Amicus Curiae Brief — O'CONNOR v. Consolidated Coin Caterers Corp.

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CHAMBER OF COMMERCE OF THE UNITED STATES

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OF RESPONDENT

* BEST AVAILABLE COPY

QUESTION PRESENTED

Whether, in a suit under the Age Discrimination in

Employment Act, a plaintiff who has been replaced is en-

titled to the judicially-created inference of unlawful em-

ployer intent arising from the McDonnell-Douglas proof

scheme without making any showing regarding the age

of his replacement.

(i)

ee

TABLE OF CONTENTS

QUESTION PRESENTED ...........--.2..--02-ccco-cceeerseeeeee- ial

INTEREST OF THE AMICUS CURIAE ....00000000000...

lg

SUMMARY OF THE ARGUMENT ....... sentiiatatnabiatinenanes

a iliac deen eciintsidamentndtienesncstenemmcmnnienete

I. TO BE ENTITLED TO THE McDONNELL-

II.

DOUGLAS INFERENCE, AN ADEA PLAIN-

TIFF WHO HAS BEEN REPLACED SHOULD

BE REQUIRED TO ESTABLISH THAT THE

REPLACEMENT WAS OUTSIDE THE PRO-

TECTED CLASS OR, IN THE ALTERNA-

TIVE, WAS SUBSTANTIALLY YOUNGER...

A. McDonnell-Douglas a in the ADEA

Context _..... ee SE

B. Appropriate Modification of McDonnell-

Douglas for ADEA Cases ............................

1. Replacement Is Outside the Protected

CRAG .nccccccccccccceccceccccceceececeececereceeeeees 7

2. Replacement Is “Substantially Younger’’..

THE DECISION IN THIS CASE IS RELE-

VANT TO THE SAME ISSUE IN TITLE VII

IIE dettierniercicaqnnateceennniputanesnansitecnmnenmngmnuiaemaente 7

CONCLUSION 000000000. sposucnseisiaesbassoynesnoniesas

(iii)

17

18

iv

TABLE OF AUTHORITIES

Cases Page

ABF Freight Sys., Inc. v. NLRB, —— US. —,

Te! F YF. aes 2

Albemarle Paper Co. v. Moody, 422 U.S. 405

(ee 14

Ang v. Proctor & Gamble Co., 932 F.2d 540 (6th

| ae 18

Bienkowski v. American Airlines, Inc., 851 F.2d

Ol EL > ya 14

Carter v. City of Miami, 870 F.2d 578 (11th Cir.

ID oo cctrecceesstatecnitniiiniiitciiinadticeaitach aatathicintaiaseaiiaeemmattiints 12

Connecticut v. Teal, 457 U.S. 440 (1982) —.............. 9

Davenport v. Riverview Gardens School Dist., 30

2k oT fl ll 18

Dothard v. Rawlinson, 433 U.S. 321 (1977) ............ 14

Douglas v. Anderson, 656 F.2d 528 (9th Cir.

GETTIN ccscrscpnnmneennteinniemeaietinhitintiins tutes saeecimaeatetaiidiaaimiiai 13

EEOC v. Associated Dry Goods Corp., 449 U.S. 590

I ee 17

EEOC v. Wyoming, 460 U.S. 226 (1983) .. 13

Furnco Constr. Corp. v. Aikens, 438 US. “111

| SESSA rere NP METER PSE AR SRN 8,9

Goldstein v. Manhattan Indus., Inc., 758 F.2d 1435

0. 3 RE 13

Green v. McDonnell-Douglas Co., 318 F. Supp. 846

(E.D. Mo. 1970)... ee ee s

Green v. McDonnell-Douglas Co. ¥ 463 F.2d 337

rr ee ee ae 8

Griggs v. Duke Power Co., 401 U.S. 424 (1971)...... 14

Haskell v. Kamar —— 743 F.2d 113 (2d Cir.

1984) . 13

Hazelwood School Dist. v. . United States, 433. U. s.

SD GID ccnnneccininssinesintiiniiiiantasiinmessiaciatalaeaaiieedaamanens 14

Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993) ....2, 6, 10

Int’l Bhd. of Teamsters v. United States, 431 U.S.

I I nc onncaccinnhacnadieaiiads teil nacicinna ieaamamaaiet x

Kralman v. Illinois Dep’t of Veterans’ Affairs, 23

F.3d 150 (7th Cir.), cert. denied, 115 S.Ct. 1372

RES ee EA. Sa PeAntdoed PEs 11

Vv

TABLE OF AUTHORITIES—Continued

Page

4 v. Bradshaw, —— U.S. ——, 114 S.Ct.

GI EE ESS ei AIP Re a De Oe RE re 2

Lovelace v. Sherwin-Williams, 681 F.2d 230 (4th

ES SE NS REE Cee ee ee nee 7,9

Mazfield v. Sinclair Intern, 766 F.2d 788 (3d Cir.

1985), cert. denied, 474 U.S. 1057 (1986) . __.. 13

McDonald v. Santa Fe Trail Transp. Co., 427 U.S.

I . 9,10

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

NLRB v. Town & Country Elec., Inc., —— U.S.

