Amicus Curiae Brief — St. Mary's Honor Center v. Hicks

> Buprems Court, U.S.

FILED

| | FEB 22 1993

No. 92-602 : DEFICE OF JHE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

Octoser Term, 1992

ST. MARY’S HONOR CENTER

and STEVEN LONG,

Petitioners,

Vv.

MELVIN HICKS,

Respondent.

On Writ oF CERTIORARI TO THE

Unrrep STaTes Court OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF OF WASHINGTON LEGAL FOUNDATION

AND THE EQUAL OPPORTUNITY FOUNDATION

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

Hugh Joseph Beard, Jr. Daniel J. Popeo

THE EQUAL OPPOR- Richard A. Samp

TUNITY FOUNDATION (Counsel of Record)

1747 "S" Street, NW WASHINGTON LEGAL

Washington, DC 20009 FOUNDATION

(202) 543-0411 1705 "N" Street, NW

Washington, DC 20036

(202) 857-0240

Date: February 22, 1993

fs - .

eee ee! ee ee Pe a

QUESTION PRESENTED

In an employment discrimination action brought

pursuant to Title VII of the Civil Rights Act of 1964 and

42 U.S.C. § 1983, is judgment for the employee

compelled, as a matter of law, by a finding that the

employer’s stated non-discriminatory reasons for adverse

employment action are not the employer’s actual reasons?

TABLE OF CONTENTS

Page

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

INTEREST OF THE AMICI] CURIAE ......... l

PEE GP OEE ccc ccccccccccecs 3

SUMMARY OF ARGUMENT ............. 5

GEE Se wbe beet ecoedesoccoeves 7

I. THE COURT OF APPEALS IMPROPERLY

RELIEVED HICKS OF HIS BURDEN OF

PERSUASION BY INTERPRETING THE

EFFECT OF THE McDONNELL-BURDINE

PRESUMPTION TOO STRONGLY ..... 7

fl. THE COURT’S LIMITED CONSTRUC-

TION OF THE McDONNELL-BURDINE

PRESUMPTION IS REQUIRED BY FRE

SEE cov esbes se eserecseerceon. 11

A. General Procedural Rules, Including the

Federal Rules of Evidence, Govern

Employment Discrimination Litigation . 12

B. Rule 301 of the Federal Rules of Evi-

dence Follows the View of Presumptions

Propounded by Professor Thayer .... 14

C. Burdine Recognizes that Rule 301 Adopts

3 ee ae 23

Il. APPLICATION OF RULE 301 TO THE

McDONNELL-BURDINE PRESUMPTION

DOES NOT UNFAIRLY HAMPER

DUE Soc ceececeeceeecesceses 28

iV

TABLE OF AUTHORITIES

Cases: Page

Albemarle Paper Co. v. Moody, 422 U.S.

ns Die alate et ble oe oct «6 6’ 6 10

Connecticut v. Teal, 457 U.S. 441 (1982) ....... 10

Furnco Construction Corp. v. Waters,

«6 kc au c's es eeeees 8

McDonnell Douglas Corp. v. Green,

411 US. eee passim

Martin v. Wilks, 109 S. Ct. 2180 (1989) ....... 12

New York City Transit Authority v.

Beazer, 440 U.S. 568 (1979) ............ 10

Patterson v. McLean Credit Union,

485 U.S. 620 (1988)(per curiam) ......... 12

Price Waterhouse v. Hopkins, 109

C.D cease ee ccce ess 12

Teamsters v. United States, 431 U.S.

DE? 2h ees 6 ee a 66 66 06 0 8 6 8 8

Texas Department of Community Affairs

v. Burdine, 450 U.S. 248 (1981)....... passim

United States Postal Serv. Bd. of Governors

v. Aikens, 460 U.S. 711 (6 ds 652 os 7, 12, 27

Wards Cove Packing Co. v. Atonio,

109 S. Ct. 2115 (1989) ........ 12, 24, 26-27

Constitutional Provisions, Statutes, and Rules:

ee Gs PEE, cc cccccccccesces O

Civil Rights Act of 1964, Title VII,

42 U.S.C. § 2000s, ef seg. .... 1... passim

Gp ee 6.646 9.00 6000008000680 08% 8

ST 16 eee ~guedd 6 Gh Ow eee Ree 8

Federal Rules of Evidence, Rule 301 ....... passim

Legislative Materials: Page

110 Cong. Rec. 7214 ee ag

120 Cong. Rec. 36925 (1974) eo cc as 19

Rules of y+ lhe Hearin

wy fet of Federal

-r of the House Comm.

on the Fubar (“House Hearings"),

93d . Ist Sess. (1973) ........ 14, 17, 22

Law Review Articles and Treatises:

Beard, Title VII and Rule 301: An Analysis

of the Watson and Atonio Decisions,

23 Akron L. Rev. 105 (1989) ........... 15

Belton, Burdens of Pleadings and Proof in

Discrimination Cases: Toward a Theory

of Procedural Justice, 34 Vand. L.

i i hs hi kls 6 6 6 6 0660 0 6 ¢ 21

Bohlen, The Effect of Rebuttable Presump-

tions _— -_ the Burden of Proof,

68 U L i aed «66 4 6s 16

D. Louisell & C. Mueller,

Federal Evidence (1977) .......... 13, 16, 22

J. Moore, Moore’s Federal Practice

a 14, 17

E.M. Morgan, Basic Problems in Evidence

is 2's cae Gee bide 6 'e 0's 15, 22-23

vi

Morgan & Maguire, Looking Backward and

Forward at Evidence, 50 Harv.

