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

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Supreme Court, U.S,

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JAN 7 2000

Supreme Court of the United States

ROGER REEVES,

Petitioner,

SANDERSON PLUMBING PRODUCTS, INC.,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

BRIEF OF AMICUS CURIAE

NATIONAL EMPLOYMENT LAWYERS

ASSOCIATION IN SUPPORT OF PETITIONER

PAULA A. BRANTNER PAUL W. MOLLICA

Senior Staff Attorney Counsel of Record

NATIONAL EMPLOYMENT MEITES, MULDER,

LAWYERS ASSOCIATION BURGER & MOLLICA

600 Harrison Street 208 South LaSalle Street

Suite 535 Suite 1410

San Francisco, CA 94107 Chicago, IL 60604

(415) 227-4655 (312) 263-0272

Attorneys for Amicus Curiae

NATIONAL EMPLOYMENT LAWYERS ASSOCIATION

Midwest Law Printing Company/Photex — Chicago — (312) 321-0220

Does a plaintiff who makes out a prima facie case of em-

ployment discrimination under the framework of McDon-

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

_with proof that the employer prevaricated about the reasons

for its actions, present evidence to support a permissive in-

ference of discrimination that is sufficient to withstand

judgment as a matter of law?

TABLE OF CONTENTS

PAGE

STATEMENT OF ISSUES PRESENTED ............ i

TABEds OF CONTE oc ccescccceseseseueeane ii

FABLE OF AUTOROREE EID oc ccwcccucse: vesuneuenn iv

INTEREST OF AMICUS CURIAE .................. 1

SUGEMARYT OF ADUSUOHIUE occvsccucessseuneeene 2

PY tt): rr 4

I. SEVERAL CIRCUITS—INCLUDING THE

COURT BELOW—DENY JURIES THE OP-

TION OF INFERRING DISCRIMINATION

FROM THE EMPLOYER’S PREVARICA-

TION, AS THIS COURT ALLOWED IN

McDONNELL DOUGLAS ........-00eeeeee8: 4

A. This Court Endorses A Permissive In-

ference of Discrimination From the

Employer's Prevarication, or Pretextual

Explanation, About Its Actions Against

the BMNBMIGS . oo ccccccsessbecdpaneueses 4

B. A Majority of Circuits Keep Faith With

the Permissive Inference Established

By McDonnell Douglas and Its Prog-

. Mt 8

C. A Minority of Circuits Allow Roving

Judicial Review of the Ultimate Find-

ing of Discrirnination ................++: 15

ill

D. The Majority Approach Obeys this

Court’s Pronouncements, the Seventh

Amendment Reexamination Clause,

and Sensible Judicial Process ...........

II. SOME COURTS APPLY LOGICALLY DUBI-

OUS COUNTER-INFERENCES TO GRANT

SUMMARY JUDGMENT AND REWEIGH

DEE cceveeecococecocceccoccccs

DT Chere deneeeteseeseccceovcecoeccs

TABLE OF AUTHORITIES

Cases PAGE(S)