, 115 S.Ct. ——— (1986) .................................. 2

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) 9,10

Roper v. Peabody Coal Co., 47 F.3d 925 (7th Cir.

Cee MS AOD Sees Se A TEEN 14

St. Mary's Honor Ctr. v. Hicks, —— U.S. ——, 113

S.Ct. 2742 (1993) - nas 2,7,17

Texas Dept. of Community A flairs v. Burdine, 450

U.S. 248 (1981) . ies 7,8, 9, 15, 16

Trans World Airlines, fue. v. | Phureton, 469 US

Statutes

Other

111 (1985) re eee arene eek See cae eh 2,7

United Air Lines Inc. v. McMann, 434 U.S. 192

| aR, SER REA SIM eR rene EN, ON nN eS 13

U.S. Postal Serv. Ra. of Governors v. Aikens, 460

US. 711 (1968) ........... Ee Pe Si 9, 16,17

Watson v. Fort Worth Bank & Trust, 487 U.S. 977

RIT SEAS SS Nae See SU een 14

a Se eee ae 3

29 U.S.C. § 681 (a) .......... ae 12

42 U.S.C. $§ 20000 et seq. ..................-----..-. aoe 17

29 C.F.R. $§ 1607.5(b) (3) & (4) en... 14

29 C.F.R. § 1625.2(a) _......... POR ceIF OR nN eo eee 15

113 Cong. Rec. 31,255 (1967) ..........................-....---e. 15

Age Discrimination in Employment Act: Hearings

on H.R. 13054 Before the General Subcomm. on

Labor of the House Comm. on Education and

Labor, 90th Cong., Ist Sess. 74-76 (1967) ........... 12

vi

TABLE OF AUTHORITIES—Continued

Page

H.R. Rep. No. 805, accompanying H.R. 13054 (Age

Discrimination in Employment Act of 1967),

October 23, 1967, 90th Cong., Ist Sess., pp. 1-7.... 12

S. Rep. 723, accompanying S. 830, Nov. 11, 1967,

A EEE 12

IN THE

Supreme Court of the United States

OcTOBER TERM, 1995

No. 95-354

JAMES O'CONNOR,

= Petitioner,

CONSOLIDATED COIN CATERERS CorP.,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

BRIEF AMICUS CURIAE OF THE

CHAMBER OF COMMERCE OF THE UNITED STATES

OF AMERICA IN SUPPORT OF RESPONDENT

INTEREST OF THE AMICUS CURIAE'

The Chamber of Commerce of the United States of

America (“the Chamber”) is a federation consisting of

approximately 215,000 companies and several thousand

other organizations such as state and local chambers of

commerce and trade and professional associations. It is

the largest association of business and professional orga-

nizations in the United States.

A significant aspect of the Chamber's activities involves

regular representation of the interests of its member-

! This brief is filed with the written consent of the parties pur-

suant to Supreme Court Rule 37.3. Letters of consent are being

filed simultaneously with this brief with the Clerk of the Court.

2

employers before the courts, the United States Congress,

the Executive Branch and independent regulatory agencies

of the federal government. Accordingly, the Chamber has

sought to advance those interests by filing briefs amicus

curiae in a wide spectrum of labor relations litigation.”

This case presents a fundamental issue concerning what

is required of a replaced plaintiff in a suit under the Age

Discrimination in Employment Act to establish a prima

facie case pursuant to the proof scheme established by

this Court in McDonnell-Douglas v. Green, 411 U.S. 792

(1973). Specifically, this Court must determine whether

a replaced plaintiff will be entitled to the judicially-

created inference of unlawful employer motive without

making a showing regarding the replacement’s age. The

Court of Appeals held that the status of the replacement

employee was vital to the plaintiff's prima facie case under

McDonnell-Douglas in an ADEA suit.

In such litigation, the framing of plaintiff's burden

under McDonnell-Douglas defines the circumstances in

which employers are required to defend against claims of

illegal age discrimination when there has been no affirma-

tive showing, at that point, of unlawful employer intent.

Thus, this issue is crucial to employers who must expend

significant amounts of time and money defending against

age discrimination lawsuits, a great number of which are

baseless. The resolution of this question will have a

direct and recurring impact on the employer companies

and associations who are members of the Chamber. Ac-

cordingly, the Chamber believes its perspective on this

issue may be of help to the Court in its consideration of

the question here presented.

2 See, e.g.. NLRB v. Town & Country Elec., Inc.,. ——— US. —.,

115 S. Ct. —— (1995): Livadas v. Bradshaw, ——— U.S. , 114

S Ct. 2068 (1994): ABF Freight Sys., Inc. v. NLRB, —— US.

—_—, 114 S. Ct. 885 (1994); Hazen Paper Co. v. Biggins, 507 U.S.

604, 113 S. Ct. 1707 (1993); St. Mary’s Honor Ctr. v. Hicks, ——

U.S. ——, 118 S. Ct. 2742 (1993); Trans World Airlines, Inc. v.

Thurston, 469 U.S. 111 (1985).

