Michael Murray v. Mayo Clinic

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL J. MURRAY, M.D. - a No. 17-16803

married man,

Plaintiff-Appellant, D.C. No.

2:14-cv-01314-

v. SPL

MAYO CLINIC, a Minnesota nonprofit

corporation; MAYO CLINIC ARIZONA, OPINION

an Arizona nonprofit corporation;

WYATT DECKER, M.D. - husband;

GEORGIANNA DECKER, wife; LOIS

KRAHN, M.D. - wife; ERIC GORDON,

M.D. - husband; TERRENCE

TRENTMAN, M.D. - husband;

LARALEE TRENTMAN, wife; WILLIAM

STONE, M.D. - husband; MAREE

STONE, wife; DAVID ROSENFELD,

M.D. - husband; MELISSA

ROSENFELD, M.D. - wife; ROSHANAK

DIDEHBAN, a single woman,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Arizona

Steven Paul Logan, District Judge, Presiding

Argued and Submitted June 13, 2019

San Francisco, California

2 MURRAY V. MAYO CLINIC

Filed August 20, 2019

Before: Ronald M. Gould and Sandra S. Ikuta, Circuit

Judges, and Benita Y. Pearson, * District Judge.

Opinion by Judge Pearson

SUMMARY **

Employment Discrimination

The panel affirmed the district court’s judgment, after a

jury trial, in favor of the defendants in an employment

discrimination action under Title I of the Americans with

Disabilities Act.

The panel held that the district court correctly instructed

the jury to apply a but for causation standard, rather than a

motivating factor standard. The panel concluded that Head

v. Glacier Northwest, Inc., 413 F.3d 1053 (9th Cir. 2005),

holding that ADA discrimination claims are evaluated under

a motivating factor causation standard, is no longer good law

because its reasoning is clearly irreconcilable with the

Supreme Court’s rulings in Gross v. FBL Fin. Servs., Inc.,

557 U.S. 167 (2009), and Univ. of Texas Southwestern Med.

Ctr. v. Nassar, 570 U.S. 338 (2013). Agreeing with other

circuits, the panel held that an ADA discrimination plaintiff

*

The Honorable Benita Y. Pearson, United States District Judge for

the Northern District of Ohio, sitting by designation.

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

MURRAY V. MAYO CLINIC 3

bringing a claim under 42 U.S.C. § 12112 must show that

the adverse employment action would not have occurred but

for the disability.

The panel addressed other issues in a simultaneously

filed memorandum disposition.

COUNSEL

Roger L. Cohen (argued), Jaburg Wilk P.C., Phoenix,

Arizona; Scott A. Blaney, Blaney Law PLLC, Phoenix,

Arizona; for Plaintiff-Appellant.

John F. Lomax, Jr. (argued) and Kelly Kszywienski, Snell &

Wilmer L.L.P., Phoenix, Arizona, for Defendants-

Appellees.

OPINION

PEARSON, District Judge:

Plaintiff Michael Murray appeals the district court’s

instruction to the jury on his claim under the Americans with

Disabilities Act (“ADA”), requiring him to prove that he was

discharged because of his disability. Murray claims that our

decision in Head v. Glacier Northwest, Inc., 413 F.3d 1053

(9th Cir. 2005), holding ADA discrimination claims are

4 MURRAY V. MAYO CLINIC

evaluated under a motivating factor causation standard,

remains good law. Because it is not, we affirm. 1

I.

Dr. Murray filed suit against Mayo Clinic, Mayo Clinic

Arizona, Drs. Wyatt Decker, Lois Krahn, Terrence

Trentman, William Stone, and David Rosenfeld, and

Operations Administrator Roshanak Didehban. In

anticipation of trial, the parties submitted joint proposed jury

instructions. The parties disagreed whether Murray’s ADA

discrimination claim should be tried under a but-for

causation standard or a motivating factor causation standard.

Murray argued that our decision in Head required him to

show only that the defendants’ belief that he had a disability

was a motivating factor in their adverse employment

decision. He accordingly requested the following

instruction:

As to Dr. Murray’s claim that his disability

was the reason for Mayo Clinic Arizona’s

decision to discharge him, Dr. Murray has the

burden of proving the following evidence by

a preponderance of the evidence:

...

3. Dr. Murray was discharged because

Defendants regarded him as disabled, which

means that Defendants’ belief that Plaintiff

1

In a memorandum disposition filed simultaneously with this

opinion, we affirm the district court as to all other issues raised by

Murray.