Air Line Pilots Ass’n Int'l v. Eastern Air

Lines, Inc., 863 F.2d 891 (D.C. Cir. 1988) ........ 29

Aka v. Washington Hospital Ctr.,

156 F.3d 1284 (D.C. Cir. 1998) .............. 12, 13

Alvarez-Fonseca v. Pepsi Cola of Puerto Rico

Bottling Co., 152 F.3d 17 (1st Cir. 1998),

cert. denied, 119 S. Ct. 1778 (1999) .......... 19, 21

Anderson v. Baxter Healthcare Corp.,

13 F.3d 1120 (7th Cir. 1994) ................... 10

Arrington v. Cobb County,

139 F.3d 865 (11th Cir. 1998) .................. 12

Baltazor v. Holmes,

162 F.3d 368 (5th Cir. 1998) ................ 15, 16

Banks v. The Travellers Companies,

180 F.3d 358 (2d Cir. 1999) ................. 18, 28

Beaird v. Seagate Technology Inc.,

145 F.3d 1159 (10th Cir.), cert.

denied, 119 S. Ct. 617 (1998) ................2.. ll

Belfi v. Prendergast,

191 F.3d 129 (2d Cir. 1900) ................000- 18

Benson v. Tocco, Inc.,

113 F.3d 1203 (11th Cir. 1997) ................. 12

Bogle v. Orange Co. Bd. of County Comm'rs,

162 F.3d 653 (11th Cir. 1998) .................. 12

> — ———— ee

Bradley v. Harcourt, Brace and Co.,

104 F.3d 267 (9th Cir. 1996) ................... 27

Brandt v. Shop 'n Save Warehouse Foods, Inc.,

108 F.3d 935 (8th Cir. 1997), cert. denied,

SP a 23

Brown v. CSC Logic, Inc.,

82 F.3d 651 (5th Cir. 1996) .................... 27

Buhrmaster v. Overnight Transp. Co.,

61 F.3d 461 (6th Cir. 1995), cert.

denied, 516 U.S. 1078 (1996) ................... 27

Burlington Industries v. Ellerth,

a 1

Carey v. Mt. Desert Island Hosp.,

156 F.3d 31 (lst Cir. 1906) .................... 18

Carter v. DecisionOne Corp.,

122 F.3d 997 (11th Cir. 1997) .................. 12

Castaneda v. Partida,

EE 24

Chapman v. Al Transport,

180 F.3d 1244 (11th Cir. 1999) ................. 20

Combs v. Plantation Patterns,

106 F.3d 1519 (11th Cir. 1997),

cert. denied, 118 S. Ct. 851(1998) .............. ll

Cooper v. Federal Reserve Bank of Richmond,

Cy CEE, evnddcgdcsenenseeecasenes 5, 26

Dichner v. Liberty Travel,

141 F.3d 24 (lst Cir. 1906) ...............0000.

Diettrich v. Northwest Airlines, Inc.,

168 F.3d 961 (7th Cir.), cert. denied,

EE RE ee ne ane

EEOC v. Our Lady of Resurrection Med. Center,

77 F.3d 145 (7th Cir. 1906) ........... ccc ceeees

EEOC v. Yenkin-Mayjestic Paint Corp.,

Se Pe GU BED cc cc ccecescccesesscn

Evans v. McClain of Georgia,

Be ae ee CGE EUP ccccccccscccesesss

Faragher v. City of Boca Raton,

ee Tee

Fernandes v. Costa Bros. Masonry, Inc.,

__._ F.3d __, 1999 WL 1252868

(1st Cir. Dec. 29, 1999) (No. 99-1692) ............ 28

Fisher v. Vassar College,

114 F.3d 1332 (2d Cir. 1997) (en banc),

cert. denied, 522 U.S. 1075 (1998)......... 17, 18, 21

Furnco Const. Corp. v. Waters,

ED ccccdedceavadéendctssanetes

Gehring v. Case Corp.,

43 F.3d 340 (7th Cir. 1994),

cert. denied, 515 U.S. 1159 (1995) ............... 26

Gillins v. Berkeley Elec. Coop., Inc.,

148 F.3d 413 (4th Cir. 1998) ...................

—_—- —_ =- — —

vii

Goodman v. Lukens Steel Co.,

a eee 25

Harris v. Forklift Systems,

nc id¢ cu kbestatedéesacunedsus 25

Hetzel v. Prince William County, Va.,

ED nh wn doce cuapaecesencesente 20

Ingels v. Thiokol Corp.,

42 F.3d 616 (10th Cir. 1994) ................5.. 11

Int'l Brotherhood of Teamsters v. United States,

i ed ere eeeeunee 5

Isenbergh v. Knight-Ridder Newspaper Sales,

Inc., 97 F.3d 436 (11th Cir. 1996) (per

curiam), cert. denied, 521 U.S. 1119(1997) ....... 11

Janiuk v. TCG/Trump Co.,

157 F.3d 504 (7th Cir. 1998) .............55-55. 10

Johnson v. Zema Systems Corp.,

170 F.3d 734 (7th Cir. 1999) ............---00. 28

Keathley v. Ameritech Corp.,

187 F.3d 915 (8th Cir. 1999) ............0 0 eee 14

Kidd v. Illinois State Police,

167 F.3d 1084 (7th Cir. 1999) ...... 2.6.2.5 5 ee ee 23

Kline v. TVA,

128 F.3d 337 (6th Cir. 1997) ............. 7, 8, 9, 24

Kolstad v. American Dental Association,

__ US. __, 119 S.Ct. ___ (1999) .... 1... eee ees 1

Vili

LeBlanc v. Great American Ins. Co.,

6 F.3d 836 (1st Cir. 1993), cert.

denied, 511 U.S. 1018 (1994) .................... 18

Lowe v. J. B. Hunt Transport, Inc.,

963 F.2d 173 (8th Cir. 1992) ................... 27

Lynn v. Deaconess Medical Center-West Campus,

160 F.3d 484 (8th Cir. 1998) ................ 14, 20

Madei v. FCI Marketing, Inc.,

116 F.3d 1247 (8th Cir. 1997) .................. 29

McDonnell Douglas Corp. v. Green,

Se ee SED eee cE UK eh éucdeccisten passim

McKennon v. Nashville Banner Pub. Co.,

SE cc noduus cegkdvesvesceceesews 25

O’Connor v. Consolidated Coin Caterers Co.,

Sy CED wave tiuéeneens sacess 3, 20, 25

Oncale v. Sundowner Offshore Services, Inc.,

Das SEED Sncosconeeseceeasesane 3, 24, 25

Perdomo v. Browner,

67 F.3d 140 (7th Cir. 1995) ............. 6000 10

Proud v. Stone,

945 F.2d 796 (4th Cir. 1991) ........ cee eee ee 27

Quinn v. Green Tree Credit Corp.,

159 F.3d 759 (2d Cir. 1998) ...... 2.2... 6. eee ee 18

Rhodes v. Guiberson Oil Tools,

75 F.3d 989 (5th Cir. 1996) (en banc) ............ 15

= _—_—-— —-_

Robinson v. Sheil Oil Co.,

RE AE RR a a 25

Ross v. Rhodes Furniture, Inc.,

146 F.3d 1286 (11th Cir. 1998) ................. 12

Ryther v. KARE 11,

108 F.3d 832 (8th Cir.) (en banc),

cert. denied, 521 U.S. 1119 (1997)......... 13, 14, 23

“t. Mary’s Honor Ctr. v. Hicks,

ED Go a cd vetteesecusees 1, 6, 7, 20

Sheehan v. Donlen Corp.,

173 F.3d 1039 (7th Cir.1999)...............005. 10

Sheridan v. E.I. DuPont de Nemours & Co.,

100 F.3d 1061 (3d Cir. 1996) (en banc),

cert. denied, 521 U.S. 1129 (1997)................ i)

Skalka v. Fernald Environmental Restoration

Management Corp., 178 F.3d 414 (6th Cir.),

pet. for cert. filed, 68 U.S.L.W. 3292 (1999) ........ )

Stanback v. Best Diversified Products, Inc.,

180 F.3d 903 (8th Cir. 1999) ...............04.. 14

Statler v. Wal-Mart Stores, Inc.,

195 F.3d 285 (7th Cir. 1999) ................ 10, 29

Swanks v. WMATA,

179 F.3d 929 (D.C. Cir.), cert.

denied, 68 U.S.L.W. 3387 (1999) ................ 28

Vaylor v. Virginia Union Univ.,

193 F.3d 219 (4th Cir. 1999) (en banc) ........... 16

Texas Dep’t of Community Affairs v. Burdine,

Eo bn cece Vebendesb ewes ees 6, 26

Thomas v. Eastman Kodak Co..,

163 F.3d 36 (let Cir. 1900) ........cccccccccees 19

Travis v. Board of Regents,

122 F.3d 259 (5th Cir. 1997),

cert denied, 522 U.S. 1148 (1998) ............ 16, 21

Turlington v. Atlanta Gas Light Co.,

136 F.3d 1428 (lith Cir. 1906) ............000.. 11

United States Postal Serv. Bd. of Governors

uv. Aikens, 460 U.S. 711 (1983) ............. 5, 20, 26

Vaughan v. The Metrahealth Companies, Inc.,

145 F.3d 197 (4th Cir. 1998) ................ 16, 17

Visser v. Packer Eng’g Assoc.,

924 F.3d 655 (7th Cir. 1991) (en banc) ........... 23

Waldron v. SL Indus.,

FP a re SED cccccscccsesccccosces 28

Walker v. NationsBank of Florida,

53 F.3d 1548 (llth Cir. 1995) .................: 11

Washington v. Garrett,

10 F.3d 1421 (9th Cir. 1993) .............0000.- 10

Weisbrot v. Medical College of Wisconsin,

79 F.3d 677 (7th Cir. 1996) ............. cece: 10

Widoe v. District No. 111 Otoe County School,

147 F.3d 726 (8th Cir.1998) ...........6....0005- 20

or -

——-

——§—— =

Williams v. Vitro Services Corp.,

144 F.3d 1438 (11th Cir. 1998) ..............

Other Authorities

es SE IE, WU 6 cece ebucdeecucccseses

I re re

ED bv Kc kueee ven deédeussacades

BENJAMIN CARDOZO, THE NATURE OF

THE JUDICIAL PROCESS (1921) ...............

— ee ae eee

INTEREST OF AMICUS CURIAE'

The National Employment Lawyers Association (NELA)

is a voluntary membership organization of more than 3,000

attorney members who regularly represent employees in

labor, employment, and civil rights disputes. NELA is the

country’s only professional membership organization of

lawyers who represent employees in discrimination, wrong-

ful discharge, employee benefit, and other employment-

related matters.

As part of its advocacy efforts, NELA regularly supports

precedent setting litigation affecting the rights of individ-

uals in the workplace. NELA has filed numerous amicus

curiae briefs before the U.S. Supreme Court and the federal

appellate and district courts regarding the proper interpre-

tation and application of employment discrimination laws

to insure that the laws are fully enforced and that the

rights of workers are fully protected. Some of the more

recent cases before this Court include: Kolstad v. American

Dental Association, __ U.S. __, 119 S.Ct. __ (1999);

Faragher v. City of Boca Raton, ___ U.S. ___, 118 S.Ct. 2275

(1998); end Burlington Industries v. Ellerth, __. U.S. __.,

118 S.Ct. 2257 (1998).

NELA members have brought innumerable cases in the

wake of McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973) (“McDonnell Douglas”) and St. Mary’s Honor Ctr. v.

Hicks, 509 U.S. 502, 517-18 (1993) (“Hicks”) in which the

method and respective burdens of proof for employment

' Pursuant to Supreme Court Rule 37.6, amicus states that no

person or entity other than the amicus curiae, its members, and

its undersigned counsel made a monetary contribution to the

preparation or submission of this brief. No attorney for any party

authored the brief in whole or in part. Written consent to the

filing of this brief has been obtained from the parties in accor-

dance with Supreme Court Rule 37.3(a). Copies of the consent

letters have been filed with the Clerk.

discrimination cases has been a matter of dispute and con-

fusion. NELA has an interest in the outcome of this case, as

the Court’s decision will restore clarity to an area often

fraught with confusion.

SUMMARY OF ARGUMENT

Amicus requests this Court to restore confidence in a

method of proof for employment discrimination cases

devised a generation ago by McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973) and ratified several times since.

The petitioner, Roger Reeves, rightly complains (cert. pet.

at 4-7) that the Fifth Circuit panel applied a heterodox

version of the McDonnell Douglas inquiry, which allowed it

to disregard a genuine issue of material fact about the

employer’s motivation (App. A at 8a, “a reasonable jury

could have found that [employer’s] explanation for its em-

ployment decisions was pretextual”), in favor of evidence

that the panel believed—despite the jury’s verdict—exon-

erated the employer of discrimination. Our members know

from hard experience that such judicial pretermission of the

jury’s role is no longer uncommon.

In Section I, amicus reveals that courts in some circuits

(the First, Second, Fourth and Fifth Circuits) now substi-

tute their own judgment when weighing (on summary

judgment or judgment as a matter of law) whether evidence

of pretext supports an inference of discrimination. A ma-

jority of circuits—operationally or by express holding—

entrust the finders of fact with this determination. Because

of this split, practitioners know that judicial receptiveness

to their client’s cases or defenses is unduly sensitive to the

circuit where one appears—and even to the panel one draws

on appeal. To bring order to the chaos, the Court should

rekindle the McDonnell Douglas principle that upon proof

of the employer’s prevarication, the jury may routinely

draw a permissive inference of discrimination. This ap-

proach would still allow the courts ample latitude to con-

sider summary judgment, or judgment as a matter of law,

in appropriate cases. But it would also revoke the license,

such as that taken by the Fifth Circuit, to simply draw a

different inference than the jury did from the same record.

In Section II, amicus observes that the lower courts have

spawned a host of counter-inferences or presumptions

especially crafted to enable employers to defeat (or short-

circuit) the inference of discrimination produced by the

customary application of McDonnell Douglas. These include

the “same actor” inference and the evidentiary category of

“stray remarks.” These counter-inferences unmistakably

help employers—and never employees—win their cases.

