Amicus Curiae Brief — Reeves v. Sanderson Plumbing Products, Inc.

Supreme Court, U.S,

Jon 7 2000 FILED

— J

~ JAN 2 2000

No. 99-536 [

Jn the Supreme Court of the Ginited states

ROGER REEVES, PETITIONER

v.

SANDERSON PLUMBING PRODUCTs, INC.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES AND

THE EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION AS AMICI CURIAE SUPPORTING

PETITIONER

SETH P. WAXMAN

Solicitor General

Counsel of Record

C. GREGORY STEWART

General Counsel

PHILLIP B. SKLOVER

Associate General Counsel

VINCENT BLACKWOOD

Assistant General Counsel

DORI K. BERNSTEIN

Attorney

Equal Employment

Opportunity Commission

Washington, D.C. 20507

BARBARA D. UNDERWOOD

Deputy Solicitor General

MATTHEW D. ROBERTS

Assistant to the Solicitor

General

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTIONS PRESENTED

1. Whether prima facie proof of age discrimination,

coupled with evidence sufficient to support a finding

that the employer has not offered its true reason for an

adverse employment action, is sufficient to sustain a

jury verdict of intentional discrimination in violation of

the Age Discrimination in Employment Act.

2. Whether, in passing on a motion for judgment as a

matter of law under Federal Rule of Civil Procedure 50,

a court considers all of the evidence or only the

evidence favorable to the party against whom judgment

is sought.

3. Whether the standard for granting judgment as

a matter of law under Rule 50 is the same as the stan-

dard for granting summary judgment under Federal

Rule of Civil Procedure 56.

TABLE OF CONTENTS

Interest of the United States and the Equal Employment

Opportunity Commission

Statement

Summary of argument

Argument:

The court of appeals erred in awarding judgment as a

matter of law to respondent because the evidence was

sufficient to sustain the jury’s verdict that respondent

fired petitioner in violation of the ADEA

A. Prima facie proof of dis&mination, together with

evidence that the employer has not offered its

true reason for an adverse employment action,

is usually sufficient to support a jury finding of

ecrieninatl

B. _Petitioner’s prima facie case, coupled with his

evidence that respondent did not offer the true

reason for firing him, was sufficient to support

the jury’s verdict, despite the contrary evidence

on which the court of appeals relied

Conclusion

TABLE OF CONTENTS

Cases:

Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970) ............

Anderson v. Bessemer City, 470 U.S. 564 (1985) .........

Anderson v. Liberty Lobby, Inc., 477 U.S. 242

10

1]

eS

(1986) 22, 23, 24, 30

Brady v. Southern Ry., 320 U.S. 476 (1943)

Castaneda v. Partida, 430 U.S. 482 (1977)

Continental Ore Co. v. Union Carbide & Carbon Corp.,

370 U.S. 690 (1962)

Furnco Const. Corp. v. Waters, 438 U.S. 567 (1978) .......

14, 16, 25, 29

(IID)

IV Vv

Cases—Continued: Page Statutes and rules: Page

Graves v. United States, 150 U.S. 118 (1898) ...........000 19 Americans with Disabilities Act of 1990, 42 U.S.C.

Hazen Paper Co. v. Biggins, 507 U.S. 604 (1998) ........ 11, 12 12101 et seq. - 10

Jackson v. Virginia, 443 U.S. 307 (1979) 23 Age Discrimination in Employment Act of 1967,

Lockhart v. Nelson, 488 U.S. 33 (1988) 23 29 U.S.C. 621 et seq. l

Lorillard v. Pons, 434 U.S. 575 (1978) 12 29 U.S.C. 623(a)(1) 10

Lytle v. Household Mfg., Inc., 494 U.S. 545 (1990) .......... 22 29 U.S.C. 631(a) 10

MacDissi v. Valmont Indus., Inc., 856 F.2d 1054 = Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e

(8th Cir. 1988) 18 seq. 1,10

; Equal Pay Act of 1963, 29 U.S.C. 206(d) 10

Matoushite Bice. indus. Co., Lid. v. Zenith Ratio National Labor Relations Act, 29 U.S.C. 158(a) ............ 10

Corp., 475 U.S. 574 (1986) 23 Fed. R. Civ. P:

McDonnell Douglas Corp. v. Green, 411 U.S. 792 Rule 50 gaa 22. 23

(1973) 8, 11, 12, 13, 14, 17 Advisory Committee’s Note (1991 Amendments)... 23, 24

McKennon v. Nashville Banner Publ’g Co., 513 US. Rule 52(a) 23

352 (1995) 10, 12 Rule 56 23

O’Connor v. Consolidated Coin Caterers Corp., Fed. R. Crim. P. 29 23

517 U.S. 308 (1996) 1, 12, 15 Fed. R. Evid. 301 17, 18

Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 i. | a

(1998) |

, Marc Bendick, Jr. et al., No Foot in the Door: An Ex-

a v. McLean Credit Union, 491 U.S. 164 e perimental Study of Employment Discrimination

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) ... 20, a ee ee

| 29, 30 Edward H. Cooper, Directions for Directed Verdicts:

Rothmeier v. Investment Advisers, Inc., 85 F.3d 1328 A Compass for Federal Courts, 55 Minn. L. Rev. 903

(8th Cir. 1996) _ (1971) 23, 24

St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 1 Edward J. Devitt et al., Federal Jury Practice and

(1993) weve passim Instructions (1992) 19

Teamsters v. United States, 431 U.S.324(1977).. 12, 16, 20 EEOC, Enforcement Guidance on St. Mary’s Honor

Texas Dep't of Community Affairs v. Burdine, Center v. Hicks, 8 Fair Empl. Prac. Man. (BNA)

450 U.S. 248 (1981) . 12, 18, 14, 16, 17 405:7175 (Apr. 12, 1994) ......... : 21

United States Postal Serv. Bd. of Governors v. Aikens, 1 Christopher B. Mueller & Laird C. Kirkpatrick,

460 U.S. 711 (1983) 11, 13, 20, 29 Federal Evidence (2d ed. 1994) 18

«ah H.R. Conf. Rep. No. 1597, 93d Cong., 2d Sess. (1974) ........ 17

Webb v. Illinois Cent. R.R., 352 U.S. 512 (1957) ............. 22 G “ws

. regory P. Joseph et al., Evidence in America: The

Wilkerson v. McCarthy, 336 U.S. 53 (1949) ..........00000 22, 23 Federal Rules in the States (1987) 18

Wright v. West, 505 U.S. 277 (1992) 19

VI

Jn the Supreme Court of the United States

Miscellaneous—Continued: Page

Leonard B. Sand et al., Modern Federal Jury

Instructions (1999): No. 99-536

Vol. 1 - 19 ROGER REEVES, PETITIONER

Vol. 5 ..... 18-19 .

2 John H. Wigmore, Evidence in Trials at Common :

Law (Chadbourn rev. 1979) 19 SANDERSON PLUMBING PRODUCTs, INC.

