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

7 000

Jan

eee” | es

, **

No. 99-536

IN THE :

SUPREME COURT OF THE UNITED STATES

ROGER REEVES

Petitioner,

v.

SANDERSON PLUMBING PRODUCTS, INC.,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF AMICUS CURIAE OF AARP

IN SUPPORT OF PETITIONER

THOMAS W. OSBORNE*

LAURIE A. MCCANN

SALLY DUNAWAY

AARP FOUNDATION LITIGATION

MELVIN RADOWITZ

AARP

601 E Street, NW

Washington, DC 20049

(202) 434-2060

Counsel for Amicus Curiae

Counsel of Record*

_ ——_——

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................. iil

INTEREST OF AMICUS CURIAE ............... ]

SUMMARY OF THE ARGUMENT.............. 4

uae eR EL eM” 5

I. SINCE REEVES SATISFIED ALL OF THE

McDONNELL DOUGLAS REQUIREMENTS.

THE JURY’S VERDICT MUST STAND .. . 5

A. The Hicks Standard.............. 5

B. The Court Below Failed To Properly

EE 6 bb wns WSO cae wc 7

C. Reeves’s Circumstantial Evidence Is

Sufficient To Support A Jury Verdict

Under McDonnell Douglas ......... 9

D. Chestnut’s Ageist Comments Were

Sufficient Evidence Of Age

Discrimination................ 1]

Il. THE COURT BELOW ERRED BY

SUBSTITUTING ITS JUDGMENT

FOR THAT OF THE JURY .......... 14

fil. THE COURT BELOW RELIED ON

SUSPECT PRO-EMPLOYER

COUNTERINFERENCES ............ 17

A. Older as Well as Younger Derision-

makers Can Be Age-Biased

B. The Court of Appeals Erred by

Inferring That Because Sanderson

Did Not Discriminate Against Other

Older Employees It Did Not

Discriminate Against Reeves ......

IV SUFFICIENCY OF THE EVIDENCE IS

NO SUBSTITUTE FOR A PROPER

McDONNELL DOUGLAS ANALYSIS ... .

0 ee

——— a eee ee

TABLE OF AUTHORITIES

CASES

Adickes v. S.H. Kress & Co..,

398 U.S. 144(1970) ...........22 2 ae. 15

Aka v. Washington Hospital Ctr.,

156 F.3d 1284 (D.C. Cir. 1998) .......... 22

Anderson v. Baxter Healthcare Corp.,

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

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986) .......-500 eee. 15, 16

Armendariz v. Pinkerton Tobacco Co..,

58 F.3d 144 (Sth Cir. 1995), cert. denied,

516 U.S. 1047 (1996) .... 2... 2 ee eee i)

Beaird v. Seagate Tech., Inc.,

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

119 S. Ct. 617 (1998) ..... 2.2... ee ee. 22

Beaver v. Rayonier, Inc.,

196 F.3d 1354 (11th Cir. 1999) ........... 14

Benson v. Tocco, Inc.,

113 F.3d 1203 (11th Cir. 1997) ........... 22

Bevan v. H. ell, Inc.,

118 F.3d 603 (8th Cir. 1997) ............ 13

Birkbeck v. Marvel Lighting Corp..,

30 F.3d 507 (4th Cir.), cert. denied,

513 U.S. 1058 (1994) 2... 0... eee eee ee. 12

Brown v. CSC Logic, Inc.,

82 F.3d 651 (Sth Cir. 1996) .......... 11, 14

iv

Burrell v. Bd. of Trustees of Ga. Military College,

125 F.3d 1390, 1393 (11th Cir. 1997) ........ 8

Castaneda v. Partida,

CE ocedvecus decees 18, 19

Celotex Corp. v. Catrett,

re rere 14

Connecticut v. Teal,

Pe ree 20

Danzer v. Norden Systems, Inc.,

151 F. 3d 50 (2d Cir. 1998) ............. 20

Dockins v. Benchmark Communications,

176 F.3d 745 (4th Cir. 1999) ......... 12, 21

Elrod v. Sears, Roebuck & Co..,

939 F.2d 1466 (llth Cir. 1991) ........... 18

Fisher v. Vassar College,

114 F.3d 1332 (2d Cir. 1997) ........ 6, 7, 21

Fuentes v. Perski,

32 F.3d 759, 764 (3d Cir. 1994)............ 7

Furnco Construction Corp. v. Waters,

Ge UD 6b 6466 sede ene os 21, 22

Haas v. ADVO Sys.,

168 F.3d 732 (Sth Cir. 1999) ...... 13, 14, 21

Hazen Paper Co. v. Biggins,

Sy Ce EY “vivantoadenedeseeeve 2

International Bhd. of Teamsters v. United States,

— fh oe eee )

