Petition for Writ of Certiorari — Jagdish C. Laul, Petitioner v. Los Alamos National Laboratories

Supreme Court briefFeb 20, 2018

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No. 18-____

IN THE

JAGDISH C. LAUL,

Petitioner,

LOS ALAMOS NATIONAL LABORATORIES,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals for the Tenth

Circuit

PETITION FOR A WRIT OF CERTIORARI

Trace L. Rabern

Rabern Law

February 19, 2018

Attorneys for Petitioner

130 Grant Ave. Ste. #105

Santa Fe, NM 87501

505.629.9254

QUESTIONS PRESENTED

I. Whether on summary judgment in an employment

case utilizing the byzantine ediﬁce of employment

discrimination law that is the McDonnell Douglas1

burden-shifting test, the court deprives a plaintiﬀ of

her Seventh Amendment right to make her case to a

jury where the facts on every point of the legal test for

intent are disputed and the court itself weighs

conﬂicting inferences about the employer’s intent?

II. Does the byzantine ediﬁce of employment

discrimination law that is the McDonnell Douglas

framework even meaningfully apply after Desert Palace

Inc. v. Costa, 539 U.S. 90 (2003), where each party

espouses multiple motives? Here Plaintiﬀ’s theory of

the case involves as least two unlawful reasons—

national origin and age—and the defendant’s theory

involves at least two lawful reasons—performance and

non-compliance with discipline. Under Desert Palace,

is the McDonnell Douglas test as (reluctantly) used by

the Tenth Circuit fatally inconsistent with the mixedmotive theory of discrimination because the framework

is predicated on proof of a single, ‘true reason’ for an

adverse action?

1 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

!ii

LIST OF PARTIES

The Petitioner in this Court and the Appellant in the Tenth

Circuit is Dr. Jagdish Laul, a former employee of

Respondent. Dr. Laul was the Plaintiff below.

The Respondent in this Court and the Appellee in the Tenth

Circuit is Los Alamos National Laboratory (LANL), the

nation’s flagship nuclear laboratory and a Federally Funded

Research and Development Center, operated by Los Alamos

National Security, LLC (LANS) under contract to the

National Nuclear Security Administration. LANS comprises

four U.S. organizations that partner to support delivery of our

national security science mission. These entities are the

University of California; Bechtel National, Inc.; The

Babcock and Wilcox Company; and URS Corporation.

LANL is the former employer of Petitioner and was the

original defendant.

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TABLE OF CONTENTS

QUESTIONS PRESENTED ..................……………………………i

LIST OF PARTIES……………… ................…………………………ii

TABLE OF CONTENTS………… ...............………………………iii

TABLE OF AUTHORITIES………… ...............………………….v

PETITION FOR A WRIT OF CERTIORARI…… ..............…1

OPINIONS BELOW…………………… .……………………………….1

JURISDICTION………………………… ..............……………………1

RELEVANT CONSTITUTIONAL PROVISION…… ............. 1

RELEVANT STATUTORY PROVISIONS…… ......................2

STATEMENT OF THE CASE……………………… ...............….3

REASONS FOR GRANTING THE WRIT… ..........…………..8

A. The McDonnell Douglas Framework……8

B. Summary Judgment ......................... ……9

C. Seventh Amendment ..................... ……10

Reason I:

It Is The Provence Of The Jury To Choose

From Competing Inferences .................. ….12

Reason II:

Pretext Is Necessarily A Factual Finding

Based on Competing Inferences. .................. 14

Reason III:

Data Confirms Framework Broken .......... 16

!iv

II. THE BYZANTINE EDIFICE OF THE MCDONNELL

DOUGLAS FRAMEWORK CANNOT MEANINGFULLY APPLY

AFTER DESERT PALACE IN MOST CASES, LIKE THIS ONE

WHERE EACH PARTY ESPOUSES MULTIPLE INFERRED

MOTIVES. ......................................................................... 17

Reason IV:

Most Circuit Cour ts of Appeal Have

Already Held The McDonnell Douglas

Framework Cannot Apply to Mixed-Motive

Cases A fter Struggling With Its Flaws For

The Same Reasons .................................... 19

CONCLUSION……………………………………………………........23

APPENDIX A Opinion of the Tenth Circuit……..……..…2a

APPENDIX B Denial of Rehearing ............…………….....18a

APPENDIX C District Court’s Memorandum And

Judgment on Summary Judgment…… .......………………….19a

TABLE OF AUTHORITIES

Cases

Anderson v. Liberty Lobby, Inc.,

77 U.S. 242, (1986) ..............................................10

Baylis v. Travellers’ Ins. Co.,

113 U.S. 316 (1885) ..............................................11

Blakely v. Washington,

542 U.S. 296 (2004) .............................................11

Burns v. Johnson,

829 F.3d 1 (1st Cir. 2016) ...................................21

Connelly v. Lane Const. Corp.,

809 F.3d 780 (3d Cir. 2016) ................................22

Desert Palace Inc. v. Costa,

539 U.S. 90 (2003) .........................................18. 19

Dimick v. Schiedt,

293 U.S. 474 (1935) .............................................10

Diamond v. Colonial Life & Acc. Ins. Co.,

416 F.3d 310 (4th Cir. 2005) ................................13

Dyer v. MacDougall,

201 F.2d 265 (2d Cir. 1952) ................................13

EEOC v. LHC Group, Inc.,

773 F.3d 688 (5th Cir. 2014) ...............................21

Fid. & Deposit Co. v. United States,

187 U.S. 315 (1902) ..............................................14

Fye v. Okla. Corp. Comm’n,

516 F.3d 1217 (10th Cir. 2008) ...........................22

Griﬃth v. City of Des Moines,

387 F.3d 733 (8th Cir. 2004) ..............................23

Hill v. Lockheed Martin Logistics Management, Inc.,

!vi

354 F.3d 277 (4th Cir. 2004) (en banc) .............22

Hinds v. Sprint/United Mgmt. Co.,

523 F.3d 1187 (10th Cir. 2008) .............................8

Holcomb v. Iona Coll.,

521 F.3d 130 (2d Cir. 2008) ................................21

Hossack v. Floor Covering Assocs. of Joliet, Inc.,

492 F.3d 853 (7th Cir. 2007) ..............................22

McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973) .....................................passim