Charles A. Wright et al., Federal Practice and Proce-

dure (1977): ON WRIT OF CERTIORARI TO THE

Vol. 9A se 22, 23, 24 UNITED STATES COURT OF APPEALS

Vol. 21 ..... 17, 18 FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES AND

THE EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION AS AMICI CURIAE SUPPORTING

PETITIONER

INTEREST OF THE UNITED STATES AND THE

EQUAL EMPLOYMENT OPPORTUNITY COMMISION

This case concerns the amount and nature of proof

required to sustain a jury’s finding of age discrimina-

tion in violation of the Age Discrimination in Employ-

ment Act of 1967 (ADEA), 29 U.S.C. 621 et seg. The

Equal Employment Opportunity Commission (EEOC)

has responsibility for interpreting and enforcing the

ADEA, which prohibits discrimination in employment

on the basis of age. The courts have applied the same

standards of proof under the ADEA as under Title VII

of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq.

O'Connor v. Consolidated Coin Caterers Corp., 517

U.S. 308, 310-311 (1996). The Attorney General and the

EEOC share responsibility for enforcing Title VII,

which prohibits employment discrimination on the basis

of race, sex, religion, or national origin. The resolution

of this case will affect the discharge by the Attorney

(1)

2

General and the EEOC of their responsibilities under

those statutes.

STATEMENT

1. Petitioner Roger Reeves worked for respondent

Sanderson Plumbing Products, a manufacturer of toilet

seats and covers, for 40 years. Pet. App. 2a. In October

1995, respondent fired petitioner from his job as a

supervisor in the Hinge Room. Petitioner was 57 years

old. On three successive occasions over the next two

years, respondent filled petitioner’s former position

with men in their thirties. /d. at 2a-3a.

The Hinge Room included a “regular line,” super-

vised by petitioner, and a “special line,” supervised by

Joe Oswalt, a man in his thirties. Russell Caldwell, age

45, was manager of the Hinge Room and supervised

both petitioner and Oswalt. As part of his duties,

petitioner was required to keep daily attendance and

tardiness records for the workers he supervised. Pet.

App. 2a.

In late 1993, respondent's Department of Quality

Control, under the direction of Powe Chesnut, con-

ducted an efficiency study of Hinge Room operations.

Pet. App. 2a. Chesnut had married company president

Sandra Sanderson in 1988. /d. at 3a n.1. According to

Oswalt, Chesnut was “in absolute power” at the plant

for “as long as [he] could remember.” 3 R. 80. Ches-

nut’s efficiency study identified “productivity prob-

lems” on the regular line “stemming from a lax assem-

bly line operation.” Pet. App. 2a-3a. Consequently, at

Chesnut’s recommendation, petitioner was placed on a

90-day probation for unsatisfactory performance. /bid.'

! At trial, Chesnut initially testified that he “made no instruc-

tions, no recommendation” that petitioner be placed on probation

following the 1993 efficiency study. 4 R. 199. When confronted

3

Company records showed that, during 1993, peti-

tioner’s productivity was comparable to that of Oswalt,

the younger supervisor of the special line. See 3 R. 163-

167; 4 R. 226. Yet only the regular line, supervised by

petitioner, was subjected to an efficiency study, and

only petitioner was placed on probation. 3 R. 166-167; 4

R. 228-229, After the probationary period, petitioner's

productivity increased, and he was awarded a merit pay

raise. 3 R. 103, 113.

By 1995, Chesnut had been promoted to Director of

Manufacturing. Pet. App. 3a. Hinge Room manager

Caldwell told Chesnut that the department was having

trouble meeting production requirements due to “per-

vasive absenteeism and tardiness.” Jbid. In the fall of

1995, Chesnut ordered an audit of the time records of

Hinge Room employees for the months of July, August,

and September. 4 R. 204-205. According to respon-

dent, the audit disclosed “numerous timekeeping errors

and misrepresentations” by Caldwell, Oswalt, and peti-

tioner. Pet. App. 3a. Based on the audit results, Ches-

nut, Dana Jester, Vice President of Human Resources,

and Tom Whitaker, Vice President of Operations, rec-

ommended that Caldwell and petitioner be discharged.

Company President Sanderson followed the recom-

mendation and fired both petitioner and Caldwell in Oc-

tober 1995. /bid. Oswalt had left his job voluntarily on

August 1, before the audit was conducted. 3 R. 79.

Chesnut testified that, had Oswalt still been with the

company, he would also have been discharged. Pet.

App. 3a n.3.

with his signed affidavit on cross-examination, however, Chesnut

acknowledged that he had in fact recommended petitioner for

probation in 1993. Jd. at 237.

4

Petitioner sued respondent in 1996, claiming that he

was discharged because of age in violation of the

ADEA. Petitioner testified at trial that, on the day he

was fired, Chesnut told him that he was being dis-

missed because of a timekeeping error involving a

single employee, Genie Mae Coley, who was paid for

two days in September 1995 when she was absent from

work. 3 R. 23. Petitioner demonstrated at trial, how-

ever, that he was in the hospital on the two days for

which Coley was allegedly overpaid and that Caldwell

was responsible for any error in Coley’s time sheets.

Id. at 17.

At trial, respondent asserted that petitioner was

fired because of his “shoddy record keeping” in docu-

menting the attendance and hours of employees under

his supervision. Pet. App. 7a. According to respondent,

petitioner’s errors resulted in payments to employees

for time they had not worked and failure to discipline

employees who were absent or tardy. /bid. Respondent

maintained that the alleged errors in petitioner’s record

keeping exposed the company to the risk of union

grievances or charges of unfair labor practices for in-

consistent disciplinary actions. 3 R. 154. Chesnut ac-

knowledged, however, that the company had never re-

ceived a single union grievance or employee complaint

arising from petitioner’s timekeeping practices. 4 R.

267. Nor did respondent ever calculate the amount of

any overpayment to employees resulting from alleged

errors in petitioner’s record keeping. /d. at 301.

Petitioner challenged the veracity of respondent’s

assertion that his record keeping was inaccurate. Pet.

App. 8a. The vast majority of the errors attributed to

petitioner arose from his failure to record as “late”

employees who, according to the daily timesheet, had

arrived at 7 a.m. for a 7 a.m. shift. 3 R. 118-123; 4 R.

5

241-245. Sanderson maintained that employees who

clocked in at 7 a.m. could not be at their work stations

as required for the start of the 7 a.m. shift, and there-

fore they should have been coded as “late” on the

weekly timesheet. 3 R. 119-120.

Both petitioner and Oswalt testified, however, that

respondent’s automated time clock often failed to scan

the “bar codes” on employees’ time cards, in which case

the initial daily timesheet would not reflect an arrival

time. 3 R. 18-20, 84-85; 4 R. 335. Each supervisor was

therefore required to record attendance manually by

visually checking whether each employee was at his or

her work station at the start of the 7 a.m. shift. 4 R.

335. When the daily time sheet failed to show that an

employee had clocked in, but the supervisor had

manually recorded that the employee was at his or her

work station at the start of the shift, the supervisor

would reconcile the records by writing in a 7 a.m.

arrival time for the employee on the time sheet. 3 R.

