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Jan 06, 2017

Mixed Motive Causation

By: Allison Mann

In December 2016, the Eighth Circuit scrutinized its standard for proving causation in cases of disability discrimination, in the case of Oehmke v. Medtronic. Causation means that the plaintiff must be able to show that the defendant discriminated against them because of the plaintiff’s disability.

There are two main causation tests, and as of right now, there is a split in the circuits as to which test should be applied.

First, there is the “but-for” causation analysis. To put it simply, the plaintiff would not have been terminated but-for her disability. This is a high burden for the plaintiff to meet, and has been adopted in the Fourth, Sixth, and Seventh Circuits.

Second, is “mixed-motive” causation. This test is more relaxed. Courts that use this test recognize that employers oftentimes terminate individuals for multiple reasons. Some of which are permissible, and others that are illegal. Here, the plaintiff does not need to show that the only reason that she was terminated was her disability. She needs only show that it was one of the reasons. This is the test used by the Eighth Circuit.

It is helpful to examine the facts of Oehmke to better understand this distinction.

Oehmke v. Medtronic

In Oehmke, Plaintiff worked for Defendant as a credit representative. She also suffered from immune deficiency related to cancer treatment. The facts of the case are quite lengthy, but can be summarized quickly.

Plaintiff worked in customer service answering phones. Her disability caused her to be absent from work fairly often, but Defendant allowed Plaintiff to telecommute. Plaintiff did not get along with her supervisors, and was oftentimes in conflict with them. In many ways, Plaintiff was a proficient employee, and even won several awards for service. However, her performance declined. Several customer complaints were filed against Plaintiff, and she received negative evaluations from her supervisors. At one time, she even gave life threatening advice to a customer.

The main issue arose when Plaintiff exhausted her FMLA leave. Due to press of business, Defendant replaced Plaintiff with a new employee. Defendant offered Plaintiff a different position, which was a demotion from the prior one. Plaintiff accepted.

Plaintiff was not happy in this new position. In the time that followed, renewed conflict with her supervisors arose, Plaintiff was absent from work because of her illness, and Plaintiff was not able to meet the requirements of her new job. Plaintiff was put on a performance improvement plan, but refused to sign it. She instead asked for a transfer to another department. At that time, Defendant asked Plaintiff to resign, and offered her a settlement. Plaintiff refused and was ultimately terminated.

Plaintiff then brought suit for disability discrimination. At the district court level, Defendant was granted summary judgment, from which Plaintiff appealed.

The Court started by calling out the test it would use to evaluate the situation—the mixed-motive analysis. It then recognized that there were multiple permissible reasons to terminate Plaintiff. A court using the “but-for” analysis test may have stopped at this stage of the analysis. However, the mixed-motive analysis does not end there. The Court allowed Plaintiff to attempt to show Defendant also had a discriminatory reason for Plaintiff’s termination.

Plaintiff argued that Defendant was also motivated by Plaintiff’s need to be absent from work. Plaintiff further argued that her absences were caused by her disability. Ultimately, the Court upheld summary judgment in favor of the Defendant because Plaintiff could not present medical evidence to show that her absence from work was related to her disability. Thus, even if Defendant terminated Plaintiff because she was oftentimes absent from work, it was not discriminatory.

The Takeaway:

Employers in the Eighth Circuit should be aware of Oehmke because it allows potential plaintiffs to prove discrimination using a less stringent test. In theory, it is easier to provide discrimination using this analysis.

So, what can employers do to prepare? The following steps may be helpful:

    • Keep full and accurate records of employee performance.
    • Evaluate the motives of all of the decision-makers.
    • Examine the employee’s file and any other documentation to determine whether the record supports the motive for termination.
If there are any specific questions, competent legal counsel should be engaged.

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Reprinted with permission from an article submitted for publication in the January, 2017 Southwest Area Human Resource Association newsletter.