MURRAY V. MAYO CLINIC 5

had a disability was a motivating factor in

Defendants’ decision to terminate him.

The district court instead instructed the jury to apply a but-

for causation standard to Murray’s ADA claim. The

instruction provided that Murray must prove he was

discharged because of his disability:

As to Dr. Murray’s claim that his disability

was the reason for Mayo Clinic Arizona’s

decision to discharge him, Dr. Murray has the

burden of proving the following evidence by

a preponderance of the evidence:

...

3. Dr. Murray was discharged because of his

disability.

In denying Murray’s motion for reconsideration, the district

court found that the Supreme Court’s rulings in Gross v. FBL

Financial Services, Inc., 557 U.S. 167 (2009), and

University of Texas Southwestern Medical Center v. Nassar,

570 U.S. 338 (2013), abrogated our reasoning in Head. The

district court concluded that the but-for causation standard

applied.

At trial, the jury returned a verdict for Defendants on all

claims. Following entry of judgment, Murray timely filed a

notice of appeal.

II.

“A district court’s formulation of the jury instructions is

reviewed for ‘abuse of discretion.’ If, however, ‘the

instructions are challenged as a misstatement of the law, they

6 MURRAY V. MAYO CLINIC

are then reviewed de novo.’” Duran v. City of Maywood,

221 F.3d 1127, 1130 (9th Cir. 2000) (per curiam) (citation

omitted) (quoting Gilbrook v. City of Westminster, 177 F.3d

839, 860 (9th Cir. 1999), as amended on denial of reh’g

(July 15, 1999)). Jury instructions must fairly and

adequately cover the issues presented and must not be

misleading. Gantt v. City of Los Angeles, 717 F.3d 702, 706

(9th Cir. 2013).

A.

Title I of the ADA provides that “[n]o covered entity

shall discriminate against a qualified individual on the basis

of disability in regard to job application procedures, the

hiring, advancement, or discharge of employees, employee

compensation, job training, and other terms, conditions, and

privileges of employment.” 42 U.S.C. § 12112(a) (emphasis

added).

Title I of the ADA also contains an enforcement

provision, which cross-references specific portions of

Title VII:

The powers, remedies, and procedures set

forth in sections 2000e-4, 2000e-5, 2000e-6,

2000e-8, and 2000e-9 of [Title VII] shall be

the powers, remedies, and procedures this

subchapter provides to . . . any person

alleging discrimination on the basis of

disability in violation of any provision of this

chapter . . . .

42 U.S.C. § 12117(a). Of the cross-referenced sections, only

§ 2000e-5 references a causation standard. Specifically, that

section provides: “[o]n a claim in which an individual proves

a violation under section 2000e-2(m) of this title and a

MURRAY V. MAYO CLINIC 7

respondent demonstrates that the respondent would have

taken the same action in the absence of the impermissible

motivating factor,” the court may award only limited relief.

42 U.S.C. § 2000e-5(g)(2)(B). Section 2000e-2(m), in turn,

provides that “an unlawful employment practice is

established when the complaining party demonstrates that

race, color, religion, sex, or national origin was a motivating

factor for any employment practice, even though other

factors also motivated the practice.”

B.

We first analyzed the standard for causation in a Title I

ADA discrimination action in Head v. Glacier Northwest,

Inc. In that case, we addressed “whether the ADA’s use of

the causal language ‘because of,’ ‘by reason of,’ and

‘because’ means that discriminatory and retaliatory conduct

is proscribed only if it was solely because of, solely by reason

of, or solely because an employee was disabled or requested

an accommodation.” Head, 413 F.3d at 1063–64. We

concluded that, under the “plain language of the ADA . . .

‘solely’ [was] not the appropriate causal standard under any

of the ADA’s liability provisions.” Id. at 1065.

Considering whether the ADA instead requires but-for

causation, or merely a showing that the disability was a

motivating factor of the discrimination, we joined seven

other circuits in concluding that “a ‘motivating factor’

standard [was] most consistent with the plain language of the

statute and the purposes of the ADA.” Id. We thus held “the

ADA outlaws adverse employment decisions motivated,

even in part, by animus based on a plaintiff’s disability or

request for an accommodation—a motivating factor

standard.” Id.