18-20, 84-85; 4 R. 335. In those circumstances, even

when an employee had actually arrived at work before

7 a.m., his time of arrival was recorded on the timesheet

as 7a.m. Ibid.

Chesnut confirmed that “there were times the bar

code” on employees’ time cards “wouldn’t work,” and,

on those occasions, if “people were there at their work

station[s]” at the start of the shift, the supervisors

“would write in seven o’clock,” and “[t]hat would show

in the time card.” 4 R. 243-244. Both Chesnut and

Sanderson also acknowledged that employees who

clocked in before 7 a.m. were treated as arriving at 7

a.m. for purposes of computing their pay. 3 R. 124-125;

4 R. 263.

Petitioner testified that he checked whether his

employees arrived on time and assigned extra work to

6

any employee who was paid for arriving early or

staying late. See Pet. App. 8a. According to petitioner,

any record keeping errors that may have occurred

resulted from “Caldwell’s inattentiveness and not his

own.” Jbid. Sanderson agreed with petitioner that

Caldwell, not petitioner, was responsible for preparing

disciplinary write-ups for excessive tardiness or

absenteeism. 3 R. 138.

Petitioner further testified that Chesnut regularly

subjected him to verbal abuse on the job. 3 R. 26. In

particular, petitioner recalled that, approximately two

months before his termination, Chesnut approached

him while he was trying to get a machine running and

told him he was “too damn old to do [his] job.” bid. On

an earlier occasion, Chesnut commented that petitioner

was “so old [he] must have come over on the May-

flower.” Jbid. Oswalt corroborated the “obvious differ-

ence” in Chesnut’s treatment of petitioner. Jd. at 82.

Oswalt recalled that, although he and Chesnut “had

[their] differences,” Chesnut’s behavior toward him

“was nothing compared to the way he treated [peti-

tioner].” Jbid. Oswalt testified that Chesnut treated

petitioner “as you would * * * treat * * * a child

[with whom] you're angry.” Jd. at 83. According to

Oswalt, Chesnut subjected petitioner to increased scru-

tiny, and “didn’t treat [him] very well.” Ibid.

At the close of the evidence, the district court denied

respondent’s motion for judgment as a matter of law

and sent the case to the jury. 4 R. 354. The jury was

instructed that, “[ilf the plaintiff fails to prove age was

a determinative or motivating factor in the discharge of

plaintiff, then you shall find for the defendant.” Jd. at

368. The jury found respondent liable for willful dis-

crimination based on age. The district court denied

respondent’s post-trial motion for judgment as a matter

7

of law or for a new trial, and respondent appealed. Pet.

App. 4a.

2. The court of appeals reversed and rendered

judgment for respondent. Pet. App. la-10a. On appeal,

respondent did not dispute that petitioner had estab-

lished a prima facie case of age discrimination, id. at 6a,

and the court of appeals acknowledged that, based on

the evidence at trial, “a reasonable jury could have

found that [respondent’s] explanation for its employ-

ment decisions was pretextual.” Jd. at 8a. The court

ruled, however, that “whether [respondent] was forth-

right in its explanation for firing [petitioner] is not

dispositive of a finding of liability under the ADEA”

and went on to consider “as an essential final step

* * * whether [petitioner] presented sufficient

evidence that his age motivated [respondent’s] employ-

ment decision.” bid.

In that inquiry, the court discounted the probative

value of petitioner’s evidence of respondent’s discrimi-

natory motivation, and concluded, in light of evidence

favorable to respondent, that petitioner “did not intro-

duce sufficient evidence of age discrimination to sup-

port the jury’s finding of liability under the ADEA.”

Pet. App. 9a-10a. Although it acknowledged “the

potentially damning nature of Chesnut’s age-related

comments,” the court gave several reasons why it

believed that those remarks were insufficient to show

discriminatory motive in petitioner’s discharge: The

“comments were not made in the direct context of

[petitioner’s] termination,” Chesnut was “just one of

three individuals who recommended to Ms. Sanderson

that [petitioner] be terminated,” and petitioner pro-

duced no evidence that “any of the other decision

makers were motivated by age.” Jd. at 9a. The court

noted that two of the decision makers were over age 50,

8

and “20 of the company’s management positions were

filled by people over the age of 50, including several

employees in their late 60s.” Jd. at 9a-10a. Finally, the

court remarked that all three Hinge Room supervi-

sors—Caldwell and Oswalt as well as petitioner—were

accused of inaccurate record keeping. Based on its

review of the record, the court set aside the jury’s

verdict and rendered judgment for respondent. Jd. at

10a.

SUMMARY OF ARGUMENT

Recognizing the difficult and sensitive nature of the

question facing fact finders in cases of intentional

employment discrimination, this Court has developed

an evidentiary framework that enables employees to

prove their cases through circumstantial evidence. See

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

Under that framework, an employee makes out a prima

facie case of discrimination by presenting proof of

actions by the employer that, if unexplained, more

likely than not are based on factors prohibited by law.

The prima facie case not only is sufficient to permit a

trier of fact to find discrimination, but also gives rise to

a mandatory presumption, which, if unrebutted, re-

quires judgment for the employee. The employer can

rebut the presumption by introducing evidence that, if

believed, shows that the employer acted for a legiti-

mate nondiscriminatory reason. The employee then has

the opportunity to disprove the proffered explanation

and demonstrate that it is a pretext for discrimination.

In St. Mary’s Honor Center v. Hicks, 509 U.S. 502,

511 (1993), this Court held that proof that the em-

ployer’s asserted reasons for its actions were not the

true reasons does not compel judgment as a matter of

law for the employee, because the fact finder still must

-—=e

9

determine that the true reason was discrimination. The

court of appeals in this case held that such proof not

only does not compel judgment for the employee, but

does not permit judgment for the employee without

additional evidence of discriminatory intent.

That holding is inconsistent with the clear statement

in Hicks that “rejection of the defendant’s proffered

reasons is enough at law to sustain a finding of dis-

crimination.” 509 U.S. at 511 n.4. It is also inconsistent

with the meaning of a prima facie case, the reasonable

inferences that arise when an employer offers a dis-

credited explanation for an action that has been chal-

lenged as discriminatory, and general evidentiary

principles concerning the effect of presumptions and

the inferences that fact finders are permitted to make.

In order to have his case presented to the jury, an

employee ordinarily need not produce more than prima

facie proof of discrimination plus evidence sufficient to

support rejection of the explanation offered by the

employer. If an employee has introduced such evi-

dence, a court may not render judgment as a matter of

law for the employer, except in the unusual circum-

stance in which the evidence otherwise conclusively

establishes that the employer acted for a nondis-

criminatory reason different from the one that the

employer proffered.

In this case, petitioner presented prima facie proof of

age discrimination and evidence that respondent of-

fered a pretextual reason for his discharge. There was

no evidence that would have precluded a reasonable

jury from inferring from petitioner’s proof that respon-

dent fired petitioner because of his age. The evidence

was therefore sufficient to sustain the jury’s verdict

that respondent violated the ADEA. In setting aside

the verdict, the court of appeals improperly usurped

10

the jury’s function of weighing the evidence, drawing

reasonable inferences, and making the ultimate factual

finding whether petitioner’s discharge was unlawfully

motivated by age.

