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

IN THE

Supreme Court of the United

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 OF AMICI CURIAE LAWYERS’ COMMITTEE FOR CIVIL

RIGHTS UNDER LAW; NAACP LEGAL DEFENSE &

EDUCATIONAL FUND, INC., NATIONAL ASSOCIATION FOR THE

ADVANCEMENT OF COLORED PEOPLE; MEXICAN AMERICAN

LEGAL DEFENSE AND EDUCATIONAL FUND; NATIONAL

PARTNERSHIP FOR WOMEN & FAMILIES; NATIONAL WOMEN'S

LAW CENTER; NOW LEGAL DEFENSE AND EDUCATION FUND:

AND AMERICAN CIVIL LIBERTIES UNION

IN SUPPORT OF PETITIONER

DANIEL F. KOLB LAWYERS’ COMMITTEE FOR

CHARLES T. LESTER, JR. CIVIL RIGHTS UNDER LAW

Co-Chairs 1401 New York Ave. NW

NORMAN REDLICH, Suite 400

Trustee Washington, DC 20005

BARBARA R. ARNWINE Telephone: 202-662-8600

THOMAS J. HENDERSON

RICHARD T. SEYMOUR*

TERESA A. FERRANTE

January 7, 2000

*Counsel of Record

(Additional Counsel listed on inside cover)

ELAINE R. JONES

Director-Counsel

THEODORE M. SHAW

NORMAN J. CHACHKIN

CHARLES STEPHEN RALSTON

NAACP LEGAL DEFENSE AND

EDUCATIONAL FUND, INC.

99 Hudson Street, 16th Floor

New York, NY 10013

Telephone: 212-219-1900

DENNIS C. HAYES,

General Counsel

NATIONAL ASSOCIATION FOR

THE ADVANCEMENT OF

COLORED PEOPLE

4805 Mt. Hope Drive

Fifth Floor

Baltimore, Maryland 21215

Telephone: 410-486-9191

ANTONIA HERNANDEZ

President

THERESA FAY-BUSTILLOS

MALDEF

634 South Spring Street

Eleventh Floor

Los Angeles, CA 90014

Telephone: 213-629-2516

JUDITH L. LICHTMAN

DONNA R. LENHOFF

NATIONAL PARTNERSHIP FOR

WOMEN & FAMILIES

1875 Connecticut Ave. NW

Suite 710

Washington, DC 20009

Telephone: 202-986-2600

MARCIA D. GREENBERGER

JUDITH C. APPELBAUM

NATIONAL WOMEN’S

LAW CENTER

11 Dupont Circle N.W. Suite 800

Washington, D.C. 20036

Telephone: 202-588-5180

MARTHA F. DAVIS

NOW LEGAL DEFENSE AND

EDUCATION FUND

395 Hudson Street, 5th Floor

New York, New York 10014

Telephone: 212-925-6635

SARA L. MANDELBAUM

STEVEN R. SHAPIRO

AMERICAN CIVIL

LIBERTIES UNION

125 Broad Street

New York, N.Y. 10004

Telephone: 212-549-261 |

Attorneys for Amici Curiae

TABLE OF CONTENTS

Page

STATEMENT OF INTEREST ..................... |

STATEMENT OF THE CASE ................. eae

SUMMARY OF ARGUMENT ..................... 7

ee pea oe )

A. The McDonnell Douglas / Burdine / Hicks

Model Should be Followed in Age

a oe ek end enh ha snas 9

B. Some Courts Have Improperly Insisted on

Standards of Evidence Effectively Requiring

Direct Proof of Discrimination ............... 12

C. The Treatment of the Discriminatory Remarks

Herein Set the Bar of Proof Too High ......... 18

D. Setting the Evidentiary Bar Too High Frustrates

the Purposes of the Fair-Employment Laws ..... 23

E. In the Absence of Compelling Circumstances,

the Jury Should Be Allowed to Draw an

Inference of Discrimination or Retaliation from

Evidence that the Proffered Nondiscriminatory

Reason Was Not the True Reason for the

ED bo of 6b 606644006 085 00 cue 0's 26

cee. sin Keke seca hah ataneeteud ene 30

il

Table of Authorities

1. Cases

Annis v. County of Westchester,

136 F.3d 239 (2d Cir. 1998) ................ 10

Barnett v. U.S. Air, Inc.,

157 F.3d 744 (9th Cir. 1998), modified

in other respects, 196 F.3d 979 (9th Cir. 1999) _. 10

Beaird v. Seagate Technology, Inc..,

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

__US. __, 1198. Ct. 617,

PU PED occ ccnccccucecsscs 1]

Burns v. Thiokol Chemical Corp..,

483 F.2d 300 (Former Sth Cir. 1973) ...... 25, 26

Butler v. City of Prairie Village,

172 F.3d 736 (10th Cir. 1999) ............... 10

Cardona Jimenez v. Bancomerico de Puerto Rico,

174 F.3d 36 (Ist Cir. 1999) ................. 11

Casarez v. Burlington Northern/Santa Fe Co.,

193 F.3d 334 (Sth Cir. 1999) ................ 16

Castaneda v. Partida,

I 21

Chambers v. TRM Copy Centers Corp.,

ee cca eu 13

Cowan v. Glenbrook Security Services, Inc..,

123 F.3d 438 (7th Cir. 1997) ................ 29

Duffy v. Wolle,

123 F.3d 1026 (8th Cir. 1997),

cert. denied, 523 U.S. 1137 (1998) ........... 11

Fisher v. Vassar College,

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

cert. denied, 522 U.S. 1075 (1998) ........... 16

Fuller v. Rayburn,

161 F.3d 516 (8th Cir. 1998) ................ 10

Gallagher v. Delaney,

139 F.3d 338 (2d Cir. 1998) ................ 28

Gantt v. Wilson Sporting Goods Co.,

143 F.3d 1042 (6th Cir. 1998) ............... 10

Geraci v. Moody-Tottrup, International, Inc.,

sw ccc ceececees 13

Grimes v. Texas Department of Mental Health

and Mental Retardation,

EE, WED. os vce wsusveeccs 13

Harrington v. Harris,

118 F.3d 359 (Sth Cir.),

cert. denied, 522 U.S. 1016 (1997) ........... 13

Hindman v. Transkrit Corp.,

145 F.3d 986 (8th Cir. 1998) ................ 11

Hodgens v. General Dynamics Corp.,

STE 7 18

Hollander v. American Cyanamid Co.,

172 F.3d 192 (2d Cir. 1999),

cert. denied, US. _, 1208S. Ct. 399(1999) .. 15

Hunt v. Cromartie,

526 U.S. 541, 119 S. Ct. 1545,

BB 12

Indurante v. Local 705, International

Brotherhood of Teamsters,

160 F.3d 364 (7th Cir. 1998) ............. 22, 23

King v. Preferred Technical Group,

166 F.3d 887 (7th Cir. 1999) ................ 11

Kline v. Tennessee Valley Authority,

128 F.3d 337 (6th Cir. 1997) ................ 13

LaPierre v. Benson Nissan, Inc.,

86 F.3d 444 (Sth Cir. 1996) ................ 13

Lattimore v. Polaroid Corp.,

14

Lawrence v. University of Texas Medical

Branch at Galveston,

163 F.3d 309 (Sth Cir. 1999) ................ 10

Luciano v. Olsten Corp.,

110 F.3d 210 (2d Cir. 1997) ................ 13

Marshall v. Federal Express Corp.,

130 F.3d 1095 (D.C. Cir. 1997) .......... 10, 11

McDonald v. Santa Fe Trail Transp. Co..,

ee 22

/acDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973) ........... 9, 11, 22, 25, 26