Lavender v. Kurn,

ay Ge PED. nce uss seueeceeeaus 16

Vv

Loeb v. Textron, Inc.,

600 F.2d 1003 (ist Cir. 1979) ...... 10, 22, 23

Lorillard v. Pons,

SUSU EEE cacavceseueusoeses 23

MacDissi v. Vaimont Indus. Inc. ,

856 F.2d 1054 (8th Cir. 1988) ............ 13

Matsushita Elec. Inds. Co., Lid. v. Zenith Radio Corp..,

SP ED io ccedbeneeccecacec. 15

McDonnell Douglas Corp. v. Green,

ee SDs o's o ce6e 0d oe ee o's passim

McKennon v. Nashville Banner Pub. Co..,

tt Pi ivccecesstenk ees 2, 22, 23

Molenda v. Hoechst Celanese Corp.,

60 F. Supp 2d 1294 (S.D. Fla. 1999)....... 18

Mooney v. Aramco Servs. Co..,

54 F.3d 1207, 1216 (Sth Cir. 1995)......... 10

Norton v. Sam's Club,

145 F.3d 114 (2d Cir. 1998) ............. 17

O'Connor v. Consolidated Coin Caterers Corp.,

Sy Cee, Pc cccecsnnseenaees 2, 21

Oncale v. Sundowner Offshore Servs. Inc..,

523 U.S. 75, 18 S.Ct. 998 (1998) ......... 20

Oscar Mayer & Co. v. Evans,

| le | rrrrrrre eee 23

Oubre v. Entergy Operations, Inc,

SU GEG cco dessecoausoveses 2

Price Waterhouse v. Hopkins,

\ | & | Fae 10, 11, 22

vi

Reeves v. Sanderson Plumbing Prods. Inc..,

81 Fair Empl. Prac. Cases (BNA)

ee ee passim

Rhodes v. Guiberson Oil Tools,

75 F.3d 989 (Sth Cir. 1996) ......... 6,7, 15

Richter v. Hook-Superx, Inc.,

142 F.3d 1024 (7th Cir. 1998) ............ 18

Ritter v. Hughes Aircraft Co.,

58 F.3d 454 (9th Cir. 1995) .......... 21, 22

Sanchez v. Puerto Rico Oil, Co.,

ee birt lo S| 21

Scott v. Goodyear Tire & Rubber Co..,

160 F.3d 1121 (6th Cir. 1998) ............ 21

Scott v. University of Mississippi,

148 F.3d 493 (Sth Cir. 1998) ............., 11

Showalter v. University of Pittsburgh Med. Crtr.,

190 F.3d 231 (3d Cir. 1999) ............. 21

St. Mary's Honor Center v. Hicks,

I ao passim

Texas Dep’t of Community Affairs v. Burdine,

PE cGeeed cd Gedueeeeeecne 5

Thornbrough v. Columbus and Greenville R. R. Co.,

760 F.2d 633 (Sth Cir. 1985) ............. y

Trans World Airlines, Inc. v. Thurston,

4. | aR a 10, 22, 23

U.S. Postal Serv. Bd. Of Governors v. Aikens,

. f | aa an eae 3,9, 10

—_

vii

Vaughan v. Metrahealth Companies, Inc..,

BGS F306 B97 CR Cir. TSRE) www cee 7

Vaughn v. Roadway Express, Inc..,

164 F.3d 1087 (8th Cir. 1998) ............ 21

Wichmann v. Board of Trustees of Southern Illinois Univ. ,

180 F.3d 791 (7th Cir. 1999) ............ 21

Woods v. Friction Materials, Inc..,

ok ee 7

STATUTES

Age Discrimination in Employment Act (ADEA),

RT eee passim

Americans with Disabilities Act of 1990,

es OP GPE, oc cccccccceeses 23

Title VII of the Civil Ri Act of 1964,

42 U.S.C. §2 i ceivetes ss aeee ls 23

Equal Pay Act of 1963,

er Serer 23

National Labor Relations Act,

I ES eT eee eee 23

MISCELLANEOUS

Marc Bendick et al., No Foot in the Door:

An Experimental Study of Employment

Discrimination Against Older Workers, Journal

of Aging & Social Policy, Vol. 10(4) 1999 ... 2,3

Howard C. Eglit, Age Discrimination,

i 2 oes 6 Cece cease so ee 13

Howard C. Eglit, Age Discrimination,

ee ee ee De ikea aces § oe.a'd ot 13

vill

Note, Age Discrimination in Employment,

7 & ee RPT

—illla -

—_— TT a — ew eee a ——$—

No. 99-536

SS ET SE SE

IN THE

SUPREME COURT OF THE UNITED STATES

ROGER REEVES,

Petitioner,

v.

SANDERSON PLUMBING PRODUCTS, INC.,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF AMICUS CURIAE OF AARP

IN SUPPORT OF PETITIONER

INTEREST OF AMICUS CURIAE*

AARP is a nonprofit membership organization of more

than thirty-three million persons age 50 or older dedicated to

addressing the needs and interests of older Americans. One of

AARP's primary objectives is to achieve dignity and equality

in the work place through positive attitudes, practices, and

policies regarding work and retirement. AARP seeks to

eliminate ageist stereotypes, encourage employers to hire and

to retain older workers, and help older workers overcome the

obstacles they encounter because of age. One-third of

AARP's members are oo Dincvani individuals, most of whom

are protected by the A iscrimination in Employment Act

(ADEA), 29 U. S. C. § “621 et seq.

V

No counsel for either party authored any portion of this brief. No

persons other than the amicus curiae, its members, or its counsel made a

monetary contribution to the preparation and submission of this brief.

2

The interpretation and application of the ADEA are of

paramount importance not only to AARP, but also to the

millions* of older workers who rely on the Act to remedy

work place age bias, such as that manifested in this case.

Since 1985, AARP has filed more than 200 amicus curiae

briefs in the federal courts regarding the proper interpretation

and application of the ADEA. AARP has participated as

amicus curiae in several recent cases in this Court which

raised ADEA issues including Oubre v. Entergy Operations,

Inc, 522 U.S. 422 (1998); O’Connor v. Consolidated Coin

Caterers Corp. , 517 U.S. 308 (1996); McKennon v. Nashville

Banner Pub. Co., 513 U.S. 352 (1995); and Hazen Paper Co.

v. Biggins, 507 U.S. 604 (1993).

This case materially impacts the viability of the

congressionally mandated right to a jury trial in age

discrimination cases. AARP respectfully submits that the

court below misconstrued this Court’s decision in St. Mary’s

Honor Center v. Hicks, 509 U.S. 502 (1993), to substitute its

evaluation of the evidence for that of the jury and reject the

jury’s verdict for Reeves. It did so, as have other courts in a

manifestly growing trend, despite the fact that the verdict was

based on legally sufficient and exceptionally probative

evidence, including a statement by an influential senior

executive directly involved in Reeves’s termination that he

was "too damn old to do the job," demonstrating to the

satisfaction of the jury that Sanderson’s proffered reasons for

its termination of Reeves were a pretext for willful age

discrimination.

Where Congress has legislatively provided for a jury

trial, courts should only in the rarest of circumstances nullify

that right, and then only in accordance with the strict

standards established by this Court. Any lesser standard only

2 "As of 1995, approximately 41 million members of the nation’s civilian

workforce were age 45 or older." Marc Bendick et al., No Foot in the

Door: An Experimental Study of Employment Discrimination Against Older

Workers, Journal of Aging & Social Policy, Vol. 10(4) 1999, at 20

(citation omitted).

3

serves to undermine respect for judicial power. It simply

cannot be said that no jury could have reasonably determined

that Sanderson’s actions were motivated by discriminatory

animus. Moreover, the reasonableness of the jury’s

determination was effectively affirmed by the trial court’s

denial of Sanderson’s motion for Judgment as a Matter of Law

and its imposition of liquidated damages and award of front

pay. Accordingly, the court below’s reversal of the jury’s

finding and its misuse of judicial power is not only an affront

to the jury but to the trial court as well. The court below was

simply not in a position to fairly second guess the trial court.

