In two previous posts, I wrote that United States District Court Judge William Acker provided employers with a weapon against employees making multiple claims of wrongful termination: Judge Acker’s Weapon , Judge Acker Softens Position. In ADA, ADEA, and Title VII retaliation cases, employees must prove that the protected characteristic was the “but for” cause of termination. In other words, the employee must prove that the characteristic was the only reason for termination. Judge Acker’s earlier rulings prohibited employees from filing complaints that claimed they were terminated because they were disabled, or old, or made claims of discrimination.
On May 26, 2016, the Eleventh Circuit Court of Appeals reversed Judge Acker’s reasoning in Savage v. Secure First Credit Union, No. 15-12704, 2016 WL 2997171 (11th Cir. May 26, 2016). The Court found that Rule 8(d) of the Federal Rules of Civil Procedure expressly permits plaintiffs to plead alternative and inconsistent claims. So, employees are allowed to file a complaint claiming that they were terminated because they were disabled, or old, or made claims of discrimination.
Undeterred, Judge Acker issued a new opinion last Friday: Jones v. Allstate Ins. Co., No. 2:14-cv-1640-WMA, 2016 WL 4259753 (N.D. Ala. Aug. 12, 2016). Judge Acker found that Savage merely prevented him from applying his “but for” analysis at the beginning of a case at the motion to dismiss stage. Nevertheless, he found that Savage did not control at the summary judgment stage — when depositions and discovery are complete. As a result, he dismissed wrongful termination claims under the ADA, FMLA retaliation and Title VII retaliation. Effectively, he found that each of those claims cancelled the others out.
Almost certainly, the employee in Jones will appeal, and it will be interesting to see how the Eleventh Circuit addresses Judge Acker’s analysis. For now, however, Judge Acker’s analysis effectively forces employees to limit the number of discrimination claims that they pursue.