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

NO. 19-_____

In the

Supreme Court of the United States

JAGDISH C. LAUL,

Petitioner,

v.

LOS ALAMOS NATIONAL LABORATORIES,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

PETITION FOR WRIT OF CERTIORARI

TRACE L. RABERN

COUNSEL FOR PETITIONER

RABERN LAW

644 DON GASPAR AVENUE, #2

SANTA FE, NM 87505

(505) 629-9254

TRACE@RABERNLAW.COM

AUGUST 5, 2019

SUPREME COURT PRESS

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

QUESTION PRESENTED

Summary judgment in this typical employment

discrimination case requires the trial court to weigh

and choose between competing inferences of what was

and was not a part of a motivation for an employment

decision. Choosing among competing inferences is

uniquely a jury competency. Determining motive is

uniquely a jury competency. The Seventh Amendment

recognizes that judges, institutionally, are not good at

weighing competing inferences and deciphering motive.

Still, that is what the Circuit Court’s application of

the McDonnell Douglas burden-shifting test required

of the trial court at summary judgment, to the exclusion

of Dr. Laul’s constitutional right to a jury determination of these classic jury questions.

QUESTION PRESENTED

Does requiring the trial judge to weigh inferences

(and in some cases inferences from inferences) and

determine motive from competing testimony deprive

a plaintiff of his Seventh Amendment right to make

his case to a jury?

ii

LIST OF PROCEEDINGS BELOW

United States Court of Appeals for the Tenth Circuit

Case Number 18-2084

Jagdish C. Laul, Plaintiff-Appellant, v.

Los Alamos National Laboratories, Defendant-Appellee

Order and Judgment Dated May 6, 2019

_____________________

United States District Court for the

District of New Mexico

Case Number 16 CV 1017 JAP/KBM

Jagdish C. Laul, Plaintiff v.

Los Alamos National Laboratories, Defendant

Memorandum Opinion and Order Dated May 8, 2018

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......................................... i

LIST OF PROCEEDINGS BELOW ........................... ii

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

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

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

JURISDICTION.......................................................... 1

RELEVANT CONSTITUTIONAL

AND STATUTORY PROVISIONS ...................... 2

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

STATEMENT OF FACTS .......................................... 4

PROCEEDURAL HISTORY ...................................... 6

1. District Court Ruling On Discriminatory

Failure to Hire .................................................. 6

2. Ruling on Discriminatory Site Exclusion ........ 9

REASONS FOR GRANTING THE WRIT ............... 10

CONCLUSION.......................................................... 20

iv

TABLE OF CONTENTS – Continued

Page

APPENDIX TABLE OF CONTENTS

Order and Judgment of the Tenth Circuit

(May 6, 2019) .................................................. 1a

Memorandum Opinion and Order of the District

Court of New Mexico

(May 8, 2018) ................................................ 13a

Complaint for Employment Discrimination and

Retaliation (September 12, 2016) ................ 61a

v

TABLE OF AUTHORITIES

TABLE OF AUTHORITIES

CASES

Page

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986) ........................................... 14