Even more than other indicators of the continuing

resistance to equal employment opportunity, disparaging

epithets, slurs, stereotyping, and derogatory remarks

regarding older workers provide a window into the hard-core

prejudices which still confront our social, political, and

economic _ institutions.” In view of the Court's

acknowledgment of the difficulty of proving discriminatory

intent, see U.S. Postal Serv. Bd. Of Governors v. Aikens, 460

U.S. 711, 716 (1983), discounting the probative value of

ageist comments by managers and other senior executives

needlessly immunizes some of the worst discriminators from

accountability.

Under McDonnell Douglas,* Reeves’s evidence was

sufficient to support the verdict in his favor under even the

most restrictive interpretation of Hicks. The Court must not

* One recent study, which found that older job applicants receive less

favorable responses from employers than younger applicants 41.2 percent

of the time, Bendick, et al., at 6, concluded that it provided "empirical,

quantitative confirmation of an uncomfortable truth - that the

contemporary American workplace is far from ‘age blind.’ The

consequences of discrimination such as are documented here include not

only injustice and economic hardship for individuals but also wastage of

human resources and reductions in the nation’s productivity." /d. at 21

(citation omitted).

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

4

countenance this attempt to substitute for McDonnell Douglas

a sufficiency of the evidence analysis based on

counterinferences of questionable validity drawn exclusively

in favor of employer-defendants not by the jury, but by the

court. It is critical to the effort to fulfill the promise of a

discrimination-free work place that McDonnell Douglas

remain viable for all employment discrimination litigants.

For these reasons, AARP submits this brief amicus

curiae .>

SUMMARY OF THE ARGUMENT

The court below misapplied the Court’s decision in

H.cks, impermissibly substituting its evaluation of the

evidence for that of the factfinder under the guise of a

sufficiency of the evidence review. Reeves satisfied all three

requirements of McDonnell Douglas as construed by Hicks.

Nevertheless, the court below freely discounted the probative

value of Reeves’s evidence, including the manifestly age-

biased comments of a high corporate executive with

extraordinary influence over the decision to fire the fifty-seven

year old Reeves after forty years of employment, and inferred

from Sanderson’s evidence that it did not discriminate against

Reeves.

The two comments by Powe Chestnut, Sanderson’s

Director of Manufacturing, first that Reeves was so old that

he "must have come over on the Mayflower," and second that

he was "too damn old to do the job," made within two months

of his termination, are, along with his other proof, persuasive

circumstantial evidence that Sanderson’s proffered reason for

firing Reeves, "shoddy record-keeping," was a pretext for age

discrimination. In overturning the verdict for insufficient

evidence, the court impermissibly substituted its evaluation of

the evidence for that of the jury, which found not only that

* The written consents of the parties have been filed with the Clerk of

the Court pursuant to Supreme Court Rule 37.3.

I ge —

5

Reeves was fired because of his age, but also that the

discrimination was willful.

Due to the strength of his evidence of pretext,

including the two ageist comments, the jury’s verdict for

Reeves must prevail. The Court should, therefore, reverse the

judgment of the court below and reject this attempt to

substitute its flawed sufficiency of the evidence analysis in

place of McDonnell Douglas. To do otherwise would fully

vindicate Justice Souter's criticism in his dissent in Hicks that

the Court "abandons thfe] practical [McDonnell

Douglas/Burdine| framework . ._ substituting a scheme of

proof for disparate-treatment actions that promises to be unfair

and unworkable...." Hicks, 509 U.S. at 525.

ARGUMENT

I. SINCE REEVES SATISFIED ALL OF THE

McDONNELL DOUGLAS REQUIREMENTS, THE

JURY’S VERDICT MUST STAND.

A. The Hicks Standard.

In an attempt to clarify the circumstances in which a

plaintiff is entitled to prevail in a disparate treatment case, the

Court in Hicks construed the requirements of the McDonnell

Douglas indirect method of proof. The Court pointed out that

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

248, 253 (1981), at the third stage of the three-part burden-

shifting proof paradigm of McDonnell Douglas, a plaintiff

must be afforded the “opportunity to prove by a

preponderance of the evidence that the legitimate reasons

offered by the defendant [for the adverse employment action

affecting plaintiff] were not its true reasons, but were a

pretext for discrimination." Hicks, 509 US. at 515. The

Court held that:

[t]he factfinder’s disbelief of the reasons put

forward by the defendant (particularly if

disbelief is accompanied by a suspicion of

6

mendacity) may, together with the elements of

the prima facie case, suffice to show

intentional discrimination. Thus, rejection of

the defendant’s proffered reasons will permit

the trier of fact to infer the ultimate fact of

intentional discrimination. ...

Id. at 511 (emphasis in original). The Hicks majority went on

to state, however, that "a reason cannot be proved to be a

‘pretext for discrimination’ unless it is shown both that the

reason was false, and that discrimination was the real reason."

Id. at 515 (emphasis in original). Hicks further cautions that

"[iJt is not enough ... to disbelieve the employer; the

factfinder must believe the plaintiff’ s explanation of intentional

discrimination." Jd. at 519 (emphasis in original). Thus,

"[e]ven though (as we say here) rejection of the defendant’s

proffered reasons is enough at law to sustain a finding of

discrimination, there must be a finding of discrimination." Id.

at 511 n.4 (emphasis in original).

Rather than resolving the problem of when a plaintiff

is entitled to prevail, however, Hicks added to the confusion

surrounding this issue.® In the aftermath of Hicks, the lower

courts developed two opposing views regarding the quantity

and quality of evidence sufficient to support a plaintiff's

verdict. First, despite the Court’s admonition that if the trier

of fact rejects the defendant’s proffered reasons "no additional

proof of discrimination is required," id. at 511, many lower

courts, including the court below, have construed Hicks to

© See, e.g., Fisher v. Vassar College, 114 F.3d 1332 (2d Cir. 1997)(en

banc), which held that after Hicks a finding of discrimination pursuant to

McDonnell Douglas is reviewable for clear error and which, in five

opinions spanning 59 pages, graphically illustrates the struggle of the

lower courts to interpret and apply the Hicks decision. See also Rhodes

v. Guiberson Oil Tools, 75 F.3d 989 (Sth Cir. 1996) (en banc), in which

the court in four separate opinions struggled with the seemingly

contradictory language in Hicks; the majority concluded that it could

simply rely on its traditional sufficiency of the evidence analysis to sustain

the jury verdict for plaintiff.