8 MURRAY V. MAYO CLINIC

In so holding, we relied in part on the reasoning of our

sister circuits. See id. at 1065 n.63. The Fifth and Eighth

Circuits had held the motivating factor standard applied to

the ADA by virtue of the ADA’s incorporation in § 12117

of Title VII’s remedies in § 2000e-5. 2 See Buchanan v. City

of San Antonio, 85 F.3d 196, 200 (5th Cir. 1996); Pedigo v.

P.A.M. Transp., Inc., 60 F.3d 1300, 1301 (8th Cir. 1995). 3

The Second and Seventh Circuits had concluded that

ADA discrimination claims, like Title VII discrimination

claims, only required a showing that discrimination

motivated an employer’s adverse employment action. This

is because ADA and Title VII, at the time, both used the

words “because of” to indicate causation, suggesting

Congress intended the statutes to employ the same causation

standard. See Parker v. Columbia Pictures Indus., 204 F.3d

326, 337 (2d Cir. 2000), overruled by Natofsky v. City of

New York, 921 F.3d 337 (2d Cir. 2019); Foster v. Arthur

Andersen, LLP, 168 F.3d 1029, 1033 (7th Cir. 1999),

overruled by Serwatka v. Rockwell Automation Inc.,

591 F.3d 957 (7th Cir. 2010). Both courts acknowledged

that, although § 2000e-2(m) is not, by its terms, specifically

applicable to ADA cases, Congress intended the mixed-

motive framework to apply to ADA claims. Parker,

204 F.3d at 337; Foster, 168 F.3d at 1033.

2

Similarly, the Fourth Circuit had found the motivating factor

standard applied in a Title II ADA case through the ADA’s incorporation

in 42 U.S.C. § 12133 of the remedies set forth in 29 U.S.C. § 794a,

which, in turn, incorporated the remedies in 42 U.S.C. § 2000e-5. Baird

ex rel. Baird v. Rose, 192 F.3d 462, 470 (4th Cir. 1999).

3

The First Circuit relied on Pedigo, without additional analysis, in

applying the motivating factor standard. Katz v. City Metal Co., 87 F.3d

26, 33 (1st Cir. 1996).

MURRAY V. MAYO CLINIC 9

C.

Four years after our decision in Head, the Supreme Court

decided Gross v. FBL Financial Services, Inc. The Court

held that the Age Discrimination in Employment Act

(“ADEA”)—which makes it unlawful for an employer to

discharge or discriminate against any individual “because of

such an individual’s age”—requires the plaintiff to “prove

that age was the ‘but-for’ cause of the employer’s adverse

decision.” Gross, 557 U.S. at 177–78. In so doing, the Court

declined to extend 4 the “motivating factor” standard of

causation to employment discrimination cases brought under

the ADEA. Id. Four years after Gross, the Supreme Court

in Nassar again declined to extend the motivating factor

standard, this time to Title VII retaliation claims. 570 U.S.

at 362–63.

Against this backdrop, “circuits have retreated from the

motivating factor standard of causation in ADA cases.”

Bukiri v. Lynch, 648 F. App’x 729, 731 n.1 (9th Cir. 2016)

(collecting cases). We have not yet decided whether Gross

and Nassar have “eroded Head’s vitality.” Mendoza v.

Roman Catholic Archbishop of L.A., 824 F.3d 1148, 1150

n.1 (9th Cir. 2016) (per curiam). We do so now.

D.

Murray contends that the motivating factor standard

applies because we are bound by our decision in Head. We

disagree.

4

The Supreme Court recognized the “motivating standard” of

causation as the appropriate standard for employment discrimination

actions brought under Title VII of the Civil Rights Act of 1964. Price

Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989) (plurality opinion).

10 MURRAY V. MAYO CLINIC

Generally, a three-judge panel may not overrule a prior

decision of the court. Miller v. Gammie, 335 F.3d 889, 899

(9th Cir. 2003) (en banc). If, however, “an intervening

Supreme Court decision undermines an existing precedent

of the Ninth Circuit, and both cases are closely on point,” the

three-judge panel may then overrule prior circuit authority.

Id. (quoting Galbraith v. Cty. of Santa Clara, 307 F.3d 1119,

1123 (9th Cir. 2002)). The issue decided by the higher court

need not be identical. Id. at 900. The appropriate test is

whether the higher court “undercut the theory or reasoning

underlying the prior circuit precedent in such a way that the

cases are clearly irreconcilable.” Id.