Blakely v. Washington,

542 U.S. 296 (2004) ........................................... 16

Bullington v. United Air Lines,

186 F.3d 1301 (10th Cir. 1999) ........................... 7

Dimick v. Schiedt,

293 U.S. 474 (1935) ........................................... 15

Hinds v. Sprint/United Mgmt. Co.,

523 F.3d 1187 (10th Cir. 2008) ........................... 11

Laul v. Los Alamos Nat’l Labs,

714 F. App’x 832, (10th Cir. 2017) ....................... 5

McDonnell Douglas Corp. v. Green,

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

NLRB v. Jones & Laughlin Steel Corp.,

301 U.S. 1 (1937) ............................................... 15

Parklane Hosiery Co. v. Shore,

439 U.S. 322 (1979) ........................................... 15

Parsons v. Bedford,

28 U.S. (3 Pet.) 433 (1830) ................................ 15

Paup v. Gear Prods., Inc.,

327 F. App’x 100 (10th Cir. 2009) ...................... 11

Powers v. Ohio,

499 U.S. 400 (1991) ........................................... 16

Reeves v. Sanderson Plumbing Prods., Inc.,

530 U.S. 133 (2000) ......................... 10, 11, 14, 18

vi

TABLE OF AUTHORITIES—Continued

Page

See Baylis v. Travelers’ Ins. Co.,

113 U.S. 316(1885) .............................................. 14

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

228 U.S. 364 (1913) ............................................ 15

Standard Oil Co. v. Van Etten,

107 U.S. 325 (1882) ........................................... 16

Tennant v. Peoria & Pekin Union Railway,

321 U.S. 29 (1944) ............................................. 16

Toney v. Cuomo,

92 F.Supp.2d 1186 (D. Kan. 2000) ...................... 8

United States Postal Serv. Bd. of Governors

v. Aikens, 460 U.S. 711, 103 S.Ct. 1478,

75 L.Ed.2d 403 (1983) ................................ 12, 14

United States v. Scheffer,

523 U.S. 303 (1997) ........................................... 17

Wells v. Colo. Dep’t of Transp.,

325 F.3d 1205 (10th Cir. 2003) ................... 11, 13

Zamora v. Elite Logistics, Inc.,

449 F.3d 1106 (10th Cir. 2006) ......................... 13

Zamora v. Elite Logistics, Inc.,

478 F.3d 1160 (10th Cir. 2007) .......................... 14

CONSTITUTIONAL PROVISIONS

U.S. Const., amd. VII ......................................... passim

vii

TABLE OF AUTHORITIES—Continued

Page

FEDERAL STATUTES

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

29 U.S.C. § 623(a)(1)–(2) ........................................... 3, 6

42 U.S.C. §§ 2000e-2(a)........................................... 2, 6

STATE STATUTES

N.M. Stat. Ann. § 28-1-7 ............................................... 6

JUDICIAL RULES

Fed. R. Civ. Evid. 401 ............................................... 17

OTHER AUTHORITIES

Alexander Hamilton,

The Federalist, No. 83

(Ian Shapiro ed. 2009) ....................................... 15

Black’s Law Dictionary (7th ed. 1999) ..................... 17

John Bouvier,

A Law Dictionary, Adapted to the

Constitution and Laws of the United

States (1856) ...................................................... 17

Kerri Lynn Stone,

Shortcuts in Employment Discrimination

Law, 56 ST. LOUIS U. L.J. 111 (2011) ................ 20

Kevin M. Clermont & Stewart J. Schwab,

Employment Discrimination Plaintiffs in

Federal Court: From Bad to Worse?,

3 HARV. L. & POL’Y REV. 103 (2009) .................. 19

viii

TABLE OF AUTHORITIES—Continued

Page

Lee Reeves,

Pragmatism over Politics: Recent Trends

in Lower Court Employment

Discrimination Jurisprudence,

73 MO. L. REV. 481 (2008) ................................. 19

Martin J. Katz,

Reclaiming McDonnell Douglas,

83 NOTRE DAME L. REV. 109 (2007)................... 19

Merriam-Webster Dictionary (2016) ........................ 17

Michael Selmi,

Why Are Employment Discrimination

Cases So Hard to Win?,

61 LA. L. REV. 555 (2001) .................................. 20

Natasha T. Martin,

Pretext in Peril,

75 MO. L. REV. 313 (2010) ................................. 19

Timothy M. Tymkovich,

The Problem with Pretext,

85 DENV. U.L. REV. 503 (2008) .......................... 13

Trina Jones,

Anti-Discrimination Law in Peril?,

75 MO. L. REV. 423 (2010) .................................. 19

William R. Corbett,

Fixing Employment Discrimination Law,

62 SMU L. REV. 81 (2009)................................... 19

1

PETITION FOR A WRIT OF CERTIORARI

Petitioner Dr. Jagdish C. Laul respectfully petitions for a writ of certiorari to United States Court of

Appeals for the Tenth Circuit in its Case Number 182084, Laul v. Los Alamos National Laboratories, dated

May 6, 2019.

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 18-2084, captioned

JAGDISH C. LAUL, Plaintiff-Appellant, v. LOS ALAMOS

NATIONAL LABORATORIES, Defendant-Appellee, which is

dated May 6, 2019. (App.1a) There was no petition for

rehearing.

The decision of the District Court is at United

States District Court for the District of New Mexico

Case Number 16 CV 1017 JAP/KBM is captioned

JAGDISH C. LAUL, Plaintiff, v. LOS ALAMOS NATIONAL

LABORATORIES, Defendant, and dated May 8, 2018.

