Petition for Writ of Certiorari — Annette Benjamin, Petitioner v. Felder Services, L.L.C., dba Oxford Health and Rehab Center

No. _________

================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------ANNETTE BENJAMIN,

Petitioner,

versus

FELDER SERVICES, L.L.C.,

doing business as Oxford Health and Rehab Center,

Respondent.

-----------------------------------------------------------------On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

-----------------------------------------------------------------PETITION FOR WRIT OF CERTIORARI

-----------------------------------------------------------------JIM WAIDE

WAIDE AND ASSOCIATES, P.A.

ATTORNEYS AT LAW

Post Office Box 1357

Tupelo, MS 38802

Telephone: (662) 842-7324

Facsimile: (662) 842-8056

Email: waide@waidelaw.com

Counsel for Petitioner

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

In a case brought under the Age Discrimination in

Employment Act, where a long-term, older employee

is displaced by a younger employee, may a court

properly grant summary judgment by accepting as

true the employer’s disputed claim that the plaintiff

was a poor performer, and that the alleged poor performance, not age, was the reason for the firing?

ii

LIST OF PARTIES

The following is a list of all parties to the proceedings in the Court below, as required by Rule 24.1(b) and

Rule 29.1 of the Rules of the Supreme Court of the

United States.

1.

Annette Benjamin, Petitioner; and

2.

Felder Services, L.L.C., doing business

as Oxford Health and Rehab Center,

Respondent.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED...................................

i

LIST OF PARTIES ..............................................

ii

TABLE OF CONTENTS ......................................

iii

TABLE OF AUTHORITIES .................................

v

OPINIONS BELOW.............................................

1

JURISDICTION ...................................................

1

FEDERAL STATUTE CONSTRUED ..................

1

FEDERAL RULE CONSTRUED .........................

2

STATEMENT OF THE CASE..............................

2

REASON FOR GRANTING THE WRIT ..............

6

THIS COURT SHOULD GRANT THE WRIT

TO CURE THE CONFUSION IN THE

COURTS OF APPEALS ABOUT WHEN SUMMARY JUDGMENT SHOULD BE GRANTED

IN AN EMPLOYMENT DISCRIMINATION

CASE AND TO MAKE CLEAR THAT DIRECT

EVIDENCE IS NOT REQUIRED ....................

6

CONCLUSION..................................................... 14

APPENDICES

UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT OPINION, 2018 WL

6119903 (5th Cir. 2018) ............................... App. 1-14

UNITED STATES DISTRICT COURT MEMORANDUM OPINION 2017 WL 3896676 (N.D.

Miss. 2017)................................................. App. 15-22

iv

TABLE OF CONTENTS – Continued

Page

UNITED STATES DISTRICT COURT ORDER

GRANTING SUMMARY JUDGMENT (N.D.

Miss. 2017)...................................................... App. 23

v

TABLE OF AUTHORITIES

Page

FEDERAL CASES:

Benjamin v. Felder Servs., L.L.C., 2017 WL

3896676 (N.D. Miss. 2017) ........................................1

Benjamin v. Felder Servs., L.L.C., ___ Fed.App’x

___, 2018 WL 6119903 (5th Cir. 2018) ......................1

Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003) ............6

Mayberry v. Vought Aircraft Co., 55 F.3d 1086

(5th Cir. 1995)............................................................5

McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973) .........................................................................7

Reeves v. Sanderson Plumbing Prod., Inc., 530

U.S. 133 (2000) ................................................ passim

Rogers v. Missouri Pacific R. Co., 352 U.S. 500

(1957) .........................................................................6

Tennant v. Peoria & P. U. Ry. Co., 321 U.S. 29

(1944) .......................................................................14

Tolan v. Cotton, ___ U.S. ___, 134 S.Ct. 1861

(2014) .......................................................................13

U.S. Postal Serv. Bd. of Governors v. Aikens, 460

U.S. 711 (1983) ........................................................13

Vadie v. Mississippi State Univ., 218 F.3d 365

(5th Cir. 2000)............................................................9

vi

TABLE OF AUTHORITIES – Continued

Page

CONSTITUTIONAL AMENDMENTS:

Fourth Amendment to the United States

Constitution ............................................................13

Seventh Amendment to the United States

Constitution ..............................................................9

RULES:

Federal Rule of Civil Procedure 56(a) ..........................2

STATUTES:

28 U.S.C. § 1254(1) ........................................................1

29 U.S.C. § 623(a)(1) .....................................................1

MISCELLANEOUS:

Andrew S. Pollis, The Death of Inference, 55 B.C.

