Amicus Curiae Brief — Harbison-Walker Refractories v. Brieck

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No. 87-271

In the

Supreme Court of tye United States

October Term, 1987

HARBISON-WALKER REFRACTORIES, A DIVISION

OF DRESSER INDUSTRIES, INC..,

Petitioner,

EUGENE F. BRIECK.

Respondent.

On Writ OF CERTIORARI TO THE UNITED STATES

Court Or APPEALS For THE THIRD CIRCUIT

AMICUS CURIAE BRIEF

OF THE CHAMBER OF COMMERCE

OF THE UNITED STATES OF AMERICA

IN SUPPORT OF PETITIONER

Of Counsel: JOHN C. UNKovic*

Mark A. FONTANA

REED SMITH SHAW & McCLAY

435 Sixth Avenue

Pittsburgh, Pennsylvania 15219

412-288-3294

STEPHEN A. BOKAT

National Chamber

Litigation Center, Inc.

1615 H Street, N.W.

Washington, D.C. 20062

202-463-5337 Counsel to Amicus Curiae,

The Chamber of Commerce of

The United States of America

*Counsel of Record to Amicus Curiae

TABLE OF CONTENTS

Page

pp re ii

INTEREST OF AMICUS CURIAE................ 2

SUMMARY OF ARGUMENT ................... 3

SE ee 4

THE THIRD CIRCUIT'S SUMMARY

JUDGMENT STANDARD IN

EMPLOYMENT DISCRIMINATION CASES

SHOULD BE REVERSED AS A MATTER OF

FF A ee eee eee ee +

The Third Circuit Has Ignored Th:s Court's

Instruction That Summary Judgment Is An

Important Part Of Federal Procedure

Intended To Dispose Of Unsubstantiated

Claims Prior To Trial And, Instead, Has

Virtually Eliminated Summary Judgment In

Employment Discrimination Cases ......... 4

eer Tee ee TEE ee 19

TABLE OF AUTHORITIES

CASES

Anderson vy. Liberty Lobby, Inc., |

477 U.S. 242 (19GB)... . . o0c0seseces une passim

Askin vy. Firestone Tire & Rubber Co.,

600 F. Supp. 751 (E.D. Ky. 1985),

aff'd w/o op., 785 F.2d 307

(6th Civ. 1966)... cc cccccusecsssueeeeee 18

Bhaya v. Westinghouse Elec. Corp.,

832 F.2d 298 (34 Cie. 1967)... . .-cdcunueeeeee 8

Board of Trustees of Keene State College v. Sweeny,

439 US. 24 (197E). . ... ec ccnccsseueeueee 12

Celotex Corp. v. Catrett, |

477 US. 317 (19GB). «oc ccneseuceuneeee passim

Chipollini v. Spencer Gifts, Inc.,

814 F.2d 893 (3d Cir.), 7

cert. dismissed, 108 S. Ct. 26 (1987). ........ passim

Dale v. Chicago Tribune Co.,

797 F.2d 458 (7th Cir. 1986),

cert. denied, 107 S. Ct. 954 (1987).............. 15

Dea v. Look,

810 F.28 12 (ies Cie. 1967). .... 0 ccccuupee eee 14

Elliot v. Group Medical & Surgical Serv.,

714 F.2d 556 (Sth Cir. 1983),

cert. denied, 467 U.S. 1215 (1984). ............. 12

Goldberg v. B. Green & Co.,

$36 F.2d 845 (4th Cie. 1908) .... 00. uunneenee 17

Graham vy. F. B. Leopold Co.,

779 F.28 170 (38 Cir. 1965)... 5-5 00nneeeee 9. 10

Grigsby v. Reynolds Metals Co.,

821 F.2d 590 (11th Cir. 1987) ................. 16

Jackson v. University of Pittsburgh,

826 F.2d 230 (3d Cir. 1987)

cert. denied, 108 S. Ct. 732 (1988).............. .)