This Court has been forced in recent years to overrule such

wanton instances of judicial lawmaking as the denial of

same-sex harassment (Oncale v. Sundowner Offshore Ser-

vices, Inc., 523 U.S. 75, 118 S. Ct. 998, 1001 (1998)); the

prima facie requirement under the ADEA for replacement

of the employee from outside the protected age group

(O’Connor v. Consolidated Coin Caterers Co., 517 U.S. 308,

311 (1996)); and the after-acquired evidence rule (McKen-

non v. Nashville Banner Pub. Co., 513 U.S. 352, 360 (1995)).

As this case reveals, a return to first principles is in order:

the lower courts need reminding that the anti-discrimi-

nation principles of the ADEA, Title VII, Americans with

Disabilities Act and other federal statutes are plain and

should not be adulterated by such extra-statutory pro-

nouncements.

ARGUMENT

I. SEVERAL CIRCUITS—INCLUDING THE COURT BE-

LOW—DENY JURIES THE OPTION OF INFERRING

DISCRIMINATION FROM THE EMPLOYER’S PRE-

VARICATION, AS THIS COURT ALLOWED IN McDON.-

NELL DOUGLAS

This Court sanctioned a permissive inference in McDon-

nell Douglas for employment discrimination cases. Once a

plaintiff establishes a jury issue about (1) her prima facie

case of discrimination and (2) the employer’s prevarication

(or “pretext”) concerning its reasons for the adverse employ-

ment action, a jury may be allowed to draw an inference of

discrimination on her behalf. Experience in some circuits,

though, has been that a plaintiff who establishes both

predicates may still never get to the jury—or, worse yet,

have a jury verdict directed away—because a judge or panel

views the record differently. Such decisions warrant this

Court’s express disapproval.

A. This Court Endorses A Permissive Inference of

Discrimination From the Employer’s Prevarica-

tion, or Pretextual Explanation, About Its Actions

Against the Employee

In McDonnell Douglas, 411 U.S. at 802, the Court held

that a Title VII plaintiff “must carry the initial burden

under the statute of establishing a prima facie case of racial

discrimination. This may be done by showing (i) that he

belongs to a racial minority; (ii) that he applied and was

qualified for a job for which the employer was seeking

applicants; (iii) that, despite his qualifications, he was re-

jected; and (iv) that, after his rejection, the position re-

mained open and the employer continued to seek applicants

from persons of complainant’s qualifications.” Following the

prima facie case, “the burden then must shift to the em-

ployer to articulate some legitimate, nondiscriminatory

reason for the employee’s rejection.” Jd. Finally, plaintiff

must “be afforded a fair opportunity to show that [the

——E ee a ee

—-

employer's] stated reason for respondent’s rejection was in

fact pretext.” Jd. at 804. Such evidence might include

“evidence that white employees involved in acts against (the

employer] of comparable seriousness to [plaintiff's] were

nevertheless retained or rehired. [The employer) may justi-

fiably refuse to rehire one who was engaged in unlawful,

disruptive acts against it, but only if this criterion is ap-

plied alike to members of all races.” Jd.’

This Court has often reiterated this standard version of

the individual, disparate treatment case. See, e.g., Int'l

Brotherhood of Teamsters v. United States, 431 U.S. 324,

357-58 (1977); United States Postal Serv. Bd. of Governors

v. Aikens, 460 U.S. 711, 715 (1983); Cooper v. Federal

Reserve Bank of Richmond, 467 U.S. 867, 874 (1984). As

this Court later stated:

A prima facie case under McDonnell Douglas raises an

inference of discrimination only because we presume

these acts, if otherwise unexplained, are more likely

than not based on the consideration of impermissible

factors. And we are willing to presume this largely

because we know from our experience that more often

than not people do not act in a totally arbitrary man-

ner, 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 generally assume acts only

with some reason, his decision on an impermissi-

ble consideration such as race.

* “Other evidence that may be relevant to any showing of pretext

includes facts as to (employer's) treatment of (plaintiff) during his

. . . employment; (employer's) reaction, if any, to [plaintiff's]

legitimate civil rights activities; and (employer's) general policy

and practice with respect to minority employment. On the latter

point, statistics as to (employer's) employment policy and practice

may be helpful to a determination of whether (employer's) refusal

to rehire respondent in this case conformed to a general pattern

of discrimination against blacks.” Jd. at 804-05 (footnote omitted).

Furnco Const. Corp. v. Waters, 438 U.S. 567, 575 (1978)

(citations omitted).

In Texas Dep't of Community Affairs v. Burdine, 450 U.S.

248, 250 (1981), “[t}he narrow question presented [was]

whether, after the plaintiff has proved a prima facie case of

discriminatory treatment, the burden shifts to the defen-

dant to persuade the court by a preponderance of the evi-

dence that legitimate, nondiscriminatory reasons for the

challenged employment action existed.” The employer had

won at trial, but suffered a reversal in the Fifth Circuit,

which held that the employer had the burden of proving a

legitimate, non-discriminatory reason for not hiring plain-

tiff. The Court held that the employer’s burden was solely

one of production, with the ultimate burden of proof on the

plaintiff. Responding to concern that a mere burden of

production gave the employer an opportunity and motive to

fudge, the Court held that “the defendant’s explanation of

its legitimate reasons must be clear and reasonably specific.

This obligation arises both from the necessity of rebutting

the inference of discrimination arising from the prima facie

case and from the requirement that the plaintiff be afforded

‘a full and fair opportunity’ to demonstrate pretext.” Jd. at

258

The Court clarified the plaintiff's burden on the final step

of the McDonnell Douglas analysis:

The plaintiff retains the burden of persuasion. She now

must have the opportunity to demonstrate that the

proffered reason was not the true reason for the em-

ployment decision. This burden now merges with the

ultimate burden of persuading the court that she has

been the victim of intentional discrimination. She may

succeed in this either directly by persuading the court

that a discriminatory reason more likely motivated the

employer or indirectly by showing that the employer's

proffered explanation is unworthy of credence.

Burdine, 450 U.S. at 256. But see St. Mary’s Honor Ctr. v.

Hicks, 509 U.S. 502, 517-18 (1993)

-_——_—

Following Burdine, there ensued a split in the circuits

about whether an employee was to adduce evidence over

and above proof of pretext to support a finding of discrimi-

nation.’ In Hicks, supra, the Court resolved (in a Title VII

racial discharge case) that under the pretext analysis laid

out in McDonnell Douglas—following the employer's proffer

of legitimate, non-discriminatory reasons for its treatment

of the plaintiff—“[t)he factfinder’s disbelief of the reasons

put forward by the defendant (particularly if disbelief is

accompanied by a suspicion of mendacity) may, together

with the elements of the prima facie case, suffice to show

intentional discrimination. Thus, rejection of the defen-

dant’s proffered reasons will permit the trier of fact to infer

the ultimate fact of intentional discrimination, and . . . upon

rejection, ‘no additional proof of discrimination is required’.”

Hicks, 509 U.S. at 511 (quoting Hicks v. St. Mary’s Honor

Ctr., 970 F.2d 487, 493 (8th Cir. 1992)).

At the same time, the Court overruled the Eighth Cir-

cuit’s holding in that case that “rejection of the defendant’s

proffered reasons compels judgment for the plaintiff.” Jd. at

511 (emphasis in original). This is because other factors in

the record may point away from a finding of discrimination,

such as (in Hicks’s own case) that African-American em-

ployees served on the disciplinary committee, other African-

American employees were not punished for the same con-

duct and “the number of black employees at St. Mary's

remained constant.” Jd. at 508 n.2. A fact-finder must be

allowed to weigh all of these factors, rather than simply be

directed to enter a judgment based on one category of evi-

dence (i.e. the employer’s prevarication). See id. at 513-14

(the Court’s hiring hypothetical). Thus, in Hicks, the Court

knocked out the two extreme poles posited by some of the

circuits (a mandatory presumption of discrimination on the

* An account of this debate appears in Kline v. TVA, 128 F.3d 337,

342-43 (6th Cir. 1997).

one hand, or the requirement of additional evidence of

discrimination on the other), leaving a permissive inference

drawn by the trier of fact upon two predicates: the prima

facie case and rejection of the defendant’s proffered reasons.

This case, in material respects, offers us the same dy-

namic as Hicks. In this case, as in Hicks, the prima facie

case was not in dispute (App. A at 6a) and plaintiff Reeves

presented evidence that the employer disbelieved its own

proffered reasons for terminating him (id. at 7a-8a). And in

both cases, the courts of appeals erred by placing undue

weight on one particular facet of the record. But there is

also this salient difference: instead of considering only the

evidence detrimental to the employer (as the Eighth Circuit

did in Hicks), the panel below placed determinative weight

upon exonerating factors (the age of the decision makers

and the bottom-line numbers of older employees) (App. A at

7a-10a). Courts of appeals after Hicks were supposed to

allow triers of fact to draw inferences from the record, but

we shall see that the Fifth Circuit and a few other courts do

not.