Metoyer v. Chassman,

504 F.3d 919 (9th Cir. 2007) ..............................22

Neely v. Martin K. Eby Constr. Co.,

386 U.S. 317 (1967) ..............................................13

NLRB v. Jones & Laughlin Steel Corp.,

301 U.S. 1 (1937) .................................................10

Ortiz v. Werner Enterprises, Inc.,

834 F.3d 760 (7th Cir 2016) ...............................22

Parklane Hosiery Co. v. Shore,

439 U.S. 322 (1979) .......................................11, 13

Parsons v. Bedford,

28 U.S. (3 Pet.) 433 (1830) .................................10

Paulino v. Harrison,

542 F.3d 692 (9th Cir. 2008) ..............................13

Paup v. Gear Prods., Inc.,

327 F. App’x 100 (10th Cir. 2009) .......................8

Perry v. Woodward,

199 F.3d 1126 (10th Cir. 1999) .............................7

Ponce v. Billington,

679 F.3d 840 (D.C. Cir. 2007) ............................22

Powers v. Ohio,

!vii

499 U.S. 400 (1991) .............................................11

Price Waterhouse v. Hopkins,

490 U.S. 228 (1989) .............................................20

Quigg v. Thomas Cty. Sch. Dist.,

814 F.3d 1227 (11th Cir. 2016) .....................19, 20

Rachid v. Jack In The Box, Inc.,

376 F.3d 305 (5th Cir. 2004) ..............................21

Radomsky v. United States,

180 F.2d 781 (9th Cir. 1950) ...............................13

Reeves v. Sanderson Plumbing Prods.,

530 U.S. 133 (2000) .......................................10, 15

Slocum v. N.Y. Life Ins. Co.,

228 U.S. 364 (1913) .......................................10, 11

Standard Oil Co. v. Van Etten,

107 U.S. 325 (1882) .............................................12

Tennant v. Peoria & Pekin Union Railway,

321 U.S. 29 (1944) ...............................................12

Tex. Dep’t of Cmty. Aﬀairs v. Burdine,

450 U.S. 248 (1981) .........................................9, 20

United States v. Scheﬀer,

523 U.S. 303 (1997) .............................................12

United States v. Scruggs,

549 F.2d 1097 (6th Cir. 1977) .............................13

U.S. Postal Serv. Bd. of Governors v. Aikens,

460 U.S. 711 (1983) .............................................18

Wells v. Colo. Dep't of Transp.,

325 F.3d 1205 (10th Cir.2003) .............................8

White v. Baxter Healthcare Corp.,

533 F.3d 381 (6th Cir. 2008) ..............................21

Young v. United Parcel Serv., Inc.,

!viii

135 S. Ct. 1338 (2015) .........................................15

Zamora v. Elite Logistics, Inc.,

449 F.3d 1106 (10th Cir. 2006) ...........................17

Zamora v. Elite Logistics, Inc.,

478 F.3d 1160 (10th Cir. 2007) (en banc) ..........18

Constitutional Authorities

U.S. Const. amend VII ……………………………………passim

Rules & Statutes

29 U.S.C. § 623(a) ...............................................................2

42 U.S.C. § 2000e-2(a)(1) ...................................................2

42 U.S.C. § 2000e-2(m) (1991) ..........................................2

42 U.S.C. § 2000e-5(g)(2)(B) .............................................2

Fed. R. Civ. Evid. 401 .......................................................14

Other Authorities

Black’s Law Dictionary

(7th ed. 1999) ......................................................14

Merriam-Webster Dictionary (2016) ..............................14

John Bouvier, Pretext, A Law Dictionary,

Adapted to the Constitution

and Laws of the United States (1856) .............14

Memorandum from Joe Cecil & George Cort,

!ix

Fed. Judicial Ctr., to Judge Baylson, 3

(Aug. 13, 2008), available at http://

www.fjc.gov/public/pdf.nsf/lookup/

sujulrs2.pdf/$ﬁle/sujulrs2.pdf .........................16

Kevin M. Clermont & Stewart J. Schwab,

Employment Discrimination Plaintiﬀs

in Federal Court: From Bad to Worse?,

3 Harv. L. & Pol’y Rev. 103 (2009) ..............16, 17

William R. Corbett, Fixing Employment

Discrimination Law, 62 SMU L. Rev. 81

(2009) ...................................................................16

Natasha T. Martin, Pretext in Peril,

75 Mo. L. Rev. 313 (2010) ...............................9, 16

THE FEDERALIST NO. 83

(Alexander Hamilton)

(Ian Shapiro ed., 2009) ........................................9

Timothy M. Tymkovich,

The Problem with Pretext,

85 Denv. U.L.Rev. 503 (2008) ..............................8

William V. Dorsaneo, III,

Reexamining the Right to Trial

by Jury, 54 SMU L. REV. 1695 (2001) ...............13

Trina Jones, Anti-Discrimination Law in Peril?,

75 Mo. L. Rev. 423 (2010) ...................................16

Martin J. Katz, Reclaiming McDonnell Douglas,

83 Notre Dame L. Rev. 109 (2007) ....................16

Lee Reeves, Pragmatism over Politics:

Recent Trends in Lower Court

Employment Discrimination

Jurisprudence, 73 Mo. L. Rev. 481 (2008) .......16

Michael Selmi, Why Are Employment

Discrimination Cases So

Hard to Win?, 61 La. L. Rev. 555 (2001) ..........16

Kerri Lynn Stone, Shortcuts in

Employment Discrimination Law,

56 St. Louis U. L.J. 111 (2011) ...........................16

PETITION FOR A WRIT OF CERTIORARI

Petitioner Dr. Jagdish C. Laul respectfully

petitions for a writ of certiorari to the Tenth Circuit

Court of Appeals in Laul v. Los Alamos National

Laboratories, No. 16-2245, D. N.M. No. 1:15-CV-00749JAP-KBM.

OPINIONS BELOW

The opinion of the Tenth Circuit Court of Appeals

is unpublished from United States Court of Appeals

for the Tenth Circuit, Case Number 16-2245 (filed

October 23, 2017). The Order denying petition for

rehearing and rehearing en banc was filed on

November 20, 2017, as Doc. 01019904103. The decision

of the District Court is at United States District Court

for the District of New Mexico Case Number 1:15cv-00749, Doc. 83 (filed 9/27/16).