Knight v. U.S. Fire Ins. Co.,

804 F.2d 9 (2d Cir. 1986),

cert. denied, 107 S. Ct. 1570 (1987)............. 8

Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

ccc cece ccecs *,

McDonnell Douglas Corp. v. Green,

ee passim

Meiri v. Dacon,

759 F.2d 989 (2d Cir.), cert. denied,

474 U.S. 829 (1985) ..... Sa 13, 14

Pollard v. Rea Magnet Wire Co.,

824 F.2d 557 (7th Cir.),

cert. denied, 108 S. Ct. 488 (1987).............. 15

Slaughter v. Allstate Ins. Co.,

803 F.2d 857 (Sth Cir. 1986) ............... 15, 16

Sorba vy. Pennsylvania Drilling Co.,

821 F.2d 200 (3d Cir. 1987),

cert. denied, 108 S. Ct. 730 (1988). ........ 8, 10, 11

Texas Dep't. of Community Affairs v. Burdine,

I, cw cc tcc cee cces passim

Treese v. Chevron Corp.,

666 F. Supp. 76 (W.D. Pa. 1987), aff'd w/o op.,

No. 87-3608, 1988 U.S. App. LEXIS 5196

SE SD ww ww wk cc ccc cc cess 7

Page(s)

White v. Vathally,

732 F.2d 1037 (1st Cir.), cert. denied,

GaP Uk Gee CG TS Sin nc oe Gees oR dies 15

STATUTE

Age Discrimination in Employment Act,

oP UR. Sore OER. bo es 0 oes passim

OTHER AUTHORITIES

Reports of the Proceedings of the Judicial

Conference of the United States, Annual Report

of the Director of the Administrative Office of

the United States Courts (1987)................ 6

Calkins, Summary Judgment, Motions to Dismiss,

and Other Examples of Equilibrating Tendencies

in the Antitrust System, 74 Geo. L.J. 1065

CE SUR bs boo ak rack chasse Ps aeete sae 8

Milone, Age Discrimination: Proving Pretext Under

The ADEA, 13 Empl. Rel. L.J. 104 (1987) ....... 12

Schwarzer, Summary Judgment under the Federal

Rules: Defining Genuine Issues of Fact, 99

PO I OCCT TTT CTT ee 5, 8

Weakland, Life In The 3rd Circuit, The

Pennsylvania Lawyer 6 (Oct. 1987)............. 8

No. 87-271

In the

Supreme Court of the United States

October Term, 1987

HARBISON-WALKER REFRACTORIES, A DIVISION

OF DRESSER INDUSTRIES, INC..,

Petitioner,

Vv.

EUGENE F. BRIECK,

Respondent.

On Writ OF CERTIORARI TO THE

UNITED States Court OF APPEALS

For THE THIRD CIRCUIT

AMICUS CURIAE BRIEF

OF THE CHAMBER OF COMMERCE

OF THE UNITED STATES OF AMERICA

IN SUPPORT OF PETITIONER

Amicus Curiae files this Brief in support of Petitioner

pursuant to Rule 36 of the Rules of the Supreme Court of

the United States. The written consents of Petitioner and

Respondent have been filed with the Court.

INTEREST OF AMICUS CURIAE

The Chamber of Commerce of The United States

(“Chamber”) is a nonprofit corporation organized and

existing under the laws of the District of Columbia. The

Chamber is the largest federation of business, trade and

professional organizations in the United States. The

Chamber has over 180,000 corporate, partnership and pro-

prietorship members, as well as state and local chambers of

commerce and trade associations. The Chamber’s mem-

bers employ approximately 22,817,000 persons.

The Chamber regularly represents its members in

important employment and iabor relations matters, such

as this case. before the United States Courts, the United

States Congress and the Executive Branch and regulatory

agencies of the United States.

The Chamber’s members have a significant interest in

the question presented in this case. This Court has been

asked to determine whether Respondent, who alleges

intentional employment discrimination, properly avoided

summary judgment merely by questioning Petitioner's

business judgment, without presenting any evidence, direct

or indirect, that Petitioner’s judgment was in fact moti-

vated by an intent to discriminate. This question arises

from the standard for resolving summary judgment

motions in employment discrimination cases which has

been adopted by the United States Court of Appeals for the

Third Circuit. In its in banc decision in Chipollini v. Spen-

cer Gifts, Inc., 814 F.2d 893 (3d Cir.), cert. dismissed, 108

S. Ct. 26 (1987), and in this case, the Third Circuit

reversed summary judgments entered for employers and

held that a plaintiff in an employment discrimination case

may avoid summary judgment by merely casting doubt on

the credibility of the employer's articulated reasons for the

employment action, regardless of whether or not the plain-

tuff presented any evidence of discrimination. This stan-

dard is not only contrary to this Court’s precedent but also

severely restricts the power of trial courts to decide cases

before trial.