L. Rev. 435 (2014) ......................................................9

Arthur R. Miller, The Pretrial Rush to Judgment: Are the “Litigation Explosion,” “Liability Crisis,” and Efficiency Clichés Eroding Our

Day in Court and Jury Trial Commitments?,

78 N.Y.U. L. Rev. 982 (2003) ....................................10

Bernice B. Donald and J. Eric Pardue, Bringing

Back Reasonable Inferences: A Short, Simple

Suggestion for Addressing Some Problems at

the Intersection of Employment Discrimination and Summary Judgment, 57 N.Y.L. Sch.

L. Rev. 749 (2013) ................................................ 9, 10

vii

TABLE OF AUTHORITIES – Continued

Page

John Bronsteen, Against Summary Judgment,

75 Geo. Wash. L. Rev. 522 (2007) ............................10

Kevin M. Clermont and Stuart J. Schwab, Employment Discrimination Plaintiffs in Federal

Court: From Bad to Worse?, 3 Harv. L. & Pol’y

Rev. 103 (2009) ..........................................................9

Laura Gaston Dooley, Our Juries, Our Selves:

The Power, Perception, and Politics of the Civil

Jury, 80 Cornell L. Rev. 325 (1995) ........................10

Michael J. Zimmer, Slicing and Dicing of Individual Disparate Treatment Law, 61 La. L.

Rev. 577 (2001) ..........................................................9

Natasha T. Martin, Pretext in Peril, 75 Mo. L.

Rev. 313 (2010) ...................................................... 6, 8

Randall John Bunnell, Summary Judgment

Principles in Light of Tolan v. Cotton: Employment Discrimination Implications in the Fifth

Circuit, 63 Loy. L. Rev. 77 (2017) ........................ 9, 11

Theresa M. Beiner, The Trouble With Torgerson:

the Latest Effort to Summarily Adjudicate

Employment Discrimination Cases, 14 Nev.

L.J. 673 (2014) ................................................... 10, 11

Trina Jones, Anti-Discrimination Law in Peril?,

75 Mo. L. Rev. 423 (2010) ..........................................8

1

OPINIONS BELOW

The unpublished decision of the United States

Court of Appeals for the Fifth Circuit is found at

2018 WL 6119903 (5th Cir. 2018), and is attached as

App. 1-14. The unreported opinion of the United States

District Court for the Northern District of Mississippi

granting summary judgment is found at 2017 WL

3896676 (N.D. Miss. 2017), and is attached as App. 1522. The unreported Order of the United States District

Court is attached as App. 23.

------------------------------------------------------------------

JURISDICTION

This Court has jurisdiction to review the decision

of the United States Court of Appeals for the Fifth Circuit decided on November 20, 2018, by writ of certiorari

under 28 U.S.C. § 1254(1).

------------------------------------------------------------------

FEDERAL STATUTE CONSTRUED

The Age Discrimination in Employment Act, 29

U.S.C. § 623(a)(1), states, in relevant part:

It shall be unlawful for an employer – . . . to

discharge any individual . . . because of such

individual’s age; . . . .

------------------------------------------------------------------

2

FEDERAL RULE CONSTRUED

Federal Rule of Civil Procedure 56(a) states, in relevant part:

A party may move for summary judgment,

identifying each claim or defense – or the part

of each claim or defense – on which summary

judgment is sought. The court shall grant

summary judgment if the movant shows that

there is no genuine dispute as to any material

fact and the movant is entitled to judgment as

a matter of law.

------------------------------------------------------------------

STATEMENT OF THE CASE

Fifty-nine (59) year-old Annette Benjamin (hereinafter “Petitioner”) was employed by Respondent

Felder Services, L.L.C.’s (hereinafter “Respondent”)

predecessor, Lafayette LTC, Inc., d/b/a Graceland Care

Center of Oxford (a nursing home), for thirty-two (32)

years as the dietary manager.

Respondent obtained a contract to perform dietary

services for Lafayette LTC, Inc. on June 8, 2015.