3

SUMMARY OF THE CASE

Respondent, Consolidated Coin Caterers Corp. (“Con-

solidated”), is a vending and food service company.

Although separately incorporated, Consolidated operates

as a division of its parent company, Canteen Corp. (Pet.

App. 26).

Petitioner, James O'Connor, began his employment

with Consolidated in 1978. In December, 1989, Peti-

tioner became the District Manager of the Consolidated

region known as “4Cs South.” In July, 1990, Petition-

er’s immediate supervisor, Ed Williams, reallocated a

segment of Petitioner’s region to another manager. On

August 9, 1990, Consolidated terminated Petitioner as

part of a reorganization. At that time, Petitioner was 56

years old. (Pet. App. 26).

After the reorganization, Consolidated operated only

two districts, instead of the four it previously had oper-

ated. Petitioner’s old region was combined into a new

district also called “4Cs South.”, Consolidated retained

a 40-year old employee, Ted Finnell, to manage the new

“4Cs South” region. (Pet. App. 26).

Petitioner brought this suit alleging that his termina-

tion violated the Age Discrimination in Employment Act,

29 U.S.C. § 623. After substantial discovery, Consoli-

dated moved for and the disrtict court granted sum-

mary judgment. The district court held that Petitioner

had not established a prima facie case under McDonnell-

Douglas v. Green, 411 U.S. 792 (1973), because he not

only failed to show that his replacement was younger

than 40 and thus outside the protected class, but also

failed to present any other evidence demonstrating that

Consolidated had not treated age neutrally in terminating

Petitioner. (Pet. App. 29-30). The district court further

found that Petitioner likewise failed to make a prima

facie case using traditional principles of proof. (Pet. App.

39-34). The court discounted Petitioner's direct evidence,

statements made by his immediate supervisor, because

7

4

there was no relationship between the statements and the

decision to discharge Petitioner. (Pet. App. 31). Addi-

tionally, the district court found unpersuasive Petitioner's

indirect evidence comparing his job performance with that

of his replacement. (Pet. App. 33-34).

On appeal, the Fourth Circuit upheld the grant of sum-

mary judgment stating that “applying the McDonnell-

Douglas paradigm we conclude that O’Connor cannot

establish a prima facie case because he fails to satisfy the

fourth element, i.e., he was not replaced by someone out-

side the protected class.” (Pet. App. 10). Agreeing with

the district court, the court of appeals also concluded that

Petitioner had not proven a prima facie case of age dis-

crimination under ordinary standards of proof using direct

or circumstantial evidence. (Pet. App. 15-19).

SUMMARY OF THE ARGUMENT

In a disparate treatment case under the Age Discrimi-

nation in Employment Act, a plaintiff is required to

prove that his employer discriminated against him because

of his age. Plaintiff has the initial burden of establishing

a prima facie case demonstrating the employer's unlawful

intent. A plaintiff may establish a prima facie case

through one of two ways. First, he may do so through

traditional methods of direct, indirect, or circumstantial

proof. When such traditional evidence is unavailable,

however, the plaintiff may resort to the inference of dis-

criminatory employer intent created by this Court in

McDonnell-Douglas v. Green, 411 U.S. 401 (1973).

In McDonnell-Douglas, this Court provided that a

plaintiff in a discrimination suit is entitled to an inference

of illegal employer animus, despite the absence of an

affirmative showing to that effect, if a four-part formula-

tion is satisfied. The Court reasoned that the facts estab-

lished pursuant to this four-part formula would eliminate

the two most obvious reasons for an adverse employment

action, poor job performance and lack of a position. This

5

would leave room for an inference of the critical unlawful

motive.

The instant case presents the question of how the -

fourth prong of the original McDonnell-Douglas frame-

work—whether the employer continued to seek to fill the

open position—should be applied when the plaintiff

actually has been “replaced. The Chamber urges modifi-

cation of the fourth prong to require that, in the replace-

ment context, the plaintiff in an ADEA suit must establish

that the replacement was outside the protected class. In

the alternative, the Chamber suggests that the plaintiff be

required to demonstrate that the replacement was “sub-

stantially younger.” The Chamber also recommends that

this “substantially younger” standard be interpreted to

require at least a ten-year age disparity between the plain-

tiff and the replacement.

A showing that plaintiff's replacement was outside the

protected class or, in the alternative, “substantially

younger” is necessary to justify the McDonnell-Douglas

inference of discriminatory animus. No such inference

can be justified by common sense or experience when the

plaintiff, and the replacement, both are within the class

protected by the ADEA or when the relative ages of the

two employees are comparable or only slightly different.

Neither of the suggested requirements would unduly

burden plaintiffs who have legitimate claims of discrimina-

tion because proof of age is readily available and easily

established. A plaintiff always has the option of estab-

lishing the prima facie case by utilizing traditional evi-

dence. Further, the Chamber’s proposed definite standard

will discourage meritless discrimination claims that un-

justifiably burden employers and clog the legal system.

Moreover, the decision in this case undoubtedly will

have wide-ranging effects in Title VII litigation and will

provide guidelines for determining whether the charac-

teristics of a replacement have relevance with respect to

the McDonnell-Douglas formulation under that statute.