Indeed, the Third Circuit has virtually eliminated the

possibility of summary judgment in employment discrimi-

nation cases, which continue to crowd the federal courts’

already overburdened dockets. This results in a significant

restriction of the available options Chamber members

have in defending such cases, and in an escalation of the

already high costs of litigation as more of these cases pro-

ceed to expensive and time-consuming trials. If this Court

adopts the Third Circuit’s standard for resolving employ-

ment discrimination summary judgment motions, the fed-

eral courts will become, whenever an employee attacks an

employment decision, nothing more than second guessers

of Chamber members’ routine business judgments. This,

of course, is not the role of the federal courts. Therefore.

the Chamber submits that it is vital to its members’ inher-

ent managerial prerogatives, and to the management of

federal court dockets, that this Court reject the Third Cir-

cuit’s standard for resolving summary judgment motions

in employment discrimination cases.

SUMMARY OF ARGUMENT

The Third Circuit’s standard for resolving employ-

ment discrimination summary judgment motions directly

conflicts with this Court’s general teachings regarding sum-

mary judgment. Under the Third Circuit’s standard, a

plainuff can avoid summary judgment, can proceed to

trial, and can ultimately prevail, without ever establishing

a causal nexus between the adverse employment action

and any statutorily-forbidden criterion. This standard has

not only virtually eliminated summary judgment in

employment discrimination cases in the Third Circuit but

also, as a practical matter, severely and unfairly hinders

the defense of such actions.

The Third Circuit’s standard also conflicts with this

Court’s rulings on the proper allocation of the burden of

proof in employment discrimination cases. Unless this

Court rejects the Third Circuit’s flawed approach to sum-

mary judgment, plaintiffs will be able to proceed to trial

with cases that should have been disposed of on summary

judgment as factually unsupportable. Congress never

intended that the federal anti-discrimination statutes

should become vehicles for second-guessing an employer's

routine business and employment decisions, and this

Court should not place its imprimatur on such an unsanc-

uoned result.

ARGUMENT

THE THIRD CIRCUIT’S SUMMARY JUDGMENT

STANDARD IN EMPLOYMENT DISCRIMINATION

CASES SHOULD BE REVERSED AS A MATTER

OF LAW AND POLICY

The Third Circuit Has Ignored This Court's Instruc-

tion That Summary Judgment Is An Important Part

Of Federal Procedure Intended To Dispose Of Unsub-

stantiated Claims Prior To Trial And, Instead, Has

Virtually Eliminated Summary Judgment In Employ-

ment Discrimination Cases.

This Court’s 1986 trilogy of summary judgment cases

soundly reaffirms, and indeed mandates, the vitality and

effectiveness of summary judgment as the proper and effi-

cient way of eliminating unfounded claims without the

time and expense a trial requires. Celotex Corp. vy. Catrett,

477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477

U.S. 242 (1986); Matsushita Elec. Indus. Co., v. Zenith

Radio Corp., 475 U.S. 574 (1986). These decisions serve as

a well-needed tocsin that federal courts can and should

dispose of unmeritorious claims before trial.!

In Celotex Corp., this Court unequivocally stressed

the important role served by summary judgment in the

overall scheme of the Federal Rules of Civil Procedure:

Summary judgment procedure is properly regarded

not as a disfavored procedural shortcut, but rather as

an integral part of the Federal Rules as a whole, which

are designed “to secure the just, speedy and inexpen-

sive determination of every action.”

477 US. at 327.

Further, in Celotex Corp. this Court admonished the

lower courts that, under Rule 56, they must be cognizant of

the rights of persons opposing factually unsupportable

claims or defenses to have such claims or defenses dis-

posed of prior to trial:

‘Federal courts, and particularly the Third Circuit (both historically

and recently), have not always embraced the summary judgment proce-

dure. See Schwarzer, Summary Judgment under The Federal Rules:

Defining Genuine Issues of Fact, 99 F.R.D. 465, 466-67 (1984) (* Discus-

sions of summary judgment [by the federal courts] generally consist of

formalistic rhetoric and often reflect a hostility toward summary proce-

dures [and] an inclination toward sparing application of the rule....

This ts a regrettable state of affairs, frustrating the intent of those who

drafted Rule 56 and of the Supreme Court and Congress which adopted

it to further the efficient and economical resolution of issues not

requiring .. . trial.”’)

Rule 56 must be construed with due regard not only

for the rights of persons asserting claims and defenses

that are adequately based in fact to have those claims

and defenses tried to a jury. but also for the rights of

persons opposing such claims and defenses to demon-

strate in the manner provided by the Rule, prior to

trial, that the claims and defenses have no factual

basis.