= F Ke rar a ar ie 17

J.B. Thayer, Preliminary Treatise on

Evidence at the Common Law (1898) ....... 15

J.B. Weinstein and M.A. Berger,

Weinstein’s Evidence, (1989) ... 16-17, 19, 22-23

J.H. Wigmore, Evidence (3d ed. 1940) ........ 13

J.H. Wigmore, Evidence in Trials at Common

Law (Chadbourne rev. 1981) ....... 14, 17, 22

Miscellaneous:

Advisory Committee Note, FRE 301 ....... 16, 17

P. Brimelow and L. Spencer, "When quotas

replace merit, everybody suffers,"

PPE SEE Sceccecccecsess 2

Revised Draft of Proposed Rules of Evi-

dence for the United States Courts

and Magistrates, 51 F.R.D. 315 (1971) ..... 14

Rules of Evidence for United States Courts

and Magistrates, 56 F.R.D. 183 (1973) ..... 14

Webster's Third New Int’l Dictionary (1971) ..... 10

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1992

No. 92-602

ST. MARY’S HONORS CENTER

and STEVEN LONG,

Petitioners,

BRIEF OF WASHINGTON LEGAL FOUNDATION

AND THE EQUAL OPPORTUNITY FOUNDATION

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

INTEREST OF THE AMICI CURIAE

The Washington Legal Foundation (WLF) is a

nonprofit interest law and policy center with more

than 100,000 members and supporters nationwide. While

WLF in litiention and the adeniniatrati

subjected to unwarranted government intrusion into their

To that end, WLF has before this Court as

well as other state and federal courts in cases dealing with

federal employment discrimination laws.— See, ¢.g.,

Gregory v. Ashcroft, 111 S. Ct. 2395 (1991); EEOC v.

Arabian American Oil Co., 111 S. Ct. 1227 (1991); Jnt’l

Union v. Johnson Controls, Inc., 111 S. Ct. 1196 (1991);

Patterson v. McLean Credit Union, 491 U.S. 164 (1989).

The Equal Opportunity Foundation is a nonprofit

educational organization founded in 1987 dedicated to

establishing in America a colorblind government in a

colorblind society, and, to that end, to protecting the civil

rights of all Americans. It is concerned that should

employment discrimination laws be construed so as to

permit plaintiffs to prevail in disparate treatment cases

even without demonstrating directly or indirectly that the

employer acted with invidious discriminatory intent, the

clear came of the Civil Rights Acts, as well as their

moral and constitutional justification, will be perverted.

Amici are concerned that employment discrimination

laws -- both by imposing subtle pressure on employers to

resort to "quotas" and by interfering in nondiscriminatory

business decisions by employers -- are imposing

tremendous costs on free enterprise system and on

society as a whole. For example, a recent Forbes

Magazine article estimated the annual costs to the

economy of affirmative action and quota hiring at $350

billion. See P. Brimelow and L. Spencer, "When quotas

replace merit, everybody suffers," Forbes (Feb. 15, 1993).

Amici believe that their experience in litigating issues

of this sort may prove of assistance to the Court in its

consideration of this case. Avnici submit this brief in

support of Petitioners with the written consent of all

parties. The written consents are on file with the Clerk.

3

STATEMENT OF FACTS

In the interests of economy, amici hereby adopt by

reference the Statement of the Case contained in

Petitioners’ brief. a

In brief, Petitioners are St. Mary’s Honor Center ("St.

Mary’s"), a minimum security correctional facility

rated by the Missouri Department of Corrections and

uman Resources; and Steven Long, who was the

superintendent of St. Mary’s during 1984-85. Respondent

Melvin Hicks was a shift commander at St. Mary’s from

1980 until his demotion and eventual discharge for alleged

misconduct in 1984. Hicks, an African-American, alleges

that he was demoted and discharged because of his race.

Hicks filed suit in 1988 in federal district court in

Missouri alleging that, by discharging him on the basis of

race, Reny df y his rights under Title VII of the

Civil es sh 1964, 42 —— § 2000e et seq. , and

vio is ri under the Equal Protection Clause

of tpt Petition Appendix (Pet.

App.) Al-A2. After a non-jury trial in June 1990, the

district judge entered judgment in favor of Petitioners.

Pet. App. Al4-A30.

The district court found initially that Hicks had

established a prima facie case of race discrimination.

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

Pet. App. A22-A23. Because Hicks established a

prima facie case, the district court held, burden then

shifted to Petitioners to articulate a legitimate, -

ae reason for the demotion and discharge.

Pet. App. A23. The district court held that Petitioners

met that burden by setting forth two reasons for their

conduct: the severity and the accumulation of violations

of prison rules committed by Hicks. Jd.

The district court went on to find that Hicks had

demonstrated that the explanations proffered by Petitioners

were not Petitioners’ actual motivation. The court found

4

that although Hicks committed several violations of

institutional rules, he "was treated much more harshly than

his co-workers who committed equally severe or more

severe violations." Pet. App. A26. The district court

nonetheless found that Hicks had failed to carry his

ultimate burden of proving “by direct evidence or

inference" that race was the determining factor in his

discharge decision. Pet. App. A30. The district court

suggested two unarticulated reasons for Hicks’s discharge:

(1) nonracial personal animosity against Hicks on the part

of his supervisors; and (2) a desire for "full-scale removal

of employees from supervisory positions” at St. Mary’ s in

light of ts a as a poorly run institution.’ Pet.

App. A27-A28. Accordingly, the district court dismissed

the suit.