B. A Majority of Circuits Keep Faith With the Per-

missive Inference Established By McDonnell

Douglas and Its Progeny

Following Hicks, the fulcrum in pretext cases shifted to a

different inquiry: how deeply should the courts involve

themselves (whether on summary judgment, judgment as

a matter of law or on appeal) in determining whether the

two predicates—the prima facie case and rejection of the

defendant’s proffered reasons—may support a finding of

discrimination. Most courts have continued to reserve this

ultimate issue of discrimination to triers of fact. In Kline v.

TVA, 128 F.3d 337, 342-47 (6th Cir. 1997), the Sixth Circuit

confirmed that a plaintiff need only present a prima facie

case under McDonnell Douglas and evidence of the em-

ployer’s prevarication to raise an inference of discrimina-

tion.‘ Plaintiff Kline, a African-American personnel officer

for a utility, applied for a transfer to a posted human re-

sources job. The hiring manager had already made up a list

of candidates before Kline applied, so (without telling plain-

tiff) the manager had a subordinate place Kline’s “resume

in a desk drawer where it remained for the entire selection

process and beyond.” /d. at 339-40. A successor to the hiring

manager eventually selected a white applicant (Becker),

and Kline soon thereafter lost his job in a reduction in force.

This occurred despite evidence that (1) Kline was superior

to Becker in experience and education; (2) Kline (but not

Becker) was denied an interview; and (3) a draft job de-

scription, upon which the manager allegedly made his de-

cision, had been destroyed prior to the selection process.

The district court tried this case and held that the process

used to choose Becker over Kline did not discriminate by

race. But the Sixth Circuit reversed, holding that the dis-

trict court erred in holding that Kline was required to

adduce “direct” evidence of discrimination in addition to

proof of the prima facie case and pretext. “The import of the

Hicks decision in this circuit is that once a plaintiff has dis-

proved the reasons offered by the defendant, the factfinder

is permitted to infer discrimination.” Jd. at 347.

This same approach has been followed expressly in the

Third, Seventh and Ninth Circuits. In Sheridan v. El.

DuPont de Nemours & Co., 100 F.3d 1061, 1072 (3d Cir.

1996) (en banc), cert. denied, 521 U.S. 1129 (1997), the court

* The Sixth Circuit has adhered to this standard in other cases.

See also Skalka v. Fernald Environmental Restoration Manage-

ment Corp., 178 F.3d 414, 421 (6th Cir.) (affirming jury verdict

where primary evidence was proof of flaws in company’s

policy), pet. for cert. filed, 68 U.S.L.W. 3292 (1999); EEOC v.

Yenkin-Majestic Paint Corp., 112 F.3d 831, 835 (6th Cir. 1997)

(“the law allows a factfinder to infer intentional discrimination

from proof of the prima facie case coupled with a disbelief of the

proffered reason for the employer's action, but such an inference

is not required”).

held that a plaintiff need only “cast sufficient doubt upon

the employer’s proffered reasons to permit a reasonable

factfinder to conclude that the reasons are incredible,” and

“once the court is satisfied that the evidence meets this

threshold requirement, it may not pretermit the jury’s

ability to draw inferences from the testimony, including the

inference of intentional discrimination drawn from an

unbelievable reason proffered by the employer.” Likewise,

the Seventh Circuit held in Anderson v. Baxter Healthcare

Corp., 13 F.3d 1120, 1124 (7th Cir. 1994) that “the plaintiff

may prevail in a discrimination case by establishing a

prima facie case and by showing that the employer’s prof-

fered non-discriminatory reasons for her demotion or dis-

charge are factually false.” Finally, the Ninth Circuit en-

dorsed this analysis in Washington v. Garrett, 10 F.3d 1421,

1433 (9th Cir. 1993): “Because, as St. Mary’s recognizes, the

factfinder in a Title VII case is entitled to infer discrimina-

° See also Statler v. Wal-Mart Stores, Inc., 195 F.3d 285, 291-92

(7th Cir. 1999) (reversing summary judgment where record pre-

sented genuine question about whether store uniformly termi-

nated employees guilty of “gross misconduct” under company

policy, combined with fact that employer arguably changed its

reasons for terminating plaintiff over the course of the litigation);

Sheehan v. Donilen Corp., 173 F.3d 1039, 1045 (7th Cir. 1999) (not-

ing that Hicks decision rejected pretext-plus standard); Janiuk v.

TCG/Trump Co., 157 F.3d 504, 508-09 (7th Cir. 1998) (in ADEA

discharge case, plaintiff produced organization chart showing that

his job was filled by another, younger employee; chart stablished

both an element of the plaintiffs prima facie case tint he was

replaced by a younger person, and pretext by revealing as false

the reason given for his di ); Weisbrot v. Medical College of

Wisconsin, 79 F.3d 677, 681 (7th Cir. 1996) (“[iJmplicit in the

Court’s holding [in Hicks] is the notion that, once the employee

has cast doubt on the employer's proffered reasons for the dis-

charge, the issue of whether the employer discriminated against

the plaintiff is to be determined by the jury not the court”); Per-

domo v. Browner, 67 F.3d 140, 144 (7th Cir. 1995) (disbelief of the

employer's reasons was sufficient by itself to raise a triable issue

of fact).

tion from plaintiff's proof of a prima facie case and showing

of pretext without anything more, there will always be a

question for the factfinder once a plaintiff establishes a

prima facie case and raises a genuine issue as to whether

the employer’s explanation for its action is true. Such a

question cannot be resolved on summary judgment.”

The Tenth Circuit also recently sided with the straight

pretext approach of the above courts. In Beaird v. Seagate

Technology Inc., 145 F.3d 1159 (10th Cir.), cert. denied, 119

S. Ct. 617 (1998). The panel majority held, in substantially

reversing summary judgment for seven plaintiffs, that a

plaintiff may “resist summary judgment if she can present

evidence that (the employer’s] proffered reason was pretex-

tual, ‘i.e. unworthy of belief,’ see Randle v. City of Aurora,

69 F.3d 441, 451 (10th Cir. 1995), or otherwise introduces

evidence of illegal motive” (footnote omitted). See also Ingels

v. Thiokol Corp., 42 F.3d 616, 622 (10th Cir. 1994) (at the

summary judgment stage, “if a plaintiff advances evidence

establishing a prima facie case and evidence upon which a

factfinder could conclude that the defendant’s alleged non-

discriminatory reasons for the employment decisions are

pretextual, the case should go to the factfinder”).

Different panels of the Eleventh Circuit have issued dis-

crepant opinions, but that court appears to have settled

upon the majority approach as well. In Isenbergh v. Knight-

Ridder Newspaper Sales, Inc., 97 F.3d 436, 442 (11th Cir.

1996) (per curiam), cert. denied, 521 U.S. 1119 (1997), the

court declared that disbelief of the employer’s proffered

justifications may not be enough to support a finding of

discrimination.’ But in Combs v. Plantation Patterns, 106

F.3d 1519, 1532-33 (11th Cir. 1997), cert. denied, 118 S. Ct.

® See also Turlington v. Atlanta Gas Light Co., 135 F.3d 1428,

1432 (11th Cir. 1998) (relying on and citing to Jsenbergh); Walker

v. NationsBank of Florida, 53 F.3d 1548 (11th Cir. 1995) (separate

opinions examine the pretext burden under Hicks, with the ma-

jority adopting a heightened standard of judicial scrutiny).

851 (1998), the court rejected the analysis in Isenbergh as

dicta and held that a “plaintiff is entitled to survive sum-

mary judgment, and judgment as a matter of a law, if there

is a genuine issue of fact as to the truth of each of the em-

ployer’s proffered reasons for its challenged actions.” Combs

now prevails in the Eleventh Circuit over Isenbergh.”

Two other circuits—the D.C. and Eighth—while noting

that proof of pretext alone may not be sufficient in some

cases to support of finding of discrimination, continue in

operation to entrust that determination to the jury. In Aka

v. Washington Hospital Ctr., 156 F.3d 1284 (D.C. Cir. 1998),

the en banc court declined to interpret Hicks categorically

either to compel or to eschew presentation of additional

evidence (besides the untruthfulness of the employer’s

reasons) to prove discrimination.