JURISDICTION

The opinion of the Tenth Circuit Court of Appeals

was entered on November 6, 2017, and Mr. Laul’s timely

Petition for Rehearing was denied on November 20,

2017. This Court has jurisdiction pursuant to 28 U.S.C.

§ 1254(1).

RELEVANT CONSTITUTIONAL PROVISION

The Seventh Amendment to the United States

Constitution provides in relevant part: “In Suits at

common law, where the value in controversy shall

exceed twenty dollars, the right of trial by jury shall be

preserved, and no fact tried by a jury, shall be

otherwise re-examined in any Court of the United

States, than according to the rules of the common law.

RELEVANT STATUTORY PROVISIONS

Title VII declares unlawful any “employment

practice” that "discriminate[s] against any individual

with respect to…compensation terms, conditions, or

privileges of employment, because of such individual's

race, color, religion, sex, or national origin.” 42 U.S.C. §

2000e-2(a)(1).

Under § 107, Title VII is violated if plaintiﬀ proves

that her protected class “was a motivating factor for

any employment practice, even though other factors

also motivated the practice.” 42 U.S.C. § 2000e-2(m)

(1991).

On a claim in which an individual proves a

violation under section [2000e-2(m)] of this title and a

respondent demonstrates that the respondent would

have taken the same action in the absence of the

impermissible motivating factor, the court—

(i) may grant declaratory relief, injunctive relief

(except as provided in clause (ii)), and attorney's fees

and costs demonstrated to be directly attributable

only to the pursuit of a claim under section

[2000e-2(m)] of this title; and

(ii) shall not award damages or issue an order

requiring any admission, reinstatement, hiring,

promotion, or payment, described in subparagraph

(A).

42 U.S.C. § 2000e-5(g)(2)(B).

The Age Discrimination in Employment Act of 1967

(ADEA), which makes it unlawful for an employer to

take adverse action against an employee “because of

such individual's age.” 29 U.S.C. § 623(a).

STATEMENT OF THE CASE

This case is an example of how the byzantine

ediﬁce of employment discrimination law, as wrestledwith at summary judgment stage in the Tenth and other

Circuit Courts, has wrought two wrongs: (I) It has

handed over to judges the power and traditional role of

the jury too determine which of two (or more) disputed

inferences to draw from competing evidence about the

reason or reasons for ﬁring an employee; and (II) It has

excluded from trial the exact type of employee that the

mixed-motive theory of discrimination is designed to

protect.

Petitioner Dr. Jagdish Laul was a safety engineer

at one of the nation’s ﬂagship nuclear laboratories in

the New Mexico mountains. Dr. Laul was born in India,

and became a naturalized United States Citizen in

1974. In October of 1999, at age 60, Dr. Laul began

working at Los Alamos National Laboratory as a

Principal Safety Engineer in the Environmental, Safety

& Health Division.

Over the next decade Dr. Laul was promoted a

number of times, received a number of professional

awards, and received favorable evaluations. In context

of his critical role as safety engineer in one of the

world’s foremost nuclear facilities, the occasional

negative notes in his personnel ﬁle are all relatively

minor soft-skills criticisms, about interpersonalrelations and “two way communications skills.”

By 2010 Dr. Laul was promoted to Safety Basis

Analyst-4, and shortly thereafter he was transferred to

a new group. He also turned 70. In late 2010 and 2011

the tone of his personnel feedback changed. Dr. Laul

was not getting on well with his new group leader Dr.

Pinsoy-Hjelvik. Still no substantive safety issues were

noted, but Dr. Pinsoy-Hjelvik criticized Dr. Laul

problems in honoring the chain of command,

professional mannerisms, and interactions with the

customer. His short time under Dr. Pinsoy-Hjelvik

culminated in (after the fact) written discipline, a

negative evaluation, and a transfer to another work

group. Petitioner immediately grieved these actions as

being based in discriminatory against his national

origin and age.

Apparently Employer’s way to address the

conﬂict was to transfer Petitioner to a new work group.

Petitioner’s main work assignment was to

analyze Unanswered Safety Questions (USQs). This is

a process of analysis of any proposed change (in

physical plant or procedure) in a certiﬁed nuclear

facility to determine if the proposed change can be

done within the speciﬁed safety envelope. An engineer

must have specialized training and certiﬁcation to be

qualiﬁed to produce USQs and to review them for other

engineers. Each USQ analysis report goes through

iterations, edits, and review by another certiﬁed USQ

analyst (called a Qualiﬁed Evaluator or QEV), then up

to a Systems Engineer, to the scientist who is

requesting the change, and ﬁnally to group leader and

customer. In Petitioner’s work group there was another

certiﬁed QEV who was both a contractor and

supervisor, another certiﬁed QEV analyst at Safety

Analyst level 2 (Mr. Garcia), and the Group Leader Ron

Selvege. Of the group, only Petitioner was of national

origin from India, and only Petitioner was over 70,

markedly older than any other group member.

Even though Petitioner and his group were

responsible for safety issues for the nation’s ﬂagship

nuclear laboratory, the negative evaluations about his

work on which Employer relied are not substantially

safety-related. Group Leader Selvege complained that

Dr. Laul “takes too long” to complete analysis tasks.

Later he noted that while Dr. Laul was meeting

workload expectations and deadlines, he was working

harder and longer to do so than Selvege felt was right

for his level. Selvege also noted Dr. Laul required rewrites and several iterations on documents, although

there was also testimony that every USQ analysis by

procedural structure goes through several iterations,

edits, and reviews. Later, after subjecting Dr. Laul to

intense scrutiny, Selvege noted Dr. Laul’s raw written

work had problems, particularly with grammar and use

of cut-and-paste. Finally, Selvege complained that other

safety engineers in the group complained that Dr. Laul

asked too many questions, and too-frequently asked for

their help or feedback.

Based on these stated reasons, in late 2012

Employer put Dr. Laul (now 72) on a Performance

Action Track (PAT), a form of intense scrutiny and

supervision that, by its written express terms, was to

result in either Dr. Laul being evaluated satisfactory at

the end of six months or his being terminated.

No other member of the work group received a

negative evaluation or was put on a PAT.