(App.13a)

JURISDICTION

The opinion of the Tenth Circuit Court of Appeals

was entered on May 6, 2019. (App.1a). This Court

has jurisdiction pursuant to 28 U.S.C. § 1254(1).

2

RELEVANT CONSTITUTIONAL

AND STATUTORY PROVISIONS

United States Constitution, Seventh Amendment

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.

Title VII of the Civil Rights Act of 1964 (“Title VII”),

codified at 42 U.S.C. § 2000e-2(a)

(a) Employer practices

It shall be an unlawful employment practice for

an employer—

(1) to fail or refuse to hire or to discharge any

individual, or otherwise to discriminate

against any individual with respect to his

compensation, terms, conditions, or privileges

of employment, because of such individual’s

race, color, religion, sex, or national origin;

or

(2) to limit, segregate, or classify his employees

or applicants for employment in any way

which would deprive or tend to deprive any

individual of employment opportunities or

otherwise adversely affect his status as an

employee, because of such individual’s race,

color, religion, sex, or national origin.

3

The Age Discrimination in Employment Act (“ADEA”),

29 U.S.C. § 623(a)(1) and 623(a)(2)

(a) Employer practices

It shall be unlawful for an employer—

(1) to fail or refuse to hire or to discharge any

individual or otherwise discriminate against

any individual with respect to his compensation, terms, conditions, or privileges of

employment, because of such individual’s

age;

(2) to limit, segregate, or classify his employees

in any way which would deprive or tend to

deprive any individual of employment opportunities or otherwise adversely affect his

status as an employee, because of such individual’s age.

STATEMENT OF THE CASE

Dr. Laul filed suit against his former employer

for failing to rehire him—indeed, for failing to even

grant him an interview—for a number of positions

for which he applied, alleging age and national origin

discrimination and alleging retaliation based on his

previous complaints of discrimination. Employer’s

hiring decisions were all made during Dr. Laul

protracted litigation of whether his original termination was discriminatory.

His suit, like his original discrimination case before

it, was dismissed by the trial court at the summary

4

judgment phase. Applying what has become known

as the McDonnell Douglas test, the trial court judge,

sitting without a jury, considered competing inferences

(and, in some cases, inferences based on inferences)

from both sides and chose among them to make its

own decision concerning motive of employer.

This case is an example of how the byzantine

edifice of employment discrimination law has wrought

a serious wrong: It has handed over to judges the

power and traditional role of the jury to determine

choose among disputed inferences to find motive.

STATEMENT OF FACTS

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 several times, received a number of professional awards,

was commended for work that saved the Laboratory

millions of dollars, and received favorable evaluations. But after Dr. Laul hit age 70, his supervisors

alleged that his performance declined. At the end of

2013, the Laboratory terminated Dr. Laul’s employment. (App.2a). Dr. Laul challenged his termination

as discriminatory, and pursued his challenge all the

5

way to this Court (See Laul v. Los Alamos Nat’l Labs.,

714 F. App’x 832, 834-35 (10th Cir. 2017), cert. denied,

138 S. Ct. 2602 (2018)). His challenges to his termination were ultimately unsuccessful, but while they

were in litigation, the facts relevant to this case

unfolded.

In early January 2014, Richard Marquez, the

Executive Director of LANL, told Dr. Laul he could

apply for jobs despite having been discharged. (App.2a).

Thereafter, Dr. Laul went to the Laboratory’s Occupational Medical building and asked to speak with

Janet McMillan, a nurse and the wife of the Laboratory

Director, to entreat his case for how unfairly he had

been treated. (App.2a). Ms. McMillan declined to take

Dr. Laul’s papers, but did not report his visit until

later. (App.3a).

On September 11, 2014, Mr. Laul filed a charge of

discrimination related to his termination with the New

Mexico Department of Labor, Human Rights Division.

(App.3a).

Between October 20, 2014, and May 4, 2015, Mr.

Laul applied for 30 jobs at LANL. (App.3a). Eleven of

the job postings remained unfilled and are not at

issue. As to the remaining 19 jobs, Mr. Laul was not

hired for any of them. All of the people hired were

younger than Mr. Laul, who was then in his mid-70s,

and none were of East Indian origin. (App.3a).