ARGUMENT

THE COURT OF APPEALS ERRED IN AWARDING

JUDGMENT AS A MATTER OF LAW TO RESPON-

DENT BECAUSE THE EVIDENCE WAS SUFFICIENT

TO SUSTAIN THE JURY’S VERDICT THAT RESPON-

DENT FIRED PETITIONER IN VIOLATION OF THE

ADEA

The Age Discrimination in Employment Act (ADEA

or Act), makes it “unlawful for an employer * * * to

fail or refuse to hire or to discharge any individual or

otherwise discriminate against any individual with

respect to his compensation, terms, conditions, or privi-

leges of employment, because of such individual’s age.”

29 U.S.C. 623(a)(1). The Act protects only workers who

are “at least 40 years of age.” 29 U.S.C. 63l(a). The

ADEA was enacted “as part of an ongoing congres-

sional effort to eradicate discrimination in the work-

place,” and it is one component in “a wider statutory

scheme to protect employees in the workplace nation-

wide.” McKennon v. Nashville Banner Publ’g Co., 513

U.S. 352, 357 (1995) (citing Title VII of the Civil Rights

Act of 1964, 42 U.S.C. 2000e et seq. (race, color, sex,

national origin, and religion); the Americans with Dis-

abilities Act of 1990, 42 U.S.C. 12101 et seq. (disability);

the National Labor Relations Act, 29 U.S.C. 158(a)

(union activities); and the Equal Pay Act of 1963, 29

U.S.C. 206(d) (sex)). Recent research indicates that

age discrimination in employment continues to be a sig-

nificant problem. See Mare Bendick, Jr. et al., No Foot

in the Door: An Experimental Study of Employment

cece Re se

11

Discrimination Against Older Workers, 10(4) J. Aging

& Soc. Pol’y 5 (1999).

In a case alleging unlawful disparate treatment in

employment, “liability depends on whether the pro-

tected trait (under the ADEA, age) actually motivated

the employer’s decision.” Hazen Paper Co. v. Biggins,

507 U.S. 604, 610 (1993). To prevail, the employee must

show that his “protected trait actually played a role” in

the employer’s decisionmakirg process “and had a

determinative influence on the outcome.” Jbid. This

case concerns how much and what kind of evidence is

sufficient for an employee to make that showing.

A. Prima Facie Proof Of Discrimination, Together With

Evidence That The Employer Has Not Offered Its True

Reason For An Adverse Employment Action, Is Usually

Sufficient To Support A Jury Finding Of Discrimination

1. This Court has recognized that “the question

facing triers of fact in discrimination cases is both

sensitive and difficult,” because “(t]here will seldom be

‘eyewitness’ testimony as to the employer’s mental

processes.” United States Postal Serv. Bd. of Gover-

nors v. Aikens, 460 U.S. 711, 716 (1983). To overcome

the scarcity of direct proof of discriminatory motive,

and to ensure that the “important national policy” em-

bodied in the fair employment laws is achieved, Aikens,

460 U.S. at 716, the Court crafted, in McDonnell Doug-

las Corp. v. Green, 411 U.S. 792, 801 (1973), “a sensible,

orderly way to evaluate the evidence in light of common

experience as it bears on the critical question of

discrimination.” Furnco Constr. Corp. v. Waters, 438

U.S. 567, 577 (1978). That evidentiary framework helps

the factfinder to decide the “elusive factual question of

intentional discrimination” when an employee uses

circumstantial evidence to establish disparate treat-

12

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

450 U.S, 248, 255 n.8 (1981).

To prove unlawful discrimination under the

McDonnell Douglas framework, the employee “must

carry the initial burden * * * of establishing a prima

facie case,” 411 U.S. at 802, by producing “evidence

adequate to create an inference that an employment

decision was based on af{n] [illegal] discriminatory

criterion,” Teamsters v. United States, 431 U.S. 324, 358

(1977). For example, here petitioner established a

prima facie case with proof that he was: (1) 57 years old

(and thus within the statutorily protected age group);

(2) qualified for his position as Hinge Room supervisor;

(3) discharged; and (4) replaced, on three successive

occasions over the next two years, by men in their

thirties. See Pet. App. 5a-6a & n.11.

The prima facie case “creates a presumption that the

employer unlawfully discriminated against the em-

ployee,” and, if unrebutted, requires “judgment for the

plaintiff because no issue of fact remains in the case.”

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

2 Every court of appeals “has applied some variant of the basic

evidentiary framework set forth in McDonnell Douglas” to ADEA

claims. O'Connor v. Consolidated Coin Caterers Corp., 517 U.S.

308, 311 & n.2 (1996). Although this Court has “never had occasion

to decide whether that application of the Title VII rule to the

ADEA context is correct,” id., the substantive “prohibitions of the

ADEA were derived in haec verba from Title VII.” Lorillard v.

Pons, 434 U.S. 575, 584 (1978). Moreover, the two statutes share a

common purpose. McKennon, 513 U.S. at 358. The rationale of

McDonnell Douglas is thus equally applicable to claims under

either statute. See Hazen Paper, 507 U.S. at 612 (suggesting that

the McDonnell Douglas “proof framework [is] applicable to

ADEA”). Moreover, as in O'Connor, the parties in this case agree

that the McDonnell Douglas framework applies. See 517 U.S. at

311.

—_—-—

13

discrimination and raise “a genuine issue of fact as to

whether it discriminated” against the employee, the

employer “must clearly set forth, through the intro-

duction of admissible evidence, the reasons” for the

challenged action. /d. at 254-255. For example, here

respondent introduced evidence that it fired petitioner

because of alleged errors in recording the absences and

tardiness of employees under his supervision. See Pet.

App. 7a-8a.

Once the employer has produced evidence of a

legitimate, nondiscriminatory explanation for its deci-

sion, the employee has the opportunity to show that

tne “proffered reasons for [the employer's] decision

were not its true reasons,” Patterson v. McLean Credit

Union, 491 U.S. 164, 187 (1989), but “were in fact a

coverup for a * * * discriminatory decision,”

McDonnell Douglas, 411 U.S. at 805. The employee's

proof “may take a variety of forms,” and the employee

is “not limited to presenting evidence of a certain type.”

Patterson, 491 U.S. at 187.

Evidence that the rule or criterion cited by the

employer to explain its decision was applied in a dis-

criminatory manner is especially relevant. McDonnell

Douglas, 411 U.S. at 804. “Other evidence that may be

relevant to any showing of pretext includes facts as to

the [employer’s] treatment of [the employee] during his

* * * term of employment,” ibid., including dis-

criminatory remarks or instances of harassment or

abuse by individuals responsible for the challenged

employment decision. See Patterson, 491 U.S. at 188;

Aikens, 460 U.S. at 713-714 n.2. Proof of the employer’s

“general policy and practice” with respect to employ-

ment of older individuals (in an ADEA case), including

statistical evidence, “may be helpful” in demonstrating

pretext, but statistics “may not be in and of themselves

14

controlling as to an individualized [employment] deci-

sion.” McDonnell Douglas, 411 U.S. at 804-805 & n.19;

see also Furnco, 438 U.S. at 579-580. Evidence chal-

lenging the factual accuracy of the proffered explana-

tion is also probative of whether the explanation is a

pretext for discrimination. Buwrdine, 450 U.S. at 259.