Celotex, 477 U.S. at 327.

Because the flood tide of employment discrimination

cases continues in the federal courts, the role of summary

judgment in promoting the just, speedy and inexpensive

determination of cases demands even greater emphasis. As

of June 30, 1987, approximately 10,500 private employ-

ment-related civil rights cases were pending in the federal

courts.2 During the 12 months preceding that date, nearly

9.000 additional employment-related civil rights cases

were filed in the federal district courts.* Even more striking

is the fact that a greater percentage of employment-related

civil rights cases go to trial than any other category of

federal question and d'versity cases.*

*Reports of the Proceedings of the Judicial Conference of the

United States, Annual Report of the Director of the Administrative

Office of the United States Courts (1987). Table S-12 (at 116).

‘Id., Table C-2 (at 178).

‘Jd. Table C-4 (at 209). The statistical deta establishes that on a

national level 14.3% of the employmwnt-related civil rights cases

reached trial in the 12 month pers «dig Jeane 30, 1987, while only

8.0% of diversity cases reached tr). eet Oats 5.6% of all federal ques-

tion cases reached trial, during “Mes 4.me period. Table C-4 (at 209.

210). Further. the vast majority of nals in empioyment-related

civil rights cases, which are available, for example. under the Age Dis-

crimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., lasted

from between 4 to 9 days. Table C-8 (at 226).

Therefore, in light of Celotex Corp., Anderson, and

Matsushita, and in light of the already large federal court

case load, the use of the summary judgment procedure

should be heartily endorsed by the courts of appeals.

Indeed, most have done just that. But the Third Circuit’s

standard in employment discrimination cases, because it

permits plaintiffs to go to trial without adducing any evi-

dence of discrimination, completely eviscerates Rule 56

and makes summary judgment for defendants a chimera.

As aptly stated by the United States District Court for

the Western District of Pennsylvania in 7reese v. Chevron

Corp., 666 F. Supp. 76 (W.D. Pa. 1987). aff'd w/o op., No.

87-3608, 1988 U.S. App. LEXIS 5196 (3d Cir. March 24,

1988), “Defendant attempts what is now nearly impossi-

ble—summary judgment in an age discrimination case.”*

Similarly, as noted by one commentator:

The [Third Circuit] court of appeals’ reputation for

summary judgment is not soft either. The court has

been roundly criticized by trial judges and litigators

because it scours the record to find a scintilla of evi-

dence raising a factual issue. Chief Judge John P. Ful-

lam of the Eastern District of Pennsylvania joked that

‘In 7 reese, plainuftt filed an ADEA action alleging that his discharge

was based upon his age. 666 F. Supp. at 76. Defendant moved tor

summary judgment contending that plaintuff's suit should be dismissed

because it was filed beyond the two year limitations period for ADEA

claims, and because plainuff presented no evidence of “willfulness”

which would have entitled him to the ADEA’s three year limitations

period. /d. at 76-77. The district court agreed holding that plainuff could

not satisfy even ‘he “minimum quantum” of evidence under the heigist-

ened evidentiary standard for finding a willful violation of the ADEA

Id. at 77. The district court. however, further remarked that plainutt

likely would have avoided summary judgment based upon the evidence

he presented “in light of Chipollini vs Spencer Gifts, Inc., 814 F.2d 893

(3d Cir. 1987), if this case had been filed within two years of plainutfs

discharge.” 666 F. Supp. at 77

the court of appeals “can find an issue of fact under a

rock.”

Weakland, Life In The 3rd Circuit, The Pennsylvania Law-

yer 6, 8 (Oct. 1987).°

The Third Circuit’s in banc decision in Chipollini and

its progeny clearly illustrate the Third Circuit’s micro-

scopic search for a fact issue and its misapplication of this

Court’s precedent. In fact, in Chipollini, Sorba v. Pennsyl-

vania Drilling Co., 821 F.2d 200 (3d Cir. 1987), cert

denied, 108 S. Ct. 730 (1988), and the instant case, u»

Third Circuit reversed summary judgments on the ba’

that, to avoid summary judgment and thereby proceed t-

trial, a plaintiff must only cast doubt on an employer's

articulated reasons for the attacked employment action,

without adducing any direct or indirect evidence of

discrimination.’