“The ‘clearly irreconcilable’ requirement is ‘a high

standard.’” United States v. Robertson, 875 F.3d 1281, 1291

(9th Cir. 2017) (quoting Rodriguez v. AT & T Mobility Servs.

LLC, 728 F.3d 975, 979 (9th Cir. 2013)). “It is not enough

for there to be ‘some tension’ between the intervening higher

authority and prior circuit precedent, or for the intervening

higher authority to ‘cast doubt’ on the prior circuit

precedent.” Lair v. Bullock, 697 F.3d 1200, 1207 (9th Cir.

2012) (internal citation omitted) (quoting United States v.

Orm Hieng, 679 F.3d 1131, 1140–41 (9th Cir. 2012), and

United States v. Delgado-Ramos, 635 F.3d 1237, 1239 (9th

Cir. 2011) (per curiam)). If the court can apply prior circuit

precedent without running afoul of the intervening authority,

it must do so. Id.

Because Head’s reasoning is clearly irreconcilable with

Gross and Nassar, we overrule Head’s holding that a

plaintiff bringing a discrimination claim under Title I of the

ADA need show only that a disability was a motivating

factor of the adverse employment action. We hold instead

that an ADA discrimination plaintiff bringing a claim under

MURRAY V. MAYO CLINIC 11

42 U.S.C. § 12112 must show that the adverse employment

action would not have occurred but for the disability.

In Head, we relied on the reasoning of our sister circuits

and our existing precedent in finding that a motivating factor

was most consistent with the ADA’s plain language and

purpose. Head, 413 F.3d at 1065 & nn.63–64. Our prior

precedent, however, provides no further analysis of the text

or purpose of the ADA in support of applying a motivating

factor causation standard. See Hernandez v. Hughes Missile

Sys. Co., 362 F.3d 564, 568 (9th Cir. 2004); Snead v. Metro.

Prop. & Cas. Ins. Co., 237 F.3d 1080, 1094 (9th Cir. 2001). 5

Additionally, Gross and Nassar undercut the reasoning set

forth by our sister circuits.

Gross held that the ADEA, which also used “because of”

to indicate causation, did not permit mixed-motive claims

because “the ADEA’s text does not provide that a plaintiff

may establish discrimination by showing that age was

simply a motivating factor.” 557 U.S. at 174. The Court

rejected the argument that Title VII decisions governed

interpretation of the ADEA on the basis that the two statutes

were distinguishable. Id. (“[W]e ‘must be careful not to

apply the rules applicable under one statute to a different

statute without careful and critical examination.’” (quoting

5

Head noted Hernandez’s characterization of the burden on an

ADA plaintiff as “proving that ‘disability actually played a role in the

employer’s decisionmaking process and had a determinative influence

on the outcome.’” Head, 413 F.3d at 1065 (quoting Hernandez, 362 F.3d

at 568 (emphasis in Head)). Head also observed Snead’s statement that

a plaintiff must demonstrate that “a discriminatory reason more likely

motivated the employer.” Head, 413 F.3d at 1065 (quoting Snead,

237 F.3d at 1094 (emphasis in Head)). Neither statement requires a

motivating factor standard.

12 MURRAY V. MAYO CLINIC

Fed. Exp. Corp. v. Holowecki, 552 U.S. 389, 393 (2008)).

The Court explained,

Unlike Title VII, which has been amended to

explicitly authorize discrimination claims

where an improper consideration was a

‘motivating factor’ for the adverse action, the

ADEA does not provide that a plaintiff may

establish discrimination by showing that age

was simply a motivating factor. Moreover,

Congress neglected to add such a provision to

the ADEA when it added §§ 2000e-2(m) and

2000e-5(g)(2)(B) to Title VII, even though it

contemporaneously amended the ADEA in

several ways.

Id. (citations omitted).

Gross’s reasoning directly contradicts the textual

reasoning Head and other courts applied to conclude that

Title VII’s motivating factor standard applied to ADA

claims. See Parker, 204 F.3d at 337; Foster, 168 F.3d

at 1033. Like the ADEA, and unlike Title VII, the ADA

does not contain any explicit “motivating factor” language.