Mills v. First Federal Savings & Loan

Association of Belvidere,

83 F.3d 833 (7th Cir. 1996) ................ 14

v

Mulero-Rodriguez v. Ponte, Inc.,

98 F.3d 670 (Ist Cir. 1996) ................. 14

NAACP v. Button,

oo a eS ed eo 4 wake 0.9 9A 2

New York State National Organization for Women

v. Pataki, 189 F R.D. 286(S.D.N.Y. 1999) .... 24

Newton v. Cadwell Laboratories,

156 F.3d 880 (8th Cir. 1998) ................ 28

Nichols v. Lewis Grocer,

138 F.3d 563 (Sth Cir. 1998) ................ 15

Nichols v. Loral Vought Systems Corp..,

SE 13

Norville v. Staten Island University Hosp.,

196 F.3d 89 (2d Cir. 1999) ................. 15

O'Connor v. Consolidated Coin Caterers Corp.,

ee knee aah a Be wenn y

O'Sullivan v. Minnesota,

191 F.3d 965 (8th Cir. 1999) ................ 15

Price v. Marathon Cheese Corp.,

119 F.3d 330 (Sth Cir. 1997) ................ 13

Price Waterhouse v. Hopkins,

I ne od a Wk doe wip 19, 21

Pullman-Standard v. Swint,

is os 5k ig wise é wae ees 17

Ray v. Tandem Computers, Inc..,

63 F.3d 429 (Sth Cir. 1995) ................ 20

Roberts v. Separators, Inc..,

SP PEEENUEE, DEED occ scccccccceces 29

vi

Ross v. University of Texas at San Antonio,

139 F.3d 521 (Sth Cir. 1998) ................ 1]

Rothmeier v. Investment Advisers, Inc.,

85 F.3d 1328 (8th ~~. 1996) ................ 14

Scott v. University of Mississippi,

148 F.3d 493 (Sth Cir. 1998) ................ 13

Shealy v. City of Albany,

89 F.3d 804 (llth Cir. 1996) ................ 14

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

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

cert. denied, 521 U.S. 1129(1997) ....... 13, 16

Sherrod v. American Airlines, Inc..,

saa Foe 1802 Gee Ce. 1996) ...........26.. 10

Smith v. Borough of Wilkinsburg,

Co Bs 13

Spencer v. Stuart Hall Co., Inc.,

173 F.3d 1124 (8th Cir. 1999) ............... 15

Sreeram v. Louisiana State University

Medical Center- Shreveport,

sae F.36 314 GE Ce. 1999) .... 2. 20

St. Mary’s Honor Center v. Hicks,

509 U.S. 502 (1993) ....... 9, 10, 11, 16, 17, 27

Stalter v. Wal-Mart Stores, Inc..,

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

Tennant v. Peoria & Pekin Union Ry. Co.,

ce wees 27, 29, 30

Texas Department of Community Affairs v. Burdine,

EE bb cb oda c 050Kube eas 9,11

vii

U.S. Postal Service Board of Governors v. Aikens,

SE EE ocadancesvéceveones 12, 14

Whitaker v. Wallace,

170 F.3d 541 (6th Cir. 1999) ................ 11

Young v. Warner-Jenkinson Co., Inc.,

152 F.3d 1018 (8th Cir. 1998) ............... 10

2. Constitutional Provisions

First Amendment, U.S. Constitution ................ 10

Seventh Amendment, U.S. Constitution ........ 9, 26, 29

Due Process Clause, Fourteenth Amendment,

Sewanee reeds 24

3. Statutes and Rules

SEE So igecccvevecveseseteseticeuss 10

ED cocccbedeccosicvccvesenscen 27

ce kcbdbadeesdneserecoeeoeeen 10

Age Discrimination in Employment Act,

lh Ld SF ae 9,11, 12, 27

ED ccsccseceevessoesvees 26

Americans with Disabilities Act,

42 U.S.C. §§ 1210] ef seg. .............. 10, 27

Family and Medical Leave Act,

29 U.S.C. §§ 2601 et seg. ............... 11, 18

Rehabilitation Act of 1973,

CE i conc cuseeveesevevessess 27

viii

Title VI of the Civil Rights Act of 1964,

42 U.S.C. §§ 2000d et seg. ................. 10

Title VII of the Civil Rights Act of 1964,

42 U.S.C. §§ 2000e ef seg. ..... 10, 15, 21, 23, 27

Supreme Court Rule 37.3(a) ...................0... ]

Supreme Court Rule 37.6 ......................... l

Se , nev ccacevicuvcenendavas 16, 28

Rule 50, Fed. R. Civ. P. ........... 9, 12, 18, 19, 20, 29

Rule 56, Fed. R.Civ.P. ........... 9, 12, 18, 19, 20, 29

1993 Amendments to the Discovery Rules,

I le DO ed ca athe Ne a 25

4. Treatises, Law Reviews, and Other Materials

Larson, Lex K., 1 Employment Discrimination

(2d ed., Matthew Bender,

ee Sy HUD 6 ob ow dnceawvesees 11,12

Lindemann, Barbara, and Grossman, Paul,

Emo! iectatontion tam

(3d ed., Bureau of National Affairs,

Weta, ED.G.., BOOED oc ccc cc ccc cece 12

Schnapper, Eric, Judges Against Juries — Appellate

Review of Federal Civil Jury Verdicts,

1989 Wis. L. Rev. 237 (1989) ............... 30

ix

Seymour, Richard T., and Brown, Barbara Berish,

Equal Employment Law Update,

Spring 1999 Edition (Bureau of National

Affairs, Washington, D.C., 1999) .... 12, 16, 19, 22

Seymour, Richard T., and Brown, Barbara Berish,

Equal Employment Law Update,

Spring 1998 Edition (Bureau of National

Affairs, Washington, D.C., 1998) ......... 16, 22

Seymour, Richard T., and Brown, Barbara Berish,

Equal Employment Law Update,

Summer 1996 Edition (Bureau of National

Affairs, Washington, D.C., 1996) ......... 16, 22

Wald, Hon. Patricia M., Summary Judgment at Sixty,

76 Tex. L. Rev. 1897 (1998) ................ 30

l

STATEMENT OF INTEREST’

The amici have a strong interest in the standards by

which unlawful discrimination may be inferred from

circumstantial evidence, because these standards will determine

whether numerous victims with meritorious claims will be able

to prove their claims and obtain relief. The amici oppose

standards of proof so high that many violations of the civil

rights laws will go unrecognized and unremedied. One or more

of the amici have, singly or jointly, filed briefs in the majority of

this Court’s civil rights cases over the last twenty years.

The Lawyers’ Committee for Civil Rights Under Law is

a tax-exempt, nonprofit civil rights organization, founded in

1963 by the leaders of the American Bar, at the request of

President Kennedy, in order to help defend the civil rights of

minorities and the poor. Its Board of Trustees presently

includes several past Presidents of the American Bar

Association, past Attorneys General of the United States, law

school deans and professors, and many of the nation’s leading

lawyers. It has independent local affiliates in Boston, Chicago,

Denver, Los Angeles, Philadelphia, San Antonio, San Francisco,

and Washington, D.C. Through the Lawyers’ Committee and

' Written consent to the filing of this brief has been obtained from

the parties in accordance with Supreme Court Rule 37.3(a). Copies of the

consent letters have been filed with the Clerk. Pursuant to Supreme Court

Rule 37.6, the amici state that this brief was not authored in whole or part

by counsel for any party and that no party or entity, other than the amici

and their counsel, made any monetary contribution to its preparation or

2

its affiliates, hundreds of attorneys have represented thousands

of clients in civil rights cases across the country, including a

large number of cases challenging employment discrimination.

