Reply Brief — Jagdish C. Laul, Petitioner v. Los Alamos National Laboratories

No. 19-178

IN THE

JAGDISH C. LAUL,

Petitioner,

v.

LOS ALAMOS NATIONAL LABORATORIES,

Respondent.

_______________________________________________

On Petition for a Writ of Certiorari

to the United States Court of Appeals for the

Tenth Circuit

_______________________________________________

REPLY TO OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

_______________________________________________

TRACE L. RABERN

RABERN LAW

ATTORNEYS FOR PETITIONER

622 DON GASPAR AVE. #2

SANTA FE, NM 87505

505.629.9254

TRACE@RABERNLAW.COM

NOVEMBER 6, 2019

!i

QUESTIONS 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?

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TABLE OF CONTENTS

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

TABLE OF AUTHORITIES………… .............………………….iii

REPLY…… .........................................................................…1

I. HOW THIS DECISION WAS MADE AND CONTINUES TO BE

ARGUED ILLUSTRATES THE MISLEADING NATURE OF THE

IDEA OF “UNDISPUTED MATERIAL FACTS” UNDER

MCDONNELL DOUGLAS TEST.

… .............................................................................…………..3

II. DR. LAUL HAS CONSISTENTLY RESISTED SUMMARY

JUDGMENT PRECISELY IN ORDER TO PRESENT HIS CASE TO

JURY. THERE IS NO PRESERVATION PROBLEM

.......................................................................... 5

CONCLUSION…………………………………………………… .........7

!iii

TABLE OF AUTHORITIES

Cases

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986)

3

Cedillo v. Int’l Ass’n of Bridge & Structural

Iron Workers, Local Union No. 1,

603 F.2d 7 (7th Cir. 1979)

5

Colby v. Klune,

178 F.2d 872 (2d Cir. 1949)

5

Desert Palace, Inc. v. Costa,

539 U.S. 90 (2003) -

4

Hinds v. Sprint/United Mgmt. Co.,

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

2

Kozlowski v. Hampton School Board,

77 Fed. Appx. 133 (4th Cir. 2003)

8

McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973)

passim

Patterson v. McLean Credit Union,

491 U.S. 164, 187 (1989)

3,4

!iv

Paup v. Gear Prods., Inc.,

327 F. App’x 100, 113 (10th Cir. 2009)

1,2

Reeves v. Sanderson Plumbing Prods.,

530 U.S. 133 (2000)

3

Standard Oil Co. v. Brown,

218 U.S. 78 (1910)

4

Tennant v. Peoria & Pekin Union Ry.,

321 U.S. 29 (1944)

4

Townsend v. Lumbermens Mut. Cas. Co.,

294 F.3d 1232 (10th Cir. 2002)

4

Other Authorities

Andrew Guthrie Ferguson,

Jury Instructions as Constitutional

Education,

84 U. COLO. L. REV. 233, 293 (2013)

5

Timothy M. Tymkovich,

The Problem with Pretext,

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

2, 3

!1

REPLY

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 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.

In every similar employment discrimination case

the McDonnell Douglas framework turns entirely on

inferences of employer motive. Juries are very good at

drawing inferences to determine motive. Judges are

not. But at summary judgment stage of a case, a federal

judge, unmindful of a jury, grinds through a McDonnell

Douglas analysis by choosing from among the

competing inferences. By getting lost in the thicket

required by McDonnell Douglas inferences, a judge is

prone to lose sight of the polestar of the Seventh

Amendment.

This should give us Seventh Amendment

misgivings. Discrimination cases come with a readymade fact dispute about Employer’s motivation.

Choosing which of competing rational inferences to

draw from the observable facts is the quintessential

question for a jury.

!2

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 choose among

disputed inferences to find motive.

The Seventh Amendment cautions we should not

invite the trial judge, instead of jury, to weigh the facts

supporting an inference of the “proffered reason”

against the facts supporting the inference of “the

proffered reason is pretext” or to weigh the competing

inferences against each other. McDonnell Douglas

leads us astray of the task at hand.

As then-Judge Gorsuch hinted in Paup v. Gear in

2009:

[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.

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

Cir. 2009) (Gorsuch, J.) (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”). The Tenth

Circuit in particular has nudged for clarity in this area.

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).

The “problem with pretext” (to use Judge

Tymkovich) in a case like Dr. Laul’s is that, as an issue

!3

of institutional competency, juries are best for this.

“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). There is no blanket exemption for employment

discrimination cases. Cf. 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.”). When a trial

judge performs this kind of analysis, she usurps the

function of the jury.

I. HOW THIS DECISION WAS MADE AND CONTINUES

TO BE ARGUED ILLUSTRATES THE MISLEADING

NATURE OF THE IDEA OF “UNDISPUTED MATERIAL

FACTS” UNDER MCDONNELL DOUGLAS TEST.

In its Brief in Opposition, LANS sets out twentyfour (24) pages slogging through each job listing

mechanically under point heading “Undisputed

Material Facts.” But in reality Dr. Laul’s entire case

was entirely a dispute about the employer’s

motivations. Employer’s motivations can only be

shown indirectly through inferences, and his dispute at

its heart was about what inferences could be drawn

from the fact that while he was in protracted litigation

against employer for age and race discrimination, and

he happened to be denied interview opportunity for

each and every job in his field.