Finally, the evidence supporting the employee’s prima

facie case “and inferences properly drawn therefrom

may be considered by the trier of fact on the issue of

whether the defendant’s explanation is pretextual.” Jd.

at 255 n.10.

2. In St. Mary’s Honor Center v. Hicks, 509 U.S.

502, 511 (1993), this Court held that proof that the

employer’s asserted reasons for its actions were not the

true reasons does not compel judgment as a matter of

law for the employee. The employee always retains the

burden of persuasion on the ultimate fact of dis-

crimination. Jbid. By proving that the employer did

not act for the reasons proffered, the employee has not

ruled out the possibility that the employer acted for

another nondiscriminatory reason. See id. at 514-515,

523-524. The Court therefore held that the employee is

not entitled to judgment in his favor unless the fact

finder actually determines that the employer’s true

reason was discrimination. /d. at 514. At the same

time, however, the Court observed that the fact finder

may determine that the employer’s true motive was

discrimination based on the employee’s prima facie case

and his proof that the employer did not offer the true

reasons for its action, without additional evidence of

discriminatory intent.

Although the Court held that “there must be a

finding of discrimination” for an employer to be held

liable, the Court made clear that “rejection of the defen-

dant’s proffered reasons is enough at law to sustain a

a

— ADE Geta ms: Ae igmaayy O ~

15

finding of discrimination.” 509 U.S. at 511 n.4. Put

another way, “rejection of the defendant’s proffered

reasons will permit the trier of fact to infer the ultimate

fact of intentional discrimination, and * * * ‘{n]o

additional proof of discrimination is required.’” Id. at

511. That the Court meant what it said in Hicks is

confirmed by its decision to remand the case, id. at 525,

which would have been pointless unless the employee

could still prevail, although he had only made out a

prima facie case and showed that the reasons proffered

by the employer were unworthy of credence.

The reasoning behind the Court’s holding in Hicks

supports that conclusion. As we explained at page 14,

supra, the Court held that the fact finder’s rejection of

the employer’s proffered explanation for its action could

not compel judgment for the employee because there

remained a possibility that the employer acted for an

unstated but nondiscriminatory reason. The existence

of that possibility prevents judgment as a matter of law

for the employee because a reasonable jury might still

find for the employer if it concludes that the employer

in fact acted for a nondiscriminatory reason. But the

existence of that possibility cannot compel judgment as

a matter of law for the employer because a reasonable

jury need not reach that conclusion.

a. The principle that an employee may prevail based

on only the prima facie case and evidence supporting

rejection of the employer’s proffered reason follows

from the quantum of evidence necessary to establish a

prima facie case. As we have explained, to make out a

prima facie case, an employee must present evidence

that is itself sufficient to support an inference of dis-

crimination. See p. 12, supra; e.g., O’Connor, 517 U.S.

at 312 (“the prima facie case requires ‘evidence ade-

quate to create an inference that an employment deci-

16

sion was based on a[n] [illegal] discriminatory crite-

rion’”) (quoting Teamsters, 431 U.S. at 358); Burdine,

450 U.S. at 253 (employee must prove “circumstances

which give rise to an inference of unlawful discrimina-

tion”); Furnco, 438 U.S. at 579-580 (prima facie case is

“proof of actions taken by the employer from which we

infer discriminatory animus because experience has

proved that in the absence of any other explanation it is

more likely than not that those actions were bottomed

on impermissible considerations”).

The prima facie case “eliminates the most common

nondiscriminatory reasons” for the employer’s action

and raises an inference that discrimination is more

likely than not the reason. Burdine, 450 U.S. at 254.

That is because

we know from our experience that more often than

not people do not act in a totally arbitrary manner,

without any underlying reasons, especially in a

business setting. Thus, when all legitimate reasons

for rejecting an applicant have been eliminated as

possible reasons for the employer’s actions, it is

more likely than not the employer, who we gener-

ally assume acts only with some reason, based his

decision on an impermissible consideration such as

[age].

Furnco, 438 U.S. at 577.

Thus, by proving a prima facie case, an employee has

provided evidence that, if unexplained, is sufficient for a

jury to find discrimination. It the employer then comes

forward with a nondiscriminatory explanation, but the

employee produces evidence sufficient for a jury to

reject that explanation, the persuasive force of the evi-

dence supporting the prima facie case remains suffi-

ciently strong to support a finding of discrimination.

17

That is true even though the mandatory presumption

that this Court accorded the prima facie case in

McDonnell Douglas “drops from the case” when the

employer satisfies its burden to produce an explanation

that, if believed, would allow a verdict in its favor.

Burdine, 450 U.S. at 255 & n.10; Hicks, 509 U.S. at 510-

511. As this Court has explained, the persuasive force

of the evidence underlying the prima facie case is

independent of its impact as a procedural device. See

Burdine, 450 U.S. at 255 n.10. Thus, although “[a]

satisfactory explanation by the defendant destroys the

legally mandatory inference of discrimination arising

from the plaintiff's initial evidence, * * * this evidence

and inferences properly drawn therefrom may be

considered by the trier of fact on the issue of whether

the defendant’s explanation is pretextual.” /bid.

That approach accords with the general treatment of

presumptions under Federal Rule of Evidence 301,

which informs the operation of the McDonnell Douglas

presumptions. See Burdine, 450 U.S. 255 n.8; Hicks,

509 U.S. at 507, 511. “Under Rule 301, the effect of

rebutting evidence does not completely dissipate the

presumption. Unless no reasonable jury could disbe-

lieve the rebuttal, the presumption still suffices to carry

the issue to the jury. However, the jury is no longer

instructed that it may presume the existence of the

presumed fact, but only that it may infer it.” 21 Charles

A. Wright et al., Federal Practice and Procedure §

5122, at 572 (1977); see H.R. Conf. Rep. No. 1597, 93d

Cong., 2d Sess. 5-6 (1974) (“If the adverse party does

offer evidence contradicting 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

18

may infer the existence of the presumed fact from proof

of the basic facts.”).°

b. When an employee provides sufficient evidence

for the jury to reject the nondiscriminatory explanation

offered by the employer, not only may tiie jury continue

to infer discrimination from the prima facie proof, but it

now has additional evidence from which it may rea-

sonably infer discrimination. “As a matter of both com-

mon sense and federal law, an employer’s submission of

a discredited explanation for firing a member of a

protected class is itself evidence which may persuade

the finder of fact that such unlawful discrimination

actually occurred.” MacDissi v. Valmont Indus., Inc.,

856 F.2d 1054, 1059 (8th Cir. 1988). It is reasonable to

conclude that an employer who gives a false explana-

tion for conduct that has been challenged as discrimina-

tory is dissembling to cover up the discrimination. See

Hicks, 509 U.S. at 511, 517; 5 Leonard B. Sand et al.,

3 Not all courts and commentators agree with the view ex-

pressed in 21 Wright, supra, § 5122, at 572, that “rebutting evi-

dence does not completely dissipate the presumption.” Some

contend that Rule 301 codifies the “bursting bubble” approach to

presumptions, one of several competing approaches at common

law. See 1 Christopher B. Mueller & Laird C. Kirkpatrick, Federal

Evidence § 71, at 335 (2d ed. 1994). Under that approach, the pre-

sumption completely disappears once the opposing party intro-

duces evidence that, if believed, disproves the presumed fact.