- a

7

mean precisely the opposite: that even if the jury has found

in favor of the plaintiff based on the prima facie case and

proof of pretext, there must be some additional evidence

directly linking the defendant’s behavior to the adverse

employment decision to support the verdict, the post-Hicks

"pretext-plus" rule.” Other courts, including the en banc Fifth

Circuit, hold that the prima facie case coupled with the jury’s

rejection of the defendant’s proffered reasons based on

plaintiff's proof of pretext are ordinarily sufficient to support

a verdict for plaintiff.”

B. The Court Below Failed To Properly Apply

Hicks.

Even though all three Hicks elements, the prima facie

case, (abundant) evidence of pretext, and a finding of

discrimination, are present, the court below nevertheless

overturned the verdict for Reeves. The court was wrong to do

so. First, Sanderson did not challenge the sufficiency of

Reeves’s prima facie case. Reeves v. Sanderson Plumbing

Products, Inc., 81 Fair Empl. Prac. Cases (BNA) 609, 612

(5th Cir. 1999). Second, Reeves proved to the satisfaction of

Y The court below held that "whether Sanderson was forthright in its

explanation for firing Reeves is not dispositive of a finding of liability

under the ADEA. We must, as an essential final step, determine whether

Reeves presented sufficient evidence that his age motivated Sanderson’s

employment decision." Reeves v. Sanderson Plumbing Prods. Inc., 81

Fair Empl. Prac. Cases (BNA) 609, 612 (Sth Cir. 1999). See, e.g.,

Vaughan v. Metrahealth Companies, Inc., 145 F.3d 197, 202 (4th Cir.

1998); Fisher v. Vassar College, 114 F.3d 1332, 1333 (2d Cir. 1997);

Woods v. Friction Materials, Inc. , 30 F.3d 255, 260 (1st Cir. 1994).

© See, e.g., Rhodes v. Guiberson Oil Tools, Inc., 75 F.3d 989, 994 (Sth

Cir. 1996) (en banc) ("In tandem with a prima facie case, the evidence

allowing rejection of the employer’s proffered reasons will often, perhaps

usually, permit a finding of discrimination without additional evidence. ");

Fuentes v. Perski, 32 F.3d 759, 764 (3d Cir. 1994); Anderson v. Baxter

Healthcare Corp., 13 F.3d 1120, 1123 (7th Cir. 1994).

8

the jury that Sanderson’s proffered nondiscriminatory reason

for firing him, shoddy record-keeping, was a pretext for

discrimination. Finally, the jury found not only that

Sanderson had discriminated against Reeves, but that the

discrimination was willful. /d. at 611.

Conceding that Sanderson’s explanation for Reeves’s

termination "may very well be" pretextual, id at 612, the

court below nevertheless held that there was insufficient

evidence for the jury to find that Reeves was discharged

because of his age. Thus, "[d]espite the potentially damning

nature of Chesnut’s [sic] age-related comments," id. at 613,

the court below rejected them as insufficient proof of

discriminatory intent on the ground that "it is clear that these

comments were not made in the direct context of Reeves’s

termination." /d. (emphasis added).

Rather, what is clear is that the two comments, both

made by Chestnut, the Director of Manufacturing who was

directly involved in the decision to terminate Reeves and who

was married to the ultimate decisionmaker, Sanderson's

president, are extraordinarily probative of discriminatory

motive. The first statement, that Reeves was so old that he

"must have come over on the Mayflower," was made within

months of Reeves’s termination; the second statement, that

Reeves was "too damn old to do the job," was made within

two months of his termination. The first statement is clear

circumstantial or "indirect evidence" of discriminatory

intent.2 The second is the verbal equivalent of the "smoking

gun." There can hardly be any stronger circumstantial

evidence of on-the-job age bias than a statement made by the

boss, to the employee, on the job, within two months of his

firing, that he is "too damn old to do the job."

® See, e.g., Burrell v. Bd. of Trustees of Ga. Military College, 125 F.3d

1390, 1393 (11th Cir. 1997) (statements by a decisionmaker that are not

direct evidence of discrimination may still be used as circumstantial

evidence of discriminatory motive.)

9

od Reeves’s Circumstantial Evidence Is

Sufficient To Support A Jury Verdict Under

McDennell Douglas.

. The Court has acknowledged 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." Aikens,

460 U.S. at 716. Similarly, in Thornbrough v. Columbus and

Greenville R. R. Co., 760 F.2d 633, 638 (Sth Cir. 1985), the

Fifth Circuit pointedly stated its awareness of the difficulty of

proving age discrimination: “Employers are rarely so

cooperative as to ... inform a dismissed employee candidly

that he is too old for the job." Yet in this case, where the

employer specifically did that, informing Reeves that he was

“too damn old to do the job," the Fifth Circuit inexplicably

found Reeves’s proof of discriminatory intent deficient.

The rejection of plaintiff's ageist comment evidence as

insufficiently direct to support a verdict pursuant to

McDonnell Douglas be speaks a _ fundamental

misunderstanding not only of Hicks, but also of the probative

value of ageist comments.

Chestnut’s statement that Reeves was “too damn old to

do the job" along with his remark that Reeves was so old that

he "must have come over on the Mayflower" was sufficient

circumstantial evidence to support the jury’s verdict. Based

on this evidence alone, the court below should not have

granted judgment as a matter of law for Sanderson because

"the facts and inferences" do not “point so strongly and

overwhelmingly in favor of one party that a reasonable jury

could not have concluded" as it did. Armendariz v. Pinkerton

Tobacco Co. , 58 F.3d 144, 148 (Sth Cir. 1995), cert. denied,

516 U.S. 1047 (1996).

The Court has said that “the McDonnell Douglas

formula does not require direct proof of discrimination. ..."

International Bhd. of Teamsters v. United States, 431 U.S.

324, 358 n.44 (1977). Further, "[a]s in any lawsuit, the

plaintiff may prove his case by direct or circumstantial

10

evidence. The trier of fact should consider all the evidence,

giving it whatever weight and credence it deserves." Aikens,

460 U.S., at 714 n.3 (1983). The trier of fact in this case, the

jury, did consider all of the evidence and concluded not only

that Reeves was the victim of age bias, but that the

discrimination was willful.