The NAACP Legal Defense & Educational Fund, Inc.

(“the Fund”), is a nonprofit corporation that was established for

the purpose of assisting African Americans in securing their

constitutional and civil rights. The Court has noted the Fund’s

“reputation for expertness in presenting and arguing the difficult

questions of law that frequently arise in civil rights litigation.”

NAACP v. Button, 371 U.S. 415, 422 (1963).

The National Association for the Advancement of

Colored People (“NAACP”), established in 1909, isthe nation’s

oldest civil nights organization. The NAACP has state and local

affiliates throughout the nation, including the State of Maryland

where it maintains its national headquarters. The fundamental

mission of the NAACP includes promoting equality of rights,

eradicating caste and race prejudice among the citizens of the

United States and securing for African Americans and other

minorities increased opportunities for employment. The

NAACP has appeared before courts throughout the nation in

numerous important civil rights cases.

The Mexican American Legal Defense and Educational

Fund (“MALDEF”) isa national not-for-profit organization that

protects and promotes the civil rights of more than 29 million

Latinos living in the United States. MALDEF is particularly

dedicated to securing such rights in the areas of employment,

education, immigration, political access and public resource

3

equity. The question presented by this case is of great interest

to MALDEF because it implicates the scope of the remedies

available to victims of discrimination, as well as how courts

should view the act of intentional discrimination itself.

The National Partnership for Women & Families, a

nonprofit, national advocacy organization founded in 1971 as

the Women’s Legal Defense Fund, promotes equal opportunity

for women, quality health care, and policies that help women

and men meet both work and family responsibilities. The

National Partnership has devoted significant resources to

combating sex and other forms of invidious workplace

discrimination and has filed numerous briefs amicus curiae in the

United States Supreme Court and in the federal circuit courts of

appeal to advance women’s opportunities in employment.

The National Women’s Law Center (““NWLC”) isa non-

profit legal advocacy organization dedicated to the advancement

and protection of women’s rights and the corresponding

elimination of sex discrimination from all facets of American

life. NWLC has worked since 1972 to secure equal opportunity

in the workplace through the full enforcement of Title VII of

the Civil Rights Act of 1964. NWLC has filed numerous

amicus curiae briefs on employment law and civil rights issues.

The NOW Legal Defense and Education Fund (“NOW

LDEF”) is a leading national non-profit civil rights organization

that performs a broad range of legal and educational services in

support of women’s efforts to eliminate sex-based

discrimination and secure equal rights. A major goal of NOW

4

LDEF is the elimination of barriers that deny women economic

opportunities, such as employment discrimination. In

furtherance of that goal, NOW LDEF litigates cases to secure

full enforcement oflaws prohibiting employment discrimination.

NOW LDEF has appeared before this Court, both as direct

counsel and as amicus, in numerous employment discrimination

cases.

The American Civil Liberties Union (ACLU) is a

nationwide, nonprofit, nonpartisan organization with nearly

300,000 members dedicated to the principles of liberty and

equality embodied in the Constitution and this nation’s civil

rights laws. Since its founding in 1971, the ACLU Women's

Rights Project has appeared in nearly every major women's

rights case before this Court. A longstanding goal of the ACLU

Women’s Rights Project has been the elimination of barriers to

women's economic equality and independence, such as

employment discrimination. Toward this goal, the ACLU is

dedicated to preserving the gains made by women and

minorities through such key civil rights statutes as Title VII.

STATEMENT OF THE CASE

Sanderson Plumbing Products makes toilet seats and

covers. At the time of his discharge, Roger Reeves was 57

years old, and had worked for the company for 40 years. He

was the supervisor of the “regular line” in the Hinge Room,

under department manager Russell Caldwell. Caldwell also

supervised Joe Oswalt, who was 35 years old and ran a “special

line” in the Hinge Room. Pet. 2a.

5

In the Fall of 1993, Powe Chesnut (then the Director of

Quality Control, and married to Ruth Sanderson, the company

President) placed Reeves on a 90-day probation because of

productivity problems on his line. In the Summer of 1995,

Caldwell told Chesnut (now the Director of Manufacturing) that

the Hinge Room again had production problems, and blamed

them on excessive absenteeism and tardiness. An audit revealed

numerous timekeeping errors and misrepresentations on the part

of Caldwell, Reeves, and Oswalt. Dana Jester, Vice President

of Human Resources, confirmed these findings. “Armed with

these results, Chesnut, Jester, and Vice President of Operations

Tom Whitaker, recommended to Company President Sandra

Sanderson that Caldwell and Reeves be dismissed. Ms.

Sanderson—who was 52 years old at the time—heeded this

advice, firing both Caldwell and Reeves in October 1995.

Thereafter, Sanderson filled Reeves’s position, on three

successive occasions, with men in their thirties.” Pet. 2a—3a.

Oswalt had quit earlier, and Chesnut testified that he would

otherwise have been “subject to dismissal.” Pet. 3a n.2.

Reeves filed suit under the ADEA and won a jury

verdict of $35,000 in back pay, a finding that the discrimination

was willful, and liquidated damages doubling his back pay. The

district court awarded $28,490 80 in front pay, and denied the

company’s motion for judgment as a matter of law. Pet. 4a.

The company appealed, and the Fifth Circuit reversed.

Reeves relied on four strands of evidence. These are set

forth below, along with the Fifth Circuit’s reasons for deciding

that each was not probative of discrimination. First, Chesnut

6

allegedly made two age-biased statements several months before

Reeves was fired: “namely (1) that Reeves was so old that he

‘must have come over on the Mayflower,’ and (2) that he was

‘too damn old to do the job.”” Pet. 3a—4a. The Fifth Circuit

held that this was not probative because “these comments were

not made in the direct context of Reeves’s termination,”

Chesnut was just one of the persons making the discharge

recommendation to Chesnut’s wife, and there was no evidence

suggesting that the other decisionmakers were motivated by age

bias. Pet. 9a.

Second, the company’s explanation for Reeves’

discharge changed over time. At the time, Reeves was told that

he had been fired because he had caused a specific employee to

be paid for time she had not worked; at trial, the defendant

claimed that the plaintiff s timekeeping mistakes had resulted in

the overpayment of numerous employees. The court of appeals

saw no difference in kind between the two explanations and

added: “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.” Pet. 7a—8a.

Third, Reeves put on evidence that he did not engage in

inaccurate record keeping at all, explained the apparent

discrepancies, and asserted that any errors were the result of

Caldwell’s inattentiveness. He pointed out that “at trial Chesnut

was unable to testify as to the cost to the company, if any, of

Reeves’s alleged record falsifications.” Pet. 8a. Reeves argued

7

that this showed Sanderson’s proffered reason for his discharge

to be pretextual. The court of appeals conceded that “[o]n this

point, Reeves very well may be correct,” but held that it must

also “determine whether Reeves presented sufficient evidence

that his age motivated Sanderson’s employment decision.” /d.

Fourth, Reeves relied on evidence that he was treated

less favorably than younger employees. Oswalt testified that

Chesnut treated Reeves like a child. In addition, Oswalt, then

in his early thirties, was not put on probation in 1993 despite

similar production problems on the special line in the Hinge

Room. “Likewise, argues Reeves, when Quality Control

initiated its investigation of his timekeeping records in 1995,

none of the supervisors from other departments were singled

out for such scrutiny.” Pet 9a. The Fifth Circuit held that this

did not prove age discrimination, because Oswalt was also

accused of inaccurate record keeping. /d.