Nonetheless, if “the natural probative force of the basic facts is

sufficient to support a finding of the presumed fact,” the trier of

fact may still be instructed that it may infer the presumed fact.

Ibid. See also Gregory P. Joseph et al., Evidence in America: The

Federal Rules in the States ch. 8, at 5 (1987) (“Even if the pre-

sumption does disappear following rebuttal, nothing in Article III

[of the Federal Rules of Evidence] precludes the trier of fact from

drawing logical inferences from the evidence.”).

-_ -— ——

——_

19

Modern Federal Jury Instructions J 87.01, at 87-86

(1999) (Instruction 87-27).

That reasoning accords with the more general

principle that a fact finder may infer consciousness of

guilt when a party acts dishonestly about facts material

to litigation. For example, a jury may (although it is not

compelled to) infer that a criminal defendant who

makes a false exculpatory statement believes he is

guilty and thus probably is guilty. See Wright v. West,

505 U.S. 277, 296 (1992); 1 Edward J. Devitt et al.,

Federal Jury Practice and Instructions § 14.06, at 423-

424 (1992); 1 Sand, supra, { 6.05, at 6-37 (Instruction 6-

11).* A similar inference is permitted in civil cases. See

2 John H. Wigmore, Evidence in Trials at Common

Law § 278(2), at 133 (Chadbourn rev. 1979) (“a party’s

falsehood * * * in the preparation and presentation of

his cause * * * is receivable against him as an indica-

tion of his consciousness that his case is a weak or

unfounded one”). And a jury may infer that testimony

or evidence is unfavorable if the party who has the

power to produce it fails to do so. See id. § 291, at 228;

Graves v. United States, 150 U.S. 118, 121 (1893).

Even if the jury does not believe that the employer is

deliberately dissembling, the jury’s rejection of the

proffered reason will often reasonably strengthen the

jury’s belief that discrimination was the true motiva-

tion. As we have explained, the prima facie proof

makes discrimination a likely explanation for the em-

ployer’s action. See pp. 12, 15-16, supra. And the em-

4 Fact finders are likewise permitted to infer consciousness of

guilt from flight from the scene of a crime, 1 Devitt, supra, § 14.08,

at 433; 1 Sand, supra, ¢ 6.05, at 6-29 (Instruction 6-9), use of a false

name, id. at 6-35 (Instruction 6-10), and fabrication of an alibi, id. at

6-42 (Instruction 6-12).

20

ployer, in putting forth its defense, is likely to proffer as

an alternative the nondiscriminatory explanation that

best accords with the facts. As a result, the proffered

explanation and discrimination will usually be the most

plausible of the competing explanations for the em-

ployer’s action. When the jury eliminates the proffered

explanation as a possibility, discrimination will there-

fore normally be the most likely remaining potential

explanation.

— Thus, in order to have his case presented to the jury,

an employee need not ordinarily produce more than

prima facie proof of discrimination plus evidence

sufficient to support rejection of the explanation offered

by the employer. A contrary rule would effectively

require the employee to produce either direct proof of

discriminatory intent or a greater amount of circum-

stantial proof than is ordinarily required in civil

litigation. And this Court has counseled that neither of

those requirements would be appropriate. See Team-

sters, 431 U.S. at 358 n.44; Aikens, 460 U.S. at 714 n.3,

717; Price Waterhouse v. Hopkins, 490 U.S. 228, 253

(1989) (plurality opinion).

3. We do not suggest, however, that there can never

be a case in which an employer will be entitled to

judgment as a matter of law even though the employee

has made out a prima facie case and produced sufficient

evidence for a jury to reject the nondiscriminatory

explanation offered by the employer. As the Court

explained in Hicks, “the ultimate question [remains]

discrimination vel non.” 509 U.S. at 518. Thus, if the

evidence conclusively establishes that the employer

acted for an unstated, nondiscriminatory reason, then

there is no question for the jury to resolve—even if the

employer offered a different (and false) explanation for

21

its action, and the employee presented prima facie proof

of discrimination.

That situation could arise if the employer’s true

nondiscriminatory motivation were revealed by the

employee’s efforts to disprove the employer’s proffered

explanation. See EEOC: Enforcement Guidance on St.

Mary’s Honor Center v. Hicks, 8 Fair Empl. Prac. Man.

(BNA) 405:7175, 405:7179 (Apr. 12, 1994) (“Even before

Hicks, if evidence relevant to a charge clearly showed

that the respondent’s articulated reasons for its action

were untrue, but that a nondiscriminatory reason not

articulated by the respondent was the true motive for

the action, ‘no cause’ would be found.”).

Assume, for example, that a 42 year-old employee

who worked for an investment company alleges that the

company fired him because of his age. The employee

presents prima facie proof that he was qualified to do

his job and that, after his discharge, his position was

filled by someone who was 30 years old, but he

produces no other evidence of age discrimination. The

company responds that the employee was fired for

insubordination after he refused to complete a work

assignment. In his effort to show that he properly

refused to complete the assignment, the employee

shows that he had discovered that the project violated

Securities and Exchange Commission (SEC) regula-

tions, called that fact to the attention of the company,

and threatened to alert the SEC, whereupon he was

fired and instructed to keep his mouth shut if he ever

wanted to work in the securities business again. Cf.

Rothmeier v. Investment Advisers, Inc., 85 F.3d 1328

(8th Cir. 1996). Based on that evidence, a court could

22

properly render judgment as a matter of law for the

employer on the age discrimination claim.°

Such situations will be rare, however, because a court

cannot conclude, as a matter of law, that the evidence

establishes that the employer acted for an unstated,

nondiscriminatory reason unless no reasonable jury

could find otherwise. See Fed. R. Civ. P. 50; Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (citing

Brady v. Southern Ry., 320 U.S. 476, 479-480 (1943)).

In reaching that conclusion, the court must consider the

evidence in the light most favorable to the employee (as

the non-moving party), and the court must give the

employee the benefit of all justifiable inferences that

may be drawn from the evidence. Lytle v. Household

Mfg., Inc., 494 U.S. 545, 554 (1990); Liberty Lobby, 477

U.S. at 255; Continental Ore Co. v. Union Carbide &

Carbon Corp., 370 U.S. 690, 696 (1962). The court

generally may not make credibility determinations or

weigh the evidence. Liberty Lobby, 477 U.S. at 254;

Webb v. Illinois Cent. R.R., 352 U.S. 512, 515 (1957);

Brady, 320 U.S. at 479.