6

ARGUMENT

I. TO BE ENTITLED TO THE McDONNELL-DOUGLAS

INFERENCE, AN ADEA PLAINTIFF WHO HAS

BEEN REPLACED SHOULD BE REQUIRED TO

ESTABLISH THAT THE REPLACEMENT WAS

OUTSIDE THE PROTECTED CLASS OR, IN

THE ALTERNATIVE, WAS SUBSTANTIALLY

YOUNGER.

The question presented in the instant ADEA case is

how the fourth element of the McDonnell-Douglas frame-

work for establishing a prima facie case should be

formulated when the plaintiff actually has been replaced.*

The Chamber submits that, in such circumstances, the

fourth element of the McDonnell-Douglas test should be

modified to require that a plaintiff must establish that

the replacement employee was outside the protected class

or, in the alternative, was substantially younger.

A. McDonnell-Douglas Principles in the ADEA Context

This Court has established a litigation framework, ap-

plicable in both ADEA and Title VII suits, wherein the

plaintiff initially has the burden of establishing a prima

facie case demonstrating the employer’s unlawful motive.*

% Petitioner and Amicus AARP have misconceived completely the

question at issue. Contrary to their assertions, the question is not

whether a plaintiff must show that the replacement is outside the

protected class to make out a prima facie case of age discrimina-

tion, for it is unquestioned that, using traditional methods of proof,

a plaintiff may establish a prima facie case regardless of the char-

acteristics of the plaintiff's replacement. Rather, the question

before this Court is whether a plaintiff, who has been replaced, may

avail himself of the substantial aid provided by the judicially-

created McDonnell-Douglas inference when the replacement is

within the protected class.

‘This Court has recognized that McDonnell-Douglas created a

framework of proof applicable to the ADEA. Hazen Paper Co. v.

7

Texas Dept. of Community Affairs v. Burdine, 450 U.S.

248, 253 (1981). A plaintiff may establish a prima facie

case through traditional evidentiary methods utilizing

direct, indirect, or circumstantial evidence.’ The Court

has noted, however, with regard to the critical issue of

employer intent, that it often will be difficult to find such

evidence. To aid plaintiffs in overcoming this obstacle,

the Court, in McDonnell-Douglas Corp. v. Green, 411

U.S. 792 (1973), created an alternative scheme of proof

whereby a plaintiff will be deemed to have established a

prima facie case even absent an affirmative showing of

unlawful employer intent. Jd. at 802. The McDonnell-

Douglas proof scheme is an artifice providing that, once

all of the elements of the scheme have been satisfied,

Biggins, 113 S. Ct. 1701, 1707 (1993). See also St. Mary’s Honor

Ctr. v. Hicks, 113 8. Ct. 2742, 2757 (1993) (Souter, J., dissenting).

® Use of such ordinary principles of proof does not implicate

special judicially-created presumptions or inferences related to the

evidence. Lovelace v. Sherwin-Williams, 681 F.2d 230, 239 (4th

Cir. 1982).

® Since the purpose of the McDonnell-Douglas proof scheme is to

aid plaintiffs due to the unavailability of evidence, Trans World

Airlines v. Thurston, 469 U.S. 111, 121 (1985), its inference is

surrogate proof for plaintiffs when actual evidence is not available

to them. Accordingly, this proof scheme may be resorted to only

when there is no direct, indirect or circumstantial evidence of

employer motive. It is inapplicable when the plaintiff is able to

present such direct or indirect evidence of discrimination. /d.

It could be argued that, technically, the district court in this

case should not have applied the McDonnell-Douglas analysis be-

cause Petitioner presented direct and circumstantial evidence of

discrimination. The district court, however, concluded that Peti-

tioner’s evidence was insufficient to establish a prima facie case

under traditional methods of proof. (Pet. App. 29-35).

Criticism by Petitioner and Amicus AARP of the district court's

examination of Petitioner’s direct evidence, including allegedly

ageist statements, is completely irrelevant to the instant issue

concerning the proper approach to interpreting the fourth element

of the McDonnell-Douglas scheme.

8

discriminatory intent becomes a “legally mandatory infer-

ence.” Burdine, 450 U.S. at 255 n.10.

Under the original formulation in McDonnell-Douglas,

a plaintiff in a disparate treatment case will be deemed

to have proved a prima facie case of discrimination if it

is shown that:

(1) plaintiff belongs to a [protected class];

(2) plaintiff applied for and was qualified for a

job for which the employer was seeking appli-

cations;

(3) despite plaintiff's qualifications, he was rejected;

and

(4) after plaintiff's rejection, the position remained

open and the employer continued to seek appli-

cations from persons with complainant’s qualifi-

cations."

411 US. at 802.

If this requisite showing is made, the two most obvious

reasons for the adverse employment action, poor job

performance and elimination of the position, are removed.

