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Fuller v. Gates

Question of Age Discrimination Protections for Federal Workers Awaits Another Day


A ruling against a federal worker alleging age discrimination did not address the questions AARP raised in its brief.


In 2004, Betty Fuller, then a 63-year-old civilian employee of the U.S. Department of Defense (DOD), applied for a promotion. She was one of six applicants rated “qualified” and granted an interview but was ultimately passed over for a 38-year-old applicant. Concerned about comments made in relation to other older employees, Fuller later filed an internal EEO complaint alleging age discrimination. Soon after filing that complaint, her employer began to investigate her for drug use despite no drugs found on or about her person. Fuller was ordered to a drug rehabilitation program, suspended for 15 days and, shortly thereafter, she resigned. She sued DOD, alleging age discrimination and EEOC complaint-related retaliation.

A court ruled in her favor  on the discrimination claim and awarded her $10,000 in back pay, but ruled against her on the retaliation claim. Soon afterward, the U.S. Supreme Court handed down its decision in Gross v. FBL Financial (2009), which altered the standards by which age discrimination complaints must be assessed. The government moved for reconsideration based on that decision.

The 5-4 Gross decision denied older workers the full protections afforded under non-age-related civil rights laws, and in so doing punched an enormous hole in the federal Age Discrimination in Employment Act (ADEA). The ruling precludes age discrimination claims based on mixed motives — that is, situations where age is one of several factors upon which an employment decision is based. Prior to Gross, an ADEA plaintiff could win his/her case by showing that age was one factor in the employer’s decision even though there was evidence that other factors also played a role unless the employer was able to prove that it would have made the same decision without considering the employee’s age. Gross held that the statutory language of the ADEA does not permit mixed-motives claims and, therefore, the only way to establish that the employer is liable under the ADEA is for the plaintiff to show that age was the “but-for” cause of the adverse employment decision. In other words, the employee must show not that age was merely a factor in the employer’s decision, but that it was the determining factor.

While disappointed with the ruling in Gross, AARP argued that Fuller’s case was different. The employer in Gross was a private-sector company covered by the section of the ADEA that prohibits discrimination “because of” age. In contrast, Betty Fuller, a former employee of an agency of the U.S. government, was covered by the ADEA’s federal sector provision, which states that all personnel decisions of agencies of the federal government “shall be made free from any discrimination based on age.” In its brief filed by AARP Foundation Litigation attorneys, AARP argued that this language is broader than that narrowly construed in Gross. One federal appeals court has already agreed that the “but-for” causation requirement of Gross is inconsistent with the federal sector provision of the ADEA.

Ruling in Fuller, however, the appeals court held that there was insufficient evidence to prove age discrimination under any standard and, therefore, found it unnecessary to rule on the issue raised by AARP.

What’s at Stake

While AARP is working to have Congress overturn the outcome of Gross, AARP Foundation Litigation will continue to file briefs in cases seeking to minimize the effects of that misguided Supreme Court decision.

Case Status

Fuller v. Gates was decided by the U.S. Court of Appeals for the Fifth Circuit.

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Our legal advocacy initiatives  - conducted by AARP Foundation Litigation (AFL) - reflect more than 15 years of work in federal and state courts across the country. Through our efforts, we support the Foundation’s four priority areas: Hunger, Income, Housing and Isolation, and ensure that those 50 and older have a voice in the laws and policies that affect their daily lives.