The United States Court of Appeals for the Eighth

Circuit reversed and directed that judgment be entered for

Hicks. The Eighth Circuit held that when (as here) a trier

of fact finds that an employment discrimination plaintiff

has established a prima facie case of race discrimination

and that the nondiscriminatory reason(s) articulated by the

employer for its conduct are “pretextual,” the plaintiff has

met his burden of persuasion, and the trier of fact is

ss to enter judgment for the plaintiff. Pet. App.

Al10-Al

Significantly, the Eighth Circuit did not find that the

district court committed a clear error of fact in finding that

invidious discrimination was not a motivating factor in the

decision.

' A 1983 state investigation of St. Mary’s concluded that the

institution was being poorly run. Pet. App. A2. As a result, its white

superintendent was discharged in early 1984; and Hicks, at the time

of his April 1984 demotion, was the only pre-1984 St. Mary’s

supervisor still holding his job. Pet. App. A15.

5

SUMMARY OF ARGUMENT

The decisive issue in any disparate treatment

employment discrimination case is whether the employer

acted with invidious discriminatory intent in taking the

disputed employment action. The Court has repeatedly

emphasized that in such cases the burden of persuasion on

the issue of discriminatory intent remains on the plaintiff

at all times.

Yet, in directing that judgment be entered for Hicks,

the court of appeals in this case in effect held that a

plaintiff may prevail in such cases even without carrying

his burden of demonstrating , either direct or

circumstantial BF om gray that the defendant intentionally

engaged in prohibited discrimination. The district court

found that Hicks had not carried that burden, and the court

of appeals did not hold that any of the district court’s

factual findings were clearly erroneous. Accordingly, the

court of appeals’s holding that a plaintiff must prevail in

these circumstances improperly shifts the burden of

persuasion away from the plaintiff.

The court of appeals fell into error due to its

fundamental misunderstanding of the nature of a

"presumption." In order to assist trial courts in addressing

employment discrimination claims, the Court in McDonnell

Douglas and Texas Department of Community airs v.

ne, 450 U.S. 248 (1981), held that a p raising

a claims creates a rebuttable “presumption that the

employer unlawfully discriminated against” him by proving

certain facts, generally referred to as a “prima facie case."

Burdine, 450 U.S. at 254. To rebut that presumption, the

defendant must come forward with evidence suggesting a

legitimate, nondiscriminatory reason for its conduct toward

the plaintiff. Id. If the employer does so, the McDonnell-

Burdine presumption "drops from the case” and the factual

inquiry then focuses directly on the ultimate issue of

discriminatory intent. Jd. at 255. In sum, the McDonnell-

Burdine presumption is of no further effect or relevance

6

once the employer comes forward with evidence of a

nondiscriminatory reason for its conduct.

The court of appeals attempted to read far more

strength into the McDonnell-Burdine presumption than was

ever intended by Congress or this Court. The court of

appeals refused to allow that presumption to "drop[] from

the case" once Petitioners came forward with the requisite

rebuttal evidence. Rather, the court of appeals insisted

that the presumption is revived once a plaintiff shows that

the rebuttal evidence offered by the defendant is

"pretextual." Pet. App. A10-Al2. That interpretation of

the presumption not only conflicts with this Court's

precedents, but also flies in the face of Rule 301 of the

Federal Rules of Evidence, which governs the use of

presumptions in federal courts.

Rule 301 was adopted by Congress in 1975 (as part of

the Federal Rules of Evidence) and incorporates the view

of the effect of presumptions articulated by Harvard

Professor James B. Thayer in 1898. Under Thayer’s

narrow view of presumptions, once a presumption has been

met by admissible evidence to the contrary, it vanishes.

Neither the language of Rule 301 nor its legislative history

allows any other interpretation. Since civil rights litigation

is to be governed by the ordinary procedural rules

applicable to all other civil litigation, Rule 301 must be

applied to this case. Rule 301 dictates that because

Petitioners articulated nondiscriminatory explanations for

their conduct toward Hicks, the McDonnell-Burdine

presumption should play no role in this case; rather, the

sole issue to be deci is simply one of intentional

discrimination.

Amici do not mean to suggest that a district court

finding of intentional discrimination in this case would

have constituted clear error. Indeed, one could rationally

draw a strong irference of intentional discrimination from

the fact that the explanation given by Petitioners for their

conduct turned out to be false. who gives false

explanations for one’s conduct generally has something to

7

hide, and in employment discrimination cases that

something may well be invidious discrimi intent.

But it is certainly not the case that false exp ions

always are a pretext for intentional discrimination;

employers may have strong reasons for hiding their

motivations even when their actions did not violate civil

rights laws (e.g., when an employee’s termination arguably

violates a collective bargaining agreement).

The Court should reverse the Eighth Circuit’s decision

and remand the case to that court. The Eighth Circuit

should then review under a clearly erroneous standard the

district court’s factual finding that Hicks failed to carry his

evidentiary burden on the issue of intentional

discrimination. Since the burden of persuasion must

remain on Hicks at all times, the Eighth Circuit should be

directed to consider all evidence that Petitioners did not

act with invidious discriminatory intent (e.g., evidence that

Hicks’s discharge was based on nonracial personal

animosity or a desire to clean house among St. Mary’s

supervisory personnel) even though Petitioners may not

have openly articulated those rationales for their behavior.