Int'l Bhd. of Teamsters v. United States, 431 U.S. 324,

358 n.44 (1977). Room then is left for an inference

that the plaintiff's membership in the protected class is

the basis for the adverse employment action. McDonnell-

Douglas is “simply proof of actions taken by the employer

from which we infer discriminatory animus because ex-

perience has proven that, in the absence of any other

explanation, it is more likely than not that those actions

were bottomed on impermissible considerations.” Furnco

Constr. Corp. v. Aikens, 438 U.S. 711, 580 (1983);

Teamsters, 431 U.S. at 358 n.44. Accordingly, the

7™The McDonnell-Douglas formula is silent regarding the char-

acteristics of the replacement because in that case no evidence was

presented showing that the plaintiff had been replaced. See Green v.

McDonnell-Douglas Co., 318 F. Supp. 846 (E.D. Mo. 1970), and

Green v. McDonnell-Douglas Co., 463 F.2d 337 (8th Cir. 1972).

9

McDonnell-Douglas formula is a statement of probabilities

based on common sense and experience. Furnco, 438

U.S. at 577; Price Waterhouse v. Hopkins, 490 U.S. 28,

267 (1989).

The guiding principle of McDonnell-Douglas is that

the “employee must show circumstances which give rise

to an inference of unlawful discrimination.” Burdine, 450

U.S. at 253. Thus, in the ADEA replacement scenario,

the Chamber submits that the fourth element of McDonnell-

Douglas should be modified to require facts justifying an

inference of unlawful employer motive.* “{The] absolute

and relative ages of the [plaintiff] and his replacement

have obvious relevance in assessing whether a factual in-

ference of age discrimination is permissible.”* Lovelace

* As the Court has noted repeatedly, the McDonnell-Douglas test

is to be modified to fit the myriad fact situations that arise in the

employment context. Burdine, 450 U.S. at 253 n.6. The Court in

fact has modified other elements of the McDonnell-Douglas frame-

work to accommodate differing fact situations. See U.S. Postal

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

Santa Fe Trail Transp. Co., 427 U.S. 273 (1976). The logic of those

cases applies with equal force here. Thus, the original statement of

the McDonnell-Douglas formulation should not be mechanically ad-

hered to when the plaintiff has in fact been replaced.

® Petitioner states, without authority, that “{T]he Court has

repeatedly accepted the proposition that a prima facie case may

exist without any regard for the identity of the replacement em-

ployee.” (Pet. Br. 15-16). It simply is not accurate to state that,

in applying McDonnell-Douglas in ADEA cases where there is a

replacement, this Court has concluded that the replacement’s iden-

tity is not relevant. This is the first case in which the issue has

been posed squarely.

Additionally, the EEOC’s reliance on Connecticut v. Teal, 457

U.S. 440 (1982), as support for the view that the nature of the

replacement is irrelevant is misplaced. Teal was a disparate impact

case. At issue was the employer's “bottom line” defense. The Court

held there that a racially-balanced workforce did not excuse the

employer’s use of selection criteria that had a racially adverse

impact. The Court said nothing about the role of replacements in

the McDonnell-Douglas framework.

10

v. Sherwin-Williams, 681 F.2d 230, 242 n.13 (4th Cir.

1982). For example, when a plaintiff is replaced by

another worker of comparable age, there is little, if any,

justification for allowing an inference of unlawful em-

ployer intent.” Common sense and common experience

dictate that an employer who was so biased against older

workers that it discharged an employee because of age

would not turn around and replace the employee with

another of like age.” As the Court observed in Price

Waterhouse v. Hopkins, 490 U.S. at 241, “[W]e need not

leave our common sense at the doorstep when we inter-

pret a statute.” Obviously, the same is true for applying

a judicially-created scheme of proof. Accordingly, to

allow an inference of unlawful motive while ignoring the

10 Amici AARP and the EEOC argue that the age of the replace-

ment should not be part of the McDonnell-Douglas elements because

an employer might replace an employee with an older employee in

order to mask discrimination and to ward off a lawsuit. (AARP Br.

20; EEOC Br. 17). Again, these Amici misunderstand the issue

here at stake and forget that there are two ways by which a plain-

tiff can prove a prima facie case. See McDonald v. Santa Fe Trail

Transp., 427 U.S. at 279 n.6. The Chamber submits that, in such

situation, a plaintiff should not be allowed to rely on the McDonnell-

Douglas framework because the ages in question would not support

an inference of unlawful employer intent.

‘! It is simply illogical to contend, as Amicus AARP does, that

“characteristics of the replacement will have no bearing on the

employer’s discriminatory intent.” (AARP Br. 10). For example,

logic compels the conclusion that if a 50-year old employee is re-

placed by a 50-year old employee, then the age of the discharged

worker almost certainly was not the motivating characteristic.

Thus, an employer might replace a 50-year old employee with an-

other 50-year old person as a cost savings measure because the

discharged employee was “close to vesting” under the employer's

pension plan. Indeed, this Court recently held that such an employ-

ment action would not constitute discriminatory treatment violative

of the ADEA. Hazen Paper v. Biggins, 113 S. Ct. at 1707. Rather,

it is a decision based on a factor other than age. Jd. The same

conclusion presumably would be reached when employees of similar

age have different years of seniority, experience or training and

such characteristics prompted the employer’s action.

available evidence of the replacement’s age is to base the

initial determination of unlawful motive on conjecture

and not on a rational assessment of the probabilities, a

result at odds with the logic of McDonnell-Douglas.