“We ourselves do not read Hicks to say that a plaintiff

who creates a genuine issue of material fact as to

whether the employer has given the real reason for its

employment decision will always be deemed to have

presented enough evidence to survive summary judg-

ment. Instead, the court must consider all the evidence

in its full context in deciding whether the plaintiff has

met his burden of showing that a reasonable jury could

conclude that he had suffered discrimination and

accordingly summary judgment is inappropriate. Under

Hicks and other applicable law, however, a plaintiff's

” See, e.g., Bogle v. Orange Co. Bd. of County Comm'rs, 162 F.3d

653, 658 (11th Cir. 1998) (Combs “expressly rejected the sugges-

tion, that had appeared in at least two of our prior decisions, that

a defendant could succeed on a motion for summary judgment or

a motion for judgment as a matter of law even though the plaintiff

had plausibly discredited the defendant’s proffered legitimate,

nondiscriminatory reasons”); Ross v. Rhodes Furniture, Inc., 146

F.3d 1286, 1291 (11th Cir. 1998); Arrington v. Cobb County, 139

F.3d 865, 871 (11th Cir. 1998); Evans v. McClain of Georgia, 131

F.3d 957, 963 (11th Cir. 1997) (per curiam); Carter v. DecisionOne

Corp. , 122 F.3d 997, 1004 (11th Cir. 1997) (per curiam); Benson v.

Tocco, Inc., 113 F.3d 1203, 1207 (11th Cir. 1997).

discrediting of an employers stated reason for its

employment decision is entitled to considerable weight.”

Id. at 1290. “[W]e do not endorse a reading of Hicks under

which employment discrimination plaintiffs are presump-

tively required to submit evidence over and above such a

rebuttal [of the employer’s non-discriminatory reasons] in

order to avoid summary judgment.” Jd. at 1292.

The facts in Aka illustrate that an employee can present

a triable issue of fact about discrimination by relying

primarily on the employer’s prevarications. The employee,

a hospital orderly who sought promotion to a Central Phar-

macy Technician position, claimed violations of the ADEA

and ADA. The en banc court reversed summary judgment.

On the plaintiff's failure to promote claims under both

statutes, the court found that disputed issues of fact existed

about the plaintiff's qualifications for the job (e.g., phar-

macy experience, background in terminology used by doc-

tors, training, degree of “enthusiasm”) versus those of the

candidate who was hired. In particular, regarding “enthusi-

asm,” the court held that such a subjective qualification

could be a legitimate, non-discriminatory reason for making

a hiring decision, but that the plaintiff presented a genuine

issue of material fact about his own “enthusiasm” via his

own affidavit opposing summary judgment and that there

was an absence of contemporaneous documentation by man-

ager about the plaintiff’s enthusiasm. In addition, the court

credited other record evidence pointing to discrimination

(e.g., the hiring manager claimed an “aversion” to the plain-

tiff after the interview, and may have fabricated an “admis-

sion” by the plaintiff that he dic not want the job).

The governing precedent in the Eighth Circuit is Ryther

v. KARE 11, 108 F.3d 832 (8th Cir.) (en banc), cert. denied,

521 U.S. 1119 (1997), also an employer’s appeal of a jury

verdict and a Rule 50 motion. The majority opinion ad-

dressed the Hicks standard as follows:

“In sum, when the employer produces a nondiscrimina-

tory reason for its actions, the prima facie case no

longer creates a legal presumption of unlawful discrimi-

nation. The elements of the prima facie case remain,

however, and if they are accompanied by evidence of

pretext and disbelief of the defendant’s proffered

explanation, they may permit the jury to find for the

plaintiff. This is not to say that, for the plaintiff to

succeed, simply proving pretext is necessarily enough.

We emphasize that evidence of pretext will not by itself

be enough to make a submissible case if it is, standing

alone, inconsistent with a reasonable inference of age

discrimination. Furthermore, as the Hicks Court ex-

plained, the plaintiff must still persuade the jury, from

all the facts and circumstances, that the employment

decision was based upon intentional discrimination.”

Id. at 837-38 (footnotes omitted). The court noted that

judgment as a matter of law might be appropriate, for

instance, “where the evidence of pretext is inconsistent with

an inference of intentional discrimination.” Jd. at 837 n.2.

Notwithstanding this language in Ryther, panels of the

Eighth Circuit resist applying a pure pretext-plus standard.

In Keathley v. Ameritech Corp., 187 F.3d 915, 924 (8th Cir.

1999), an ADEA termination case, the panel reversed sum-

mary judgment, finding “most significant . . . evidence sug-

gesting that Ameritech’s stated reason for firing Keathley

was a sham.” And in Lynn v. Deaconess Medical Center-

West Campus, 160 F.3d 484 (8th Cir. 1998), the court again

reversed summary judgment in a Title VII termination

case, based on evidence that the employer (a hospital) dis-

ciplined similarly situated female nurses less severely than

the plaintiff for conduct that was more egregious than his.

The panel observed that “the evidence Lynn presented was

not inconsistent with the finding of [discrimination]; rather,

it tended to show that [the hospital’s] proffered reasons

were flimsy, and thus susceptible of disbelief. Once a

gender-discrimination plaintiff has done as much as Lynn,

a jury may (but need not) find for him.” Cf. Stanback v. Best

Diversified Products, Inc., 180 F.3d 903 (8th Cir. 1999)

(separate opinions discuss whether Ryther demands proof

of “pretext-plus”).

C. A Minority of Circuits Allow Roving Judicial Re-

view of the Ultimate Finding of Discrimination

In contrast with the above courts, four other circuits—the

First, Second, Fourth and Fifth—positively hold that courts

shall decide as a matter of law whether proof of prevarica-

tion supports a finding of discrimination. Each of these

circuits formally bifurcates the third step of McDonnell

Douglas into separate inquiries, as the court did below: “To

establish pretext, a plaintiff must prove not only that the

employer’s stated reason for its employment decision was

false, but also that age discrimination ‘had a determinative

influence on’ the employer’s decision-making process.” (App.

A. at 6a.) This leads to cases where plaintiffs avowedly

present a genuine issue about the veracity of the employers’

proffered reasons, but the courts find such evidence insuffi-

cient to support liability.

The Fifth Circuit, in Rhodes v. Guiberson Oil Tools, 75

F.3d 989 (5th Cir. 1996) (en banc), held that under the

ADEA, “a jury issue will be presented and a plaintiff can

avoid summary judgment and judgment as a matter of law

if the evidence taken as a whole (1) creates a fact issue as

to whether each of the employer’s stated reasons was what

actually motivated the employer and (2) creates a reason-

able inference that age was a determinative factor in the

actions of which plaintiff complains.” Jd. at 994. Applying

this framework to a Title VII case, the Fifth Circuit tossed

out a jury verdict for plaintiff in Baltazor v. Holmes, 162

F.3d 368 (5th Cir. 1998), and rendered a judgment in favor

of the employer. Plaintiff, a white female clerical employee

of the Orleans Parish School Board, claimed that ihe

Board transferred ner into a new title at lower pay than

her male predecessor, an inequity then perpetuated by an

African-American associate superintendent. A jury awarded

$325,000.00 in compensatory and punitive damages against

the Board and the superintendent, and the district court

denied a judgment as a matter of law, holding that “‘[t}he

jury heard credible evidence of the job responsibilities

competently assumed by plaintiff, the position perceived by

others, her request for reclassification, the racial hostility

extant within the school administration and the school

board’s proffered reasons for refusing to take action on the

matter.’” Jd. at 374 (quoting the district court’s ruling). Yet

while the Fifth Circuit noted a “legitimate controversy over

proper compensation and application of the procedures of

reclassifying Baltazor’s position,” id., it still held as a

matter of law that the failure to upgrade plaintiff's title and

salary was motivated neither by race nor gender.

Likewise, in Travis v. Board of Regents, 122 F.3d 259 (5th

Cir. 1997), cert denied, 522 U.S. 1148 (1998), the Fifth

Circuit held that the district court erred in denying judg-

ment as a matter of law in favor of the employer. The plain-

tiff, an associate professor, alleged (among other things)

that her denial of a promotion to full professor violated Title

VII. The jury found that the failure to promote her was

motivated by gender, and the judge awarded her retroactive

promotion, and front and back pay. On appeal, however, the

Fifth Circuit threw out the verdict, despite finding that

there was a “legitimate controversy over the quality and

importance of Travis’s research” and that “a reasonable jury

could have even concluded that the adequacy of Travis’s

research was not the real reason that the university twice

denied her promotion.” Jd. at 264.