In reversing the trial court and rendering judgment for

the company as a result of its “plenary review,” Pet. 10a, the

Fifth Circuit also relied on the facts (1) that the company

President was 52, (2) that Jester was 56, and (3) at the time of

the discharge, “20 of the company’s management positions were

filled by people over the age of 50, including several employees

in their late 60’s.” Pet. 9a—10a.

SUMMARY OF ARGUMENT

The inferential model of proof has been applied widely

across the field of employment discrimination law, and has

worked as well for ADEA cases as for other types of cases. It

8

should continue to be available in age cases.

Because few wrongdoers admit discrimination, the

standards under which an inference of discrimination can be

drawn from circumstantial evidence govern the disposition of

the vast majority of civil rights cases. If those standards are set

too high for ordinary claimants with meritorious claims, they

will be unable to prove the merits of their claims. The

inferential model already requires plaintiffs to engage in

significant discovery of the defendant and its officials as to

pretext, and raising the evidentiary bar makes plaintiffs’ task far

harder, even as the discovery rules impose increasing limits on

discovery. Thus, only claimants with extraordinary proof will

be able to prevail. Such a regime of adjudication frustrates the

Congressional intent of providing a make-whole remedy for

victims and deterring future acts of discrimination.

The lower court’s limitations on the probative value of

discriminatory remarks, its failure to consider the more

favorable treatment of a younger employee, and its presumption

that discrimination did not occur because some members of a

protected class are in management, all impermissibly tilt the

process of adjudication in favor of the defendant.

The decision below is an illustrative example of a regime

of adjudication constructed by several Circuits, placing the bar

of proof too high. They have unjustifiably limited the evidence

that can be considered probative of discrimination, and have

routinely substituted their own inferences for the inferences that

could reasonably be drawn by a jury. The lower courts that

“__ _—_———

_—-<——

——

9

have adopted a “pretext-plus” standard for the determination of

claims of discrimination under the inferential model, and those

courts that have adopted an adequacy-of-evidence standard

coupled with limitations on the probative value of evidence,

have misapplied the teachings of of St. Mary's Honor Center

v. Hicks, 509 U.S. 502 (1993), misunderstood their limited roles

under Rules 50 and 56, and failed to respect the restrictions

imposed by the Seventh Amendment.

Where the evidence is sufficient to justify a jury

inference that the defendant has presented a “nondiscriminatory

reason” that is not the defendant’s actual reason, the intent of

Congress can be fulfilled only by allowing the case to proceed

to trial, and according strong presumptive finality to the jury’s

decision to draw the further inference of discrimination. The

jury’s decision should be overturned only in limited

circumstances, as is done in other cases. Plaintiffs’ verdicts in

civil rights cases should not be singled out for heightened

review.

ARGUMENT

A. The McDonnell Douglas / Burdine / Hicks Model

Should be Followed in Age Discrimination Cases

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

U.S. 308, 311 (1996), this Court left open the question whether

claims under the Age Discrimination in Employment Act, 29

U.S.C. §§ 621 ef seg., could properly be resolved under the

burden-shifting, inferential model of proof set forth in McDon-

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

10

of Community Affairs v. Burdine, 450 U.S. 248 (1981), and St.

Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

We urge the Court to follow the same model in ADEA

cases as it has followed in cases under Title VII of the Civil

Rights Act of 1964, 42 U.S.C. §§ 2000e et seg. Where there is

no direct evidence of discrimination, the lower courts have

found the inferential model useful in resolving claims under 42

U.S.C. §§ 1981 and 1983,? under the Americans with

Disabilities Act, 42 U.S.C. §§ 12101 ef seg., where the

defendant denies basing its decision on disability’ or the claim

involves retaliation,* under Title VI of the Civil Rights Act of

1964, 42 U.S.C. §§ 2000d er seq. ,° under the First Amendment

where the plaintiffis a public employee and the defendant denies

that the challenged action was taken because of the plaintiff s

? E.g., Annis v. County of Westchester, 136 F.3d 239, 245 (2d Cir.

1998), Lawrence v. University of Texas Medical Branch at Galveston, 163

F.3d 309, 311 (Sth Cir. 1999).

> E.g., Marshall v. Federal Express Corp., 130 F.3d 1095,

1099-1100 (D.C. Cir. 1997); Sherrod v. American Airlines, Inc. 132 F 3d

1112, 1121-22 (Sth Cir. 1998), Gantt v. Wilson Sporting Goods Co., 143

F.3d 1042, 1047 (6th Cir. 1998); Young v. Warner-—Jenkinson Co., Inc., 152

F.3d 1018, 1021 (8th Cir. 1998), Butler v. City of Prairie Village, 172 F.3d

736, 747 (10th Cir. 1999).

* Barnett v. U.S. Air, Inc., 157 F.3d 744, 753 (9th Cir. 1998),

modified in other respects, 196 F.3d 979 (9th Cir. 1999).

> E.g., Lawrence v. University of Texas Medical Branch at

Galveston, 163 F.3d 309, 311 (Sth Cir. 1999); Fuller v. Rayburn, 161 F.3d

516, 518 (8th Cir. 1998).

1]

speech or association,° in retaliation cases under the Family and

Medical Leave Act, 29 U.S.C. §§ 2601 ef seq.,’ in

constitutional-tort cases against Federal officials,* andin ADEA

9

cases.

The reception given by the lower courts to the McDon-

nell Douglas / Burdine / Hicks inferential model of proof

reflects their shared judgment of its utility in helping to winnow

meritorious cases from those that lack merit. Describing

McDonnell Douglas, a \eading commentator stated that this

“ourt “deliberately used this case as the occasion and the

. cle for the promulgation of a general rule designed to bring

order to a chaotic situation that had developed within the lower

courts.” Lex K. Larson, 1 Employment Discrimination (2d ed.,

Matthew Bender, New York, NY, 1999) § 8.01[1] at 8-5. He

stated that the formula “is entitled to unusual weight at any

point where it might be relevant.” /d.

The use of the inferential model in ADEA cases has been

° E.g., Whitaker v. Wallace, 170 F.3d 541, 544 (6th Cir. 1999).

’ King v. Preferred Technical Group, 166 F.3d 887, 892 (7th Cir.

1999).

® Duffy v. Wolle, 123 F.3d 1026, 1035-37 (8th Cir. 1997), cert.

denied, 523 U.S. 1137 (1998).

* E.g., Cardona Jimenez v. Bancomerico de Puerto Rico, 174 F.3d

36, 40-41 (Ist Cir. 1999); Ross v. Univ. of Texas, 139 F.3d 521, 525 (Sth

Ci: 1998); Hindman v. Transkrit Corp., 145 F.3d 986, 990 n.19 (8th Cir.

1998); and Beaird v. Seagate Technology, Inc., 145 F.3d 1159, 1165 (10th

Cir.), cert. denied, _U.S.__, 119 S. Ct. 617, 142 L. Ed. 2d 556 (1998).

12

successful, and parallels its use under Title VII. Larson, 8

Employment Discrimination § 135 at 135—1 to 135—56; Barbara

Lindemann and Paul Grossman, Employment Discrimination

Law (3d ed., Bureau of National Affairs, Washington, D.C.,

1996) 586—96; Richard T Seymour and Barbara Berish Brown,

Equal Employment Law Update, Spring 1999 Edition (Bureau

of National Affairs, Washington, D.C., 1999) at 14-263 to

14-525. While fine-tuning is an essential part of the inferential

model, there is risk of undesirable confusion across the field of

employment law if numerous ADEA cases are to be subject to

standards departing sharply from those of the inferential model.