Respondent fired Petitioner a month later, on July

8, 2015. The reason Respondent gave Petitioner for her

firing was that things were not “working out.” Respondent immediately replaced Petitioner, age fiftynine (59), with a forty-two (42) year old. Respondent

had interviewed and retained all of the predecessor’s

dietary staff except Petitioner. Respondent did not interview Petitioner.

3

In interrogatories, Respondent was asked to state

“any and all reasons why Plaintiff was terminated. . . .”

Respondent answered that Petitioner was: “terminated due to her poor work performance [consisting of ]

. . . failure to perform tray card audits and seating

charts timely; and failure to make corrections to those

charts.” At deposition, Respondent’s decision-maker,

District Manager Elizabeth House, expanded the reasons for discharge by stating that Petitioner was also

fired because she “talked to the dietary staff . . . in a

rude and inappropriate manner. . . .”

In evidentiary materials submitted in its summary judgment motion, Respondent stated that it also

discharged Petitioner because “surveys from the Department of Health and Human Services,” had found

“discrepancies” in the dietary function of the facility.

Although much of Petitioner’s evidence was not

mentioned in the Fifth Circuit opinion, Petitioner submitted substantial evidence disputing the reasons assigned by Respondent.

For example, Petitioner submitted the testimony

of a supervisor who had worked under Petitioner for

twenty-two (22) years. This supervisor testified that

Petitioner was not rude, never had any problem with

either her co-employees or residents, and that the supervisor was “shocked” when Petitioner was terminated.

A dietician, who had personally witnessed Petitioner’s work for twelve (12) years, testified there were

never any issues with her treatment of staff.

4

Regarding the Respondent’s claims that Petitioner

was fired because of “discrepancies” in a Department

of Health and Human Services’ survey, Respondent’s

decision-maker admitted that she “had not” seen the

survey when she made the decision to terminate Petitioner. Furthermore, the survey lists fifteen (15) deficiencies in other departments of the nursing home, but

only three (3) in the dietary unit. These three (3) deficiencies are described as causing only “minimal harm”

or only “potential harm.”

Regarding Respondent’s claim that Petitioner had

not timely prepared “tray card audits” or a “seating

chart,” Petitioner testified that she could not perform

these minor tasks immediately since Respondent had

demanded she work on numerous other assigned

tasks.

Respondent’s general claim that Petitioner was a

poor performer was inconsistent with her last performance appraisal of June 2014, which described her as

“produc[ing] large quantities of work under short time

frames,” having “years of valuable experience,” and

having a “deep concern for the residents of the facility

that does not go unnoticed.”

The district court granted summary judgment by

finding that the reasons offered by Respondent “are

more than valid to warrant the plaintiff ’s termination.” App. 21.

The Fifth Circuit Court of Appeals affirmed the

grant of summary judgment. While not mentioning

much of Petitioner’s evidence, the Court of Appeals

5

credited Respondent’s evidence that it had “concerns

with [Petitioner’s] treatment of the kitchen staff and

nurses,” App. 4; relied upon the survey which had

“identified deficiencies related to the timeliness and

temperature of the food service,” App. 3; opined that

Petitioner’s previous record of good performance was

not probative since “[Petitioner] herself contends

she had new and different responsibilities under

[Respondent],” App. 9; and found “evidence of positive reviews from a former employer does not make

[Respondent’s] explanation pretextual.” App. 9.

The Fifth Circuit held that it would not “try in court

the validity of good faith beliefs as to an employee’s

competence.” App. 10, citing Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir. 1995).

Neither the district court, nor the Fifth Circuit,

cited the leading case from this Court directing when

judgment as a matter of law is appropriate in an age

discrimination case. That case, Reeves v. Sanderson

Plumbing Prod., Inc., 530 U.S. 133, 148 (2000), held

that “a plaintiff ’s prima facie case [replacement by

a substantially younger employee], combined with sufficient evidence to find that the employer’s asserted

justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.”

In this case, Petitioner proved a prima facie case

since she proved that she was displaced by an employee seventeen (17) years her junior, and she presented evidence that the reason Respondent cited for

her discharge (poor performance) was false. Because

6

the present case is typical of a large number of courts

of appeals’ opinions which either disregard Reeves, or

give the case such a narrow construction as to make it

impossible to prove discrimination without an admission by the employer, Petitioner requests the Writ be

granted.