But Dr. Laul thrived under scrutiny. From

December 2012 until June of 2013, all of Dr. Laul’s twoweek PAT evaluations were “satisfactory.” By the

written terms of his PAT, he should have been released.

No records from this period show anything but

satisfactory progress on the goals of the PAT.

Instead of releasing Dr. Laul from the intense

scrutiny of the PAT after six months of satisfactory

performance, his Group Leader Selvege chose

unilaterally to “extend” the PAT to keep Dr. Laul under

intense scrutiny. Still Dr. Laul obtained several more

evaluations of “satisfactory” and then, about the time

his Group Leader decided unilaterally to expend the

PAT a second time, began to get unfavorable ratings.

Soon thereafter Dr. Laul was terminated.

Group Leader Selvege would later claim that he

decided to extend Dr. Laul’s time of scrutiny under the

PAT based on group report that Dr. Laul was being

assigned easier projects. Later that the Group Leader

claimed he learned that the USQ documents he had

been reviewing as part of Dr. Laul’s intense

supervision were versions after they had gone through

the standard iterative, editing and review process, and

not Dr. Laul’s “raw” work. The Group Leader

demanded to review Dr. Laul’s drafts done in isolation,

and claimed that once he began to review the ‘“raw”

work his evaluations of that work were negative.

However much much later, it was revealed that Group

Leader Selvege, solely responsible for scrutinizing Dr.

Laul’s USQ work, was not himself certiﬁed or qualiﬁed

to do (or review) USQ work.

Dr. Laul appealed his termination and ﬁled with

the New Mexico Human Rights Division that the stated

reasons for placing him on PAT and his termination

were merely coded ways of committing age and

national origin discrimination. He pointed out he was

treated diﬀerently than the non-elder, non-East Indian

members of his safety engineering team, and that

Employer had failed to follow its own written PAT

procedure in six diﬀerent ways. After the state

administrative agency gatekeeper approved it, Dr. Laul

ﬁled suit for wrongful termination based on age and

national origin discrimination.

At summary judgment stage in the district court

and on appeal to the Tenth Circuit, Employer claimed

that these performance issues were the real and

legitimate reason for Dr. Laul’s ﬁring, while Dr. Laul

maintained these were mere pretext for ﬁring him

based on age and national origin discrimination.

Strangely, the district court ﬁrst held that Dr.

L aul ha d not ma de a pr ima fa cie ca se for

discrimination,2 but then went on to analyze the

second step under the McDonnell Douglas test,

pretext, anyway.

At the end of the day, citing McDonnell Douglas,

a federal judge, without a jury, laid out all the

inferences of motive urged by both parties.

That

federal judge weighed the inferences, and chose from

among them. Despite Dr. Laul having literally pointed

out a factual challenge to each of the Employer’s stated

motives, the district judge granted summary judgment

to Employer. Dr. Laul appealed, and the Tenth Circuit

Court of Appeals in an unpublished decision tracking

the district court’s analysis aﬃrmed.

2 In this conclusion it appears clear that the district court erred.

The Tenth Circuit has stated that a plaintiﬀ may establish a prima

facie case of wrongful termination by showing that: (i) "she

belongs to a protected class;" (ii) "she was qualiﬁed for her

job;" (iii) "despite her qualiﬁcations, she was discharged;" and (iv)

"the job was not eliminated after her discharge." Perry v.

Woodward, 199 F.3d 1126, 1138 (10th Cir. 1999). The only issue in

dispute in the lower courts was whether Dr. Laul was qualiﬁed as

a Safety Analyst Level 4. The district court found that he was,

given employer had in fact promoted him to that level and never

asked him to be demoted. None of the other elements was in

dispute in either lower court.

REASONS FOR GRANTING THE WRIT

This case presents important issues relating to

employment discrimination law, speciﬁcally when and

how McDonnell-Douglas burden-shifting is applied at

summary judgment stage and whether this framework

impinges on the Seventh Amendment right to jury

trial.

A. THE MCDONNELL DOUGLAS

FRAMEWORK

Employment discrimination cases are generally

decided using the well-known but byzantine

McDonnell Douglas framework. See McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). Despite

notable judicial misgivings3, in the Tenth Circuit, due

to binding precedent from This Court and the “law of

the circuit” precedent , most employment

discrimination cases are shoehorned into McDonnell

Douglas.

Under the McDonnell Douglas framework

(speciﬁc to a wrongful termination case), a plaintiﬀ

must ﬁrst prove a prima facie case of discrimination by

showing that (1) she is a member of a protected class;

(2) she met the qualiﬁcations for the position; (3) the

3 See, e.g., Paup v. Gear Prods., Inc., 327 F. App’x 100, 113 (10th

Cir. 2009) (Gorsuch, J.) (“[S]ome have criticized McDonnell

Douglas as improperly diverting attention away from the real

question posed by the ADEA—whether age discrimination actually

took place—and substituting in its stead a proxy that only

imperfectly tracks that inquiry. But McDonnell Douglas of course

remains binding on us.” (citations omitted)); see also Hinds v.

Sprint/United Mgmt. Co., 523 F.3d 1187, 1202 n. 12 (10th Cir.

2008) (noting the Court will apply the test “so long as McDonnell

Douglas remains the law governing our summary judgment

analysis”). See, e.g., Wells v. Colo. Dep't of Transp., 325 F.3d 1205,

1224-28 (10th Cir. 2003) (Hartz, J., writing separately (from his

own Opinion)); Timothy M. Tymkovich, The Problem with Pretext,

85 Denv. U.L.Rev. 503, 528-29 (2008).

employer ﬁred her; and (4) the employer did not

remove the position or did not ﬁre someone from a

nonprotected class. Tex. Dep’t of Cmty. Aﬀairs v.

Burdine, 450 U.S. 248, 252–53 (1981) (citing

McDonnell Douglas, 411 U.S. at 802).

If the plaintiﬀ satisﬁes her burden of

demonstrating a prima facie case, a rebuttable

presumption of discrimination arises. Id. at 254 & n.7.

