554 U.S. 84, 91–99 (2008)
In January 1997 an opt-in class of plaintiffs filed complaints in the Northern District of New York against Knolls Atomic Power Laboratory, its parent Lockheed Martin, Inc., and its president and general manager John J. Freeh alleging disparate treatment and disparate impact age discrimination under the ADEA and New York Human Rights Law arising from a 1996 involuntary reduction-in-force that terminated the employment of twenty-eight plaintiffs.1
Nine plaintiffs later settled their claims.2 After a bifurcated trial on liability and damages that began June 20, 2000, the jury returned verdicts for defendants on all disparate treatment claims, for twenty-six plaintiffs on their disparate impact claims under both statutes, and awarded a total of $5,077,285.33 in damages.3 The district court denied defendants' post-trial motions but granted remittitur, reducing the total award including interest to $4,172,547.89, and entered the Second Amended Judgment on March 28, 2002.4
Defendants appealed. The Second Circuit affirmed the judgment in August 2004.5 While defendants' petition for certiorari was pending, the Supreme Court decided Smith v. City of Jackson and then vacated the affirmance and remanded.6 On remand the Second Circuit in August 2006 vacated the judgment and directed entry of judgment for defendants.7 Plaintiffs petitioned for certiorari; the Supreme Court granted the petition and in June 2008 vacated the Second Circuit's 2006 decision and remanded for further proceedings.8
On remand the Second Circuit in January 2009 directed the district court to address three questions concerning the reasonable-factors-other-than-age defense.9 The parties agreed no additional discovery was needed and the questions should be decided on the existing record.10 Defendants had pleaded the RFOA provision as their Second Defense in their February 1997 answer but never mentioned the defense again in their summary judgment papers, trial memorandum, opening or closing arguments, Rule 50 motions, proposed jury instructions, charge conference, or objections to the verdict form, and first raised the defense again on the second appeal in 2005.11
Whether the employer waived the RFOA affirmative defense by its conduct at the district court?12
The RFOA provision in 29 U.S.C. § 623(f)(1) constitutes an affirmative defense on which the employer bears the burden of persuasion.13 Waiver requires demonstration that a party intentionally relinquished a known right, shown either by affirmative conduct or by failure to act so as to evince an intent not to claim the advantage, with the determination resting on the totality of circumstances including knowledge of the defense and its assertion at critical stages such as summary judgment motions, trial proceedings, jury instructions, and appeals.14
Yes. Defendants possessed knowledge of the RFOA defense because they pleaded it explicitly as their Second Defense in the February 1997 answer, the statutory language had remained unchanged since 1967, and Second Circuit precedent recognized the exemption years before the June 2000 trial.15 Defendants intentionally relinquished the defense through complete inaction after the answer, omitting any reference to RFOA in summary judgment papers, the trial memorandum, opening and closing arguments, Rule 50 motions, proposed jury instructions, the charge conference, objections to the verdict form, or the first appeal, and raising the defense for the first time only on the second appeal in 2005.16 This sustained silence across every procedural stage, coupled with a strategic choice to shift the burden onto plaintiffs, satisfies the standard for waiver under the totality of circumstances.17
The employer waived the RFOA affirmative defense by its conduct at the district court.18
Related opinions on this issue
Justice Thomas wrote separately to note his continued belief that disparate-impact claims are not cognizable under the ADEA.19 He also disagreed with the view that the RFOA exception is principally relevant in disparate-impact cases.20 Thomas joined only Parts I and II-A of the opinion because he agreed that the RFOA exception is an affirmative defense when it arises in disparate-treatment cases.21
He would have affirmed the judgment because the only claims at issue were disparate-impact claims.22
Whether any such waiver was excused as the result of conflicting statements in the case law for which the employer should not be penalized?23
Waiver of an affirmative defense is excused only when it results from conflicting statements in the relevant circuit's case law at the time of trial, such that the party could not reasonably have been expected to know both its entitlement to a full rebuttal and the allocation of the burden of proof.24
No. No decision in the Second Circuit at the time of the June 2000 trial had addressed, directly or indirectly, the burden of proof on the RFOA defense, and defendants cited no conflicting statements within Second Circuit precedent concerning either the exception or its burden allocation.25 The limited exception for conflicting circuit statements does not extend to uncertainty arising from silence in the governing circuit, conflicts among other circuits, or later Supreme Court decisions, because parties remain obligated to raise and preserve issues in the district court regardless of the absence of controlling authority.26
The waiver was not excused as the result of conflicting statements in the case law.27
Related opinions on this issue
Justice Scalia concurred in the judgment but declined to join the majority opinion.28 He believed the Court answered for itself questions that Congress had left to the Equal Employment Opportunity Commission.29 Scalia deferred instead to the Commission's reasonable positions.30
The Commission took the view that the reasonable-factor-other-than-age provision is an affirmative defense on which the employer bears the burden of proof.31 The Commission also took the view that the provision replaces the business-necessity test in ADEA disparate-impact suits.32
Whether the employer should prevail as a matter of law on the RFOA defense in light of the Supreme Court's decision or whether the case should be resolved on the existing record or require a new trial?33
When waiver of an affirmative defense is found and not excused, a reviewing court need not reach the merits of the defense or determine whether judgment as a matter of law, resolution on the existing record, or a new trial is warranted.34
No. Because defendants waived the RFOA defense and the waiver was not excused, the district court was not required to decide whether the employer should prevail as a matter of law on the RFOA defense or whether the case should be resolved on the existing record or require a new trial.35
The court did not reach the question whether the employer should prevail as a matter of law on the RFOA defense or whether a new trial was warranted.36