David BOYD, Plaintiff-Appellant, v. GUIDANT SALES CORP., Defendant-Appellee, 341 F. App'x 972

PER CURIAM: David Boyd sued his employer, Guidant Sales Corporation (“Guidant”), under the Age Discrimination in Employment Act (“ADEA”), alleging wrongful termination based on age. The jury answered “yes” to the following question: “Do you find ... that Defendant would have made the same decision to terminate Plaintiffs employment even in the absence of consideration of his age?” Pursuant to the verdict, the district court entered judgment for Gui-dant. After briefing had been completed on appeal, the Supreme Court decided Gross v.

FBL Financial Services, Inc., — U.S. -, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009), holding that “a mixed-motives jury instruction in a suit brought under the [ADEA] is never proper....” Id. at 2346. This means that under the ADEA a plaintiff must establish but-for causation: that his employer would not have terminated him but for his age. The jury’s affirmative answer to the but-for interrogatory shown above dooms Boyd’s chances of reversal or remand.

Even in light of Gross, Boyd argues for a new trial based on the jury’s “yes” answers to the following questions: Do you find ... that Plaintiffs age was a motivating factor in Defendant’s decision to terminate Plaintiffs employment? Do you find ... that Defendant wilfully violated the [ADEA] by discriminating against Plaintiff on the basis of age? Those answers, however, satisfy only the now-repudiated mixed-motive theory of ADEA liability. Boyd has had his chance to convince a jury that he would not have been terminated but for his age, and he is not entitled to a new trial to attempt to establish that element.

The judgment, albeit reached without benefit of Gross, is correct. The district court also did not abuse its discretion in its evidentiary rulings and did not err as a matter of law in regard to the remaining issues on appeal. The judgment is AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.