It is then incumbent upon the defendant to produce

evidence of a legitimate, nondiscriminatory reason for

the adverse action. McDonnell Douglas, 411 U.S. at

802. Once the defendant produces evidence of a

legitimate, nondiscriminatory reason for the

employment action, the presumption of discrimination

created by the prima facie case evaporates. Burdine,

450 U.S. at 255 n.10.

Finally, if these ﬁrst two steps are satisﬁed,

which they usually are, the plaintiﬀ must prove that the

defendant’s proﬀered reason is merely a pretext for

discrimination. Id. at 255–56. Generally, a plaintiﬀ

establishes pretext by showing that the employer’s

legitimate, nondiscriminatory reason for the action is

not credible. Id. at 256. At the end of the day, pretext is

usually the determining factor as to whether a Title VII

claim succeeds. Natasha T. Martin, Pretext in Peril, 75

Mo. L. Rev. 313, 326 (2010).

The application of the McDonnell Douglas

framework, dependent as it is on inferences drawn

from circumstantial evidence, is problematic to the

Seventh Amendment right to a jury determination of

facts (and speciﬁcally, inferences) when ground

through the procedural machine of summary judgment.

B. SUMMARY JUDGMENT

A court must grant a motion for summary

judgment “if the movant shows that there is no genuine

dispute as to any material fact and the movant is

!10

entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). In determining whether a genuine dispute as to a

material fact exists, courts are instructed not to make

credibility determinations and to draw all reasonable

inferences in favor of the nonmovant. Reeves v.

Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000)

(“[T]he court must draw all reasonable inferences in

favor of the nonmoving party, and it may not make

credibility determinations or weigh the evidence.”).

But even our foundational summary judgment

case cautions that: “Credibility determinations, the

weighing of the evidence, and the drawing of legitimate

inferences from the facts are jury functions, not those

of a judge.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 255 (1986). Thus summary judgment is necessarily

circumscribed by the Seventh Amendment. It serves to

determine “whether there is the need for a trial—

whether, in other words, there are any genuine factual

issues that properly can be resolved only by a ﬁnder of

fact because they may reasonably be resolved in favor

of either party.” Liberty Lobby, 477 U.S. at 250.

C. SEVENTH AMENDMENT

This Court has long proclaimed plaintiﬀs’

Seventh Amendment right to trial by jury to be a

“fundamental guarantee of the rights and liberties of

the people.” Parsons v. Bedford, 28 U.S. (3 Pet.) 433,

446 (1830), overruled on other grounds, NLRB v.

Jones & Laughlin Steel Corp., 301 U.S. 1 (1937). This

Court has deem the right “justly dear.” Id. And, as “an

object of deep interest and solicitude,” for which this

C ou r t h a s c on s i s t ent ly w a r ne d t h a t “ ever y

encroachment upon it has been watched with great

jealousy.” Slocum v. N.Y. Life Ins. Co., 228 U.S. 364, 378

(1913). Every restriction on the right to trial by jury

“should be scrutinized with the utmost care.” Dimick v.

Schiedt, 293 U.S. 474, 486 (1935). As Justice Rehnquist

!11

reminded us in his dissent in Parklane Hosiery, our

founders literally fought the revolutionary war to

secure the right to try questions of inference to a jury:

The right’s “deprivation at the hands of the English

was one of the important grievances leading to the

break with England.” Parklane Hosiery Co. v. Shore,

439 U.S. 322, 340 (1979) (Rehnquist, J., dissenting).

A century ago, the Supreme Court conﬁrmed

“that it is the province of the jury to hear the evidence

and by their verdict to settle the issues of fact, no

matter what the state of the evidence.” Slocum v. N.Y.

Life Ins. Co., 228 U.S. at 387 (emphasis added).

Alexander Hamilton noted that the right to a jury trial

was one of the few areas of consensus among the

Framers. THE FEDERALIST NO. 83, at 421 (Alexander

Hamilton) (Ian Shapiro ed., 2009) (noting that the

Framers “concur at least in the value they set upon the

trial by jury; or if there is any diﬀerence between them

it consists in this: the former regard it as a valuable

safeguard to liberty; the latter represent it as the very

palladium of free government”).

At the start of every jury trial in every state of

the union the jury is instructed that it is the judge’s job

to answer questions of law, and the jury’s job to

determine questions of fact. See Baylis v. Travellers’

Ins. Co., 113 U.S. 316, 320–21 (1885) (disputed

questions of fact must be submitted to the jury). Our

system uses juries to ﬁnd facts, which is what makes

the judicial branch at all democratic: “Just as suﬀrage

ensures the people’s ultimate control in the legislative

and executive branches, jury trial is meant to ensure

their control in the judiciary.” Blakely v. Washington,

542 U.S. 296, 306 (2004); see also Powers v. Ohio, 499

U.S. 400, 407 (1991) (“[W]ith the exception of voting,

for most citizens the honor and privilege of jury duty is

their most signiﬁcant opportunity to participate in the

!12

democratic process.”).

REASON 1:

IT IS THE PROVINCE OF THE JURY TO

CHOOSE FROM COMPETING INFERENCES

T he s a c re d ne s s of a ju r y i s not mere

constitutional nostalgia—it is rooted in the very

practical idea that the core competencies of a citizen

panel are very diﬀerent from the core competencies of

a career judicial oﬃcer, and that some decisions—fact

decisions generally and inferences from circumstantial

evidence particularly—are far better when made by

juries.

It is the jury’s historic prerogative to select from

among competing inferences. In 1944, in Tennant v.

Peoria & Pekin Union Railway, the Supreme Court

explained that “select[ing] from among conﬂicting

inferences” was “[t]he very essence of [the jury’s]

function.” Tennant v. Peoria & Pekin Union Railway,

321 U.S. 29, 35 (1944). The Court admonished courts

not to substitute their own inferences for those drawn

by the jury. Id. (“Courts are not free to reweigh the

evidence…merely because the jury could have drawn

diﬀerent inferences or conclusions or because judges

feel that other results are more reasonable.”). Choosing

from conﬂicting inferences is THE core competency of

a jury over a judge. See Standard Oil Co. v. Van Etten,

107 U.S. 325, 334 (1882) (“The very spirit of trial by

jury is that the experience, practical knowledge of

aﬀairs, and common sense of jurors, may be appealed

to, to mediate the inconsistencies of the evidence, and

reconcile the extravagances of opposing theories of the

parties.”).

A companion foundational principle of the jury

system is that when parties disagree about a question

of intent, “the jury is the lie detector.” United States v.