------------------------------------------------------------------

REASON FOR GRANTING THE WRIT

THIS COURT SHOULD GRANT THE WRIT TO

CURE THE CONFUSION IN THE COURTS OF

APPEALS ABOUT WHEN SUMMARY JUDGMENT SHOULD BE GRANTED IN AN EMPLOYMENT DISCRIMINATION CASE AND TO MAKE

CLEAR THAT DIRECT EVIDENCE IS NOT REQUIRED.

“In modern American work environments, savvy

employers know that blatant statements of bias should

be neither memorialized in writing nor uttered by

their employees, particularly decision makers.” Natasha T. Martin, Pretext in Peril, 75 Mo. L. Rev. 313, 320

(2010). Accordingly, discrimination cases must be proved

by circumstantial evidence. This is not a second-classtype of evidence. To the contrary, “[c]ircumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.”

Desert Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003),

quoting Rogers v. Missouri Pacific R. Co., 352 U.S. 500,

508, n. 17 (1957).

7

Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S.

133, 140 (2000):

granted certiorari, . . . to resolve a conflict

among the Courts of Appeals as to whether a

plaintiff ’s prima facie case of discrimination

(as defined in McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802, . . . (1973)), combined

with sufficient evidence for a reasonable factfinder to reject the employer’s nondiscriminatory explanation for its decision, is adequate

to sustain a finding of liability for intentional

discrimination.

Reeves answered this question affirmatively, holding that “a plaintiff ’s prima facie case, combined with

sufficient evidence to find that the employer’s asserted

justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.”

Reeves, 530 U.S. at 148. By rejecting the requirement

that further proof was required, Reeves overruled the

so-called “pretext plus” requirement of some of the circuits. Reeves, 530 U.S. at 140.

Nevertheless, leaving ambiguity, Reeves also noted

that there may be circumstances where an employee

is not entitled have a jury decide her discrimination

case, despite having offered evidence of a prima facie

case and evidence of pretext. Reeves described these

cases as cases where “the record conclusively revealed

some other, nondiscriminatory reason for the employer’s decision, or if the plaintiff created only a weak

issue of fact as to whether the employer’s reason was

untrue and there was abundant and uncontroverted

8

independent evidence that no discrimination had occurred.” Reeves, 530 U.S. at 148.

Concurring, Justice Ginsburg recognized that the

Reeves’ holding might require this Court “in an appropriate case, to define more precisely the circumstances

in which plaintiffs will be required to submit evidence

beyond these two categories [prima facie case and evidence of pretext] in order to survive a motion for judgment as a matter of law.” Reeves, 530 U.S. at 154

(Ginsburg, J., concurring).

Petitioner’s case is an “appropriate” one for this

Court to determine “more precisely the circumstances”

in which it is proper to grant summary judgment, despite evidence of a prima facie case and evidence of

pretext.

Several academic articles have demonstrated a

trend in some of the courts of appeals, including the

Fifth Circuit, to disregard Reeves or to give it such a

narrow construction as to make it impossible for plaintiffs to prove discrimination without direct evidence,

such as an admission of discrimination. See Natasha T.

Martin, Pretext in Peril, 75 Mo. L. Rev. 313, 335 (2010)

(stating that Reeves “leaves the field open for lower

court manipulation, effectively reinstating, or at least

not foreclosing, a viable pretext-plus interpretation”);

Trina Jones, Anti-Discrimination Law in Peril?, 75 Mo.

L. Rev. 423, 425 (2010) (observing that a decade after

Reeves there is a “tendency of courts to summarily dismiss employment discrimination claims. . . .” and noting “judicial skepticism, if not outright hostility. . . .” to

9

such claims); Michael J. Zimmer, Slicing and Dicing

of Individual Disparate Treatment Law, 61 La. L. Rev.