Therefore, although the court must review all the

evidence, it must disregard any evidence unfavorable to

the employee’s claim of discrimination if a reasonable

jury could disbelieve that evidence. 9A Wright, supra,

§ 2529, at 299. For example, if there is conflicting testi-

mony, the court generally must disregard the testimony

favoring the employer. See Wilkerson v. McCarthy,

336 U.S. 53, 57-60 (1949). And, if evidence is susceptible

to two interpretations, the court must reject the

® The true nondiscriminatory motive need not be an illegal one.

An employer might withhold its true motive not because it is un-

lawful but because it is embarrassing, such as nepotism or personal

animosity, or in order to spare the employee's feelings.

23

interpretation favorable to the employer and instead

accept the interpretation that supports the employee.

See Continental Ore Co., 370 U.S. at 701.°

Judgment as a matter of law is not appropriate if

“reasonable minds could differ as to the import of the

6 In Wilkerson, the Court stated that it “need look only to the

evidence and reasonable inferences which tend to support” the

non-moving party. 336 U.S. at 57. Some courts have understood

that language to mean that a court must always disregard the

moving party’s evidence. 9A Wright, supra, § 2529, at 297-299.

Read in context, however, the language in Wilkerson means only

that a court should not give weight to evidence that is contradicted

either directly or inferentially by the non-moving party’s evidence.

Id. at 300-301; Edward H. Cooper, Directions for Directed Ver-

dicts: A Compass for Federal Courts, 55 Minn. L. Rev. 903, 949

(1971) (cited in Fed. R. Civ. P. 50, Advisory Committee’s Note

(1991 Amendment)). Courts review all of the evidence in passing

on a motion for summary judgment under Federal Rule of Civil

Procedure 56, see, e.g., Matsushita Elec. Indus. Co., Ltd. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986); Adickes v. S.H. Kress & Co.,

398 U.S. 144, 157-159 (1970); and the standard for granting sum-

mary judgment “mirrors” the standard for judgment as a matter of

law under Rule 50, Liberty Lobby, 477 U.S. at 250. Courts likewise

review all of the evidence in passing on motions for judgments of

acquittal under Federal Rule of Criminal Procedure 29, Lockhart

v. Nelson, 488 U.S. 33, 41-42 (1988); sufficiency-of-the-evidence

challenges on direct and collateral review, Jackson v. Virginia, 443

U.S. 307, 319 (1979); and review of fact-finding by a district court

under Federal Rule of Civil Procedure 52(a), Anderson v.

Bessemer City, 470 U.S. 564, 573 (1985). For those reasons, and

the reasons stated in the text preceding this note, the answer to

the second question presented is that, in passing on a motion under

Rule 50, a court must review all of the evidence in the light most

favorable to the party against whom judgment is sought; and the

answer to the third question presented is that the standard for

granting judgment as a matter of law under Rule 50 is generally

the same as the standard for granting summary judgment under

Rule 56.

24

evidence.” Liberty Lobby, 477 U.S. at 250. “The fun-

damental principle is that there must be a minimum of

judicial interference with the jury.” 9A Wright, supra,

§ 2524, at 261; Edward H. Cooper, Directions for

Directed Verdicts: A Compass for Federal Courts, 55

Minn. L. Rev. 903, 921 (1971) (cited in Fed. R. Civ. P.

50, Advisory Committee’s Note (1991 Amendment)).

B. Petitioner’s Prima Facie Case, Coupled With His

Evidence That Respondent Did Not Offer The True

Reason For Firing Him, Was Sufficient To Support The

Jury’s Verdict, Despite The Contrary Evidence On Which

The Court Of Appeals Relied

In this case, the court of appeals improperly departed

from the “fundamental principle” of minimal judicial

interference with the jury. 9A Wright, supra, § 2524, at

261. Although petitioner presented prima facie proof of

age discrimination and evidence sufficient for a rea-

sonable jury to reject respondent’s assertion that it

fired petitioner because of poor record keeping, the

court of appeals concluded that there was insufficient

evidence for a reasonable jury to find, as the jury did

here, that respondent fired petitioner because of his

age. In so concluding, the court of appeals erroneously

failed to consider much of petitioner’s evidence, failed

to view the evidence in the light most favorable to

petitioner and to draw all reasonable inferences in his

favor, and substituted its view of the weight of the

evidence for the jury’s reasonable view.

1. There is no dispute that petitioner presented

prima facie proof of age discrimination by establishing

that he was 57 years old, qualified for his position as

Hinge Room supervisor, discharged, and replaced, on

three successive occasions over the next two years, by

men in their thirties. Pet. App. 5a-6a & n.11. That

25

evidence was “proof of actions taken by [respondent]

from which [the jury could] infer discriminatory animus

because experience has proved that in the absence of

any other explanation it is more likely than not that

those actions were bottomed on impermissible consid-

erations.” Furnco, 438 U.S. at 579-580.

Respondent attempted to counter the inference of

discrimination by introducing evidence that it fired

petitioner because of errors in recording absences and

tardiness of employees under his supervision, errors

which respondent claimed cost the company money and

exposed it to union grievances. Pet. App. 7a-8a. ?eti-

tioner, in turn, introduced a variety of evidence to

discredit that explanation. Through cross-examination,

he established that the company could not document

the amount of any overpaid wages allegedly attribut-

able to his purported errors, see id. at 8a; 4 R. 301, and

had not received a grievance or complaint arising from

them, 4 R. 267. Petitioner testified that he properly

recorded the timely arrival of his employees and

assigned extra work to any employee who was paid for

arriving early or staying late. Pet. App. 8a. He showed

that another supervisor, not he, was responsible for the

only overpayment that was identified on the day that

he was fired. 3 R. 17. And Sanderson agreed with peti-

tioner that he was not responsible for preparing disci-

plinary write-ups for excessive tardiness or absentee-

ism. 3 R. 138.

Petitioner also testified that Powe Chesnut, who was

married to the company president and was described by

another witness as the “absolute power in” the com-

pany, 3 R. 80, subjected him to verbal abuse and made

remarks indicative of age bias, including that petitioner

was “too damn old to do [his] job,” 3 R. 26. That treat-

ment was corroborated by the independent testimony

26

of Joe Oswalt. 3 R. 82-83. Oswalt also testified that

Chesnut subjected petitioner to heightened scrutiny

and inferior treatment. 3. R. 83. Oswalt’s testimony

was confirmed by evidence concerning the 1993 effi-

ciency study and consequent discipline of petitioner.

Although petitioner and Oswalt had virtually identical

productivity rates during that year, see 3 R. 163-167; 4

R. 226, Chesnut directed an efficiency study of only the

line supervised by petitioner and recommended only

petitioner for probation. Oswalt, who was in his early

thirties, was neither studied nor disciplined. 3 R. 166-

167; 4 R. 228-229. The court of appeals concluded that,

“(based on this evidence, * * * a reasonable jury

could have found that [respondent’s] explanation for its

employment decisions was pretextual.” Pet. App. 8a.

