# Amicus Curiae Brief — O'CONNOR v. Consolidated Coin Caterers Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0651%3A09 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1996 - **Citation:** 517 U.S. 308 ## Text Lf F ed Tu on >)" BREBP AMICUS CURIAE OF ‘THE CHAMBER OF COMMERCE OF THE UNITED STATES sy es tee 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0651%3A09. Public record. Not legal advice.