I.   Background

D.   Smith V. Xerox Corp.

            After Gross, the Fifth Circuit had the task of deciding if the Price scheme was still good law, and if so, what limits did it have.[i] In Smith, the court was presented with a Title VII retaliation case, in which the plaintiff wanted to shift the burden of proof to the defendant.[ii]With Gross fresh in its mind, the court followed the analysis, looking to the language of 42 U.S.C. § 2002e-2(a), and following the changes with the 1991 amendment. The court found it reasonable to preclude the Price scheme from a retaliation claim.[iii]However, the court heeded the warning of the Supreme Court to be careful when applying rules applicable under one statute to a different statute without careful and critical examination,[iv]and ultimately, the Fifth Circuit was not willing to apply Gross to Title VII cases.[v]The court was convinced that Pricewas still the controlling law, and while much of the Gross analysis applied to the present case, Price still controlled all Title VII claims.[vi]The Fifth circuit declined to overrule Price, leaving that determination for the Supreme Court.[vii]

E.   Hayes V. Sebelius

            In Hayes, the District Court for the District of Columbia recently reviewed the same question that the Fifth Circuit struggled with in Smith.[viii] Where the Fifth Circuit found Gross to be interesting, but not relevant, and consequently, Price to still be controlling, the District Court interpreted Gross as overruling Price.[ix]Like the Court in Gross, the District Court found the primary determining factor to be Congress’s lack of action when amending the acts.[x]Using similar statutory construction tools as were used in Gross, the District Court noted that “[w]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”[xi]

While looking to the analysis of Gross, the District Court also looked to the analysis of the Fifth Circuit, but found it lacking.[xii]First, the District Court no longer found Priceas the controlling case law.[xiii]Second, while the Fifth Circuit court took to heart the Supreme Court’s admonishment to applying statutory construction, the District Court found it to be inappropriate, noting that the Fifth Circuit applied the warning to rules of construction, instead of rules of law.[xiv]Finally, the District Court argued that, while Gross did not apply strictly to retaliation cases, the lack of analysis by the Supreme Court does not bar its application to retaliation cases.[xv]Gross was not a retaliation case, and the Supreme Court had no reason to analyze it.[xvi]

[i]           Smith v. Xerox Corp., 602 F.3d 320, 325-26 (5th Cir. 2010).

[ii]           Id. at 322-23.

[iii]          Id. at 328.

[iv]          Gross, 129 S. Ct. ** at 2349.

[v]           Smith, 602 F.3d at 328.

[vi]          Id. at 329.

[vii]         *Id.*

[viii]         Hayes v. Sebelius, 762 F. Supp. 2d 90 (D.D.C. 2011).

[ix]          Id. at 111. “The Supreme Court’s recent decision in Gross, however, makes clear that Price Waterhouse’sinterpretation of ‘because of’ is flatly incorrect.”

[x]           Id. at 113.

[xi]          Id. (quoting Russello v. United States, 464 U.S. 16 (1983)).

[xii]         Id. at 114.

[xiii]         Id.

[xiv]         Id. at 115.

[xv]         *Id.*

[xvi]         *Id.*