ARGUMENT

I. THE COURT OF APPEALS IMPROPERLY

RELIEVED HICKS OF HIS BURDEN OF

PERSUASION BY INTERPRETING THE

EFFECT OF THE McDONNELL-BURDINE

PRESUMPTION TOO STRONGLY

_ The ultimate issue in any federal employment

discrimination suit brought, as here, under a di

treatment theory is whether the plaintiff has demonstrated

that his employer acted with invidious discriminatory

intent. As the Court explained in United States Postal

Serv. Bd. of Governors v. Aikens, 460 U.S. 711 (1983):

The “factual inquiry" in a Title VII case is

"[whether] the defendant intentional

discriminated against the plaintiff." Burdine, [45

8

U.S.] at 253. In other words, is "the employer

treating ‘some people less favorably than others

because of their race, color, religion, sex, or

national origin.’" Furnco Construction Corp. v.

Waters, 438 U.S. 567, 577 (1978), quoting

Teamsters v. United States, 431 U.S. 324, 335

n.15 (1977).

Aikens, 460 U.S. at 715.

To assist trial courts in making that ultimate

determination, the Court has set forth a method (known as

the "prima facie case" method) of ordering the presentation

of evidence in a non-class action di treatment case

brought under Title VII (or under 42 U.S.C. §§ 1981 or

1983). Thus, in McDonnell Douglas the Court outlined a

three-part order of proof. First, a plaintiff meets his initial

burden of persuasion by establishing a prima facie case of

racial discrimination. That case is established by showing

that: (1) the plaintiff belongs to a protected class; (2) he

was qualified for the job he sought or hoped to retain; (3)

despite his qualifications, he was rejected (or discharged);

and (4) after his rejection (or discharge), the position

remained open and the employer continued to seek

applicants from persons of the complainant’s qualifications.

McDonnell Douglas, 411 U.S. at 802. A plaintiff that

establishes a prima facie case is held to have created a

"presumption" that the employer unlawfully discriminated

against him, because (the Court has concluded) it is

reasonable to infer that the acts constituting a prima facie

case, if otherwise unexplained, “are more likely than not

based on the consideration of impermissible factors."

Furnco, 438 U.S. at 577.

If a plaintiff establishes a prima facie case, the burden

then shifts to the employer to articulate a

nondiscriminatory reason for its conduct. McDonnell

Douglas, 411 U.S. at 802. The defendant is not required,

however, to persuade the court that it was actually

motivated by proffered reasons; rather, the employer

meets its burden of production -- and successfully rebuts

9

the presumption created by the prima facie case -- by

setting forth, through the introduction of admissible

were the reasons for its actions. Burdine, 450 U.S.

at 254-255.

Once the employer meets its burden of production, the

McDonnell-Burdine presumption "drops from the case" and

"the factual inquiry proceeds to a new level of specificity."

Id. at 255 & n.10. In other words, at that point the trial

court’s task is simply to determine, based on all the

evidence, whether the plaintiff has met his burden of

proving that his employer intentionally discriminated

against him. Aikens, 460 U.S. at 715.

The plaintiff can attempt to meet that burden with

direct evidence that the employer harbored an invidious

discriminatory motive, or by indirect evidence -- such as

that the reasons proffered by the employer for its actions

are false. Burdine, 450 U.S. at 56. If the plaintiff

demonstrates that the employer’s proffered reasons are

false, a trial court could reasonably conclude that those

reasons were actually "a pretext for the sort of

discrimination prohibited by [Title VII]." McDonnell

Douglas, 411 U.S. at 804.

But nothing in this Court’s decisions supports the

Eighth Circuit’s conclusion that a trial court is required to

rule for the plaintiff once he establishes that the

employer’s proffered explanations are false. This Court

has held repeatedly that to prevail in a disparate treatment

employment discrimination case the plaintiff must

demonstrate that the employer intentionally discriminated

against him,’ yet the Eighth Circuit’s decision provides

* This is not to say that the plaintiff must provide direct evidence of

discrimination; the Court stressed in Aikens that a plaintiff also may

prevail based on indirect evidence of discrimination. Aikens, 460 U.S.

at 714 n.3. We note, however, that the district court in this case

explicitly acknowledged that Hicks was not required to present direct

evidence of racial discrimination in order to prevail (Pet. App. );

(continued...)

10

such plaintiffs with an entirely new method of prevailing

in such cases: by showing that the employer has proffered

false explanations for his actions. That simply is not the

law. Title VII (and other federal civil rights laws) impose

liability on employers for invidious discriminatory uct,

not for being less than candid with a court. Accordingly,

the Eighth Circuit’s holding -- that a plaintiff must prevail

after debunking the employer’s proffered reasons for its

actions -- should be reversed.

Part of the confusion in this case stems from the use

of the word "pretext." "Pretext" is logically,

grammatically, ¢ gin of a prepositional phrase:

a proffered motive is shown to be a “pretext for" a

concealed motive. Webster’s Third New International

Dictionary 197 (1971). The Court consistently has limited

its use of the word "pretext" in Title VII cases to only one

type of concealed motive: a concealed motive based on

invidious intentional discrimination. See McDonnell

Douglas, 411 U.S. at 804 ("a pretext for the sort of

discrimination prohibited by" Title VII); Albemarle Paper

Co. v. Moody, 422 U.S. 405, 425 (1975) ("Such a

showing would be evidence that the employer was using its

tests merely as a ‘pretext’ for discrimination"); New York

City Transit Authority v. Beazer, 440 U.S. 568, 587

(1979); Connecticut v. Teal, 457 U.S. 441, 447 (1982).

However, the district court in this case was using the word

"pretext" in a broader sense, such that an employer's

proffered reasons for its conduct are "pretextual" whenever

they are false; i.e., whenever the employer has any

concealed motive for its conduct.