B. Some Courts Have Improperly Insisted on

Standards of Evidence Effectively Requiring Direct

Proof of Discrimination

This is not to say that further clarification is unneces-

sary. Some courts have applied the inferential model in ways

that raise the plaintiffs’ burden of proof higher than many

plaintiffs with meritorious claims can reach. Asa result, a large

number of cases are thrown out by judges under Rules 50 and

56, Fed. R. Civ. P., and meritorious cases are among them.

This Court has noted that proving discriminatory intent

“is both sensitive and difficult,” and has recognized that “[t]here

will seldom be ‘eyewitness’ testimony as to the employer’s

mental processes.” U.S. Postal Service Board of Governors v.

Aikens, 460 U.S. 711, 716 (1983). Accord, Hunt v. Cromartie,

526 U.S. $41, 119 S. Ct. 1545, 1552, 143 L. Ed. 2d 731 (1999)

(racial redistricting case; “Outright admissions of impermissible

—_— or

13

racial motivation are infrequent and plaintiffs often must rely

upon other evidence.”). The courts of appeals, including the

Fifth Circuit, have often recognized the unavailability of direct

evidence and the need to rely on circumstantial evidence. '°

'© Several Circuits have emphasized the rareness of cases

involving direct proof of discrimination, and the corresponding need to rely

on inferential proof. Luciano v. Olsten Corp., 110 F.3d 210, 215 (2d Cir.

1997), Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir.

1994) (“Because an employer who discriminates is unlikely to leave a

‘smoking gun’ attesting to a discriminatory intent, a victim of

discrimination is seldom able to prove his claim by direct evidence, and is

usually constrained to rely on circumstantial evidence.”), Smith v. Borough

of Wilkinsburg, 147 F.3d 272, 278 (3d Cir. 1998); Sheridan v. E.J. DuPont

de Nemours and Co., 100 F.3d 1061, 1071 (3d Cir. 1996) (en banc)

(“Cases charging discrimination are uniquely difficult to prove and often

depend upon circumstantial evidence. . . . [D]irect evidence of an

employer’s motivation will often be unavailable or difficult to acquire.”),

cert. denied, 521 U.S. 1129 (1997), Geraci v. Moody-Tottrup, Int'l, Inc.,

82 F.3d 578, 581 (3d Cir. 1996) (“only rarely will a plaintiff have direct

evidence of discrimination. Gone are the days (if, indeed, they ever

existed) when an employer would admit to firing an employee because she

is a woman, over forty years of age, disabled or a member of a certain race

or religion.”); Harrington v. Harris, 118 F.3d 359, 367 (Sth Cir.), cert.

denied, 522 US. 1016 (1997) (“Direct evidence of an employer's

discriminatory intent is rare, therefore, plaintiffs must ordinarily prove

their claims through circumstantial evidence.”); Scott v. University of

Mississippi, 148 F.3d 493, 504 (Sth Cir. 1998), Grimes v. Texas Dept. of

Mental Health and Mental! Retardation, 102 F.3d 137, 140 (Sth Cir. 1996);

LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 449 (Sth Cir. 1996); Nichols

v. Loral Vought Systems Corp., 81 F.3d 38, 40 (Sth Cir. 1996) (“direct

evidence of discrimination is rare”), Price v. Marathon Cheese Corp., 119

F.3d 330, 336 (Sth Cir. 1997) (“Direct evidence of discrimination is

rare.”); Kline v. Tennessee Valley Auth., 128 F.3d 337, 348 (6th Cir. 1997)

(“In effect, the district court placed a nearly impossible burden on Kline

14

Unfortunately, some of these courts have not heeded the

resulting holding of Aikens that plaintiffs are not required to

submit direct evidence of discriminatory intent. 460 U.S. at

716. The court below stated: “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.” Pet. 6a (footnote omitted). There are

numerous similar decisions suggesting strongly that a jury

cannot draw a reasonable inference of discrimination from

adequate evidence that a proffered reason is a sham, but can

only draw the inference if the plaintiff also produced evidence

pointing directly at the unlawful motive.'' One en banc court

requiring direct evidence of discrimination. Rarely can discriminatory

intent be ascertained through direct evidence because rarely is such

evidence available.”), Mills v. First Federal Savings & Loan Ass'n of

Belvidere, 83 F.3d 833, 841 (7th Cir. 1996) (remarks revealing hostility to

older workers are “‘rarely found’”; citation omitted); Rothmeier vy.

Investment Advisers, Inc., 85 F.3d 1328, 1332 (8th Cir. 1996); Shealy v.

City of Albany, 89 F.3d 804, 806 (11th Cir. 1996) (“direct evidence of

intent is often unavailable”).

"' E.g., Lattimore v. Polaroid Corp., 99 F.3d 456, 460, 465-67

465 (Ist Cir. 1996) (holding that there was not enough evidence to justify

an inference of racial discrimination, although the jury could reasonably

find (a) that the employer had departed from its otherwise uniform practice

in denying short-term disability benefits to an African-American employee,

(b) that the denial of disability benefits occurred before the results of an

independent medical examination were known, (c) that the employer had

rigged the independent medical examination, and (d) that the employee's

supervisor — who was involved in the decision — had repeatedly

complained that “you people” are lazy), Mulero-Rodriguez v. Ponte, Inc.,

15

has not only held that something more is often needed to justify

a finding of discrimination, but did so on the basis that employ-

ers should frequently be excused from making false statements

98 F.3d 670, 675 (Ist Cir. 1996) (holding that the Title VII plaintiff had

shown enough evidence that the defendant's proffered reasons for firing

him as General Manager were pretextual, and that the question then

became whether he could prove that the real reason was discrimination

based on his Puerto Rican national heritage); Norville v. Staten Island

Univ. Hosp., 196 F.3d 89, 98 (2d Cir. 1999) (“the district court ultimately

did not err in granting judgment as a matter of law on Norville’s age

discrimination claim because Norville produced no evidence that the

hospital's reasons, even if pretextual, served as pretext for age

discrimination”), Hollander v. American Cyanamid Co. , 172 F.3d. 192, 200

(2d Cir. 1999) (affirming summary judgment to the defendant) (“We need

not decide whether Hollander offered enough evidence to establish that

Cyanamid used his allegedly poor interpersonal skills as a pretext for its

true reason for terminating him. Assuming arguendo that he did, this is far

from the end of the matter, for to survive summary judgment Hollander had

to show not only pretext, but also either use of a pretext that itself implies

a discriminatory stereotype, or use of a pretext to hide age discrimination.

This, he did not do.” (emphasis in original)), cert. denied, US. __, 120

S. Ct. 399 (1999); Nichols v. Lewis Grocer, 138 F.3d 563, 566 (Sth Cir.

1998) (the plaintiff can prevail only “if the record as a whole (1) creates a

fact issue as to whether Supervalu’s stated reason was what actually

motivated it to deny Nichols the promotion and (2) creates a reasonable

inference thai sex was a determinative factor in that selection” (emphasis

in original)); O'Sullivan v. Minnesota, 191 F.3d 965, 969-70 (8th Cir.

1999) (“Even if we agreed with O’ Sullivan that LSC did not convey the

true reason for her layoff, summary judgment is still proper” because there

was no adequate evidence pointing to gender discrimination), Spencer v.

Stuart Hall Co., Inc., 173 F.3d 1124, 1128 (8th Cir. 1999) (holding that

the plaintiff cannot prevail merely by discrediting the employer's proffered

explanation. “Spencer must also prove that the proffered reason was a

pretext for age discrimination.”).