In June 2015, Mr. Laul returned to the Occupational Medical building and again asked to see Ms.

McMillan. This time, his visit resulted in her emailing

Executive Director Richard Marquez and copying her

husband, the Lab director. Marquez then reported

Dr. Laul to the Lab security division, which issued a

6

site-wide exclusion (referred to in the record as a BOLO)

banning Dr. Laul from coming on the premises.

PROCEEDURAL HISTORY

In September of 2016 Dr. Laul filed this suit,

alleging failure to hire was discriminatory based on

his age and national origin in violation of the Age

Discrimination in Employment Act (“ADEA”), 29

U.S.C. § 623(a)(1), (“ADEA”); Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1); and the

New Mexico Human Right Act (“NMHRA”), N.M. Stat.

Ann. § 28-1-7. He also claimed that the Laboratory

failed to rehire him in retaliation for his previous

charge of discrimination, and further retaliated against

him by issuing a site-wide exclusion, also in retaliation for his discrimination claim. (App.5a, 61a).

Dr. Laul demanded a jury. (App.61a).

Dr. Laul did not get one. The district court ruled in

favor of the Laboratory at summary judgment stage.

1.

District Court Ruling On Discriminatory Failure

to Hire.

For each of these 19 positions, the Laboratory

professed motivations such as qualifications of other

applicants for some positions, and hiring manager’s

knowledge of Dr. Laul’s past performance as motivation for others.

For certain of the positions, the Laboratory relied

on inferences of motive themselves based on inferences.

For example, for an environmental position, the hiring

7

manager Ms. Gallegos had since passed, so a subsequent hiring manager, Ms. Payne, testified as to Ms.

Gallegos’ inferred motives from Ms. Gallegos’ notes:

Ms. Payne testified that there is no indication

in Ms. Gallagher’s records that Ms. Gallagher

was aware of Plaintiff’s discharge from LANS

or that Ms. Gallagher was aware of Plaintiff’s complaints against LANS for discrimination. (Id. ¶¶ 3(g), (h).) Ms. Payne testified

that there is no indication that Ms. Gallagher

considered Plaintiff’s age, race, or national

origin in making her decision. (Id. 3(i).) Nor

was there any indication that Ms. Gallagher

was told not to interview or hire Plaintiff.

(Id. ¶ 3(f).)

(App.21a). For another trio of positions:

Ms. Payne testified that there was no indication that in making this decision, Ms.

Gallagher was aware of Plaintiff’s previous

performance issues at LANS, his discharge,

or his discrimination claims against LANS.

Mot. Ex. 4, Payne Decl. ¶¶ 3(q), (r). (App.22a).

Based on this thin chain of inference, the trial

court, candidly choosing to discount Dr. Laul’s own

competing testimony, granted summary judgment to

the Laboratory. See App.50a (“At the summary judgment stage, the plaintiff’s own conclusory opinions

about his qualifications and about the employer’s

motives do not give rise to a material factual dispute.

Bullington v. United Air Lines, 186 F.3d 1301, 1318

(10th Cir. 1999).”); and App.51a (“Plaintiff’s subjective

belief that he possessed the qualifications for these

8

positions is insufficient to create a fact issue capable

of overcoming summary judgment. Toney v. Cuomo,

92 F.Supp.2d 1186, 1192 (D. Kan. 2000).”); and App.52a

(“Plaintiff has presented no evidence, other than his

subjective belief, from which the Court can reasonably

infer that Plaintiff was not interviewed or hired because

of his age or national origin.”); and App.53a-54a

(“Plaintiff’s own testimony that he was not chosen

because he is 77 years old or East Indian, is insufficient for this Court to find that LANS’ reasons for not

hiring Plaintiff were unworthy of belief.”).

At the same time, the trial court credited Dr.

Laul’s admission, seemingly necessary, that he was

unable to read the minds of hiring managers:

In his deposition, however, Plaintiff testified

he did not know whether Ms. Gallagher discriminated against him:

Q.

Now tell me, do you believe that . . . you

didn’t get the job because Ms. Gallagher

was considering your age or your race or

your national origin?

A.

I can’t read her mind, but she knows who I

am.

Q.

You called who?

A.

Gallagher knows who I am.