Because the district court was using the word

“pretext” in a different sense from that normally used by

this Court, it perhaps would have been wiser to use the

word "false," rather than the word "pretextual," to

the district court simply found that Hicks’s indirect evidence was

insufficient to meet his evidentiary burden in this case.

1]

describe Petitioners’ proffered explanations ing why

Hicks was demoted and discharged. N less, it is

clear from the district court’s opinion that it did nor find

that Petitioners’ proffered explanations were a pretext for

racial discrimination. In the absence of such a finding,

_— cannot prevail on his employment discrimination

claims.

In sum, the burden of persuasion was on Hicks to

demonstrate that Petitioners acted for racially

discriminatory reasons. The district court found that Hicks

failed to meet that burden. In light of that finding, the

Eighth Circuit’s holding that judgment must be entered for

Hicks should be reversed.

fl. THE COURT’S LIMITED CONSTRUCTION OF

THE McDONNELL-BURDINE PRESUMPTION IS

REQUIRED BY FRE 301

The result reached by the Eighth Circuit can be upheld

only if one grants the McDonnell-Burdine presumption far

more strength than this Court or Congress ever intended.

Under the Eighth Circuit’s view, the McDonnell-Burdine

Yo me ten y by Aye articulation

of iscriminatory reasons for its actions, but rather is

resuscitated by a showing that the employer’s articulated

reasons were not its true reasons. Pet. App. AlO. That

view of the McDonnell-Burdine presumption is at odds

with the holdings of this Court that “the presumption drops

from the case” once the employer has articulated

—— ey i . reasons for its actions. Burdine, 450

U.S. n.10.

Moreover, the limited weight accorded by the Court

to the McDonnell-Burdine presumption is mandated by

Rule 301 of the Federal Rules of Evidence.’ The text and

* Rule 301 provides:

(continued...)

13

12

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that dustubetien had occurred").

a

This recognition reflects the will of

in the statutorily enacted Federal Rules

("[T]he plaintiff, as in an

burden of

the expansive

it.

legislative history of Rule 301 make clear that Congress

presu

interpretation espoused by the Eig

did not intend to accord

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14

Moore, Moore’s Federal Practice 4 301.02, at I-14 ("If

the statute does not declare the effect [of a presumption]

then . . . Rule 301 would govern"). As to all other

presumptions, including presumptions created by common

law or judicial construction and accorded greater weight by

those sources, Rule 301 would govern. See Rules of

Evidence for United States Courts and Magistrates, 56

F.R.D. 183, 208 (1973); Revised Draft of Proposed Rules

of Evidence for the United States Courts and Magistrates,

51 F.R.D. 315, 336 (1971); 10 J. Moore { 301.03{2], at

I-18.

In the debates over Rule 301, and with respect to the

Federal Rules of Evidence in general, there was no

suggestion that these rules would not apply to Title VII.

There is also no suggestion in the legislative history of the

rules of evidence that Title VII itself provi for a

reverse the Court’s preference for a uniform treatment for

presumptions, except where “otherwise provided for by

Act of C ." See Subcommittee Note, Subcomm. on

Crim. J., House Comm. on the Judiciary, 93rd ., Ist

Sess. (Committee Print (1973)), reprinted in of

Evidence: Hearings Before the Subcomm. on

Reform of Federal Laws of the House Comm. on

the Judiciary, 93d Cong., ist Sess. 221, 256 (1973)

i "House Hearings"); 9 J.H. Wigmore,

Evidence in Trials at Common Law § 2493f, at 328

_ (quoting 18 A.L.I. Proceedings at 226). ,

B. Rule 301 of the Federal Rules of Evidence

by Professor Thayer

For much of this . scholars have debated

the weight that ought to be to legal s

15

presumptions has long been associated with Professor E.

M. Morgan, while a far more limited view of the effect

of presumptions is associated with Professor James B.

Thayer and his followers. Both the language and

legislative history of Rule 301 make clear that Congress,

in ing the Federal Rules of Evidence, adopted the

limited Thayer h to presumptions. The approach

adopted by the Circuit -- which granted stronger

effect to the McDonnell-Burdine presumption and relieved

Hicks of a portion of his burden of persuasion -- is wholly

inconsistent with the Thayer approach codified by

Congress in the Federal Rules of Evidence.

In order to make clear just how inconsistent the Eighth

Circuit’s approach is with the approach mandated by Rule

301, amici believe that a somewhat detailed review of

events leading up to adoption of Rule 301 is warranted.°

evidence that would a finding of the non-existence

of the fact. J.B. Thayer, Preliminary Treatise

on E at the Common Law 336 (1898) (reprinted by

Augustus ye my 1969). Professors ~\-t-

McCormick beli that a presumption shifted the

burden of ion and the burden of ion. E.M.

Morgan, Problems of Evidence 36 (1961). While

16

there were other theories,’ most participants in the debate

were convinced that the choice was between Thayer and

Morgan. J.B. Weinstein and M.A. Berger, Weinstein’s

Evidence, § 300[01], at 300-5, (quoting 18 A.L.I.

Proceedings 210-213 (1941). Ultimately, the Advisory

Committee (appointed by Chief Justice Warren in 1965 to

formulate rules of evidence for the federal courts) recom-

mended that the view of presumptions advocated by

Professor Morgan be accepted over the view of Professor

Thayer. This recommendation was accepted by the Court.

F.R.E. 301 Advisory Committee’s Note. The language of

the proposed rule gave presumptions virtuall y the effect of

an affirmative defense. Weinstein, § 300[03], at 530.

