Tramp's termination.5 Under the ADEA at the pretext stage, "proof that the
explanation is false is necessary, but not sufficient, to show a pretext for
discrimination under the ADEA. . . . [T]he plaintiff must show that the employer's
stated reason was false and that age discrimination was the real reason." Tusing v.
Des Moines Indep. Cmty. Sch. Dist. , 639 F.3d 507, 516 (8th Cir. 2011). At bottom,
it is possible that a jury could view the evidence presented here as evidence of
pretext–that Tramp's poor performance and the RIF itself were a ruse to mask
unlawful discrimination in this case. The critical factor is that, given the evidence
presented, it is not for this court to decide whether age actually played a role in
Associated Underwriters' decisionmaking process and had a determinative influence
on Tramp's termination.
All of these facts, construed in Tramp's favor, "assume greater probative value
on a motion for summary judgment." Baker v. Silver Oak Senior Living Mgmt. Co.,
581 F.3d 684, 689 (8th Cir. 2009). The elements of Tramp's prima facie case are
present and the evidence is sufficient to allow a reasonable jury to reject Associated
Underwriters' non-discriminatory explanations. Accordingly, the "ultimate question"
of discrimination must therefore be left to the trier of fact to decide.
C. ADA
Tramp additionally challenges the district court's adverse grant of summary
judgment on her disability discrimination claim under the ADA. Tramp bases this
5
Certainly, when "a company exercises its business judgment in deciding to
reduce its workforce, it need not provide evidence of financial distress to make it a
legitimate RIF." Rahlf, 642 F.3d at 639 (quotation and internal quotations omitted).
Accordingly, such an argument is maybe more tenuous, but Tramp uses this evidence
as further circumstantial evidence to rebut Associated Underwriters' claim that its
decision was purely motivated by cutting health care costs. Suffice it to say that an
issue of fact remains and we need not resolve the matter today.
-16-
claim on knee pain that she claims limited her ability to perform her daily tasks and
for which she scheduled arthroscopic knee surgery that she claims would have limited
her activity even more during recovery. She claims that Associated Underwriters
terminated her one day before her scheduled surgery because of its perception that it
had to get rid of its oldest and sickest employees and that it regarded her as disabled.
"To establish discrimination under the ADA, an employee must show that she
(1) is disabled within the meaning of the ADA, (2) is a qualified individual under the
ADA, and (3) has suffered an adverse employment action because of her disability."
Hill v. Walker, 737 F.3d 1209, 1216 (8th Cir. 2013). "The definition of disability in
[the ADA] shall be construed in favor of broad coverage . . . to the maximum extent
permitted by the terms of this chapter." 42 U.S.C. § 12102(4)(A). "The ADA defines
a disability as a physical or mental impairment that substantially limits one or more
of the major life activities of an individual, a record of such impairment, or being
regarded as having such an impairment." Norman v. Union Pacific R.R. Co., 606
F.3d 455, 459 (8th Cir. 2010); see also 42 U.S.C. § 12102(1). "[T]hough the
ADAAA makes it easier to prove a disability, it does not absolve a party from
proving one." Neely v. PSEG Tex., Ltd. P'ship, 735 F.3d 242, 245 (5th Cir. 2013)
(second and third alterations in original). Under the ADA as amended,
An individual meets the requirement of "being regarded as having such
an impairment" if the individual establishes that he or she has been
subjected to an action prohibited under this chapter because of an actual
or perceived physical or mental impairment whether or not the
impairment limits or is perceived to limit a major life activity.
42 U.S.C. § 12102(3)(A).
The district court dismissed Tramp's ADA claim. First, the court concluded
that it was "highly doubtful" that Tramp demonstrated a disability covered by the
ADA. Even assuming an issue of fact remained as to her disability, the court
-17-
continued, she did not establish that her termination was motivated by her disability.
We agree. Leaving aside a determination as to whether Tramp's knee pain and future
surgery recovery would qualify as a disability under the now more lenient standards
of the ADA as amended, Tramp is unable to sustain a claim. Tramp offers very
limited evidence to prove the allegation that Associated Underwriters regarded her
as disabled in violation of the ADA. Tramp alleges that she told an office employee
(the employee through which Tramp requested time off) that she was going to take
off three days for a knee surgery in February. And, she maintains that the timing of
her termination the day before her scheduled surgery is probative evidence that
Associated Underwriters perceived her surgery as a disability and more serious than
it actually was, resulting in higher insurance costs for the company.
As a matter of law this claim fails because there is no evidence Associated
Underwriters terminated her employment "on the basis of disability." 42 U.S.C. §
12112(a). Tramp offers no evidence other than her own testimony that others were
"generally aware" of her scheduled surgery, that anyone else knew about the surgery
or, more importantly, that such knowledge affected decisions regarding Tramp's
employment or that they regarded her as impaired. At a minimum, Tramp must show
that the decisionmakers knew about her alleged disability. Kozisek v. Cnty. of
Seward, Neb., 539 F.3d 930, 936 (8th Cir. 2008). And in the end, even awareness of
the scheduled surgery, without more, is not enough to maintain this claim. Nyrop v.
Indep. Sch. Dist. No. 11, 616 F.3d 728, 736 (8th Cir. 2010). Too, here, the temporal
proximity is not enough to carry the day along with the remaining sparse evidence.
See Sprenger v. Fed. Home Loan Bank of Des Moines, 253 F.3d 1106, 1114 (8th Cir.
2001).
Tramp also challenges Associated Underwriters' argument that it is improper
to impute the office bookkeeper's knowledge to the requisite decisionmakers here.
She claims this argument is merely a disguised "cat's paw" defense used to the
company's advantage and that a question of fact remains on this issue. See Staub v.
-18-
Proctor Hosp., 131 S. Ct. 1186, 1194 (2011) (holding that if a non-decisionmaker
performs an act motivated by a discriminatory bias that is intended to cause, and that
does proximately cause, an adverse employment action, then the employer has "cat's
paw" liability). However, Tramp's allegation is misplaced on this record and falls
short. Accordingly, we affirm the district court's dismissal of Tramp's ADA claim.
III. CONCLUSION
As to the district court's grant of summary judgment in favor of Associated
Underwriters, we reverse in part, affirm in part and remand for further proceedings
consistent with this opinion.
______________________________
-19-