‘Unlike several other courts of appeals. there appears to be a lack of

published empirical data regarding the Third Circutt’s rate cf reversal or

affirmance of summary judgments. See, e.g.. Anight v. U.S. Fire Ins. Co.,

804 F.2d 9, 12 (2d Cir. 1986). cert. denied, 107 §. Ct. 1570 (1987), where

in light of Celotex and Anderson, the Second Circuit went to great

lengths to point out to the bar that a recent study had confirmed a high

affirmance rate by the Second Circuit in summary judgment cases:

Schwarzer, supra at 467 n 9 (data on Ninth Circuit); Calkins, Summar)

Judement, Motions to Dismiss, and Other Examples of Equilibrating

Tendencies in the Antitrust System, 74 Geo. L. J. 1068, 1113 n. 347

(April 1986) (listing various studies regarding summary judgment rever-

sal and affirmance rates in courts of appeals and district courts). In his

article on the Third Circuit, Weakland states that most civil case rever-

sals in the Third Circuit in 1986 involved summary judgment or Rule

| 2 dismissals. Weakland. supra, at 7. According to Weakland, of the 133

published reversals in civil cases in the Third Circuit in 1986, 79 dealt

with either surmmary judgment or Rule |2 dismissals. /d

The Third Circuit has also utilized this same analysis in reversing

judgment notwithstanding the verdict for an employer in an ADEA

acuon. See Bhava v. Westinghouse Elec. Corp., 832 F.2d 258 (3d Cir

(Continued on next page)

In Chipollini, the plaintiff presented no evidence of

age discrimination—he merely asserted that the defen-

dant’s proffered reasons for his termination from employ-

ment were untrue. 814 F.2d at 899-901: see also 814 F.2d

at 904 (Hunter, J. dissenting). The Third Circuit held that

this assertion was sufficient to avoid summary judgment

because “the issue of pretext turns on Spencer's [the

employer's] credibility... .”” 814 F.2d at 901. According to

the Third Circuit, “a plaintiff can prevail by means of

indirect proof that the employer’s reasons are pretextual

without presenting evidence specifically relating to age.”

Id. at 898. The Third Circuit held that the proper analysis

is as follows:

the [district] court should have considered whether

evidence of inconsistencies and implausibilities in the

employer's proffered reasons for discharge reasonably

could support an inference that the employer did not

act for non-discriminatory reasons, not whether the

evidence necessarily leads to that conclusion that the

employer dic act for discriminatory reasons.

814 F.2d at 900 (emphasis in original), citing Graham vy.

F. B. Leopold Co., 779 F.2d 170, 172-73 (3d Cir. 1985).*

Continued)

1987). For application of this analysis to other discrimination claims

resulting in a reversal of sumraary judgment, see Jackson v. Cniversit

Pitshureh, 826 F.2d 230 (3d Cir. 1987), cert. denied, 108 S.Ct 732

(1988) (race) ,

‘The Graham decision started the Third Circuit down the road to

the inevitable review by this Court of its flawed summary judgment

standard. There. plaintiff, who had been terminated as a result of a

corporate reduction in force, brought an ADEA action challenging his

termination. The Third Circuit reversed the district court's entry of

summary judgment for the defendant. In Graham, as in Chipollini

there was insufficient evidence to create a genuine issue of fact regarding

whether the employer's articulated reason was really a pretext for age

Continued on next page)

Thus, the Third Circuit acknowledged in Chipollini that it

has. in effect, removed the requirement that a plaintiff

prove that he or she was discriminated against because of

age.

Similarly, in Sorba, also an ADEA action, the Third

Circuit reversed the district court’s entry of summary judg-

ment for the employer on the basis of plaintiff's assertion

that his employer’s articulated reason for his discharge,

i.e., poor job performance, was unfounded. 821 F.2d at

203-205. Relying upon Chipollini, the Third Circuit held

that:

The district court’s error in this case 1s the same as

that of the district court in Chipollini. To defeat a

summary judgment motion based only on a defen-

dant’s proffer of a nondiscriminatory animus, a plain-

tiff who has made a prima facie showing of discrimi-

nation, need only point to evidence establishing a

reasonable inference that the employer's proffered

explanation is unworthy of credence.

In this case, Sorba’s trial burden will be to show that it

is more likely than not that the employer did not dis-

charge him because of the poor results on his last three

(Continued

discrimination. In dissent, Judge Adams criticized the majority for its

overreaching. which he believed was designed to create a “factual

dispute”

| merely state that, in my view, the record presented here does not

reasonably support an inference that the decision to terminate Gra-

ham was caused by anything but economically motivated efforts at

reorganization. If courts strain to find snippets of evidence to sup-

port highly questionable inferences of discriminatory conduct they

not only wall undvly hobble necessary restructuring by hard-pressed

industries, but eventually cause Congress to reconsider the control-

ling legislation.