Furthermore, McDonnell-Douglas was based on the

premise that available evidence would eliminate the two

most legitimate reasons for the discharge. If available

evidence, including the replacement’s age, also eliminates

the alleged illegimate basis for the discharge, then com-

mon sense and logic dictate that the replacement’s age

should be considered too.

B. Appropriate Modification of McDonnell-Douglas for

ADEA Cases

It is the Chamber’s position that, in ADEA cases, this

Court should draw a bright line between the plaintiff's

age and the replacement’s age.

The lower courts often have noted the difficulty they

have experienced in applying McDonnell-Douglas in

ADEA cases. The Seventh Circuit recently noted that it

has developed no fewer than four different statements of

the McDonnell-Douglas prima facie case requirements in

ADEA cases involving discharges. See Kralman v. Illinois

Dep't of Veterans’ Affairs, 23 F.3d 150, 153 n.2 (7th

Cir.), cert. denied, 115 §. Ct. 1372 (1994). Even Amicus

AARP acknowledges that the lower courts have struggled

in adapting the fourth element of McDonnell-Douglas to

ADEA cases. (AARP Br. 9 n.6). This struggle has re-

sulted in inconsistent decisions both between and within

the circuit courts and a total lack of uniformity in admin-

istering the federal statute. A bright line standard will

provide clear guidance for both courts and litigants.

Furthermore, a bright line is necessary because age is

not a discrete, immutable characteristic, like race or

gender, which separates members within the protected

group indelibly from persons outside the protected group.

12

Carter v. City of Miami, 870 F.2d 578, 583 (11th Cir.

1980). Instead, it has shades and gradations. Absent

a clear, albeit somewhat arbitrary, line, age distinctions

are ephemeral.”

1. Replacement Is Outside the Protected Class

This Court, consistent with the Fourth Circuit's holding

below, should adopt a bright line requirement that a plain-

tiff must show that the replacement employee is outside

the protected class in order to be entitled to the benefits of

a McDonnell-Douglas inference of illegal motive.

By its terms, the ADEA prohibits discrimination only

against older employees, and it defines that group as per-

sons 40 years and older. 29 U.S.C. Section 631(a). To

justify an inference of unlawful employer motive under

McDonnell-Douglas, therefore, a_ plaintiff necessarily

should show that someone lacking the protected charac-

teristic, i.e., someone younger than 40 years old, was

treated more favorably.

Furthermore, Congress's intent in passing the ADEA

was to eliminate practices which operated to disadvantage

the employment opportunities of the class of workers pro-

tected by the Act.” “[{T}he primary purpose of the

[ADEA] was to facilitate the hiring of older workers.”

2 The ADEA itself establishes an arbitrary age limit restricting

its protections to persons 40 years and older. It was recognized

during the hearings on the Act that, “[E)very time you set an

arbitrary limit there is abuse, someone will be discriminated against

... and there is no remedy. But I think that is a risk and we

have to confine ourselves to reasonable limits.” Age Discrimination

in Employment Act: Hearings on H.R. 13054 Before the General

Subcomm. on Labor of the House Comm. on Education and Labor,

90th Cong., Ist Sess. 74-76 (1967) (Statement of Mr. Pestillo).

'S See H.R. Rep. No. 805, accompanying H.R. 13054 (Age Dis-

crimination in Employment Act of 1967), Oct. 23, 1967, 90th Cong.,

lst Sess., pp. 1, 7; S. Rep. 723, accompanying S. 830, Nov. 11, 1967,

90th Cong. Ist Sess., p. 1.

13

United Air Lines Inc. v. McMann, 434 U.S. 192, 210-211

(1977). See also EEOC v. Wyoming, 460 U.S. 226, 231

n.3 (1983). Thus, when a plaintiff's replacement also is

a member of the protected class, a judicial inference of

illegal motive is not justified. This is so because when a

member of the protected class is the replacement, he is

enjoying the very employment opportunities which the

ADEA was intended to foster. In such situations, the

legislation’s intent, rather than being undermined, actually

is being enhanced.

Petitioner and its Amici cite to legislative history of the

ADEA and an EEOC regulation interpreting the ADEA

and conclude that the ADEA protects workers from dis-

crimination on the basis of age, not just discrimination in

favor of persons under the age of 40. That may be so,

but it is not at all relevant to the question at issue of how

the McDonnell-Douglas scheme should be formulated

when the plaintiff has been replaced. Neither the ADEA’s

legislative history nor its regulations speak to this issue,

McDonnell-Douglas being a judicial creation.

Accordingly, it is consistent with the basic rationale of

McDonnell-Douglas, viewed in light of the fundamental

goals of the ADEA, to modify its fourth element, in the

replacement context, to require a plaintiff to demonstrate

that the replacement was outside the protected class.