Scheﬀer, 523 U.S. 303, 313 (1997) (internal quotation

!13

marks omitted). It is uniquely the skill set of a jury to

determine intent from circumstantial evidence.

In fact, the very way we talk about “inferences”

and “circumstantial evidence” highlights the jury’s role.

Inferences are conclusions that “common experience”

permits us to draw from circumstantial evidence. See,

e.g., Paulino v. Harrison, 542 F.3d 692, 700 n.6 (9th

Cir. 2008) (citing Radomsky v. United States, 180 F.2d

781, 783 (9th Cir. 1950)); United States v. Scruggs, 549

F.2d 1097, 1104 (6th Cir. 1977). To evaluate

circumstantial evidence, a factﬁnder must draw an

“inference based on human experience that a certain

circumstance is usually present when another certain

circumstance or set of circumstances is present.”

Radomsky v. United States, 180 F.2d at 783. Preserving

the power to draw inferences is crucial to maintaining

a signiﬁcant right to a jury trial. William V. Dorsaneo,

III, Reexamining the Right to Trial by Jury, 54 SMU L.

REV. 1695, 1699 (2001).

In our justice system juries are uniquely qualiﬁed

to draw factual inferences. Nowhere is this more true

than in a legal test for whether a party’s given reason is

pretext. See, e.g., Dyer v. MacDougall, 201 F.2d 265,

268–69 (2d Cir. 1952) (reasoning that it is logical to

assume the opposite of the defendant’s testimony if it

appears to be fabricated).

Modern procedural modiﬁcations to the jury trial

are permissible so long as they leave intact the

substance of the English common law trial. Parklane,

439 U.S. at 346 (“[T]o sanction creation of procedural

devices which limit the province of the jury to a greater

degree than permitted at common law in 1791 is in

direct contravention of the Seventh

Amendment.” (citing Neely v. Martin K. Eby Constr.

Co., 386 U.S. 317, 322 (1967))). Relevant here, the Rule

56 procedure of summary judgment is consistent with

!14

the Seventh Amendment by and through and, it is

argued, only complete with, its restriction to cases

where there are no disputed fact issues for the jury to

resolve. See Fid. & Deposit Co. v. United States, 187

U.S. 315 (1902) (holding that summary judgment is

consistent with the Seventh Amendment where

material facts are undisputed).

REASON 2:

PRETEXT IS NECESSARILY A FACTUAL

FINDING BASED ON COMPETING INFERENCES

The ordinary meaning of pretext is: A reason

that you give to hide your real reason for doing

something. Pretext, Merriam-Webster Dictionary

(2016); see also Pretext, Black’s Law Dictionary (7th

ed. 1999) (“[a] false or weak reason or motive

advanced to hide the actual or strong reason or

motive”); John Bouvier, Pretext, A Law Dictionary,

Adapted to the Constitution and Laws of the United

States (1856) (“[t]he reasons assigned to justify an act,

which have only the appearance of truth, and which

are without foundation; or which if true are not the

true reasons for such act”).

Pretext evidence is any evidence tending to show

that a stated reason is not the real reason. See Fed. R.

Civ. Evid. 401 (“Evidence is relevant if: (a) it has any

tendency to make a fact more or less probable than it

would be without the evidence; and (b) the fact is of

consequence in determining the action.”)

Key here is the logical necessity that by putting

forth evidence from which the fact-ﬁnder could

conclude the employer’s stated reasons are pretext, an

employee necessarily provides facts to support (or goes

!15

a long way to proving4) a discriminatory motive. The

pretextual reason would not be used or needed but for

the discrimination. See, e.g., Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. at 143 (reiterating that

claimants must be aﬀorded an opportunity to establish

that “the legitimate reasons oﬀered by the defendant

were not its true reasons, but were a pretext for

discrimination” and that claimants may do so “by

showing that the employer’s proﬀered explanation is

unworthy of credence”).

Put plainly: In every conceivable case posing a

McDonnell Douglas pretext issue, there are at least

two competing inferences the parties contend can be

drawn from circumstantial evidence of motive. In most

cases, there are probably more than two. Since Desert

Palace has said that Plaintiﬀs can partially prevail (or

the defense can partially defend) on evidence that

discrimination is “a motive” rather than “the motive”

or even “the main motive,” it is extremely likely that

one or both parties will be contending that multiple

inferences supporting multiple motives exist in any

given discrimination case.

Take this case: Dr. Laul’s theory of the case is

that either or both age and national origin

discrimination were among the motives for his ﬁring.

His Employer responded with circumstantial evidence

tending to show his slow performance, professional

neediness, and language issues were the real motives

for his ﬁring. Dr. Laul rebuts that the too slow/poor

language/asks-too-many-questions reasons are mere

code for the fact his team found him too old, too

4 As Justice Alito explained in a concurrence just two terms ago:

“Of course, when an employer claims to have made a decision for a

reason that does not seem to make sense, a factﬁnder may infer

that the employer’s asserted reason for its action is a pretext for

unlawful discrimination.”Young v. United Parcel Serv., Inc., 135 S.

Ct. 1338, 1356 (2015) (Alito, J., concurring).

!16

earnest, and foreign-born.

At the end of the day, citing McDonnell Douglas,

a federal judge, without a jury, laid out all the

inferences urged by both parties and that judge

weighed them and chose from among them.

REASON 3:

DATA CONFIRMS FRAMEWORK BROKEN

How incompatible is the McDonnell Douglas

framework on summary judgment (which has judges

weighing competing inferences from circumstantial

evidence) with the right to a jury? Beyond the

analytical incompatibility with the kind of decisions

that must be made, we can look to court data. The

Federal Judicial Center has noted that “[s]ummary

judgment motions by defendants are more common in

[employment discrimination] cases, are more likely to

be granted, and more likely to terminate the litigation.”

Memorandum from Joe Cecil & George Cort, Fed.

Judicial Ctr., to Judge Baylson, 3 (Aug. 13, 2008),

available at http://www.fjc.gov/public/pdf.nsf/lookup/

sujulrs2.pdf/$ﬁle/sujulrs2.pdf (“[T]he prominent role

of summary judgment in such cases is striking.”).5

The disparate impact of summary judgment on employment

cases has been alarming to numerous scholars. See, e.g., Kevin M.