As explained in Mooney v. Aramco Servs. Co.,

54 F.3d 1207, 1216 (Sth Cir. 1995), "a plaintiff can prove age

discrimination in two ways. A plaintiff can prove

discriminatory animus by direct evidence or by an indirect or

inferential method of proof." Discrimination can be shown

indirectly following the "pretext" model of McDonnell

Douglas. “The shifting burdens . . set forth in McDonnell

Douglas are designed to assure that the ‘plaintiff [has] his day

in court despite the unavailability of direct evidence.’" Trans

World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985),

uoting Loeb v. Textron, Inc., 600 F.2d 1003, 1014 (1st Cir.

1979). If, however, a plaintiff produces direct evidence of

discrimination, the McDonnell Douglas test is "inapplicable,"

Thurston, 469 U.S. at 121, and plaintiff may proceed under

the mixed motives theory of Price Waterhouse v. Hopkins,

490 U.S. 228 (1989).

The differences between the two methods of proof

were summarized in Mooney:

Unlike McDonnell Douglas, which simply

involves a shifting of the burden of production,

Price Waterhouse involves a shift of the

burden of persuasion to the defendant. In

other words, under Price Waterhouse, once a

plaintiff presents direct evidence of

discrimination, the burden of proof shifts to the

employer to show that the same adverse

employment decision would have been made

regardless of discriminatory animus. If the

employer fails to carry this burden, plaintiff

prevails.

54 F.3d at 1216-17 (emphasis in original).

11

Although direct evidence is required for plaintiff to

invoke the much more advantageous Price Waterhouse mixed

motives analysis, the indirect McDonnell Douglas method

imposes no such requirement. Indeed, such a requirement

would be inconsistent with McDonnell Douglas which allows

a plaintiff to rely on the inferences the factfinder is permitted

to draw from his circumstantial proof. Hicks, 509 U.S. at

511. The Fifth Circuit previously has confirmed as much:

"Hicks does not cast aside circumstantial evidence as a means

of allowing a factfinder to infer discrimination.” Rhodes, 75

F.3d at 993. Rather, to support an inference of discrimination

under McDonnell Douglas, “the employee must," as Reeves

has done here, "provide some evidence, direct or

circumstantial, to rebut each of the employer’s proffered

reasons and allow the jury to infer that the employer's

explanation was a pretext for discrimination." Scott v.

University of Mississippi, 148 F.3d 493, 504 (Sth Cir. 1998)

(emphasis added) (citations omitted).

D. Chestnut’s Ageist Comments Were

Sufficient Indirect Evidence Of Age

Discrimination.

Relying on its earlier decision in Brown v. CSC Logic,

Inc. , 82 F.3d 651, 655 (Sth Cir. 1996), the court below stated

that ageist comments can be sufficient evidence of

discrimination if they are:

(1) proximate in time to the termination; (2)

made by an individual with authority over the

challenged employment decision; and (3)

related to the employment decision. Mere

“stray remarks" - i.e., comments which are

“vague and remote in time” - however, are

insufficient to establish discrimination.

Reeves, at 612.

Notwithstanding that the potentially damning

comments here were (1) specifically directed at Reeves, (2)

the first just months before his termination and the second,

12

which directly stated Chestnut’s age bias, within two months

of his termination, (3) by a senior decisionmaker directly and

intimately involved in the termination decision and who had

extraordinary power, and despite the fact that the jury inferred

that the comments were related to the decision to fire Reeves,

the court rejected them as insufficient because "it is clear that

these comments were not made in the direct context of

Reeves’s termination.” /d. (emphasis added). Given

Chestnut’s status both within the company and as the husband

of the company president, his involvement in the termination

decision, and the closeness in time of his comments to

Reeves’s firing, such a finding clearly violates the standard

upon which the court purportedly relied.

The fallacious reasoning behind the refusal to assign

significant probative value to the ageist comments of

Chestnut, and which the court itself characterized as

“potentially damning," is reflected in the unsupportable

decision of the Fourth Circuit in Birkbeck v. Marvel Lighting

Corp., 30 F.3d 507, 512 (4th Cir.), cert. denied, 513 U.S.

1058 (1994), in which the court said that "statements about

age may well not carry the same animus as those about race

and gender." While perhaps true, such a statement vividly

demonstrates that the court did not view the evidence in the

light most favorable to the nonmoving party (plaintiff).

Nonetheless, the Birkbeck court concluded that the comment

at issue “reflects no more than a fact of life and as such is

“merely a truism that carries with it no disparaging

undertones." /d. (internal quotation marks omitted).

In Dockins v. Benchmark Communications, 176 F.3d

745, 749 (4th Cir. 1999), the court further exposed its flawed

rationale for discounting ageist comments: "[S]tatements about

age, unlike statements about race or gender, do not rest on a

we/they dichotomy and therefore do not create the same

inference of animus." The court reasoned that “barring

unfortunate events, everyone will enter the protected age

group * — point in their lives." Jd. citing Birkbeck, 30

.3d at 512.

13

It is, of course, true that age discrimination was not

born of the same shameful legacy of slavery as is race

discrimination. Neither does it have the same harsh

antecedents as gender discrimination. Nevertheless, since

individuals can age only in one direction - older, the status of

“older worker," employed people age 40 and older protected

by the ADEA, is based on a dichotomy just as surely as are

differences of race and gender. Once attained, the status of

oider worker is quite as irreversible as one’ sr race, gender, or

other characteristic protected by Title VII“ Thus, "while

aging is a process of change which is experienced by

everyone, the attainment of ‘old age’ - the condition upon

which age discrimination is based - places an individual in a

class to which he will always belong." Further, "[a]ge, like

race and gender, is a characteristic that a person has neither

chosen nor has the power to change."

Even if an ageist comment "was not directly related to

the adverse employment decision{] (and as such is not,

standing alone, direct proof of discrimination), statements of

a decisionmaker that are unrelated to the adverse employment

decision are nevertheless relevant to the jury’s verdict when

considered together with other evidence of pretext ...." Bevan

v. Honeywell, Inc., 118 F.3d 603, 611 (8th Cir. 1997).

Further, the two "damning" comments at issue here are

“surely the kind of fact which could cause a reasonable trier

of fact to raise an eyebrow...." MacDissi v. Valmont Indus.,

Inc. , 856 F.2d 1054, 1058 (8th Cir. 1988).