The entire case was about whether the

employer’s given reasons for not considering him were

pretextual. This Court has made clear that (1) an

employee is “not limited to presenting evidence of a

certain type,” and (2) pretext evidence may take a

variety of forms. Patterson v. McLean Credit Union,

!4

491 U.S. 164, 187 (1989) (superseded by statute in part

on other grounds, 42 U.S.C. § 1981(b)). Here jurors as

fact-finders would be asked to determine if it is mere

coincidence that a highly-qualified experienced

scientist who had a pending discrimination lawsuit

was denied dozens of interviews for highly-technicals

jobs due to whistleblowing, or for a valid reason?

The question of inferring motive vexes judges,

but is perfect for juries. Cf. Kozlowski v. Hampton

School Board, 77 Fed. Appx. 133, 143-44 (4th Cir. 2003)

(“Given the amount of disagreement among judges of

the federal courts of appeals over whether a jury may

infer discrimination simply from their disbelief of the

employer’s stated justifications.”); Townsend v.

Lumbermens Mut. Cas. Co., 294 F.3d 1232 (10th Cir.

2002).

In almost every employment discrimination

cases, both parties present facts, put them in context,

and ask the fact-finder to draw competing inferences

from them. Juries are good at this work. E.g., Desert

Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003) (“[J]uries

are routinely instructed that ‘[t]he law makes no

distinction between the weight or value to be given to

either direct or circumstantial evidence.’” (second

alteration in original) (quoting 1A KEVIN F. O’MALLEY

E T A L . , F E DE R A L J U R Y PR AC T IC E A N D

INSTRUCTIONS, CRIMINAL § 12.04 (5th ed. 2000))).

This is a jury's sacred role. See Tennant v. Peoria

& Pekin Union Ry., 321 U.S. 29, 35 (1944) (explaining

that it is the jury’s role to weigh evidence, draw

inferences, and reach conclusions); Standard Oil Co. v.

Brown, 218 U.S. 78, 86 (1910) (“But what the facts

were…and what conclusions were to be drawn from

them were for the jury and cannot be reviewed here.”).

Juries come on to the job much better equipped

by unique and diverse life-experience to do this work.

!5

See Andrew Guthrie Ferguson, Jury Instructions as

Constitutional Education, 84 U. COLO. L. REV. 233,

293 (2013) (proposing that jurors be instructed on the

value of jury service, including an admonition to

remain tolerant toward fellow jurors’ diverse opinions

because each juror has a unique life experience).

To really determine a party's reasons for its

actions requires the fact-finder to choose among

competing inferences from the facts. This--except in the

most one-sided of cases—involves observing the

witness’ demeanor, evaluating a party’s behavior, and

particularly assessing how the party conducts itself

when confronted by cross-examination. In California

v. Green, 399 U.S. 149, 158 (1970), this Court described

juror’s work drawing inferences and evaluating

credibility as the “greatest legal engine ever invented

for the discovery of truth” (quoting 5 J. WIGMORE,

EVIDENCE § 1367, at 32 (Chadbourn rev. 1970))

(cleaned up)).

This is the core institutional competency of

juries, which is not shared with judges or courts.

Compare Cedillo v. Int’l Ass’n of Bridge & Structural

Iron Workers, Local Union No. 1, 603 F.2d 7, 11 (7th

Cir. 1979) (“[A]s a general principle, questions of

motive and intent are particularly inappropriate for

summary adjudication.”) with Colby v. Klune, 178 F.2d

872, 874 (2d Cir. 1949) (reasoning that “demeanor may

be the most effective impeachment”).

II. DR. LAUL HAS CONSISTENTLY RESISTED SUMMARY

JUDGMENT PRECISELY IN ORDER TO PRESENT HIS CASE TO

JURY. THERE IS NO PRESERVATION PROBLEM.

Dr. Laul's argument is that to the extent the

courts below got caught up in the byzantine machinery

of the McDonnell Douglas test and drew their own

inferences from the competing inferences supported by

!6

the facts, they usurped the constitutional function of

the jury. At the end of the day, a federal judge, without

a jury, laid out dozens of pages of facts for the purposes

of drawing inferences about motive, then that judge

weighed those motive inferences and chose from among

them, in favor of the movant on summary judgment.

LANS mischaracterizes Dr. Laul’s argument as

invited error, or making an unpreserved challenge to,

the McDonnell Douglas test. The fact is that both the

parties and the Court below were and constrained by

this existing precedent and so conformed their cases

and arguments to the governing law of the day. This

Court is the body uniquely positioned to actually

address the bigger picture: Is the McDonnell-Douglas

framework a framework for the jury? And, to the

extent the courts below got caught up in the byzantine

machinery of the McDonnell Douglas and forgot the

Seventh Amendment, has the test as Thus the test, as

applied gone beyond the boundaries of the field of

summary judgment.

Summary judgment is called a judgment “as a

matter of law” and on “undisputed facts.” To the extent

that the courts are choosing from competing inferences

of motive, they are making judgments of fact, on

disputed facts.

!7

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be granted.

Respectfully submitted,

November 6, 2019

____________________

Trace L. Rabern

Rabern Law

Attorneys for Petitioner

644 Don Gaspar #2

Santa Fe, NM 87505

505.629.9254