Clermont & Stewart J. Schwab, Employment Discrimination

Plaintiﬀs in Federal Court: From Bad to Worse?, 3 Harv. L. &

Pol’y Rev. 103 (2009); William R. Corbett, Fixing Employment

Discrimination Law, 62 SMU L. Rev. 81 (2009); Trina Jones, AntiDiscrimination Law in Peril?, 75 Mo. L. Rev. 423 (2010); Martin J.

Katz, Reclaiming McDonnell Douglas, 83 Notre Dame L. Rev. 109

(2007); Natasha T. Martin, Pretext in Peril, 75 Mo. L. Rev. 313, 315

(2010) (“Plaintiﬀs have a hard row to hoe in proving unlawful

discriminatory bias.”); Lee Reeves, Pragmatism over Politics:

Recent Trends in Lower Court Employment Discrimination

Jurisprudence, 73 Mo. L. Rev. 481, 482 (2008) (“These are rough

times for employment discrimination plaintiﬀs in federal court.”);

Michael Selmi, Why Are Employment Discrimination Cases So

Hard to Win?, 61 La. L. Rev. 555 (2001); Kerri Lynn Stone,

Shortcuts in Employment Discrimination Law, 56 St. Louis U.

L.J. 111 (2011).

!17

T wo Cornell Universit y professors have

demonstrated this particular hostility by analyzing

data on employment discrimination cases in federal

district and circuit courts. See, e.g., Kevin M. Clermont

& Stewart J. Schwab, Employment Discrimination

Plaintiﬀs in Federal Court: From Bad to Worse?, 3

Harv. L. & Pol’y Rev. 103 (2009). According to Clermont

and Schwab, “[j]obs cases proceed and terminate less

favorably for plaintiﬀs than other kinds of cases.

Plaintiﬀs who appeal their losses or face appeal of their

victories again fare remarkably poorly in the circuit

courts.” Id. at 104.

While federal plaintiﬀs bringing non-employment

discrimination cases succeed in approximately ﬁfty

percent of cases, employment discrimination plaintiﬀs

succeed in only ﬁfteen percent of cases. Id. at 127.

Further, even when a plaintiﬀ is successful on an

employment discrimination claim, a court of appeal is

more likely to reverse a judgment for the plaintiﬀ than

a judgment for the defendant. Id. at 111. Thus

employment plaintiﬀs are far less likely to get their

case before a jury than other types of plaintiﬀs, even

though the legal framework of almost every

employment case will be the quintessential jury

question of what were the real motives of the employer.

II. THE BYZANTINE EDIFICE OF THE

MCDONNELL DOUGLAS FRAMEWORK CANNOT

MEANINGFULLY APPLY AFTER DESERT PALACE

IN MOST CASES, LIKE THIS ONE, WHERE EACH

PA R T Y E S P O U S E S M U LT I P L E I N F E R R E D

MOTIVES.

This case is the kind of mess that the Tenth

circuit faced the Tenth Circuit 7-7 en banc split that

resulted from review of the panel opinion in Zamora v.

Elite Logistics, Inc., 449 F.3d 1106 (10th Cir. 2006)

!18

vacated on review en banc by 478 F.3d 1160 (10th Cir.

2007). The fourteen judges on the Tenth Circuit

diverged on fact-bound summary judgment issues in an

employment discrimination case.

Judge Hartz, concurring in the en banc decision,

wrote speciﬁcally to state that “I continue to believe

that we should not apply the framework of McDonnell

Douglas….” “Applying that framework is inconsistent

with Supreme Court authority, adds unnecessary

complexity to the analysis, and is too likely to cause us

to reach a result contrary to what we would decide if

we focused on ‘the ultimate question of discrimination

vel non.’” Zamora v. Elite Logistics, Inc., 478 F.3d 1160

(10th Cir. 2007) (en banc) (citing U.S. Postal Serv. Bd.

of Governors v. Aikens, 460 U.S. 711, 714 (1983)).

An issue appellate courts are currently wrestling

with is whether and to what extent Desert Palace

alters or eliminates the McDonnell Douglas framework

for proving unlawful employment discrimination with

circumstantial evidence.

The United States District Courts are divided on

this issue, and the Circuit Courts of Appeals are

currently split. The current minority view is the

correct one: Because Desert Palace reworks the

burdens of proof in Title VII cases, and most

discrimination cases will come with two or more

interracial motives, is no longer a useful tool for

proving unlawful Title VII discrimination, and it

should be discarded.

!19

REASON 4:

MOST CIRCUIT COURTS OF APPEAL HAVE

ALREADY HELD THE MCDONNELL DOUGLAS

FRAMEWORK CANNOT APPLY TO MIXEDMOTIVE CASES AFTER STRUGGLING WITH ITS

FLAWS FOR THESE SAME REASONS

This Court in Desert Palace Inc. v. Costa, 539

U.S. 90 (2003) ruled that direct evidence is not

required for a plaintiﬀ to prove that discrimination

was a motivating factor in a “mixed-motive” case, i.e., a

case in which an employer had both legitimate and

illegitimate reasons for making an employment

decision. The side eﬀect of Desert Palace is that in

almost any cases where the parties are arguing that the

circumstantial evidence supports the inferences of two

or more motives, the McDonnell Douglas test breaks

down and fails to work.

As the Eleventh Circuit recently ruled in Quigg

v. Thomas Cty. Sch. Dist., 814 F.3d 1227, 1238 (11th Cir.

2016), McDonnell Douglas framework is unhelpful and

inappropriate for analyzing mixed-motives claims. The

Eleventh Circuit concluded that “McDonnell Douglas is

not [the] appropriate [framework] for examining

mixed-motive claims at summary judgment.” Quigg,

814 F.3d at 1239. The court reasoned ﬁrst that a

plaintiﬀ “can succeed on a mixed-motive claim by

showing that illegal bias, such as bias based on sex or

gender, ‘was a motivating factor for' an adverse

employment action, ‘even though other factors also

motivated’ the action.” Id. at 1235 (emphasis added)

(quoting 42 U.S.C. § 2000e-2(m)). Second and

conﬂicting with this, under McDonnell Douglas, “if an

employee cannot rebut her employer's proﬀered

reasons for an adverse action but oﬀers evidence

demonstrating that the employer also relied on a

!20

forbidden consideration, she will not meet her burden.”