The decision of the court below in the present case

sharply contrasts with its recent decision in Haas v. ADVO

Sys., 168 F.3d 732, 733 (Sth Cir. 1999), in which the only

evidence of pretext was the statement to the plaintiff, an

® See Howard C. Eglit, Age Discrimination §2.12, at 2-30 (1986).

Note, Age Discrimination in Employment, 50 N.Y. L. Rev. 924, 930

n.37 (1975).

2 Howard C. Eglit, Age Discrimination §1.02, at 1-12 (2d ed. 1994).

14

unsuccessful job applicant, by an interviewer who was

"influential" in the hiring process, that his "only concerns

about hiring [Haas] were [his] age." The Haas court, relying

on the same Brown four-part test as the court below, held that

the statement should “be viewed as evidence of discrimination

as a matter of law." Jd. at 733-34. There is very little, if

any, difference between the comment in Haas and Chestnut’s

statement that Reeves was "too damn old to do the job," yet

Chestnut’s statement was held to be insufficient.

Contrary to the conclusion of the court below,

Chestnut’s remarks, like those in Haas, appear to satisfy all

four of the Brown parameters for probative evidence of

discrimination. Considering that the speaker was Chestnut,

the first comment, that Reeves was so old that he “must have

come over on the Mayflower," can be fairly taken to imply

that Chestnut believed that age was affecting Reeves’s job

performance. Moreover, the second, that Reeves was "too

damn old to do the job," made directly to Reeves while he

was working, within two months of his termination, like the

comment in Haas, directly states the unlawful discrimination

that the ADEA was enacted to combat. Thus, both of

Chestnut’s comments are exceptionally probative evidence of

age discrimination and, along with Reeves’s other evidence,

are sufficient to support the verdict.”

ll. THE COURT BELOW’ ERRED BY

SUBSTITUTING ITS JUDGMENT FOR THA’ OF

THE JURY.

The standard for evaluating a motion for judgment as

a matter of law and a motion for summary judgment is the

same. See Celotex Corp. v. Catrett, 477 U.S. 316, 323

(1986) ("*[T]h{e] standard [for granting summary judgment]

mirrors the standard for a [judgment as a matter of law] under

= See Beaver v. Rayonier, Inc., 196 F.3d 1354 (11th Cir. 1999)

(ageist comment coupled with other evidence of discrimination is sufficient

to support verdict.)

15

Federal Rule of Civil Procedure 50(a)....°") quoting Anderson

v. Liberty Lobby, Inc. , 477 U.S. 242, 250 (1986); Rhodes, 75

F.3d at 993 n.4. The only significant difference between the

two is that the record is much more complete post-trial. The

Court long ago established that in deciding such motions,

"[t]he evidence of the non-movant is to be believed, and all

justifiable inferences are to be drawn in his favor." Anderson

v. Liberty Lobby, Inc., 477 U.S. at 255, citing Adickes v. S.H.

Kress & Co. , 398 U.S. 144 (1970); see Matsushita Elec. Inds.

Co., Ltd. v. Zenith Radio Corp., 475 U.S. 572 , 587-88

(1986). In substituting its evaluation of the evidence for that

of the jury, the court below violated this rule by crediting

Sanderson’s evidence and drawing inferences of questionable

legal import against Reeves.

In addition to Chestnut’s two ageist comments, Reeves

introduced other evidence that along with these remarks was

sufficient to support the jury’s finding that Sanderson's

purported nondiscriminatory reason for Reeves’s termination,

"shoddy record keeping," was, indeed, a pretext for age

discrimination.

Reeves established that on several occasions Chestnut

referred to him as “old man," (Tr.24, 76), and that he was

harassed and “cussed out" by Chestnut, (Tr. 26). Reeves

evidence also showed that Sanderson changed its reason for

terminating him between the time he was fired and the time of

trial. Along with the ageist comments, Reeves’ evidence

raised not only disbelief, but in the language of Hicks, 509

U.S. at 511, “a suspicion of mendacity" regarding

Sanderson’s stated reasons for the discharge.

Rather than "believ[ing]" Reeves and drawing all

"justifiable inferences ... in his favor," Anderson, 477 U.S. at

255, the court below concluded:

Although proof that an employer lied to its

employee about its reasons for discharge does,

under some circumstances, raise a "red flag

of pretext, the inconsistency noted by Reeves

in this case can hardly be considered

16

mendacious. Sanderson has, at all times,

supported its decision to fire Reeves with the

charge that Reeves’s work performance was

unsatisfactory. That Sanderson may have

explained this charge at the time of dismissal

with only one instance of inaccurate record

keeping, but buttressed its defense by adducing

evidence of other similar infractions at trial

smacks more of competent trial preparation

than telling a lie.

Reeves, at 612.

Conceding that on Reeves’s evidence “a reasonable

jury could have found that Sanderson’s explanation for its

employment decisions was pretextual," id., the court

nevertheless rejected the jury’s ultimate finding of

discrimination. By crediting Sanderson’s evidence instead of

that of Reeves and failing to draw inferences clearly supported

by that evidence in Reeves’s favor, the court below not only

transgressed this Court’s guidance in Anderson, 477 U.S. at

255, but also impermissibly usurped the function of the jury:

Credibility determinations, the weighing of the

evidence, and the drawing of legitimate

inferences from the facts are jury functions,

not those of a judge, whether he is ruling on a

motion for summary judgment or for a directed

verdict.

Id.

The role of a reviewing court is to determine whether

there is an evidentiary basis for the jury’s verdict. Long ago,

this Court stated that "when that evidentiary basis becomes

apparent, it [is] immaterial that the court might draw a

contrary inference or feel that another conclusion is more

reasonable." Lavender v. Kurn, 327 U.S. 645, 653 (1946).

The jury’s verdict should be overturned "[{o]nly when there is

a complete absence of probative facts to support the

conclusion reached ....". Jd. The court is permitted to

17

intercede only if the record reflects "such a complete absence

of evidence supporting the verdict that the jury’s findings

could only have been the result of sheer surmise and

conjecture." Norton v. Sam’s Club, 145 F.3d 114, 118 (2d

Cir. 1998). Where, as in this case, there is substantial

evidence supporting the jury’s verdict, the court of appeals

clearly has erred in reversing the verdict for Reeves.