779 F.2d at 175.

’

jobs. Therefore, to defeat a summary judgment

motion, the evidence need only establish a reasonable

inference that the employer did not dismiss Sorba

because of his poor performance.

821 F.2d at 205 (emphasis in original; footnote omitted).

As in Chipollini, plaintif? presented no evidence which

directly or indirectly related to age discrimination.

In the instant case, like Chipollini and Sorba, the

Third Circuit reversed the district court’s entry of sum-

mary judgment for Petitioner without any showing that

any dispute of material fact existed which would demon-

strate that Petitioner’s articulated reasons for Respon-

dent’s lay-off were a pretext for age discrimination. See

Pet. App. 10a-lla (Weis, J. dissenting). Here, Respondent

was laid-off pursuant to a reduction in force while Peti-

tioner retained a younger employee because of his more

diverse skills and broader exerience. /d. at 3a. In oppos-

ing summary judgment below, Respondent did not chal-

lenge Petitioner’s claim that the younger employee had the

more diverse background; instead, he questioned only

Petitioner's business judgment that such diverse experi-

ence was utilized enough to justify the younger employee's

retention. /d. at 5a. The Third Circuit held that this, with-

out any more, was enough to avoid summary judgment

and proceed to trial.

Simply put, the Third Circuit’s summary judgment

standard, as set forth in Chipollini, Sorba and this case,

cannot be reconciled with this Court’s mandate that the

ultimate issue in a discrimination case is whether the

employer engaged in intentional discrimination. /exas

Dep't. of Community Affairs v. Burdine, 450 U.S. 248, 253

(1981): McDonnell Douglas Corp. v. Green, 411 U.S. 792,

805 (1973): see also, Milone, Age Discrimination: Proving

Pretext Under The ADEA, 13 Empl. Rel. LJ. 104, 108

(1987). This burden of persuasion remains at all times with

the plaintiff. Burdine, 450 U.S. at 253. The defendant is

not required to prove, at any stage, the absence of a dis-

criminatory motive. Board of Trustees of Keene State Col-

lege v. Sweeney, 439 U.S. 24, 25 (1978) (per curiam). Yet,

by permitting a plaintiff to defeat a summary judgment

motion and even, ultimately, prevail at trial without

presenting any evidence of discrimination, the Third Cir-

cuit has impermissibly shifted the burden of persuasion

from plaintiff to defendant. See Chipollini, 814 F.2d at

902-904 (Hunter, J. dissenting). Accordingly, the Third

Circuit’s decision in Chipollini and its progeny, including

the instant case, represent a fundamental departure from

the McDonnell Dougias/Burdine analysis which this Court

should not permit.

As noted, the Third Circuit’s standard virtually elimi-

nates summary judgment in employment cases. This not

only severely hinders the defense of such actions by

unfairly restricting the employer’s available options and

‘The Fifth Circuit. in Elliot v. Group Medical & Surgical Serv., 714

F.2d 556 (5th Cir. 1983), cert. denied, 467 U.S. 1215 (1984), explicitly

rejected such a shifting of the burden of persuasion and reversed a jury

verdict in favor of a group of employees who had been terminated in

connection with a corporate reorganization:

\fcDonnell-Douglas is not a vehicle that permits a plaintiff to cast

the burden of persuasion on the defendant and compel him to

prove that his actions were nondiscriminatory. Nor ts tt a device

which permits the jury to examine an employer's reasons for dis-

charge and determine that the employer's business judgment or

policies do not appeal to its sensibility. The inquiry ts whether the

plaintiff has been discriminated against because of his age. the

ADEA proscribes no other conduct

714 F.2d at 566-67 (citation omitted)

litigation strategy, but also serves to increase the likelihood

that factually unsupportable and even frivolous cases will

reach trial. A disgruntled employee can, and generally

does, easily question, through self-serving affidavits, his or

her emplover’s proffered reasons or business judgment for

an adverse ernployment decision. There can be no doubt

that. if this Court does not reject the Third Circuit's flawed

analysis, the result will be far more trials, far higher settle-

ment costs and far higher defense costs. Certainly plain-

tiffs, even (perhaps, particularly) in dubious cases, will per-

ceive their positions to be stronger than ever. Such a

situation will completely undermine the clear purpose of

Rule 56 to dispose of, efficiently and effectively, claims

which are based upon speculation.