The Fourth Circuit, like the Fifth Circuit, insists upon

separate inquiries into pretext and discrimination. In its

most recent en banc decision, Taylor v. Virginia Union

Univ., 193 F.3d 219, 230 (4th Cir. 1999), the court stated

that “[tlo meet her burden of proving pretext, a plaintiff

must prove both that the reason given for the adverse

action by the employer was false, and that discrimination

was the real reason.” See also Vaughan v. The Metrahealth

Companies, Inc., 145 F.3d 197 (4th Cir. 1998) (“[{e]ven

where an employer’s explanation for taking action is dis-

puted or disproved, a discrimination plaintiff must come

forward with sufficient evidence that she was the victim of

illegal discrimination before her case can go to the jury

{citing Hicks)”). The Fourth Circuit frankly christened its

approach as “pretext-plus.” Gillins v. Berkeley Elec. Coop.,

Inc., 148 F.3d 413 (4th Cir. 1998) (“(t]his court has adopted

what is best described as the ‘pretext-plus’ standard for

summary judgment in employment discrimination cases”).

Thus, as in the Fifth Circuit, the Fourth Circuit has held

in some cases as a matter of law that a genuine issue of

material fact about pretext nonetheless failed to raise an

inference of discrimination. In Gillins, 148 F.3d at 417, a

Title VII racial demotion claim, the court affirmed summary

judgment. Despite the fact that the plaintiff presented a

triable issue of fact over whether the reasons given for not

demoting two white incumbents were false, the court held

that the claim failed because the plaintiff failed to advance

additional evidence that his demotion was motivated by

race. Also in Vaughan, 145 F.3d at 201, summary judgment

was affirmed in an ADEA termination case, notwithstand-

ing the district court (and court of appeals) finding that the

plaintiff established a “genuine dispute over the credibility

of the employer’s proffered justification” (i.e., compliance

with a uniform “Downsizing Manual”).

Like the above circuits, the Second Circuit held in Fisher

v. Vassar College, 114 F.3d 1332 (2d Cir. 1997) (en banc),

cert. denied, 522 U.S. 1075 (1998)—by an opinion joined

fully by only six of the court’s eleven judges—that a finding

of pretext alone (in this case, by a judge following a bench

trial) will not insulate a judgment from appellate review

under a clearly erroneous standard. The majority wrote

that a plaintiff “may prevail only if an employer's proffered

reasons are shown to be pretext for discrimination, either

because the pretext finding itself points to discrimination or

because other evidence in the record points in that direction

or both. . . We have recognized again and again that a

plaintiff does not necessarily satisfy the ultimate burden of

showing intentional discrimination by showing pretext

alone. A finding of pretext may advance the plaintiff's case,

but a plaintiff cannot prevail without establishing inten-

tional discrimination by a preponderance of the evidence.”

Id. at 1339 (footnote omitted). In line with its Fisher de-

cision, the Second Circuit in Belfi v. Prendergast, 191 F.3d

129, 140 (2d Cir. 1999), affirmed summary judgment in a

Title VII compensation case, despite allowing that the

plaintiff had established that her employer’s explanations

for disparate salaries was pretextual. “({I]nconsistent and

pretextual explanations do not constitute proof that the

lemployer] intended to discriminate against plaintiff be-

cause she was a woman. Absent that proof, a jury could not

simply infer a discriminatory intent.”

Finally, the First Circuit held in LeBlanc v. Great Ameri-

can Ins. Co., 6 F.3d 836, 842-43 (1st Cir. 1993), cert. denied,

511 U.S. 1018 (1994), that plaintiffs must not only present

“‘minimally sufficient evidence of pretext,’ but evidence

that overall reasonably supports a finding of discriminatory

animus. .. . Thus, the plaintiff cannot avert summary judg-

ment if the record is devoid of adequate direct or circum-

stantial evidence of discriminatory animus on the part of

the employer.” Accord Carey v. Mt. Desert Island Hosp., 156

F.3d 31, 34 (1st Cir. 1998); Dichner v. Liberty Travel, 141

F.3d 24, 30 (1st Cir. 1998) (referring to federal standard of

proof as “pretext plus”). The First Circuit has gone as far as

to say that “not only is a jury not required to infer discrimi-

nation from a showing of pretext together with the evidence

underlying the prima facie case, but the facts will often not

* Yet Fisher has not proven incompatible with a pretext-only

analysis. See, e.g., Banks v. The Travellers Companies, 180 F.3d

358, 367-68 (2d Cir. 1999) (noting a 22-year gap in ages between

candidates for discharge in ADEA case, a jury could have found

that age motivated the termination because the “record appears

to be devoid of any consideration other than the wide age discrep-

ancy”); Quinn v. Green Tree Credit Corp., 159 F.3d 759, 762 (2d

Cir. 1998) (reversing summary judgment where plaintiff in a Title

VII retaliation case raised factual issues about the asserted

reasons for her discharge).

eee eee

permit a jury to do so.” Alvarez-Fonseca v. Pepsi Cola of

Puerto Rico Bottling Co., 152 F.3d 17, 25 (1st Cir. 1998)

(emphasis added), cert. denied, 119 S. Ct. 1778 (1999).

The plaintiff in Alvarez-Fonseca, a line supervisor at a

bottling plant, claimed that he was terminated because of

age. Plaintiff (age 54) argued with his manager (age 39),

who called him “senile.” A fistfight broke out between the

men. In response, the company terminated plaintiff but

merely suspended the manager for 30 days. A jury found

that plaintiff's termination violated the ADEA and awarded

$73,373.39 in back pay. On appeal, however, the verdict

was annulled. The court allowed that “[a] jury could have

disbelieved Pepsi's claim that its workplace rules required

dismissal of an employee who initiated a fight in all cases,”

and thus “could question Pepsi's credibility.” Jd. at 25. De-

spite this, the court held that the plaintiff was unable to

show that the real reason for his termination was his age,

rather than violation of work rules. We note, however, that

the First Circuit recently took a step away from the brink

in Thomas v. Eastman Kodak Co., 183 F.3d 38 (1st Cir.

1999). There, the court reversed summary judgment in an

title VII race case claiming discriminatory discipline and

termination. It stated in a very comprehensive opinion that

“(blecause discrimination, and discrimination cases, come

in many different forms, a case-by-case analysis is always

necessary There can be no rigid requirement that plaintiffs

introduce a separate ‘plus’ factor, such as a negative em-

ployer comment about the plaintiff's protected class, in

order to prove discrimination. Otherwise, the McDonnell

Douglas /Burdine framework would no longer serve the

purpose for which it was designed: allowing plaintiffs to

prove discrimination by circumstantial evidence.” /d. at 57.

D. The Majority Approach Obeys this Court’s Pro-

nouncements, the Seventh Amendment Reexami-

nation Clause, and Sensible Judicial Process

There are several reasons why the approach of these

errant circuits must be rejected. First, it flies in the face of

this Court’s pronouncements, unbroken from McDonnell

Douglas to Hicks, that the finder of fact is entrusted to

weigh all of the relevant factors. Aikens, 460 U.S. at 716

(1983) (the trier of fact “must decide which party’s explana-

tion of the employer's motivatien it believes”). The minority

circuit’s approach is also oui-of-syne with this Court’s hold-

ing that an employer’s failure to meet its burden of produc-

tion under McDonnell Douglas mandates entry of judgment

for the plaintiff. O'Connor v. Consolidated Coin Caterers

Co., 517 U.S. 308, 311 (1996); Hicks, 509 U.S. at 509-10 and

n.3. Accordingly, the proffer of an indefensible or vacuous

excuse by the employer against the backdrop of the prima

facie case warrants at least a permissive inference of dis-

crimination.” Pretext-plus also abrades the Seventh Amend-

ment’s Reexamination Clause, which provides that “the

right of trial by jury shall be preserved, and no fact tried by

a jury, shall be otherwise reexamined in any Court of the

United States, than according to the rules of the common

law.” U.S. CONST. amend. VII. See generally Hetzel v. Prince

William County, Va., 523 U.S. 208 (1998) (per curiam).

While Congress has never taken a step to alter this Court’s

McDonnell Douglas order of proof, it has expressly provided

* See, e.g., Chapman v. Al Transport, 180 F.3d 1244, 1250 (11th

Cir. 1999) (reversing summary judgment; “we are mindful that the

‘poor interview’ justification, without more, can ide a defen-

dant-employer with a convenient smokescreen precisely the

type of discrimination that the ADEA was intended to eradicate,

with virtually no provable recourse for the plaintiff”); Lynn v.

