# Amicus Curiae Brief — Harbison-Walker Refractories v. Brieck

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1988
- **Citation:** 488 U.S. 226

## Text

No. 87-271

In the
Supreme Court of tye United States

October Term, 1987

HARBISON-WALKER REFRACTORIES, A DIVISION
OF DRESSER INDUSTRIES, INC..,
Petitioner,
wv
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

il
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

*s

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

iv

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

i
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.

2

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

3

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

4

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

5

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.”’)

6

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

8

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)

9

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)

10

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.

’

1]

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,

12
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)

13

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

14

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.

15

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)

16

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

17

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.,

18

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.

19

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 ;

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

Dated: May 5, !988

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0843%3A10. Public record. Not legal advice.