577 (2001) (criticizing “the common practice of courts

[isolating and finding insufficient each piece of ] evidence supporting plaintiff ’s case in order to grant motions for summary judgment and judgment as a matter

of law”); Bernice B. Donald and J. Eric Pardue, Bringing

Back Reasonable Inferences: A Short, Simple Suggestion for Addressing Some Problems at the Intersection

of Employment Discrimination and Summary Judgment, 57 N.Y.L. Sch. L. Rev. 749, 763 (2013) (stating

lower courts should be instructed to “weed out only the

rare, patently frivolous case; all others should proceed

to trial”); Andrew S. Pollis, The Death of Inference, 55

B.C. L. Rev. 435, 437 (2014) (stating that lower federal

courts have “systematically undermined the powerful

tool of inference drawing, which was once a hallmark

of the factfinder’s evaluation of evidence, without grappling with the attendant Seventh Amendment problem”); Randall John Bunnell, Summary Judgment

Principles in Light of Tolan v. Cotton: Employment Discrimination Implications in the Fifth Circuit, 63 Loy.

L. Rev. 77, n. 63 (2017), observing that “a mere five

months [after Reeves], . . . [a jury verdict in] Vadie1 was

thrown out by a panel of the Fifth Circuit that refused

to follow Reeves.”2 Such “marginalization of the jury

1

Vadie v. Mississippi State Univ., 218 F.3d 365 (5th Cir. 2000).

Vadie is one example of the trend of some of the courts of

appeals to disallow juries to decide employment discrimination

cases without direct evidence. See, e.g., Kevin M. Clermont and

Stuart J. Schwab, Employment Discrimination Plaintiffs in

2

10

undermines the democratic vision of full participation

and may discourage citizen respect for the legal system

in general.” Laura Gaston Dooley, Our Juries, Our

Selves: The Power, Perception, and Politics of the Civil

Jury, 80 Cornell L. Rev. 325, 328 (1995).

A 2017 law review article documents that some,

but not all, circuits disregard Reeves by applying the

very “pretext-plus” standard which Reeves rejected.

A 2005 survey of the circuit courts of appeals

found that the First, Eighth, and Eleventh

Federal Court: From Bad to Worse?, 3 Harv. L. & Pol’y Rev. 103,

127, 131-32 (2009) (analyzing statistical data demonstrating that

discrimination plaintiffs have “low chances of success,” and citing

a “plaintiff win rate” as “fifteen percent,” dramatically lower than

that of non-employment discrimination cases, which is fifty-one

(51) percent); Arthur R. Miller, The Pretrial Rush to Judgment:

Are the “Litigation Explosion,” “Liability Crisis,” and Efficiency

Clichés Eroding Our Day in Court and Jury Trial Commitments?,

78 N.Y.U. L. Rev. 982, 1133 (2003) (stating that courts value efficiency over the right to a jury trial); John Bronsteen, Against

Summary Judgment, 75 Geo. Wash. L. Rev. 522, 527 (2007) (stating that summary judgment actually costs more money than it

saves); Theresa M. Beiner, The Trouble With Torgerson: the Latest

Effort to Summarily Adjudicate Employment Discrimination

Cases, 14 Nev. L.J. 673, 690 (2014) (noting that some “[c]ircuits no

longer invoke any type of caution in describing the standard for

granting summary judgment in employment discrimination

cases”); Bernice B. Donald and J. Eric Pardue, Bringing Back Reasonable Inferences: A Short, Simple Suggestion for Addressing

Some Problems at the Intersection of Employment Discrimination

and Summary Judgment, 57 N.Y.L. Sch. L. Rev. 749, 752 (2013)

(stating that “[t]he 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’ ”).

11

Circuits, along with our own Fifth Circuit,

tend to favor and utilize a pretext-plus approach. Conversely, the Second, Third, Fourth,

Seventh, Ninth, and Tenth Circuits tend to

apply either a pretext-only or pretext-may

approach. However, this survey was only able

to show “more or less” the tendencies of the

circuits. Drawing clean, firm lines among circuits is all but impossible because further inconsistences [sic] appear within intra-circuit

splits. Thus, the applicable standard depends

not only on the circuit hearing the case, but

also on “the panel members, the facts, and the

type of case.”

Randall John Bunnell, Summary Judgment Principles

in Light of Tolan v. Cotton: Employment Discrimination Implications in the Fifth Circuit, 63 Loy. L. Rev. at

87 (footnotes omitted) (emphasis in original).

In 2014, Theresa M. Beiner, following an extensive

examination of cases, found that some circuits merely

pay “lip service” to Reeves, and described other circuits

as “confused” about the meaning of Reeves. Theresa M.