Deaconess Medical Center-West Campus, 160 F.3d 484, 489 (8th

Cir. 1998) (where distinctions between male and female nurses for

discipline proved “flimsy,” this was sufficient to warrant a trial);

Widoe v. District No. 111 Otoe County School, 147 F.3d 726, 730

(8th Cir. 1998) (“while defendant is certainly entitled to rely at

trial on evidence that its employment decision was based upon

legitimate subjective criteria and subjective impressions that were

free of any discriminatory animus, there is genuine controversy at

this summary judgment stage as to whether age was not a factor

in the application of such subjective criteria or the formation of

such subjective impressions”).

nei

for jury trials in Title VII, ADA and ADEA cases. See 29

U.S.C. § 626(c2); 42 U.S.C. § 198la(c). Pretext-plus, as

revealed by this case, is little more than shorthand for judi-

cial reexamination of the fact-sensitive question of an em-

ployer’s intent that Congress entrusted to juries.

Finally, the minority circuits display a nagging disregard

for sensible judicial process. Pretext-plus heedlessly cuts

the finding of discrimination from its moorings, leading to

standardless review. The courts have been downright eva-

sive in describing how pretext-plus is supposed to work.

See, e.g., Alvarez-Fonseca, 152 F.3d at 24-5 (“{allthough the

plaintiff must then prove both that the defendant's explana-

tion is false, and that the real reason behind the defen-

dant’s actions was discriminatory animus, it will not always

be necessary for the plaintiff to present additional evidence

of discrimination beyond that necessary to prove that the

proffered reasons are pretextual”); Travis, 122 F.3d at 263

(“it is possible for a plaintiff's evidence to permit a tenuous

inference of pretext and, by extension, discrimination, and

yet for the evidence to be insufficient as a matter of law to

support a finding of discrimination”); Fisher, 114 F.3d at

1347 (“{w]hen a court comes to consider . . . whether the

evidence can support a verdict of discrimination, no special

rules affect the weight to be given to the prima facie case,

the truthfulness or falsity of the employer's explanation,

or any other piece of evidence”).'* These vaporous guide-

lines invite the judge to resort to his own proclivities,

an unwholesome alternative to the comparative certitude

of McDonnell Douglas, Burdine, and Hicks. BENJAMIN

the employer is hiding something does not necessarily mean that

the hidden something is discrimination.” Fisher, 114 F.3d at 1346.

Such a suggestion is a perfectly suitable point for a trier of fact to

consider, and a defendant to make in closing argument, but it

hardly justifies giving appellate courts a second crack at the

record.

CARDOZO, THE NATURE OF THE JUDICIAL PROCESS at 144

(1921)

(“[t}he judge, even when he is free, is still not wholly

free. He is not to innovate at pleasure. He is not a

knight-errant, roaming at will in pursuit of his own

ideal of beauty or of goodness. He is to draw his inspira-

tion from consecrated principles. He is not to yield to

spasmodic sentiment, to vague and unregulated benevo-

lence. He is to exercise a discretion informed by tradi-

tion, methodized by analogy, disciplined by system, and

subordinated to ‘the primordial necessity of order in the

social life.’”).

The majority approach by contrast respects both the

utility and limits of summary judgment, and judgment as

a matter of law, in employment discrimination cases. In

those circuits, one finds many such decisions reported. But

the majority circuits reserve such review for cases where

plaintiffs—in defiance of Hicks—virtually fail to confront

the non-discriminatory explanations of the employer's ac-

tions or to proffer alternative evidence establishing bias.

For instance, in Diettrich v. Northwest Airlines, Inc., 168

F.3d 961 (7th Cir.), cert. denied, 120 S. Ct. 48 (1999), an

ADEA failure to rehire case, the Seventh Circuit directed a

judgment for the employer. Diettrich, an 53-year-old ac-

count manager, was not rehired based on an interview with

a regional director. The airline based its decision upon a

scoring system, based on past performance and an inter-

view. While the plaintiff was asked different questions than

other candidates during the interview, there was no evi-

dence that this was because of age. Moreover, that the

youngest among twelve candidates received the highest

scores and older candidates the lowest scores was deter-

mined not to support an inference of age animus: the

numbers lacked statistical significance, it was conceded

that the interviewer did not know the ages of the candi-

dates, applicants close to plaintiff's age got jobs, and there

were enough jobs for all candidates (so the interviewer had

no motive to skew results to younger candidates). A failure

to respond to these facts with any precision, in the absence

of prevarication, warranted reversal of the jury’s verdict.''

This Seventh Circuit reversal is a far cry from the present

case, however, where the record before the Fifth Circuit

reflects jury issues on both the prima facie case and the

employer’s non-discriminatory explanation.

There also arise occasions where a judgment for an

employer must be vacated. In Kidd v. Illinois State Police,

167 F.3d 1084 (7th Cir. 1999), the district court (as trier of

fact) erred by relying on an employer's internally inconsis-

tent explanations to justify its racially disparate treatment

of its employees. Plaintiff Kidd, an African-American pro-

bationary state trooper, alleged that he was terminated in

violation of Title VII for alleged deficiencies in communica-

tions skills. While not denying that his score was low in this

area, plaintiff established that a white probationary officer

with the same problems was given training and opportuni-

ties to correct his performance, while the department

waited six months to address plaintiff's problems. The dis-

trict court found that the department’s explanation for

differential treatment—that the white officer was singled

out for training because his communications deficiencies

were “more easily discerned”—was not pretextual and that

the employees were not similarly situated in terms of their

discrimination,” thus contradicting the inference raised by the

prima facie case. Ryther, 108 F.3d at 837 n.2. Such cases essen-

tially amount to concessions by the plaintiff that the motivating

reason was some factor other than invidious discrimination. See,

e.g., Brandt v. Shop 'n Save Warehouse Foods, Inc., 108 F.3d 935,

938 (8th Cir. 1997) (evidence of “pretext” pointed to personal

favoritism, rather than sex discrimination), cert. denied, 522 U.S.

1075 (1998); Visser v. Packer Eng’g Assoc., 924 F.3d 655, 657 (7th

Cir. 1991) (en banc) (on summary j t record, evidence of

“pretext” pointed to plaintiff's disloyalty to CEO, not age discrimi-

nation).

apparent need for remedial intervention. On appeal, the

Seventh Circuit held that this finding stood in significant

conflict to the record, including examination of the officers’

writing samples, their grades at the academy for writing,

the fact that both officers as cadets initially failed to pass

at the academy, and admission that plaintiff's shortcomings

were commonplace and subject to correction. The district

court was directed to review and reopen the record to iron

out these inconsistencies. See also Kline v. TVA, 128 F.3d

337, 352 (6th Cir. 1997) (findings of fact regarding pretext

reversed because they were based on “contradictory and

evasive testimony”).

In sum, amicus encourages the Court to revive the prin-

ciple that the jury decides, upon a trial on the merits,

whether evidence of pretext is enough to support a finding

of discrimination.

Il. SOME COURTS APPLY LOGICALLY DUBIOUS COUN-

TER-INFERENCES TO GRANT SUMMARY JUDGMENT

AND REWEIGH JURY VERDICTS

This Court has previously cautioned lower courts against

erecting extra-statutory presumptions in employment cases,

especially those touching on the motivations of the em-

ployer. For instance, “[bJecause 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 that group.” Cas-

taneda v. Partida, 430 U.S. 482, 499 (1977). Thus, in Oncale

v. Sundowner Offshore Services, Inc., 523 U.S. 75, 118 S. Ct.

998, 1003 (1998), this Court unanimously rejected a pre-

sumption under Title VII that men could not sexually

harass other men in the workplace. The Court stated that

“in the related context of racial discrimination in the

workplace we have rejected any conclusive presumption that

an employer will not discriminate against members of his

own race.” Id. at 1001 (emphasis added).

—

— — oC *.

Skepticism of such extra-statutory presumptions and

shortcuts has been a leitmotif of this Court’s recent employ-

ment discrimination jurisprudence. See, e.g., O’Connor v.

Consolidated Coin Caterers Co., 517'U.S. 308, 211 (1996)

(rejecting conclusive presumption that ADEA plaintiff

replaced by another employee age 40 or over cannot prove

age discrimination); McKennon v. Nashville Banner Pub.

Co., 513 U.S. 352, 360 (1995) (rejecting conclusive presump-

tion that employee who comniitted terminable offense,

undiscovered by employer prior to litigation, cannot prove

liability under ADEA); Harris v. Forklift Systems, 510 U.S.

17, 22 (1993) (rejecting conclusive presumption that harass-

ment had to lead to diagnosable psychological injury before

it was severe enough to be actionable under Title VII);

Goodman v. Lukens Steel Co., 482 U.S. 656, 669 (1987)

(rejecting argument that because there was no evidence of

racial animus by union in failure to process grievances of

racial discrimination, there could be no Title VII liability).