16

in judicial proceedings.’ One Circuit has imposed a test of

“substantial evidence” that the employer’s proffered nondiscrim-

inatory reasons are not the real reasons, before plaintiffs can

escape the need to show greater evidence of intentional

discrimination.’ Adding to the confusion, these cases are

sometimes inconsistent with other cases in the same Circuits.’

These Circuits seem to misunderstand their role in the

review of jury verdicts under the inferential model. Hicks

taught that “a reason cannot be proved to be ‘a pretext for

? Without identifying any record basis for its holding, Fisher v.

Vassar College, 114 F.3d 1332, 1346-47 (2d Cir. 1997), cert. denied, 522

U.S. 1075 (1998) stated that “employers characteristically give false

explanations for employment decisions for many different reasons,” that

the stronger the evidence of discrimination, the more likely that the reason

for the false explanation is to conceal discrimination, and that the weaker

the evidence of discrimination, “the less reason there is to believe that the

employer's false statement concealed discrimination, as opposed to the

numerous other reasons for which employers so frequently give false

reasons for employment decisions.” In light of Rule 11, Fed. R. Civ. P.,

and other efforts to impress on counsel the neec. to perform adequate

factual investigations to ensure that representations to a court are reliable,

it is difficult to comprehend why defendants who fail to perform an

adequate investigation — and therefore put on evidence that is untrue —

should be protected from the consequences of their failure. See Sheridan

v. El. DuPont de Nemours and Co., 100 F.3d at 1069.

'? E.g., Casarez v. Burlington Northern/Santa Fe Co., 193 F.3d

334, 337 (Sth Cir. 1999) (holding that a jury may infer discrimination from

substantial evidence that the employer's proffered reasons are false).

'* See generally, Seymour & Brown, Chapter 14 (The McDonnell

Douglas / Burdine / Hicks Model) in the Summer 1996, Spring 1998, and

Spring 1999 editions.

ee ma

17

discrimination’ unless it is shown both that the reason was

false, and that discrimination was the real reason,” 509 US. at

515 (emphasis in original), that “[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,” id. at 511, that “[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), and “[t]hat the employer’s proffered reason is

unpersuasive, or even obviously contrived, does not necessarily

establish that the plaintiff's proffered reason of race is correct.

That remains a question for the factfinder to answer, subject, of

course, to appellate review... .” /d. at 524. Conflating all of

these requirements, these courts have often in practice treated

their review function as entitling them to discard evidence

entirely if there is a question going to its weight, and to engage

in “plenary review” of the reasonableness of the jury’s drawing

of the inference of discrimination. They have not paid attention

to Hicks’ caution that review of an inference drawn at a bench

trial is subject to the “clearly erroneous” standard, id. at 524,

and have similarly not heeded the holding of Pullman-Standard

v. Swint, 456 U.S. 273 (1982), that the ultimate question of

discrimination ve/ non in a bench trial is a question of fact

subject to deferential review under the “clearly erroneous”

standard. They have in effect misunderstood their role under

Hicks as that of super-juries.

18

In an unusually candid example, Hodgens v. General

Dynamics Corp., 144 F.3d 151, 172 (1st Cir. 1998), noted that

the question whether to grant summary judgment “is a close one

because both GD and Hodgens have presented probative

evidence tending to support their respective versions of the

facts, on the question whether GD’s reason for discharging

Hodgens was legitimate or merely a pretext to retaliate against

him for taking FMLA-protected medical leave,” but simulta-

neously held that no reasonable factfinder could resolve this

close case for the plaintiff.

C. The Treatment of the Discriminatory Remarks

Herein Set the Bar of Proof Too High

In reviewing judgments under Rules 50 and 56, some of

the Circuits have combined their high evidentiary hurdles with

a refusal to allow juries to give weight to admissions of bias.

There is a difference between the eminently proper goal of a

system of justice that is blind, and a system that blinds itself to

strong evidence of discrimination. Of course, we make no

contention that all biased statements in the workplace bar the

dismissal of a plaintiff's claim. Clearly, a number of factors

affect the weight to be accorded such remarks:

The probative strength of direct statements or

other direct evidence of bias depends on several factors,

including: (1) the lack of ambiguity in the statement or

other evidence, (2) the intensity of any bias shown by

the statement or other evidence; (3) the time elapsed

between the statement or other occurrence and the

19

challenged action; (4) the frequency with which such

statements or other events happened, (5) whether the

statements or other indications of bias came from

management officials with direct or indirect power over

the challenged actions, and (6) the employer's response

to the statements or other incidents in question.

Seymour & Brown at 17-602 (summarizing the case law). A

jury should be mindful of all these factors in weighing evidence.

However, many of the lower courts have taken from the

jury the function of determining the weight to be accorded

biased statements. In resolving motions for summary judgment

under Rule 56 and motions for judgment as a matter of law

under Rule 50, they have either weighed such evidence them-

selves or adopted bright-line rules barring much relevant

evidence as non-probative or according preclusive effect to

some types of defense evidence. In this case, for example, the

court of appeals deprived the jury of its right to evaluate a

statement by a key decisionmaker that the plaintiff was “too

damn old to do the job” because of a number of factors that

should at most have gone to its weight.

First, the court of appeals held that this and another

age-related remark were not probative because “these com-

ments were not made in the direct context of Reeves’s termina-

tion.” Pet. 9a. If they had been made in such a context, it

would have been direct evidence of discrimination under the

standards of Price Waterhouse v. Hopkins, 490 U.S. 228

(1989). In the absence of any evidence that a decisionmaker

20

had undergone a substantial change of heart in the intervening

months, the lower court’s willingness to indulge in a conclusive

legal presumption of a change of heart merely because of the

passage of a few months bespeaks both a great reluctance to

find discrimination and the height of the evidentiary bar the

court has erected for plaintiffs.

Nor is this an isolated or extreme example of the Fifth

Circuit's approach to judicial factfinding under Rules 50 and 56.

In Ray v. Tandem Computers, Inc., 63 F.3d 429, 434-35 (Sth

Cir. 1995), the court affirmed the grant of summary judgment

to the defendant, holding that the plaintiffs supervisor’s

remark, four years prior to her discharge, that he was going to

get rid of the “cunt in the office,” his scheduling of a lunch

meeting at Hooter’s, and a remark by another supervisor that

the plaintiff was not the “best man for the job,” did not combine

to support an inference of sex discrimination.’ The panel did

not pause to explain why a jury should be barred from inferring

that the “leopard had not changed its spots,” or that the fact that

it took him four years to make good on his promise did not

disprove his declared motivation. Instead, Ray raised the

evidentiary bar by holding that such remarks must be made

repeatedly before they can be considered probative. /d. at 434.

Second, the lower court held that no reasonable jury

'* Sreeram v. Louisiana State Univ. Medical Center- Shreveport,

188 F.3d 314, 321 (Sth Cir. 1999), suggested that any evidence less than

that in Ray v. Tandem Computers would automatically be insufficient to

show discrimination or to prevent the entry of summary judgment for the

defendant.

ell

21

could find Chesnut’s remarks probative because there was no

proof of discriminatory remarks by all others involved in the

decision. This raising of the evidentiary bar would have

prevented Ann Hopkins from proceeding with her case if this

Court had followed such a standard in Price Waterhouse v.

Hopkins. The plurality did not find that all partners had

engaged in stereotyping, but only that “a number of the part-

ners’ comments showed sex stereotyping at work,” and that the

defendant, like the respondent here, had taken no steps to

prevent reliance on sex-linked evaluations. 490 U.S. at 251.