Id. at 1238. "Yet, this is the exact type of employee that

the mixed-motive theory of discrimination is designed

to protect.” Id. Accordingly, the Eleventh Circuit held

that the McDonnell Douglas framework is too

dem a nd i n g a nd i n appl ic a ble i n a T i t le V I I

discrimination case where the plaintiﬀ brings (or

defense raises) a mixed-motive claim and is trying to

survive summary judgment.

The Quigg panel held that the McDonnell

Douglas test “is fatally inconsistent with the mixedmotive theory of discrimination because the framework

is predicated on proof of a single, ‘true reason’ for an

adverse action.” Id. at 1237 (citing Texas Dep’t of Cmty.

Aﬀairs v. Burdine, 450 U.S. 248, 256 (1981)). The

“pretext” framework requires an employee to prove

that the “true reason” for an adverse action was illegal.

“In other words, an employee can only meet her burden

under McDonnell Douglas by showing the employer’s

purported legitimate reasons ‘never motivated the

employer in its employment decisions or because [the

reasons] did not do so in a particular case.’” Id. at

1237-38 (quoting Price Waterhouse v. Hopkins, 490

U.S. 228, 270 (1989) (O’Connor, J., concurring). The

Quigg court noted that under McDonnell Douglas, if

an employee cannot rebut an employer’s proﬀered

reasons for an adverse action, despite having evidence

that the employer relied on a forbidden consideration,

she fails her burden. This is contrary to the mixedmotive framework applicable to Title VII and § 1983.

“In light of this clear incongruity between the

McDonnell Douglas framework and mixed-motive

claims, it is improper to use that framework to

evaluate such claims at summary judgment.” Id. at

1238.

Quigg adopted, as its model, the Sixth Circuit’s

!21

decision in White v. Baxter Healthcare Corp., 533 F.3d

381 (6th Cir. 2008). Under the framework set adopted

in White, “Title VII plaintiﬀ asserting a mixed- motive

claim need only produce evidence suﬃcient to

convince a jury that: (1) the defendant took an adverse

employment action against the plaintiﬀ; and (2) ‘race,

color, religion, sex, or national origin was a motivating

factor’ for the defendant’s adverse employment action”

Id.

The Fifth Circuit has likewise adopted formal,

modiﬁed standards to evaluate mixed-motive cases

that strains, but deviates from, the McDonnell Douglas

framework. In Rachid v. Jack In The Box, Inc., 376 F.3d

305, 312 (5th Cir. 2004), that Circuit Court adopted a

“modiﬁed McDonnell Douglas approach” for mixedmotive cases, where in the third step “the plaintiﬀ must

then oﬀer suﬃcient evidence to create a genuine issue

of material fact ‘either (1) that the defendant's reason

is not true, but is instead a pretext for discrimination

(pretext alternative); or (2) that the defendant’s

reason, while true, is only one of the reasons for its

conduct, and another ‘motivating factor’ is the

plaintiﬀ's protected characteristic (mixed-motive[s]

alternative)’.” (quotations omitted). Accord EEOC v.

LHC Group, Inc., 773 F.3d 688, 702 (5th Cir. 2014)

(quoting Rachid).

Other Circuits, while declaring generally that

plaintiﬀs need not establish pretext under the

McDonnell Douglas framework in a mixed-motive case,

have not formalized an alternative test. See Burns v.

Johnson, 829 F.3d 1, 11 n.10 (1st Cir. 2016) (“this circuit

has not required a plaintiﬀ to use McDonnell Douglas

with the mixed-motives theory”); Holcomb v. Iona Coll.,

521 F.3d 130, 141–42 (2d Cir. 2008) (“a plaintiﬀ who,

like Holcomb, claims that the employer acted with

mixed motives is not required to prove that the

!22

employer’s stated reason was a pretext”); Connelly v.

Lane Const. Corp., 809 F.3d 780 (3d Cir. 2016) (“in a

‘mixed-motive’ case, the plaintiﬀ must ultimately prove

that her protected status was a ‘motivating’ factor,

whereas in a non-mixed-motive or ‘pretext’ case, the

plaintiﬀ must ultimately prove that her status was a

‘determinative’ factor”); Diamond v. Colonial Life &

Acc. Ins. Co., 416 F.3d 310, 318 (4th Cir. 2005) (“A

plaintiﬀ can survive a motion for summary judgment

by presenting direct or circumstantial evidence that

raises a genuine issue of material fact as to whether an

impermissible factor such as race motivated the

employer's adverse employment decision”) (citing Hill

v. Lockheed Martin Logistics Management, Inc., 354 F.

3d 277, 284 (4th Cir. 2004) (en banc)); Hossack v. Floor

Covering Assocs. of Joliet, Inc., 492 F.3d 853, 860 (7th

Cir. 2007) (recognizing two separate theories) (but see

Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 765

(7th Cir 2016) (suggesting just one standard for

causation: “whether the evidence would permit a

reasonable factﬁnder to conclude that the plaintiﬀ's

race, ethnicity, sex, religion, or other proscribed factor

caused the discharge or other adverse employment

action”)); Fye v. Okla. Corp. Comm’n, 516 F.3d 1217,

1225 (10th Cir. 2008) (plaintiﬀ may either “establish

that retaliation played a motivating part in the

employment decision at issue,” or else “rely on the

familiar three- part McDonnell Douglas framework to

prove that the employer's proﬀered reason for its

decision is a pretext for retaliation”); Ponce v.

Billington, 679 F.3d 840, 844 (D.C. Cir. 2007)

(recognizing two separate theories). The Ninth Circuit

primarily treats “mixed-motives” as a defense rather

than a standard of causation and thus has not declared

a separate causation standard in a published opinion.

Metoyer v. Chassman, 504 F.3d 919, 932-34 (9th Cir.

2007).

!23

The Eighth Circuit and the panel of the Tenth

Circuit in this case alone hold that the McDonnell

Douglas approach applies regardless of the nature of

the claim. See Griﬃth v. City of Des Moines, 387 F.3d

733, 736 (8th Cir. 2004); but see id. at 739–48

(Magnuson, J., concurring specially) (disagreeing with

majority that the “McDonnell Douglas paradigm” is

appropriate for evaluating mixed-motive claims).

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be granted.

February 19, 2018

Respectfully submitted,

/s/ Trace Rabern

____________________