That finding, coupled with petitioner’s prima facie

proof, was also sufficient for the jury “to infer the

ultimate fact of intentional discrimination.” Hicks, 509

U.S. at 511; see also pp. 11-20, supra. Indeed, after

being properly instructed to find for respondent if

petitioner “fail[ed] to prove age was a determinative or

motivating factor in [his] discharge,” 4 R. 368, the jury

returned a verdict for petitioner. Pet App. 4a. The

district court denied respondent’s motions for judgment

as a matter of law. The court of appeals nonetheless

held that petitioner “did not introduce sufficient evi-

dence of age discrimination to support the jury’s finding

of liability.” Jd. at 10a.

2. In rejecting the jury’s verdict, the court of

appeals improperly invaded the province of the jury.

The court did not give sufficient weight to petitioner’s

prima facie proof and evidence of pretext, and it failed

to draw all reasonable inferences in petitioner’s favor.

Moreover, the countervailing evidence on which the

court relied would not have precluded a reasonable jury

27

from inferring discrimination from petitioner’s evi-

dence.

In considering whether there was sufficient evidence

of discrimination to support the verdict, the court of

appeals erroneously failed to take into account peti-

tioner’s prima facie proof, as well as his evidence of

pretext, other than Powe Chesnut’s age-related com-

ments and the evidence that petitioner was treated less

favorably than younger employees. See Pet. App. 8a-

10a. As we have explained, the jury was entitled to

consider all of that evidence in deciding whether to

draw the ultimate inference of discrimination. See pp.

16-20, supra.

Moreover, in evaluating the evidence that it did

consider, the court of appeals impermissibly substituted

its view of the weight of the evidence for the jury’s

view and failed to draw all reasonabie inferences in

petitioner’s favor. In apparent response to petitioner’s

evidence that he was singled out for harsher treatment

than younger supervisors, the court noted that all of the

Hinge Room supervisors—including Oswalt, who was

in his thirties—were accused of inaccurate record

keeping. See Pet. App. 9a. That fact, however, would

not preclude a reasonable jury from inferring age-based

animus based on the other evidence of differential

treatment. That is particularly so because Oswalt had

left his job voluntarily before the audit that revealed

the alleged inaccuracies was even conducted, and the

jury could have disbelieved Chesnut’s testimony that

he would have been fired if he had not left voluntarily.

The court of appeals’ treatment of Chesnut’s age-

related comments was particularly improper. The court

acknowledged the “potentially damning nature” of the

comments, but discounted them because they “were not

made in the direct context of [petitioner’s] termination”

28

and Chesnut was “just one of three individuals who

recommended to Ms. Sanderson that [petitioner] be

terminated.” Pet. App. 9a. A reasonable jury, how-

ever, could have viewed those remarks as a strong

indication that petitioner’s termination was based on

age discrimination. The comments were directed spe-

cifically to petitioner and singled him out based on his

age. 3 R. 26. At least one of them was targeted at his

job performance and was made just two months before

his termination. /bid. And the person who made the

comments was said to be “in absolute power” at the

company, 3 R. 80, had previously recommended discipli-

nary action against petitioner, 4 R. 237, ordered the

audit that led to petitioner’s discharge, Pet. App. 3a,

and was married to the person with the ultimate

authority to fire petitioner, id. at 3a n.1.

Finally, the court of appeals erred in relying on the

fact that two of the people who were involved in the

decision to fire petitioner and several other of respon-

dent’s managers were over the age of 50. See Pet. App.

9a-10a. To the extent that evidence was contradicted

by petitioner, see 4 R. 333, the court should have

disregarded it. Even if the court properly considered

the evidence, the court erred in drawing an inference

unfavorable to petitioner from it, because a reasonable

jury was not compelled to do so. For example, the jury

reasonably could have determined that Chesnut’s in-

fluence at the company was so strong that the other

“decision makers” simply ratified his age-based decision

to fire petitioner. Cf. Anderson v. Bessemer City, 470

U.S. 564, 579-580 (1985) (upholding finding of discrimi-

nation based on evidence that two of five members of

selection committee had discriminatory animus).

Even if a reasonable jury necessarily would have

concluded that the age of the other managers made it

29

somewhat less likely that respondent discriminated

against petitioner, a reasonable jury would not nec-

essarily have found that conclusion sufficient to over-

come the evidence pointing to discrimination. The fact

that “at least two of the decision makers were them-

selves over the age of 50” (Pet. App. 9a) does not

conclusively establish that they did not discriminate

against petitioner based on his age. “Because of the

many facets of human motivation, it would be unwise to

presume as a matter of law that human beings of one

definable group will not discriminate against other

members of their group.” Castaneda v. Partida, 430

U.S. 482, 499 (1977); see also Oncale v. Sundowner

Offshore Servs., Inc., 523 U.S. 75, 79 (1998) (“[N Jothing

in Title VII necessarily bars a claim of discrimination

‘because of . . . sex’ merely because the plaintiff and

the defendant (or the person charged with acting on

behalf of the defendant) are of the same sex.”). Simi-

larly, although proof that respondent retained other

employees in their 50s and 60s in management posi-

tions, see Pet. App. 10a, “is not wholly irrelevant on the

issue of intent, * * * such proof neither was nor could

have been sufficient to conclusively demonstrate that

[respondent’s] actions were not discriminatorily moti-

vated.” Furnco, 483 U.S. at 580. Because the evidence

did not conclusively establish that respondent fired

petitioner for a nondiscriminatory reason, respondent

was not entitled to judgment as a matter of law.

This Court has repeatedly counseled that neither

“trial courts [nor] reviewing courts should treat dis-

crimination differently from other ultimate questions of

fact.” Aikens, 460 U.S. at 716; Hicks, 509 U.S. at 524.

“Conventional rules of civil litigation generally apply in

[discrimination] cases.” Price Waterhouse, 490 U.S. at

253 (piurality opinion). “[OJne of these rules is that

30

parties to civil litigation need only prove their case by a

preponderance of the evidence.” bid. Another is that

“(cjredibility determinations, the weighing of the

evidence, and the drawing of legitimate inferences from

the facts are jury functions, not those of a judge.”

Liberty Lobby, 477 U.S. at 255. “If reasonable minds

could differ as to the import of the evidence,” the jury,

not the court, must rev“er judgment. Jd. at 250. The

court of appeals dis:. garded those principles and

usurped the jury’s role by rendering judgment for re-

spondent in this case.

CONCLUSION

The judgment of the court of appeals should be

reversed, and the jury verdict for petitioner should be

reinstated.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

C. GREGORY STEWART BARBARA D. UNDERWOOD

General Counsel Deputy Solicitor General

PHILLIP B. SKLOVER MATTHEW D. ROBERTS

Associate General Counsel Assistant to the Solicitor

VINCENT BLACKWOOD Generel

Assistant General Counsel

DORI K. BERNSTEIN

Attorney

Equal Employment ie

Opportunity Commission

JANUARY 2000

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