2. Replacement Is “Substantially Younger”

An alternative bright line would be a modification of

McDonnell-Douglas’s fourth element to require a plaintiff

to show that the replacement is a “substantially” younger

person."* Such a requirement, the Chamber submits, is

' Several lower courts have adopted a “substantially” younger

standard. See, e.g., Maxfield v. Sinclair Intern, 766 F.2d 788 (3rd

Cir. 1985), cert. denied, 474 U.S. 1057 (1986); Goldstein v. Man-

hattan Indus., Inc., 758 F.2d 1435 (llth Cir. 1985); Haskell v.

Kamar Corp., 743 F.2d 113, 122 (2nd Cir. 1984) ; Douglas v. Ander-

son, 656 F.2d 528, 533 (9th Cir. 1981).

14

the minimum necessary to justify an inference of unlawful

employer intent under the ADEA.

It is obvious that when a replacement is of equal or

greater age than the plaintiff, no inference of illegal intent

can be justified. The same is true if the replacement is

younger, but only slightly so. For these reasons, the

Chamber submits that, at a minimum, the age disparity

between the plaintiff and the replacement should be suffi-

ciently great to create a reasonable inference that the

employer's decision was because of the age of the em-

ployee. Roper v. Peabody Coal Co., 47 F.3d 925, 927

(7th Cir. 1995); Bienkowski v. American Airlines, Inc.,

851 F.2d 1503, 1506 (Sth Cir. 1988).”

It is not enough, however, to adopt such a broad and

loose definition of the plaintiff's required a judi Given

that the McDonnell-Douglas scheme is a jud ial con-

struct, it would be appropriate for the Court to present

lower courts with a meaningful way to apply the “sub-

stantial” disparity standard. Indeed, in the Title VII con-

text, the Court has declared that when “approv[ing] the

use of disparate impact analysis in evaluating subjective

selection practices . . . [it] requires us to provide the lower

courts with appropriate evidentiary guidelines.” Watson

v. Fort Worth Bank & Trust, 487 U.S. 977, 994 n.2

(1988). Similarly, the Chamber respectfully suggests that

it would be appropriate for the Court to establish plain

and reasonable evidentiary guidelines that will effectuate

the goals of the ADEA without exhausting the parties’

resources through endless litigation.

'5In disparate impact cases, where an inference of unlawful

employer action is allowed based on statistical proof, this Court

has required that the disparity be “significant” or “substantial.”

See. e.g., Hazelwood School Dist. v. United States, 483 U.S. 299,

207-308 (1977): Dothard v. Rawlinson, 433 U.S. 321, 329 (1977);

Albemarle Paper Co. v. Moody, 422 U.S. 405, 435 (1975); Me-

Donnell-Douglas v. Green, 411 U.S. at 805; Griggs v. Duke Power

Co., 401 U.S. 424 (1971). See also EEOC regulations at 29 C.F.R.

Sections 1607.5(b) (3) & (4).

15

Accordingly, if the Court does not adopt a standard

requiring the replacement to be outside the protected class,

the Chamber urges the Court to require that, for the pur-

poses of the McDonnell-Douglas formulation, a plaintiff

can establish that the replacement was “substantially

younger” only by showing that the replacement was at

least ten years younger.

A ten-year disparity standard is supported by both the

Act’s legislative history and the EEOC regulations, both

of which refer to an age disparity of ten years as consti-

tuting ADEA discrimination."* Both references, moreover,

comport with what common sense and experience suggest,

that replacement by an individual who is less than ten

years younger than a plaintiff does not create a suffi-

ciently strong inference of unlawful motivation to justify

shifting the burden to the employer to defend its actions.

Requiring a plaintiff to establish the replacement’s age

in order to take advantage of the McDonnell-Douglas

inferences is not unduly burdensome. First, the age of the

replacement is a readily available and easily proven, ob-

jective fact. Unlike direct evidence of motive, it is not

evidence exclusively within the employer’s control and

inaccessible to a plaintiff. Practically speaking, the con-

sequence of such a requirement for the plaintiff would be

negligible, certainly “not onerous.” See Burdine, 450 U.S.

at 253.

On the other hand, the burden which shifts to an em-

ployer after a plaintiff makes a prima facie case is signifi-

cant, weighty and costly, and should be imposed on the

'6 Senator Javits commented “[1}f two individuals ages 52 and 42

apply for the same job and the employer selected the man age 42

solely . . . because he is younger than the man 52, then he wil! have

violated the act.” 113 Cong. Rec. 31,255 (1967) (statement of

Senator Jacob Javits). The EEOC regulation provides that “if two

people apply for the same position, and one is 42 and the other 52,

the employer may not lawfully turn down either one on the basis

of age.” 29 C.F.R. Section 1625.2(a).

16

employer only when the available facts, including the re-

placement’s age, point to an improper motive."’

Further, this requirement in no way limits the cause of

action or restricts the age protections provided by the

ADEA. Contrary to the apparent misunderstanding of

Petitioner and his Amici," the Chamber is not suggesting

that the Court should redefine the cause of action and

declare that a plaintiff can establish unlawful age discrim-

ination only if the replacement is of a certain age. In-

stead, the Chamber's position is that for an ADEA plain-

tiff to be entitled to the obvious benefits of the McDonnell-

Douglas scheme, more is required than a mere showing

that the plaintiff has been replaced.