The view of presumptions championed by Professors

Morgan and McCormick provided that presumptions were

created for reasons of policy rather than probability;

therefore, a presumption should “permanently alter the

burden of persuasion. No matter how much contradictory

evidence was introduced indicating the nonexistence of the

presumed fact, the burden of persuasion was always on the

adverse y." Rules of Evidence: Hearings on H.R.

5463 Before the Senate Committee on the Judiciary, 93d

Cong., 2d Sess. 138 (1974)(hereinafter “Senate

Hearings")(Statement of Richard H. Keatinge, Chrmn.,

Cal. Evid. Law Rev. Comm’n). This view of

presumptions enjoyed substantial support among the

academic community. See, e.g., 1 Louisell & Mueller §

65 at 522-523.

Professor Thayer had advocated the so-called “bursting

bubble" theory in which a presumption vanishes upon the

introduction of evidence that would ‘suppor a finding of

the nonexistence of the presumed fact Court rejected

the Thayer theory as according presumptions too i stieht

” See, e.g., Bohlen, The Effect af Shumate Premmptions of Law

17

and evanescent an effect." Advisory Committee Note Rule

301, quoted in Weinstein at 301-313."

The recommendation of the Advisory Committee and

the Court to adopt the Morgan approach met with

substantial opposition on the grounds that a Morgan

presumption shifted too great a burden of proof.

Weinstein, § 301[01], at 301-18 to 301-19 & n.2. The

House of Representatives adopted a compromise between

the Morgan theory and Thayer . See 10 J. Moore,

Moore’s Federal Practice, § 301.01[7], at I-11 (2d ed.

1988). Although supported b several powerful groups

(including the Association of Trial Lawyers of America),

the House compromise was in turn also severely criticized

and made li headway in the Senate. e Senate

Hearings at 56-58 (statements by the Standing Committee

on Rules of Practice and Procedure and Advisory

Committee on Rules of Evidence of the Judicial

Conference of the United States, criticizing the House

compromise).

During the Senate’s consideration of Rule 301,

substantial support for the Thayer-Wigmore “bursting

bubble" oy A. submitted. One Thayer supporter,

Congressman David W. Dennis, stated:

* Edward W . for the Advisory Committee on the

Federal Rules of Evidence, argued the bursting bubble theory

on the basis that " i the same considerations of

fairness, policy, ty that ie the of allocatin

pre ne wary ell Bp an Manel A ff and

de in the guise of prima facie case and affirmative defense, and

rer ay bes to effect than accorded by the bursting

pp by he pe at 92. See Morgan and Maguire,

and Forward at Evidence, 50 Harv. L. Rev. 909,

913 (1937). Professor described the minimum proof needed

- oan 6 Saas as being “some testi is put in

which anybody can , which comes from i witnesses,

and which is of a sort that is usually disbelieved . . . evidence which

may be disbelieved by the trier of fact." 9 Wigmore § 2493}, at 328

(quoting Professor , 18 A.L.I. Proceedings 221-222).

18 19

introduced the presumption ceases to have any

value. In our California code we have the

specific provision that presumptions are not

evidence and they affect merely the burden of

producing evidence. . . . [I]f we have to make a

choice it would definitely be the "bursting bubble

theory,” because once the controverting evidence

is introduced, as a practical matter, you know that

the jury or the judge is going to look at both sides

of the case anyway, and, as a practical matter, I

don’t care how the instruction is given, or how

you handle it, both sets of evidence, both for and

against the basic facts, are going to get weighed

by the finder of fact whether a jury or judge.

Therefore, as a practical matter, if you have to

— a choice, the “bursting bubble" is the

choice.

. .. In my view a presumption simply imposes Id. at 196-197 (Testimony of Richard A. Keatinge). The

on the party against whom it is directed the Thayer rule had previously been accepted by the American

burden of going forward with the evidence -- and Law Institute and the Model Code of Evidence.

that is all it does. The burden of proof never Weinstein, § 300[01] at 300-5.

shifts. The presumption disappears when counter-

vailing evidence is introduced. The problem is In the face of increasing support for the Thayer

one of the most complicated in the law of approach, the Senate rejected both the Morgan approach

evidence; but I believe this is sound theory, and and the House compromise and instead adopted a version

that calling it a “bursting bubble" does not make of Rule 301 that essentially was the Thayer “bursting

it less so. bubble” approach. The Senate version of Rule 301 (which

was identical to Rule 301 as finally enacted) read:

Senate Hearings at 12.

In all civil actions and proceedings not otherwise

Similarly, Richard H. Keatinge, Former Chairman, provided for by Act of Congress or by these

California Evidence Law Revision Commission, supported rules, a presumption imposes on the party against

the bursting bubble theory explicitly: whom it is directed the burden of going forward

with the evidence to rebut or meet the

Adoption of the “bursting bubble theory" will presumption, but does not shift to such party the

encourage the use of presumptions. . . . [T]he use burden of proof in the sense of the risk of

of presumptions in this manner will still serve to nonpersuasion, which remains throughout the trial

expedite trials. ... The minute controverting upon the party on whom it was originally cast.

evidence is introduced the presumption should

disappear... . Once controverting evidence is 120 Cong. Rec. 36925 (1974).”

* The Senate Report on Rule 301 was critical of the House version

of the rule as well as the Supreme Court’s recommendations. It read

in part:

The rule governs presumptions in civil cases generally. . .