Justice O’Connor concurred, stating that such evidence must be

adequate to shift the burden of persuasion to the defendant, if

Title VII's promise of nondiscrimination is to be enforced. /d.

at 272-73. Juries should be free to reason as this Court did in

Hopkins.

Third, the lower court held that no reasonable jury could

find Chesnut’s remarks probative because some of the decision-

makers were in their 50's or 60's. This raising of the evidentiary

bar would have prevented Rodrigo Partida from proceeding

with his habeas corpus petition challenging jury discrimination

if this Court had followed such a standard in Castaneda v.

Partida, 430 U.S. 482, 499-501 (1977). Instead, this Court

rejected the argument “that human beings would not discrimi-

nate against their own kind.” /d. at 500. Juries should be free

to reason as this Court did in Castaneda.

Fourth, the lower court effectively held that no reason-

able jury could find Chesnut’s remarks probative because there

was a conclusive presumption that the defendant’s officials told

22

the truth in saying that the younger Oswalt would have been

treated as harshly as the plaintiff if he had still been employed.

The court was willing to indulge the presumption even though

it itself stated that Oswalt had been treated more favorably than

the plaintiff the last time there had been problems in the Hinge

Room. This raising of the evidentiary bar placed an insuperable

obstacle in the plaintiff's path. No plaintiff could prevail in any

civil rights case if the court is willing to indulge such presump-

tions in favor of the defendant. Particularly where there is

evidence of prior disparate treatment, and even more so where

the court concedes that a jury could reasonably find the defen-

dant’s reasons bogus, a jury should be free to determine for

itself the credibility of exculpatory testimony.

The lower court simply ignored the evidence that the

plaintiff was treated less favorably than a comparable younger

employee. If this Court had followed a similar approach in

McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273,

282-83 (1976), L.N. McDonald’s claim would have been

blocked. So, too, for Percy Green’s claim in McDonnell

Douglas itself. Juries should be free to use the same reasoning

this Court used in McDonald and in McDonnell Douglas.

Other Circuits have similarly invaded the province of the

jury, to the significant detriment of justice. Space permits a

single detailed example here."© /ndurante v. Local 705,

'* See generally, Seymour & Brown, Chapter 17 (Direct Proof and

Stray Remarks) in the Summer 1996, Spring 1998, and Spring 1999

editions, I Lindemann & Grossman at 28-29.

23

International Brotherhood of Teamsters, \60 F.3d 364, 366-67

(7th Cir. 1998), affirmed the grant of summary judgment to the

defendant in a Title VII national origin case notwithstanding

statements by decisionmakers that “all the Italians were going

to be fired,” that “all the Italians were nothing but mobsters and

gangsters,” that “the plans were ‘to get rid of all the Italians,’”

and that “the days of the goombahs are over,” because the

statements were made from sixteen months before the plaintiff

was fired to five months thereafter, and did not specifically refer

to the plaintiff's termination or, in the “goombah” incident, to

employment. But see the dissent by Judge Rovner, id. at 369:

“The fact is, some plans take a good while to carry out.” The

court described a series of distinctions it had previously

adopted, allowing it to ignore express manifestations of bias by

decisionmakers (“comments about discrimination in hiring may

not suffice if the case involves a discharge,” id. at 367 (empha-

sis in original), comments may have to refer to the plaintiff

specifically, id.). The court stated that the plaintiff had not

adequately raised the argument that these statements constituted

direct evidence, but held that they were not substantial enough

evidence of pretext to require atrial. /d.

D. Setting the Evidentiary Bar Too High Frustrates the

Purposes of the Fair-Employment Laws

It is obvious that the intent of Congress in enacting the

civil rights laws can be frustrated by setting the evidentiary bar

too high for persons with meritorious claims. Victims cannot

receive make-whole relief, discriminators cannot be deterred,

and discrimination will continue, if court-imposed limitations on

24

proof bar substantial numbers of victims from establishing the

merit of their claims. In deciding on the approach to be

followed in the future, we urge the Court to consider an

intensely practical problem that affects many persons with

meritorious claims: unequal ability to gather the relevant facts.

In most employment discrimination cases, the plaintiffs

cannot file suit already in possession of the facts with which

they can prove the merit of their claims. Usually, only the

employer knows the true basis for its actions. Because of the

press of numerous charges of discrimination and inadequate

funding, the investigation of such charges by government

agencies is often superficial, leaving the charging party with few

additional facts.'’ In addition, pre-Complaint investigations by

counsel are often necessarily incomplete, because State ethics

rules frequently bar plaintiffs’ counsel from interviewing the

decisionmakers. Thus, plaintiffs are ordinarily dependent on

discovery to learn the defendant’s reasons for the challenged

action, to discover whether there are reasonably comparable

employees of a different race or gender or age who were treated

more favorably, to determine whether there are factors that

affect their comparability or explain the differen~~s in treatment,

to explore the bases of each nondiscriminatory reason the

defendant will proffer, and to look for evidence to rebut those

" See, for example, the findings in New York State National

Organization for Women v. Pataki, 189 F.R.D. 286, 305-11 (S.D. N.Y.

1999) (holding that the defendant officials violated the Due Process Clause

of the Fourteenth Amendment by the New York State Human Rights

Division's problematic intake and processing of complaints).

25

reasons.

It is very difficult to accomplish these tasks, mounting

an effective case under the traditional McDonnell Douglas

model, let alone meet the demands of heightened evidentiary

hurdles like those imposed below. Accomplishing these tasks

is far harder than it might seem because, even if the additional

evidence demanded by the heightened evidentiary hurdles

actually exists, the plaintiff may not be able to learn of such

evidence because of the increasingly restrictive presumptive

limits on discovery.'* A much earlier Fifth Circuit highlighted

the problems limitations on discovery cause to employment-

discrimination plaintiffs in Burns v. Thiokol Chemical Corp.,

483 F.2d 300, 306-07 (Former Sth Cir. 1973). Discussing the

lengthy exculpatory testimony of Charles Babcock, the com-

pany’s Personnel Manager, the court stated:

On cross-examination of Babcock, Burns’ counsel was

obviously unable to ask intelligent, informed questions

relating to any specifics. Perhaps the information

sought by their interrogatories would have served to

bolster Babcock’ s exculpatory testimony in behalf of the

Company. Then again, it might have allowed plaintiff s

'§ See generally the 1993 Amendments to the Discovery Rules,

146 F.R_D. 401 and the further restrictions now under consideration by this

Court. Both the current and the proposed presumptive limits on discovery

facially apply to all parties alike, but in practice impose far more severe

problems on plaintiffs because they take no account of the parties’ disparate

access to the probative facts, and ignore the allocation of the burden of

persuasion.

26

counsel to pin the witness down to some unexplainable

particulars. We do not know. The point is that open

disclosure of all potentially relevant information is the

keynote of the Federal Discovery Rules. In this case,

that focal point has been ignored.

The court observed that, without the relevant background

information in a racial discrimination case, justice “could not —

as she must — be color blind.” /d. at 307 (emphasis in origi-

nal).

We urge that the evidentiary bar be set no higher than

ordinary victims can reasonably be expected to reach, in light of

their original lack of access to the facts and constraints on their

ability to obtain evidence from their adversaries. Setting an

accessible standard was the intent of this Court in handing down

McDonnell Douglas and its progeny, and the lower courts

should be directed to return to that functional standard.

E. In the Absence of Compelling Circumstances, the

Jury Should Be Allowed to Draw an Inference of

Discrimination or Retaliation from Evidence that

the Proffered Nondiscriminatory Reason Was Not

the True Reasou for the Challenged Action

There is an undeniable tension between safeguarding the

proper role of the jury under the Seventh Amendment to the

Constitution and safeguarding litigants from arbitrary decisions

by particular juries. It is essential that there be some review of

the jury’s decision to draw — or not to draw — the inference

of discrimination from evidence that the employer’s proffered

27

reason is not the real reason for the challenged action. Hicks

made clear that there would be review of the jury’s decision.