Ill. THE COURT BELOW RELIED ON SUSPECT

PRO-EMPLOYER COUNTERINFERENCES.

In rejecting the jury’s verdict that Sanderson fired

Reeves because of willful age discrimination, the court relied

on counter-inferences of questionable validity, stating that (1)

"the record shows that at least two of the decision makers

were themselves over the age of 50," and (2) "at the time

Reeves was dismissed, 20 of the management positions were

filled by people over the age of 50, including several

employees in their late 60's." Reeves, at 613. Left unstated

is the inference (or counterinference, since the facts arise from

defendant’s proof) that the court obviously drew from each:

first, that people in the same protected group as the plaintiff

are unlikely to discriminate against members of that group;

and second, that a bottom line result reflecting that some

members of the protected group did not suffer discrimination

shows a lack of motivation to discriminate against the

plaintiff.

Not only is each of these counterinferences based on

questionable reasoning, they weaken the enforcement of all

employment discrimination laws by erecting formidable

judicial barriers to a plaintiff's ability to prove his case.

18

A. Older as Well as Younger Decisionmakers

Can Be Infected by Age Bias.

Without articulating its reasoning, the court below

relied on the “older decision maker" doctrine to draw an

inference of nondiscrimination because persons making the

allegedly discriminatory employment decision are also in the

protected age group, /.e., age forty and older. Although it is

bereft of logical or sociological support, the theory behind this

device is that members of the protected class "are more likely

to be victims of age discrimination than its perpetrators."

Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1471 (11th

Cir. 1991) (reversing an age discrimination jury verdict for

the plaintiff).

This inference is contrary to a long established precept

of this Court, i.e., that persons of the same class or group can

and, indeed, do discriminate against each other. For example,

more than thirty years ago, in Castaneda v. Partida, 430 U.S.

482 (1977), the Court upheld a challenge by a Mexican-

American prisoner to the "key man" grand jury selection

process, despite Texas’ assertions that the Mexican-American

prisoner’s Fourteenth Amendment rights could not have been

violated because three of the five jury commissioners were

Mexican-American and the pool from which the jurors was

chosen was largely Mexican-American. The Court concluded

that "because of the many facets of human motivation, it

would be unwise to presume as a matter of law that human

“See, e.g., Richter v. Hook-Superx, Inc., 142 F.3d 1024, 1032 (7th

Cir. 1998) (There is no inference of age discrimination when “decision-

makers were themselves 46, 53, and 60 years old at the time of the

decision. While not dispositive, this Court has found it significant that

individuals alleged to have discriminated on the basis of age were

themselves members of the protected class."); Molenda v. Hoechst

Celanese Corp., 60 F. Supp 2d 1294, 1304 (S.D. Fla. 1999) (The fact that

both decisionmakers were in the protected age group, ages 55 and 56, and

were substantially older than the 41 year old plaintiff contributed to the

court’s conclusion that no unlawful discrimination occurred).

19

beings of one definable group will not discriminate against

other members of that group." Jd. at 499.

_ In his concurrence in Castaneda, Justice Marshall

described how a person of one protected class could readily

discriminate against another member of that same class:

In the first place, Mr Justice Powell’s

assumptions about human nature [that persons

of the same race would not discriminate against

each other], plausible as they may sound, fly in

the face of a great deal of social science theory

and research. Social scientists agree that

members of [protected classes] frequently

respond to discrimination and prejudice by

attempting to disassociate themselves from the

group, even to the point of adopting the

majority's negative attitudes towards the

minority. Such behavior occurs with particular

frequency among members of [protected

classes} who have achieved some measure of

economic or political success and thereby have

gained some acceptability among the dominant

group.

Id. at 503 (footnotes omitted).

Recently , the Court unequivocally reacknowledged that

intra-group discrimination was possible and, indeed,

actionable under Title VII in the case of a male oil rig

roustabout who was sexually harassed by his male supervisors

and other males:

If our precedents leave any doubt on the

question, we hold today that nothing 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.

20

Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, _,

118 S.Ct. 998, 1001-02 (1998).

The reason for such a conclusion is straightforward:

It strains credulity to assume that simply because a person is

a member of the protected group, he or she is incapable of or

unwilling to unlawfully discriminate on the basis of the

protected characteristic, ¢.g., sex, race, age, etc., against

another person in the protected group. "The proposition that

people in a protected category cannot discriminate against

their fellow class members is patently untenable." Danzer v.

Norden Systems, Inc., 151 F. 3d 50, 55 (2d Cir. 1998).

The unstated counterinference drawn by the court

below, that there could not have been age discrimination

against the 57-year-old Reeves simply because two of the four

decisionmakers were over age 50, is an impermissible basis

for overturning the jury’s verdict.

B. The Court of Appeals Erred By Inferring

That Because Sanderson Did Not

Discriminate Against Other Older

Employees It Did Not Discriminate Against

Reeves.

The second unexplained factor relied on by the court

below to overturn the jury verdict for Reeves, was that "there

is evidence that, at the time Reeves was dismissed, 20 of the

company’s management positions were filled by people over

the age of 50, including several employees in their late 60's."

Reeves, at613. This reasoning is based on the same fallacious

bottom line analysis that the Court unequivocally rejected in

Connecticut v. Teal, 457 U.S. 440, 455 (1982): "Congress

never intended to give an employer license to discriminate

against some employees ... merely because he treats favorably

21

other members of the employees’ group."’ In this disparate

treatment case, the nondiscriminatory treatment of other

persons in the protected age group is simply not relevant to

the issue of whether Reeves was discriminated against. Based

on the evidence, the jury concluded that Sanderson

discriminated against Reeves because of his age and that the

discrimination was willful. It is not Reeves’s evidence that is

insufficient here. Rather, what is insufficient are the reasons

the court below provided for overturning the jury’s verdict.

IV SUFFICIENCY OF THE EVIDENCE IS NO

SUBSTITUTE FOR A PROPER McDONNELL

DOUGLAS ANALYSIS.