As submitted by the Supreme Court, presumptions

ene ee ee eee ae ee

the opposing party the burden of

existence of the fact, sage on gay tiediing Oo

presumption the basic facts giving rise to it.

ee ye gn gy ey

whom the is directed, the House

a provision which shifted the burden of goi

forward with the evidence. They further i

"even though met with i evidence,

presumption is sufficient evidence of the presumed, to

20

The conference committee appointed to iron out

difference between the House and Senate versions of Rule

301 accepted the Senate language. The Conference Report

describes the effect of that decision:

The House bill provides that a presumption in

civil actions and proceedings shifts to the party

against whom it is directed the burden of going

forward with evidence to meet or rebut it. Even

though evidence contradicting the presumption is

offered, a presumption is considered sufficient

evidence of the presumed fact to be considered by

the jury. The Senate amendment provides that a

presumption shifts to the against whom it is

directed the burden of going forward with

evidence to meet or rebut the presumption but it

does not shift to that party the burden of

persuasion on the existence of the presumed fact.

S. Rep. No. 1277, 93d

Cong. & Admin. News 7051, 7055-56.

* (...continued)

be considered by the trier of fact." The effect of the

amendment is that presumptions are to be treated as

evidence.

The committee feels that the House amendment is ill-

advised. . .

. . . The effect of the rule as adopted by the committee

is to make clear -that while evidence of facts giving rise to

a presumption shifts the burden of coming forward with

evidence to rebut or meet the presumption, it does not shift

the burden of persuasion on the existence of the presumed

facts. The burden of persuasion remains on the party to

whom it is allocated under the rules governing the allocation

in this first instance.

The court may instruct the jury that may infer the

existence of the presumed fact from proof of the basic facts

giving rise to the presumption. However, it would be

inappropriate under this rule to instruct the jury that the

inference they are to draw is conclusive.

Cong., 2d Sess., reprinted in 1974 U.S. Code

3

2

¢

g

the

instruct the jury that if it finds the basic facts, i

may presume the existence of the presumed fact.

If the adverse party does offer evidence contra-

dicting the presumed fact, the court cannot

instruct the jury that it may presume the existence

of the presumed fact from proof of the basic facts.

The court may, however, instruct the jury that it

may infer the existence of the presumed fact from

proof of the basic facts.

H. R. Conf. Rep. No. 1597, 93rd Cong., 2d Sess.,

— in 1974 U. S. Code Cong. & Admin. News

7098, 7099.

While the conference committee language is somewhat

ambiguous the meaning of Rule 301, one thin

is Clear: Comins Sestboy rejected the Morgan view of

presumption that had been recommended to it by the

Court. y B4 - a~ that the conference

committee’ s ing of Rule 301 can be said to

deviate from the Thayer view, it is not toward a stronger

view of the effect of a ion (the Morgan view) but

toward a lesser view of the of a p ion in

which a finding for the plaintiff is not compelled, but

merely permitted ("may presume the existence of the

presumed fact"), when the defendant fails to offer any

contradicting rebuttal evidence. See Belton, Burdens of

Pleadings and Proof in Discrimination Cases: Toward a

Theory of Procedural Justice, 34 Vand. L. Rev. 1205,

1235-36 (1981).

In sum, the history of ion of Rule 301 makes

clear not only that Congress favored giving decreased

effect to presumptions, but also that it knew precisely what

it was doing. Both the Advisory Committee and the

22

Supreme Court had recommended ion of the Morgan

view, so Congress was well aware of the views of those

who criticized the Thayer approach. It was aware, for

example, of Professor Morgan’s criticism (see Note 8,

supra) that a Thayer presumption is defeated by any

admissible rebu evidence, even evidence that is

inherently unbelievable and that is, in fact, disbelieved by

the trier of fact. Yet, despite that awareness, Congress

still opted for the Thayer approach.

The Eighth Circuit’s interpretation of the McDonnell-

Burdine presumption cannot be squared with the Thayer

approach. Under the Thayer approach, the McDonnell-

Burdine presumption should have dropped totally from this

case the moment Petitioners presented evidence of a

nondiscriminatory motive for Hicks’s demotion and

discharge. It makes no difference under the Thayer

approach how credible and credited Petitioners’ evidence

was. A presumption does not require the opposing party

to carry any burden of persuasion or to present evidence

meeting any minimum credibility standards; it is enough

under the Thayer approach if the opposing party comes

forward with some relevant evidence which, if believed ,

would support a finding contrary to the presumed fact.’

Under Rue 301, the prima facie case disappears from the case

once it is rebutted and has no further effect in the litigation. See |

Louisell & Mueller, § 69 at 555; E.M. Morgan, Basic Problems in

Evidence 34-35 (1961); Weinstein, § 300[01], at 300-3. This evidence

must be more than "a scintilla," but need not in fact be believed. See

House Hearings at 92 (Statement of Edward W. a Professor

Morgan describes the minimum proof needed to |

w

that is usually disbelieved ... evidence which may be disbelieved

trier of fact." 9 Wigmore, § 2493f at 328 & n.6 (quoting 18 A.L.I.

Proceedings 221-222). Professor Cleary described the “bursting

bubble” theory as being that “a presumption disappears from the case

upon the i of evidence sufficient to support of findings of

the nonexistence of the fact, even though no one believes

that evidence." House Hearings at 92. The case is decided as

there had never been a presumption or a prima facie case. In a jury

(continued. .

Se

23

The Eighth Circuit erred in holding that the presumption

of racial discrimination sprung back to life the moment

Hicks demonstrated that Petitioners’ rebuttal evidence was

false, because in doing so the court of appeals was placing

on Petitioners far more than simply a burden of producing

evidence.