Beiner, The Trouble With Torgerson: the Latest Effort

to Summarily Adjudicate Employment Discrimination

Cases, 14 Nev. L.J. 673, 685-86 (2014), writes:

Several circuits still hold to – or at least

pay lip service to – the old standard and express reluctance to grant summary judgment

in employment discrimination cases. Other

circuits appear to apply a tougher standard to

plaintiffs who are trying to overcome a defendant’s motion for summary judgment. And

12

still others are simply confused, with some

courts within the circuit favoring summary

judgment and others still expressing reluctance. However, regardless of what a lower

court says about the standard it is applying,

defendants are often successful when moving

for summary judgment in employment discrimination cases. Thus, even in circuits that

exercise caution, defendants frequently win

summary judgment motions.

The Fifth Circuit, in this case, expressly refused

to follow certain principles that are explicitly stated

in Reeves. For example, Reeves wrote that in deciding

whether to grant judgment as a matter of law, the

court is to “give credence to the evidence favoring the

nonmovant as well as that ‘evidence supporting the

moving party that is uncontradicted and unimpeached,

at least to the extent that that evidence comes

from disinterested witnesses.’ ” Reeves, 530 U.S. at 151.

In Petitioner’s case, the Fifth Circuit did not follow

this admonition. Instead of accepting as true Petitioner’s [nonmovant’s] evidence of good performance,

the Fifth Circuit accepted as true the testimony of Respondent’s decision-maker, who claimed that Petitioner was a poor performer or, at least, that

Respondent had a “good faith” belief that Petitioner

was a poor performer. App. 10. Accepting as true Respondent’s claim that Respondent had a “good faith”

belief that Petitioner was a poor performer, App. 10,

disregards Reeves’ teaching that “[c]redibility determinations. . . .” are “jury functions, not those of a judge.”

Reeves, 530 U.S. at 150-51.

13

The Fifth Circuit also disregarded the pre-Reeves’

established principle that “[t]he state of a man’s mind

is as much a fact as the state of his digestion.” U.S.

Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711,

716 (1983) (internal citation omitted). Whether Respondent fired Petitioner because she was old or because it had a “good faith” belief that she was a poor

performer is a question of Respondent’s state of mind

and is, therefore, a question of fact.

The Fifth Circuit also disregarded Reeves since

that court never considered as evidence the fact that

Petitioner had made a prima facie case by demonstrating that she performed her job well for over three (3)

decades, and was then replaced by an employee seventeen (17) years her junior. Reeves corrected the Fifth

Circuit because that court had “disregarded critical evidence favorable to petitioner – namely, the evidence

supporting petitioner’s prima facie case. . . .” Reeves,

530 U.S. at 152.

Just as this Court found it necessary in Tolan v.

Cotton, ___ U.S. ___, 134 S.Ct. 1861, 1886 (2014), to vacate summary judgment granted in an unreasonable

force case brought under the Fourth Amendment because the Fifth Circuit “improperly weighed evidence

and resolved disputed issues in favor of moving party,

. . . .” this Court should again grant certiorari in order

to correct the Fifth Circuit by directing the principles

of Tolan and Reeves must be followed. It is idle for this

Court to render opinions if the lower courts are free to

disregard these opinions or to interpret the opinions so

narrowly that their holdings have no force.

------------------------------------------------------------------

14

CONCLUSION

This is the “appropriate case” described by Justice

Ginsburg in Reeves, 530 U.S. at 154 (Ginsburg, J., concurring), for this Court to grant the Writ in order to

define more precisely when an employee in an employment discrimination case may be denied her Seventh

Amendment right to have a jury determine the facts.

“The very essence of [the jury’s] function is to select from among conflicting inferences and conclusions

that which it considers most reasonable.” Tennant v. Peoria & P. U. Ry. Co., 321 U.S. 29, 35 (1944). Taking away

from the jury such questions as whether Respondent

replaced Petitioner with an employee seventeen (17)

years her junior because the employer believed Petitioner was a poor performer, diminishes the Seventh

Amendment.

Respectfully submitted,

JIM WAIDE

WAIDE AND ASSOCIATES, P.A.

ATTORNEYS AT LAW

Post Office Box 1357

Tupelo, MS 38802

Telephone: (662) 842-7324

Facsimile: (662) 842-8056

Email: waide@waidelaw.com

Counsel for Petitioner