509 U.S. at 524. At the same time, it is equally clear that the

“adequacy of the evidence” standard has too often led to judges

substituting their own weighing of the evidence for that of the

jury, while indulging every possible inference in favor of the

defendant. The heightened review of jury findings and infer-

ences drawn by juries in employment discrimination cases,

without giving weight to all permissible inferences in favor of

the verdict-winner, needs to be scaled back to the traditional

limited but constitutionally permissible review of such findings

and inferences in other cases, as exemplified by 7ennant v.

Peoria & Pekin Union Ry. Co., 321 U.S. 29 (1944), and

comparable cases.

In balancing these competing concerns, it is important

to bear in mind that the constitutional role of the jury reinforces

the decision of Congress that juries, not judges, should perform

the primary tasks of determining credibility and weighing the

evidence. 29 USC. § 626(c)(2) (ADEA); 42 USC.

§ 1981a(c) (Title VII and certain claims under the ADA and the

Rehabilitation Act of 1973, 29 U.S.C. § 794a, where common-

law damages are sought). There are sound policy reasons for

Congress’s allocation of roles. Juries are immersed in the

workaday world; they know how offices and factories operate,

and bring to their evaluations of the evidence a common sense

rooted in the experience of their everyday lives.

Judges are far better equipped than juries to declare and

apply the law, but it is no disrespect to the judiciary to draw the

28

conclusion that they may be less well-equipped than juries to

understand the real dynamics of a workplace. See Gallagher v.

Delaney, 139 F.3d 338, 342 (2d Cir. 1998) (“Whatever the

early life of a federal judge, she or he usually lives in a narrow

segment of the enormously broad American socio-economic

spectrum, generally lacking the current real-life experience

required in interpreting subtle sexual dynamics of the workplace

based on nuances, perceptions, and implicit communications”).

These considerations are not consistent with the “plenary

review” in which the lower court indulged.

We suggest the following workable test for review of

the jury’s determination whether to draw the inference of

discrimination. Where there is enough evidence to justify a jury

in discrediting the defendant’s proffered nondiscriminatory

reasons for the employment action in question, the jury should

be free to decide whether to draw the further inference of

discrimination. Its decision should be overturned only in rare

cases, for compelling reasons not involving a re-weighing of

evidence or a presumption as to the credibility of any witness.

For example, an inference of discrimination could justly be

overturned where the plaintiff discredited the defendant’s

proffered reason by showing the defendant’s true reason, which

was also nondiscriminatory, e.g., Newton v. Cadwell Laborato-

ries, 156 F.3d 880, 882 (8th Cir. 1998) (the court found there

was no pretext where the plaintiff admitted in her deposition

that the defendant’s employment decisions were motivated not

by gender, “but by whether a prospective employee could sell

Cadwell’s products effectively”), or that the defendant took

29

reasonable steps to be well-informed but based its decision on

a good-faith but mistaken view of the facts, e.g., Stalter v.

Wal-Mart Stores, Inc., 195 F.3d 285, 289 (7th Cir. 1999);

Roberts v. Separators, Inc., 172 F.3d 448, 452 (7th Cir. 1999),

or that the defendant has shown that reasonably comparable

employees of the allegedly favored group were treated identi-

cally to the plaintiff so that there was no disparate treatment to

be explained, e.g., Cowan v. Glenbrook Security Services, Inc.,

123 F.3d 438, 446 (7th Cir. 1997). This test is consistent with

Tennant and the Seventh Amendment jurisprudence of this

Court, and would curb the heightened review of jury findings

and inferences in which some Circuits have engaged.

Absent such extraordinary circumstances, the defen-

dant’s proffer of an incorrect explanation should justify a jury's

inference of discrimination. We submit that it would do no

good to clarify the proper role of a court under Rule 50 if the

case will never reach the jury because the same errors will be

committed under Rule 56 to an even greater extent than they

now are committed. To safeguard the ability of a jury to

exercise its discretion whether to draw the further inference of

discrimination, we urge that the opinion of this Court emphasize

that summary judgment should be denied wherever the evidence

is sufficient to justify a jury inference that the defendant has

presented a “nondiscriminatory reason” for the challenged

action that is not the defendant’s actual reason.

Finally, we urge the Court to provide guidance to the

lower courts, to ensure that they give due regard to the Seventh

Amendment and not “search the record for conflicting circum-

30

stantial evidence in order to take the case away from the jury,”

a practice this Court forbade in Jennant v. Peoria & Pekin

Union Ry. Co., 321 U.S. at 35, but which has too often become

the norm. Eric Schnapper, Judges Against Juries — Appellate

Review of Federal Civil Jury Verdicts, 1989 Wis. L. Rev. 237

(1989). Such guidance will do much to assuage the fears of

“many attorneys” that “disfavored plaintiffs are apt to be hustled

out of the courthouse,” and that “this is often the fate of

employment discrimination plaintiffs.” Hon. Patricia M. Wald,

Summary Judgment at Sixty, 76 Tex. L. Rev. 1897, 1938-39

(1998) (citing the findings of three Circuits’ task forces on

perceptions of race and gender bias in the courts). She, too,

urged that a reassessment of summary-judgment practice was in

order, “lest it develop too casually into a stealth weapon for

clearing calendars.” Jd. at 1898.

CONCLUSION

Amici pray that the decision below be reversed, that the

Court provide further guidance as suggested herein, and that the

Congressionally-ordained role for civil rights juries be restored.

Respectfully submitted,

Daniel F. Kolb Richard T. Seymour’

Charles T. Lester, Jr. Teresa A. Ferrante

Co-Chairs Lawyers’ Committee for Civil

Norman Redlich, Rights Under Law

Trustee 1401 New York Ave. NW

Barbara R. Arnwine

Thomas J. Henderson

*“ Counsel of Record.

——

Suite 400

Washington, DC 20005

Telephone: 202-662-8600

Elaine R. Jones

Director-Counsel

Theodore M. Shaw

Norman J. Chachkin

Charles Stephen Ralston

NAACP Legal Defense and

Educational Fund, Inc.

99 Hudson Street, 16th Floor

New York, NY 10013

Telephone: 212-219-1900

Dennis C. Hayes,

General Counsel

National Association for the

Advancement of Colored

People

4805 Mt. Hope Drive

Fifth Floor

Baltimore, Maryland 21215

Telephone: 410-486-9191

Antonia Hernandez, President

Theresa Fay-Bustillos

MALDEF

634 South Spring Street

Eleventh Floor

Los Angeles, CA 90014

Telephone: 213-629-2516

Judith L. Lichtman

Donna R. Lenhoff

National Partnership for

Women & Families

1875 Connecticut Ave. NW

Suite 710

Washington, DC 20009

Telephone: 202-986-2600

Marcia D. Greenberger

Judith C. Appelbaum

National Women’s Law

Center

11 Dupont Circle N.W.

Suite 800

Washington, D.C. 20036

Telephone: 202-588-5180

Martha F. Davis

NOW Legal Defense and

Education Fund

395 Hudson Street, Sth Floor

New York, NY 10014

Telephone: 212-925-6635

Sara L. Mandelbaum

Steven R. Shapiro

American Civil Liberties

Union

125 Broad Street

New York, N.Y. 10004

Telephone: 212-549-261 1

Attorneys for Amici Curiae

January 7, 2000