Q.

Yeah.

A.

And I had reviewed their program, so they

know it. And whether she is thinking of

ruling me out on national origin, race, that

is her consideration. I have no way of knowing. I can’t read her mind.

9

(App.24a, emphasis added). And:

Q.

So you think he—he—he basically said,

“Okay, I don’t want the East Indians.”

A.

That may be his thinking, but he’s not

telling me.

Q.

You don’t know right?

A.

Yeah. I don’t know, but this is my belief.

Mot. Ex. 2, Laul Dep. 700:15-701:10. (App.43a).

2.

Ruling on Discriminatory Site Exclusion.

Dr. Laul argued that the dramatic change in

how Lab officials treated him before and after he

filed his complaint for discrimination showed motivation to retaliate. (App.2a-3a, 4a; App.17a-20a). Before

his complaint of discrimination, Executive Director

Richard Marquez invited Dr. Laul to apply for open

positions and Ms. McMillan took no action in response

to his entreaties. But after, Ms. McMillan reported

Dr. Laul, characterized him as aggressive, and Richard

Marquez caused a site restriction to be placed on Dr.

Laul. (App.2a-3a, 4a; App.17a-20a). This happened at

about the same time Dr. Laul was not offered an

interview for any of the 30 positions for which he

applied.

Dr. Laul argued that the Laboratory was retaliating against him for the protected activity. (App.59a).

The trial court rejected Dr. Laul’s claim, in part because

the security department that actually issued the order

did not know about Dr. Laul’s prior claims of discrimination. (App.60).

10

Dr. Laul appealed, and the Tenth Circuit Court

of Appeals in an unpublished decision tracking the

district court’s analysis affirmed.

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.

In Reeves v. Sanderson Plumbing Prods., Inc.,

530 U.S. 133, 150 (2000), this Court held that, at the

trial stage of a discrimination case, credibility determinations and the weighing of evidence are reserved

for the jury. Reeves v. Sanderson Plumbing Products,

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

In Reeves, this Supreme Court rejected the socalled “pretext plus” standard that required plaintiffs

using the McDonnell Douglas framework to both show

pretext and produce “additional evidence of discrimination” in order to avoid summary judgment. Id. at

146-48. Reeves expressly held that “a plaintiff’s prima

facie case [of discrimination], 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.”

Id. at 148. No additional evidence is necessary to show

discrimination because “[p]roof that the defendant’s

explanation is unworthy of credence is simply one form

11

of circumstantial evidence that is probative of intentional discrimination.” Id. at 147.

The Reeves Opinion involved judgment as a matter

of law at the end of trial of a discrimination case, not

summary judgment. At summary judgment phase,

the Tenth Circuit Court of Appeals still feels itself

constrained to apply the well-known but byzantine

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

Such application has not been without notable

judicial misgivings:

1. In Paup v. Gear Prods., Inc., 327 F. App’x 100,

113 (10th Cir. 2009) (Gorsuch, J.), then-Judge Gorsuch

wrote: “[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.” 327 F. App’x at 113 (citations omitted).

2. In Hinds v. Sprint/United Mgmt. Co., 523 F.3d

1187, 1202 n. 12 (10th Cir. 2008, the Tenth Circuit

noted the Court will apply the test “so long as McDonnell Douglas remains the law governing our summary

judgment analysis”.

3. And, perhaps most clearly, in Wells v. Colo.

Dep’t of Transp., 325 F.3d 1205, 1224-28 (10th Cir.

2003) Judge Hartz wrote a concurrence separately

(from his own authored panel opinion) “to express

my displeasure with the mode of analysis employed

in the panel opinion (which I authored)”. Judge Hartz

explained:

12

The McDonnell Douglas framework only

creates confusion and distracts courts from

“the ultimate question of discrimination

vel non.” United States Postal Serv. Bd. of

Governors v. Aikens, 460 U.S. 711, 714, 103

S.Ct. 1478, 75 L.Ed.2d 403 (1983). McDonnell

Douglas has served its purpose and should

be abandoned. Moreover, and perhaps more

importantly, the Supreme Court has recognized the problems created by McDonnell

Douglas and given us a precedent which

enables us to ignore McDonnell Douglas without violating our lower-court duty to follow

the dictates of the Supreme Court. See

Aikens, 460 U.S. at 714-16, 103 S.Ct. 1478.

