Smith v. Allentown, 2009 WL 4912120 (3d Cir., December 22, 2009) – The Third Circuit Court of Appeals has ruled that the burden-shifting analysis adopted in McDonnell Douglas Corp. v. Green, 411 U.S. 742 (1973) still applies to claims under the Age Discrimination in Employment Act (ADEA), despite the U.S. Supreme Court’s recent holding in Gross v. FBL Financial Serv., 129 S.Ct. 2343 (2009), reported in our June 18, 2009 E-Alert, that “but for” causation is necessary. The Third Circuit stated it cannot depart from its prior decisions applying McDonnell Douglas unless they are irreconcilable with Gross. The court found that the two decisions are not in conflict because McDonnell Douglas does not shift the burden of persuasion. Rather, it shifts only the burden of production to require the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action.