Indeed. the Third Circuit’s summary judgment stan-

dard is also antithetical to the standard several other courts

of appeals have applied when resolving such motions

under the McDonnell Douglas/Burdine analysis. These

courts recognize that summary judgment occupies just as

important a role in employment discrimination cases as in

any other type of case. The fact that employment discrimi-

nation cases involve questions of motivation or intent has

no bearing on the availability of summary judgment.

Anderson, 477 U.S. at 256-57. As stated by the Second

Circuit in Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.), cert.

denied, 474 U.S. 829 (1985):

The summary judgment rule would be rendered ster-

ile. however, if the mere incantation of intent or state

of mind would operate as 4 talisman to defeat an

otherwise valid motion. Indeed, the salutary purposes

of summary judgment—avoiding protracted, expen-

sive and harassing trials—apply no less to discrimina-

tion cases than to commercial or other areas of

litigation.

As we have stated, “[a] party opposing a motion for

Summary judgment simply cannot make a secret of his

evidence until the trial for in doing so he risks the

possibility that there will be no trial.” ...

To allow a party to defeat a motion for summary

judgment by offering purely conclusory allegations of

discrimination, absent any concrete particulars, would

necessitate a trial in all Title VII cases. Given the ease

with which these suits may be brought and the energy

and expense required to defend such actions, we

believe the trial judge properly granted summary

judgment.

759 F.2d at 998 (citations omitted).

So also, in Dea v. Look, 810 F.2d 12 (1st Cir. 1987),

the First Circuit affirmed summary judgment for the

employer, despite the plaintiffs attempts to discredit the

employer's articulated reason for the discharge. The court

noted that the plaintiff's challenge to the employer's stated

justification “merely provide[s] another reason, totally

unrelated to age, for his discharge.” /d. at 15. The First

Circuit held that:

evidence contesting the factual underpinnings of the

reason for the discharge proffered by the employer is

insufficient, without more, to present a jury question.

Plainuff continues to carry ‘he burden of showing dis-

criminatory intent, and... {he] cannot meet his bur-

den of proving “pretext” simply by refuting or ques-

tioning the defendants’ articulated reason.

Id.; see also White v. Vathally, 732 F.2d 1037, 1043 (Ist

Cir.) (“[mJerely casting doubt on the employer’s articu-

lated reason does not suffice to meet the plaintiff's burden

of demonstrating discriminatory intent... .”), cert. denied,

469 U.S. 933 (1984).

Similarly, the Seventh Circuit in Dale v. Chicago Trib-

une Co., 797 F.2d 458 (7th Cir. 1986), cert. denied, 107 S.

Ct. 954 (1987), affirmed summary judgment for an

employer which had proffered a nondiscriminatory expla-

nation for a discharge. The Seventh Circuit held that a

plaintiff “must establish a nexus” between the evidence

which purported to show that the employer’s explanation

was unworthy of credence and age discrimination. /d. at

465. Because the plaintiff's evidence in Da/e did not relate

to age, and consisted principally of “self-interested asser-

tions” which challenged the prudent business judgment of

his supervisors, summary judgment was held to be appro-

priate. /d. at 464-65. Unlike the Third Circuit, the Seventh

Circuit properly refused to allow piaintiff's assertions that

his performance was adequate, without more, to defeat

summary judgment.'”

Likewise, in Slaughter v. Allstate Ins. Co., 803 F.2d

857 (Sth Cir. 1986), the Fifth Circuit affirmed the district

court’s entry of summary judgment for the employer.

“The Seventh Circuit also aptly noted that it “does not sit as a

super-personnel department that reexamines an entity's business deci-

sions.” 797 F.2d at 464: see also Pollard v. Rea Magnet Wire Co., 824

F.2d $57. $59 (7th Cir.) (in employment discrimination case the Sev-

enth Circuit reversed verdict for employee where district court had not

concluded that employee had established that employer's reasons for

discharge were a “pretext for discrimination” but, instead, had merely

concluded that employer had insufficient cause to fire employee. plain-

uff is required to “show not only a false reason but also a causal chain tn

which race or another forbidden criterion plays a dispositive role”), cert

dented, 108 S. Ct. 488 (1987)