The McDonnell Douglas framework is a

departure from the approach appellate courts

customarily use in evaluating the sufficiency of the evidence to sustain a plaintiff’s

case, whether reviewing judgments after

trial or summary judgments. Our usual procedure is to set forth the elements of the

plaintiff’s cause of action and then determine

whether there is sufficient evidence for a

reasonable person to find that each element

has been proved. If the defendant relies on

an affirmative defense (where the defendant

has the burden of persuasion), we may need

to conduct a similar analysis with respect to

the elements of the defense. In evaluating

the sufficiency of the evidence to support an

element of the claim or defense, we employ

an informed common sense. We are guided

by the thinking expressed by other courts.

13

But, recognizing that every case is unique,

we know that we cannot simply incorporate

some formula and make our task a mechanical one.

Wells v. Colo. Dep’t of Transp., 325 F.3d at 1224-28.

4. Tenth Circuit jurist Judge Tymkovich has

written a scholarly article aptly named “The Problem

with Pretext.” See Timothy M. Tymkovich, The Problem

with Pretext, 85 DENV. U.L. REV. 503, 528-29 (2008).

Judge Tymkovich argues that “[w]hile the Supreme

Court initially insisted that [the McDonnell-Douglass

burden-shifting framework] was necessary to ensure

that plaintiffs have their day in court,” there now is

widespread recognition that the framework creates

only confusion. Id. Judge Tymkovich provides as examples the compartmentalization of evidence, the artificial

dichotomy between direct and circumstantial evidence,

the artificial dichotomy between mixed-motive and

single-motive cases, and the circuit split on the issue

of whether judges should give the McDonnell-Douglass

framework as a jury instruction. Id.

5. 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), 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

14

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)).

6. Finally, application of the McDonnell Douglas

framework at the summary judgment stage usurps

the function of the jury.

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.

Even in a case of indirect evidence of discrimination,

which is entirely about inferences of employer’s motive,

“the court must draw all reasonable inferences in

favor of the nonmoving party, and it may not make

credibility determinations or weigh the evidence.”

Reeves v. Sanderson Plumbing Prods., 530 U.S. at 150.

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. Travelers’

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

of fact must be submitted to the jury). A century ago,

15

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. 364, 387 (1913) (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”).

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

Court has consistently warned that “every 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

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.

16

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

The sacredness of a jury is 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. 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 democratic process.”).

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

17

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 motive, “the jury is the lie detector.” United

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

quotation marks omitted). It is uniquely the skill set

of a jury to determine intent from circumstantial evidence.

7. Pretext under the McDonnell Douglas test is

necessarily a factual finding of motive indirectly 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.”)

18

Key here is the logical necessity, recognized by this

Court in Reeves, 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 a discriminatory motive.

The pretextual reason would not be used or needed

but for the discrimination. See, e.g., Reeves, 530 U.S.

at 143 (“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.

8. 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 not re-hiring

him. His former employer responded with circumstantial evidence of successful candidate’s qualification. Dr. Laul responded that this testimony is mere

code for the fact employer found him too old, too

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.

9. Finally, federal case data confirmed that the

McDonnell Douglas framework for summary judgment is a broken system. 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.” Memoran-

dum from Joe Cecil & George Cort, Fed. Judicial Ctr.,

19

to Judge Baylson, 3 (Aug. 13, 2008)1 (“[T]he prominent

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

Two Cornell University 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.

The disparate impact of summary judgment on

employment cases has been alarming to numerous

scholars. See, e.g., William R. Corbett, Fixing Employment Discrimination Law, 62 SMU L. REV. 81 (2009);

Trina Jones, Anti-Discrimination 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

1 available at https://www.uscourts.gov/sites/default/files/sujulrs2.

pdf

20

(2001); Kerri Lynn Stone, Shortcuts in Employment

Discrimination Law, 56 ST. LOUIS U. L.J. 111 (2011).

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.

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be granted.

Respectfully submitted,

TRACE L. RABERN

COUNSEL FOR PETITIONER

RABERN LAW

644 DON GASPAR AVENUE, #2

SANTA FE, NM 87505

(505) 629-9254

TRACE@RABERNLAW.COM

AUGUST 5, 2019