Gross is Not Applicable to Mixed Motive Cases under Amended Americans with Disability Act

Robert Southerland v. Dep’t of Defense, Docket Nos. SF-0752-09-0864-R-1, SF-0752-10-0111-R-1 (MSPB Oct. 5, 2011)

In August 2011, the Merit Systems Protection Board posted its decision in Southerland v. Dep’t of Defense adopting the Gross v. FBL Financial Services mixedmotive standard in application to a post-ADAAA disability discrimination case.

In a reversal of its August 2011 decision, the Board " VACATE[d its] August 25, 2011 Opinion and Order in its entirety, and SUBSTITUTE[d]" the new decision.

It appears that much of the decision is the same as the previous decision in Southerland, but for the major change in determining that the Supreme Court's draconian mixed-motive analysis in Gross IS NOT applicable to disparate treatment claims arising under the ADAA, although it still maintains the opinion that it is applicable for legacy pre-ADAA claims. ("we conclude that a mixed-motive analysis is not appropriate in disability discrimination claims arising under the ADAAA").

The decision is available online at: http://www.mspb.gov/netsearch/viewdocs.aspx?doc number=648915&version=650867&application=A CROBAT.

- submitted by Kevin Owen

September