A clear result of the Chamber's suggestion is that

ADEA plaintiffs with unmeritorious cases will not suc-

ceed in establishing a prima facie case through invoca-

tion of McDonnell-Douglas. Absent consideration of the

replacement’s age, virtually any protected employee can

make out a prima facie case under McDonnell-Douglas, as

originally formulated, by simply showing membership in

the protected class. Thus, almost every adverse action

involving an employee over age 40 has a a tendency to

become a federal employment discrimination case. Noth-

ing in the ADEA supports such an untoward result.

By restricting establishment of a McDonnell-Douglas

prima facie case, numerous baseless lawsuits will be elim-

'T After the plaintiff makes the prima facie case, the employer

must produce a legitimate reason for its actions. “To accomplish

this, the defendant must clearly set forth, through the introduction

of admissible evidence, the reasons for the [adverse employment

action].” Burdine, 450 U.S. at 255. “An articulation not admitted

into evidence will not suffice. Thus, the defendant cannot meet its

burden merely through an answer to the complaint or argument of

counsel.” Jd. See also USPS v. Aikens, 460 U.S. at 714-715. Ata

minimum, the defendant’s burden necessarily almost always will

involve substantial discovery, and most likely, participation in a

hearing wherein it must offer some direct evidence.

18 Pt. Br. 17-20; EEOC Br. 9-12; AARP Br. 16-21.

17

inated at an early stage. “Pointless litigation burdens both

the parties and the federal courts.” EEOC v. Associated

Dry Goods Corp., 449 U.S. 590, 602 (1981). Adoption

of the bright line approach urged by the Chamber, and

thereby reinvigorating the McDonnell-Douglas standard

in ADEA cases, wil) help relieve the unwarranted stress

on the courts and the legal system that have resulted from

the diluted standard of shifting burdens countenanced by

some circuit courts.

Il. THE DECISION IN THIS CASE IS RELEVANT TO

THE SAME ISSUE IN TITLE VII CASES.

In determining the role of replacements under

McDonnell-Douglas in ADEA cases, the Court simul-

taneously will impact the burden shifting scheme in Title

VII cases."”

As noted above, the Court has stated that the

McDonnell-Douglas proof scheme is equally applicable

to both Title VII and ADEA cases. Moreover, Justice

Souter has noted that “[{t]his Court has not directly ad-

dressed the question whether the characteristics of some-

one chosen to replace a Title VII plaintiff are material,

and that issue is not before us today.” Hicks, 113 S. Ct.

at 2758 n.1 (Souter, J., dissenting ).”

Accordingly, whatever approach the Court adopts in

the instant case regarding the issue of the replacement’s age

will have relevance with respect to a replacement’s char-

acteristics in Title VII cases. For example, should the

Court now conclude that the replacement’s age is irrele-

vant under the McDonnell-Douglas scheme in ADEA cases,

it could be argued plausibly in a Title VII race case that

the replacement’s race also is irrelevant under the

19 42 U.S.C. §§ 200060 et seq.

2° On several occasions, however, this Court has noted the char-

acteristics of the replacement when reviewing the plaintiff's prima

facie case under Title VII. See, e.g., USPS v. Aikens, supra,

460 U.S. at 714; Hicks, supra, 113 S. Ct. at 2747.

18

McDonnell-Douglas formulation.” The same would be

true regarding claims of unlawful discrimination on the

basis of gender, religion, or national origin. Viewed in

this light, and considering the very purposes of the anti-

discrimination laws, the characteristics of a replacement

employee become a vital fact that must be taken into

account under McDonnell-Douglas if employers and the

courts are to avoid an additional torrent of meritless dis-

crimination litigation.

CONCLUSION

For the foregoing reasons, the Chamber of Commerce

urges the Court to affirm the judgment of the United

States Court of Appeals for the Fourth Circuit or to enter

an appropriate modifying order.

Respectfully submitted,

Of Counsel: MARSHALL B. BABSON *

STEPHEN A. BOKAT STANLEY R. STRAUSS

ROBIN S. CONRAD Suge J. HENRY

MoNA C. ZEIBERG OGLETREE, DEAKINS, NASH,

NATIONAL CHAMBER SMOAK & STEWART

LITIGATION CENTER, INC. 2400 N Street, N.W.

1615 H Street, N.W. Washington, D.C. 20037

Washington, D.C. 20062 (202) 887-0855

(202) 463-5337 Counsel for the Chamber of

Commerce of the United

Dated: January 31, 1996 States of America

* Counsel of Record

21 There appears to be a split among the courts of appeals regard-

ing whether the characteristics of the replacement are relevant in

Title VII cases. Compare, e.g., Davenport v. Riverview Gardens

School Dist., 30 F.3d 940, 944-945 (8th Cir. 1994) (holding replace-

ment is not relevant) with Ang v. Proctor & Gamble Co., 982 F.2d

540, 548 (6th Cir. 1991) (holding replacement is relevant. See

also cases cited in footnote 5 of the amicus brief of the EEOC.