In O’Connor v. Consolidated Coin Caterers Corp..,

517 U.S. 308, 311 (1996), the Court assumed without

deciding that the basic evidentiary framework set forth in

McDonnell Douglas is fully applicable to claims under the

ADEA.” AARP urges the Court to reaffirm that decision by

4’ See also Furnco Construction Corp. v. Waters, 438 U.S. 567, 579

(1978)("[A] racially balanced work force cannot immunize an employer

from liability for specific acts of discrimination . . . . It is clear beyond

cavil that the obligation imposed by Title VII is to provide equal

opportunity for each applicant regardless of race, without regard to

whether members of the applicant’s races are already proportionately

represented in the work force.") (citations omitted).

al Every court of appeals has also embraced the McDonnell

Douglas/Burdine framework as being applicable to ADEA-based claims.

See, e.g., Sanchez v. Puerto Rico Oil, Co., 37 F.3d 712, 719 (1st Cir.

1994); Fisher v. Vassar College, 114 F.3d 1332 (2d Cir. 1997), cert.

denied, 522 U.S. 1075 (1998); Showalter v. University of Pittsburgh Med.

Ctr., 190 F.3d 231, 234 (3d Cir. 1999); Dockins v. Benchmark

Communications , 176 F.3d 745 (4th Cir. 1999); Haas v. ADVO Sys., Inc.,

168 F.3d 732 (Sth Cir. 1999); Scott v. Goodyear Tire & Rubber Co., 160

F.3d 1121 (6th Cir. 1998); Wichmann v. Board of Trustees of Southern

Illinois Univ., 180 F.3d 791, 803 (7th Cir. 1999); Vaughn v. Roadway

Express, Inc., 164 F.3d 1087, 1090 (8th Cir. 1998); Ritter v. Hughes

22

holding that Reeves presented sufficient evidence to support

the verdict in his favor under the McDonnell Douglas indirect

method of proof as construed by Hicks.

Although many courts have departed from the Court's

original objective in formulating the McDonnell Douglas

proof paradigm,” when it is properly interpreted and applied,

it is critical to the ability of age discrimination plaintiffs to

prove their claims. Indeed, the Court has acknowledged,

"[t]he objectives of the ADEA are furthered when even a

single employee establishes that an employer has

discriminated against him or her." McKennon v. Nashville

Banner Pub. Co., 513 U.S. 352, 358 (1995).

It would be not only illogical, but impractical indeed,

to establish a unique evidentiary framework for the ADEA

separate from other employment discrimination statutes

because there is "no inherent reason why McDonnell Douglas

is any less a ‘sensible, orderly way to evaluate the evidence’

in an age case than in any other." Loeb v. Textron, Inc., 600

F.2d 1003, 1015 (1st Cir. 1979), quoting Furnco, 438 U.S.

at 577. Additionally, the Court has acknowledged that the

ADEA is an integral part of this nation’s collective law

prohibiting employment discrimination:

The ADEA, enacted in 1967, as part of an

ongoing congressional effort to eradicate

Aircraft Co., 58 F.3d 454 (9th Cir. 1995); Beaird v. Seagate Tech., Inc.,

145 F.3d 1159 (10th Cir.), cert. denied, 119 S. Ct. 617 (1998); Benson

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

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

u/ -"[T)he entire purpose of the McDonnell Douglas prima facie case is

to compensate for the fact that direct evidence of intentional discrimination

is hard to come by.” Price Waterhouse, 490 U.S. at 27! (O'Connor, J.

concurring); see also Thurston, 469 U.S. at 121 ("The shifting burdens of

proof set forth in McDonnell Douglas are designed to assure that the

plaintiff {has} his day in court despite the unavailability of direct

evidence.").

————

23

discrimination in the workplace, reflects a

societal condemnation of invidious bias in

employment decisions. The ADEA is but part

of a wider statutory scheme to protect

employees in the workplace nationwide. See

Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e er seq. (1988 ed. and Supp. V)

(race, color, sex, national origin, and religion);

the Americans with Disabilities Act of 1990,

42 U.S.C. § 1201 ef seg. (1988 ed., Supp. V)

(disability); the National Labor Relations Act,

29 U.S.C. § 158(a) (union activities); the

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

(Sex).

McKennon, 513 U.S. at 357" "The mere fact that Congress

chose to pass a separate statute rather than to amend Title VII

does not imply that age discrimination was intended to be

subject to different standards and methods of proof than race

or sex discrimination." Loeb, 600 F.2d at 1015. Because age

discrimination victims, like all other victims of employment

discrimination, are unlikely to have direct evidence, they must

continue to be afforded the means of ensuring that they will

have their day in court.

‘# ~The Court has made the identical observation on several other

occasions. See, e.g., Oscar Mayer & Co. v. Evans, 441 U.S. 750, 756

(1979) ("[T}he ADEA and Title VII share a common purpose, the

elimination of discrimination in the workplace . . . ."); Lorillard v. Pons,

434 U.S. 575, 584 (1978) ("There are very important similarities between

[Title VII and the ADEA], . . . both in their aims - the elimination of

discrimination from the workplace - and in their substantive prohibitions.

In fact, the prohibitions of the ADEA were derived in haec verba trom

Title VII."); Thurston, 469 U.S. at 121 ("The substantive,

antidiscrimination provisions of the ADEA were modeled upon the

prohibitions of Title VII.").

24

CONCLUSION

The court below misconstrued Hicks to allow it to

substitute its independent evaluation of the evidence for that

of the jury b:.cd on pro-employer counterinferences of

questionable validity, even though all three Hicks

requirements, a prima facie case, proof of pretext, and a

finding of discrimination were satisfied. By imposing what is

tantamount to a requirement that plaintiffs must produce direct

evidence of discrimination in order to prevail, the decision of

the court below so distorts the McDonnell Douglas proot

paradigm, which was designed to insure an impartial hearing

for employment discrimination plaintiffs, that it is all but

unrecognizable. The Court must not countenance the

evisceration of the ADEA as well as Title VII and other civil

rights statutes by ratifying a proof requirement that almost no

plaintiff can meet and which the Court has heretofore

emphatically rejected.

To the contrary, in order to assure the fairness to

employment discrimination plaintiffs the Court sought to

achieve in McDonnell Douglas, the Court should reverse the

judgment of the court below and hold that Reeves’s evidence

was sufficient to sustain the jury’s verdict of willful

discrimination in his favor.

Respectfully submitted,

Thomas W. Osborne*

. Laurie A. McCann

IS Sally Dunaway

U / AARP Foundation Litigation

Melvin Radowitz

AARP

601 E Street, NW

Washington, DC 20049

(202) 434-2060

Counsel for Amicus Curiae AARP

Counsel of Record*