See Gross, 557 U.S. at 174. Rather, Title I of the ADA

provides that a plaintiff must show discrimination “on the

basis of disability.” 42 U.S.C. § 12112(a). Under Gross, the

phrase “on the basis of disability” indicates but-for

causation. Gross, 557 U.S. at 176; see also Nassar, 570 U.S.

at 350 (explaining Gross’s holding that “because of,” “by

MURRAY V. MAYO CLINIC 13

reason of,” “on account of,” and “based on” all indicate a

but-for causal relationship). 6

Nassar’s reasoning likewise directly undercuts the

reasoning of courts that relied on the ADA’s incorporation

in § 12117 of § 2000e-5. See Buchanan, 85 F.3d at 200;

Pedigo, 60 F.3d at 1301; cf. Baird ex rel. Baird v. Rose,

192 F.3d 462, 470 (4th Cir. 1999) (ADA Title II’s

incorporation of § 2000e-5). Nassar rejected the argument

that § 2000e-2(m), Title VII’s motivating factor causation

provision, applies to Title VII retaliation claims. Nassar,

570 U.S. at 353. The Court emphasized that “the text of the

motivating-factor provision, while it begins by referring to

‘unlawful employment practices,’ then proceeds to address

only five of the seven prohibited discriminatory actions—

actions based on the employee’s status, i.e., race, color,

religion, sex, and national origin.” Id. According to Nassar,

the plain language of § 2000e-2(m) barred its application to

retaliation claims, and “it would be improper to conclude

that what Congress omitted from the statute is nevertheless

within its scope.” Id.

The same logic applies to Title I ADA discrimination

claims. Relief under § 2000e-5(g)(2)(B) is available only if

6

Title I of the ADA was amended in 2008 to prohibit discrimination

“on the basis of” disability, rather than “because of” disability. We find

no meaningful textual difference in the two phrases with respect to

causation. The Second and Fourth Circuits likewise found no

meaningful textual difference between the two standards and found

nothing in the legislative history suggesting Congress intended to modify

the ADA’s standard for causation. Natofsky v. City of New York,

921 F.3d 337, 349–50 (2d Cir. 2019); Gentry v. E.W. Partners Club

Mgmt. Co., 816 F.3d 228, 234 (4th Cir. 2016) (noting that the ADA

amendment was enacted before Gross, and was therefore not in response

to Gross’s causation analysis).

14 MURRAY V. MAYO CLINIC

the plaintiff proves a violation under § 2000e-2(m). Section

2000e-2(m) narrowly prohibits the consideration of race,

color, religion, sex, or national origin as a motivating factor

for any employment practice. It does not prohibit the

consideration of disability. Congress’s express listing of

these status-based considerations under § 2000e-2(m) is best

understood as an exclusion of all other considerations. See,

e.g., Silvers v. Sony Pictures Entm’t, Inc., 402 F.3d 881, 885

(9th Cir. 2005) (“The doctrine of expressio unius est exclusio

alterius ‘as applied to statutory interpretation creates a

presumption that when a statute designates certain persons,

things, or manners of operation, all omissions should be

understood as exclusions.’” (quoting Boudette v. Barnette,

923 F.2d 754, 756–57 (9th Cir. 1991))). Section 2000e-

2(m), by its plain language, is inapplicable to claims of

disability discrimination.

Because Head’s reasoning—whether based on the

ADA’s cross-reference to § 2000e-5(g)(2)(B) or on the

ADA’s text—is irreconcilable with subsequent Supreme

Court precedent, it cannot stand.

III.

Our decision comports with the decisions of all of our

sister circuits that have considered this question after Gross

and Nassar. The Second, Fourth, and Seventh Circuits

found the Supreme Court’s intervening jurisprudence to be

dispositive of the issue. See Natofsky, 921 F.3d at 348

(“Gross and Nassar dictate our decision here.”); Gentry v.

E.W. Partners Club Mgmt. Co., 816 F.3d 228, 234 (4th Cir.

2016) (“The Supreme Court’s analysis in Gross dictates the

outcome here.”); Serwatka, 591 F.3d at 963 (“But in view of

the Court’s intervening decision in Gross, it is clear that the

district court’s decision . . . cannot be sustained.”). The

Sixth Circuit, following en banc review, similarly held that

MURRAY V. MAYO CLINIC 15

Gross’s reasoning was controlling. Lewis v. Humboldt

Acquisition Corp., 681 F.3d 312, 318 (6th Cir. 2012) (en

banc) (“[Gross’s] rationale applies with equal force to the

ADA.”).

We agree. Gross and Nassar undermine Head’s

reasoning such that the cases are clearly irreconcilable. We

join our sister circuits in holding that ADA discrimination

claims under Title I must be evaluated under a but-for

causation standard.

AFFIRMED.