C. Burdine Recognizes that Rules 301 Adopts the

Thayer View

Whatever doubt may have existed regarding the

meaning of Rule 301 and its applicability to employment

discrimination cases was laid to rest in Burdine. Writing

for the Court in Burdine, Justice Powell left no cause for

doubt that Congress -- in amending proposed Rule 301 --

fully accepted the view of presumptions as articulated by

Thayer in 1898, the “bursting bubble" view of

presumptions.

Justice Powell’s discussion of the nature of the

evidentiary burden placed upon a defendant in a disparate

treatment employment discrimination lawsuit (written six

years after adoption of the Federal Rules of Evidence)

could have come straight out of Professor Thayer’s

treatise. See Burdine, 450 U.S. at 252-256. Indeed, in

ms gad pop ot the employer in a Title VII

ease " s]" € case presumption by settin

forth evidence of nondiscrimi reasons {- its

conduct, that the presumption thereafter "drops from the

case," and that thereafter “the factual inquiry proceeds to

a new level of inquiry," Justice Powell cites explicitly to

Thayer’s treatise. Id. at 255 & n.10.

° (...continued)

case, the word “presumption” and its effects would not even be

mentioned in jury instructions. Morgan, at 40-42; Weinstein, §

300[01], at 300-4-300-5; § 301[02], at 301-29.

24

The Court’s subsequent decision in Wards Cove

Packing Co. v. Antonio, 109 S. Ct. 2115 (1989), made

explicit the Court’s reliance on Rule 301 in assigning

evidentiary burdens in employment discrimination cases.

The Court said:

This rule [assigning the burden of persuasion on

the issue of discrimination to the plaintiff ar all

times in an employment discrimination case]

conforms with the usual method for allocating

persuasion and production burdens in the federal

courts, see Fed. Rule Evid. 301, and more

mee ley at Ale Tell

treatment cases that the plaintiff bears the burden

of disproving an employer’s assertion that the

adverse employment action or practice was based

solely on a legitimate neutral consideration. See

[Burdine].

Wards Cove, 109 S. Ct. at 2126."

ployment ases in general and

to the McDonnell-Burdine presumption in particular.

Under Thayer and Rule 301, there can be no doubt that

the nn ig eae ay ion, like any other

presumption, has no fu ect once the employer

comes forward with some evidence (no matter how

credible that evidence is later judged to be) that articulates

a nondiscriminatory rationale for the employer's action.

In light of Rule 301, the Bighth Circuit’s decision to the

contrary should be reversed.

, De, Rards Cove Gamat, while Geguting Ge ty of Rule

rearing mn ty Le Db ule to cases

(such as disparate treatment cases that involve "shi of

a

ee

= eer e+

25

Il. APPLICATION OF RULE 301 TO THE

McDONNELL-BURDINE PRESUMPTION DOES

NOT UNFAIRLY HAMPER PLAINTIFFS

Application of Rule 301 to the McDonnell-Burdine

presumption cannot fairly be criticized as overly

burdensome on employment discrimination plaintiffs.

Even without the e ive interpretation accorded it by

the Eighth Circuit, presumption still serves important

functions in assisting a disparate treatment employment

discrimination plaintiff to meet his burden uf persuasion.

First, the McDonnell-Burdine mption permits a

plaintiff to prevail automatically if the employer fails to

come forward with a nondiscriminatory e ion for its

disputed conduct. Second, by forcing employer to

explain itself, the presumption assists the plaintiff in

focusing the case on the employer’s actual motivations.

Moreover, forcing the employer to explain itself increases

the plaintiff's opportunities to create inferences of

invidious discrimination; for example, if the plaintiff can

demonstrate that the employer’s explanation is false, it is

reasonable to infer that the employer was being deceitful

in order to mask invidious discrimination.

evidence he introduced for of establishing his

prima facie case. After the raised by a prima

facie case of disparate treatment is rebutted, the basic facts

defendant destroys the mandatory inference

of discrimination arising from the plaintiff’ s initial

26

evidence. Nonetheless, this evidence and infer-

ences properly drawn therefrom may be consid-

ered by the trier of fact on the issue of whether or

not the defendant’s explanation is pretextual. In-

deed, there may be some cases where the

plaintiff s initial evidence, combined with effective

cross-examination of the defendant, will suffice to

discredit the defendant’s explanation.

Burdine, 450 U.S. at 255 n.10.

Undoubtedly, it would be easier for Plaintiffs to

prevail in disparate treatment employment discrimination

cases if the Eighth Circuit’s interpretation of the

McDonnell-Burdine presumption were adopted by the

Court. But any such adoption would be at the expense of

:

i;

:

;

1

i

Se ea Sea. 4

evidence of intent, employee may have little

discrimination has occurred. But in the likelier

event that intent has to be established by

inference, the employee may resort to the

McDonnell/Burdine inquiry. In either instance,

ee ee

27

Wards Cove, 109 S. Ct. at 2131 (Stevens, J., —

(emphasis added). But see Aikens, 460 U.S. at 718

(Blackmun, J., concurring).

issue of invidious discrimination. One method is to show

the evidence that Petitioners

discriminated against him on the basis of race. In the

absence of a holding that the district court's ing was

clearly erroneous, it should have been affirmed

The purpose of our civil rights laws is to prohibit

employment decisions based on race, color, , SCX,

Respectfully submitted,

Hugh Joseph Beard, Jr. Daniel J.

THE EQUAL OPPOR- Richard A.

TUNITY FOUNDATION _—_ (Counsel of Record)

1747 "S" Street, NW WASHINGTON LEGAL

Washington, DC 20009 FOUNDATION

(202) 543-0411 1705 "N" ~~~. NW

Washi , 20036

(202) 857.0240

Date: February 22, 1993