The Court’s decisions often recognize that the unadorned

statutory language and purpose of Title VII and kindred

statutes, like the ADEA, do not carry the kind of freight—in

the form of evidentiary presumptions—that lower courts too

often place on them. These statutes are to be interpreted

broadly to effectuate the Congressional purpose of ridding

interstate commerce of invidious discrimination. Oncale,

118 S. Ct. at 1002 (“[wl]e see no justification in the statutory

language or our precedents for a categorical rule excluding

same-sex harassment claims from the coverage of Title

VII"); McKennon, 513 U.S. at 357 (ADEA must be inter-

preted “as part of an ongoing congressional effort to eradi-

cate discrimination in the workplace, reflects a societal

condemnation of invidious bias in employment decisions”).

See also Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997)

(in the face of doubt about the meaning of Title VII, we look

to “the broader context of Title VII” to resolve ambiguities).

After all, the question posed in disparate treatment cases

is fundamentally a simple one: whether the trier of fact

credits the employer's . - employee’s version of the reasons

for alleged disparate treatment. This Court stated in

Cooper, 467 U.S. at 874:

The ultimate burden of persuading the trier of fact that

the defendant intentionally discriminated against the

plaint.ff regarding the particular employment decision

“remains at all times with the plaintiff,” [Burdine, 450

U.S. at 253], and in the final analysis the trier of fact

“must decide which party’s explanation of the em-

ployer’s motivation it believes.” Aikens, 460 U.S. at 716,

103 S.Ct. at 1482.

The Court commended this analysis to the trier of fact.

Atkens, 460 U.S. at 714 n.3 (“[aJs in any lawsuit, the plain-

tiff may prove his case by direct or circumstantial evidence.

The trier of fact should consider all the evidence, giving it

whatever weight and credence it deserves”). This is because:

the question facing triers of fact in discrimination cases

is both sensitive and difficult. The prohibitions against

discrimination contained in the Civil Rights Act of 1964

reflect an important national policy. There will seldom

be “eyewitness” testimony as to the employer’s mental

processes. But none of this means that trial courts or

reviewing courts should treat discrimination differently

from other ultimate questions of fact. Nor should they

make their inquiry even more difficult by applying legal

rules which were devised to govern “the allocation of

burdens and order of presentation of proof,” Burdine,

supra, at 252, 101 S.Ct., at 1093, in deciding this ulti-

mate question.

Id. at 716. The analysis of the ultimate question should not

be befouled or misdirected by judicial presumptions. Just

how uncomplicated this analysis can be is illustrated by

the model jury instruction Judge Easterbrook devised in

Gehring v. Case Corp., 43 F.3d 340, 344 (7th Cir. 1994),

cert. denied, 515 U.S. 1159 (1995): “you must decide wheth-

er the employer would have fired (demoted, laid off] the

~~ newer

employee if the employee had been younger than 40 and

everything else remained the same.”

Yet in spite of the admonitions of this Court, some lower

courts continue to formulate and apply straitjacketing

presumptions and inferences to evaluate the ultimate ques-

tion of discrimination. Appellate opinions have increasingly

come to resemble decision-trees, assaying each piece of evi-

dence with a bank of stereotyping tests. The decision below

displays some of these unfortunate tendencies. The amicus

brief filed by the AARP addresses two such tests—“stray

remarks” and whether the decision-maker was in the pro-

tected group—and we adopt its analysis on these points. A

cousin to this argument that has taken hold in a number

of circuits, is the so-called “same actor” inference. It is a

virtual laboratory for the muddle caused by presumptions.

Some courts recite a “same actor” inference that a de-

cision maker who hired or promoted an employee in the

first instance would not typically harbor a discriminatory

animus against the same employee later on (at least over a

short enough period). Some decisions accord this inference

strong weight,'* while others consider it an issue for the

'2 See, e.g., Bradley v. Harcourt, Brace and Co., 104 F.3d 267, 270-

71 (9th Cir. 1996) (“where the same actor is responsible for both

the hiring and the firing of a discrimination plaintiff, and both

actions occur within a short period of time, a strong inference

arises that there was no discriminatory motive”), Brown v. CSC

Logic, Inc., 82 F.3d 651, 658 (5th Cir. 1996) (“[t)his ‘same actor’

inference has been accepted by several other circuit courts, and we

now express our approval”); EEOC v. Our Lady of Resurrection

Med. Center, 77 F.3d 145, 151 (7th Cir. 1996) (“(t]he same hirer/

firer inference has strong presumptive value”); Buhrmaster v.

Overnight Transp. Co., 61 F.3d 461, 464 (6th Cir. 1995), cert.

denied, 516 U.S. 1078 (1996); Lowe v. J. B. Hunt Transport, Inc.,

963 F.2d 173, 174 (8th Cir. 1992); Proud v. Stone, 945 F.2d 796,

797-98 (4th Cir. 1991).

finder of fact.’ But a principled objection could be launched

at this entire line of cases: it allows too many exceptions to

have any predictive power.

As the court noted in Johnson v. Zema Systems Corp., 170

F.3d 734, 745 (7th Cir. 1999):

The psychological assumption underlying the same-

actor inference may not hold true on the facts of the

particular case. For example, a manager might hire a

person of a certain race expecting them not to rise to a

position in the company where daily contact with the

manager would be necessary. Or an employer might

hire an employee of a certain gender expecting that

person to act, or dress, or talk in a way the employer

deems acceptable for that gender and then fire that

employee if she fails to comply with the employer's

gender stereotypes. Similarly, if an employee were the

first African-American hired, an employer might be

unaware of his own stereotypical views of African-

Americans at the time of hiring. If the employer subse-

quently discovers he does not wish to work with Afri-

can-Americans and fires the newly hired employee for

this reason, the employee would still have a claim of

racial discrimination despite the same-actor inference.

To add but a few more real-life instances, (1) the employer

may have been under transitory pressure to add more

minority employees (Fernandes v. Costa Bros. Masonry,

Inc., __ F.3d ___, 1999 WL 1252868 (1st Cir. Dec. 29, 1999)

'S Banks v. The Travellers Companies, 180 F.3d 358, 367 (2d Cir.

1999) (same-actor inference at most a “commonsensical inference

from the facts”); Swanks v. WMATA, 179 F.3d 929, 936 n.7 (D.C.

Cir.), cert. denied, 68 U.S.L.W. 3387 (1999); Williams v. Vitro

Services Corp., 144 F.3d 1438, 1442 (11th Cir. 1998); Waldron v.

SL Indus., 56 F.3d 491, 497 (3d Cir.1995) (“where . . . the hirer

and firer are the same and the di occurred soon after the

plaintiff was hired, the defendant may of course argue to the

factfinder that it should not find discrimination. But this is simply

a 7 any other and should not be accorded any presump-

tive value”).

— ee ee

lh Saeed

(No. 99-1692)); (2) the supervisor might have had little

previous contact with minorities (Stalter v. Wal-Mart

Stores, Inc., 195 F.3d 285, 291 n.3 (7th Cir. 1999)); or (3)

other evidence of overt discrimination might simply out-

weigh the inference (Madel v. FCI Marketing, Inc., 116 F.3d

1247, 1253 (8th Cir. 1997)). Or perhaps a decision maker

was unaware of an employee’s protected traits, such as

pregnancy or religion. Or the climate at the company might

have changed over time, becoming less tolerant of the needs

of older or disabled employees.

Amicus urges this Court to remind the courts below not

to exalt or characterize special categories of supposedly

exculpatory evidence in reviewing summary judgment or a

jury verdict.

CONCLUSION

Judge Abner Mikva, late of the U.S. Court of Appeals of

the D.C. Circuit, once expressed exasperation with his

colleagues about the reversal of a preliminary injunction on

appeal. “This case convinces me that we should install a

witness stand and a jury box in the courtroom of this court

of appeals.” Air Line Pilots Ass’n Int'l v. Eastern Air Lines,

Inc., 863 F.2d 891, 914 (D.C. Cir. 1988) (Mikva, J., dissent-

ing from the denial of the suggestion to hear the case en

banc). This lament gives voice to the frustration of many

employee-side practitioners (many of whom are members of

amicus), who witness first hand how some courts routinely

weigh facts in employment discrimination cases on sum-

mary judgment and after a trial, always to the detriment of

the employee. It is nothing short of a refusal by those

circuits to comply with Hicks—and a threadbare revival of

the discredited “pretext-plus” rule. To restore the common-

sense approach adopted by this Court a generation ago in

McDonnell Douglas, amicus urges that the Court reverse

and remand the Fifth Circuit’s decision below with direc-

tions to reinstate the jury’s verdict and enter judgment for

the plaintiff.

Respectfully submitted,