There, plaintuff, an insurance agent, was discharged for

submitting a false insurance claim for damages to his

home. 803 F.2d at 858-59. He was then replaced by a

younger employee. /d. Plaintiff brought suit asserting, inter

alia, an ADEA claim. The Fifth Circuit, recognizing the

impact of Celotex and Anderson, properly concluded that

plaintiff had failed to produce any evidence establishing

that the articulated reason for his discharge was a pretext

for age discrimination. 803 F.2d at 860-61. The Fifth Cir-

cuit determined that, although plaintiff testified in his dep-

osition that he believed that his employer had a policy of

replacing employees over age 40 with younger agents to

reduce expenses, he adduced no evidence of such a policy

and “[t]estimony based on conjecture alone is insufh-

cient....” 803 F.2d at 860; see also Grigsby v. Reynolds

Vetals Co., 821 F.2d 590, 596-97 (11th Cir. 1987) (sum-

mary judgment in age and sex discrimination case

affirmed; plaintiff's “conclusory allegations of discrimina-

tion, without more, are not sufficient to raise an inference

of pretext or intentional discrimination... .”’)

In stark contrast to these holdings of other courts of

appeals, a plaintiff in the Third Circuit can avoid summary

judgment, can plead his case to the jury, and can ulti-

mately prevail without ever providing any direct or indi-

rect evidence of a causal nexus between the adverse

employment action and a statutorily prohibited reason, for

example, as here, age. This is hardly the kind of situation

that Congress envisioned when it enacted Title VII and

ADEA to remedy only certain narrowly-defined types of

employment decisions—ones which are based upon dis-

criminatory reasons.

The federal anti-discrimination statutes were never

intended to provide a forum for disgruntled employees to

air their complaints. They do not impose (and were never

designed to impose) upon employers the burden of estab-

lishing a just or proper cause for their personnel decisions.

Yet, this is exactly the result which occurs under the Third

Circuit’s standard. Acccrdingly, it is imperative that this

Court reemphasize that McDonnell Douglas and Burdine

require not only proof that plaintiff suffered an adverse

employment action, but also that this adverse employment

action happened to plaintiff because of his or her race, age.

sex or some other statutorily-prohibited reason. Without

this logical nexus between the adverse employment action

and a statutorily-prohibited reason, the McDonnell Doug-

las/ Burdine analysis becomes nothing more than a hollow

shell. In such a situation, an employer likely will face ever

increasing liability merely because a jury or judge may

disagree with its reasons for an employment decision.

The Third Circuit itself seems to recognize that its

new standard results in giving the anti-discrimination laws

an effect never contemplated by Congress. In Chipollini,

the Third Circuit offered this advice to employers: “A

defendant which is less than honest in proffering its reason

for discharge risks an unnecessary age discrimination ver-

dict.” 814 F.2d at 899. Thus, the Third Circuit has admit-

ted that it has turned the federal anti-discrimination stat-

utes into codes of good faith and fair dealing. In other

words, the Third Circuit's standard has changed these laws

from ones designed to prevent discrimination into laws

which punish employers for not being brutally frank with

their employees.

The Third Circuit completely ignores the fact that an

employer's articulated reason for terminating an employee

may be “pretextual” without violating the ADEA or any

other civil rights statute. See Goldberg v. B. Green & Co.,

836 F.2d 845, 849 (4th Cir. 1988). An employer motivated

by unpublicized financial problems, a desire to spare the

feelings of a loyal or long-term employee or even nepotism

may provide an employee with an explanation which is

not entirely accurate, although well-intentioned. See, e.g.,

Askin y. Firestone Tire & Rubber Co., 600 F. Supp. 751,

755 (E.D. Ky. 1985), aff'd w/o op., 785 F.2d 307 (6th Cir.

1986); Chipollini, 814 F.2d at 903 (Hunter, J. dissenting).

In such circumstances, the employer has committed no

illegal act under any statute, yet the Third Circuit permits

a jury to hold otherwise.

Unless this Court rejects the Third Circuit’s standard

for resolving summary judgment motions in employment

discrimination cases, plaintiffs will be encouraged more

than ever to file suspect or dubious discrimination claims

which will likely reach trial. Such a situation is inherently

unfair to employers who often must make hard employ-

ment decisions based upon economic realities, and unduly

increases the workload of an already overburdened federal

court system.

CONCLUSION

For all of the foregoing reasons, Amicus Curiae

respectfully urges this Court to reverse the decision of the

Third Circuit in this case and reject the Third Circuit's

standard for resolving employment discrimination sum-

mary judgment motions.

Respectfully submitted,

Of Counsel: Joun C. Unkovic*

Mark A. FONTANA ;