Amicus Curiae Brief — BCI Coca-Cola Bottling Co. v. EEOC, 127 S. Ct. 852 (2007) (No. 06-341)

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No. 06-341

IN THE

Supreme Court of the Anited States

BCI Coca-COLA BOTTLING COMPANY OF LOS ANGELES,

Petitioner,

Uv.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Respondent.

On Writ of Certiorari to the

United States Courts of Appeals

for the Tenth Circuit

AMICUS CURIAE BRIEF OF THE

AMERICAN ASSOCIATION FOR JUSTICE

IN SUPPORT OF RESPONDENT

LEWIS S. EIDSON JEFFREY L. NEEDLE *

1050 31st St., N.W. Law Office of Jeffrey

Washington, DC 20007 Needle

(202) 965-3500 119 First Ave. South

Suite 200

President, Seattle, WA 98104

American Association (206) 447-1560

for Justice *Counsel of Record

Attorney for Amicus Curiae

a

TABLE OF CONTENTS

TABLE OF AUTHORITIEG....................ccccceeeeeeeeees iii

IDENTITY AND INTEREST

OF AMICUS CURIAE .......cccccccsssssecccccccescsessesees 1

SUMMARY OF THE ARGUMENT.......................0008 1

ST ‘wiiceiiintcinniainaniattnnesiinainantninisiiinnniiianranaain 6

I. A CLEAR RULE WHEN A

SUBORDINATE’S BIAS MAY BE

IMPUTED TO THE EMPLOYER IS

CRUCIAL IN TITLE VII

DISCRIMINATION CASES, UNDER

EITHER SHIFTING-BURDENS OR

MIXED-MOTIVES FRAMEWORK. ..........0000000 6

II. AGENCY THEORY SUPPORTS

IMPUTING LIABILITY WHERE THE

BIASED EMPLOYEE WAS THE CAUSE

OF THE TERMINATION WITHOUT

ANY INTERVENING SUPERSEDING

Tena ceccnnsctanenenetniiamiidestnnnninnedeimendtientasaients 10

A. The Biased Supervisor Was Acting

Within the Scope of Employment....... 11

B. The Employer’s Investigation is Not

a Superseding Cause Sufficient to

Break the Causal Chain. ....................4 14

Ill. TITLE VII REQUIRES THE

EXHAUSTION OF ADMINISTRATIVE

REMEDIES PRIOR TO SUIT. ............eeceee0e- 18

IV. CORPORATE EMPLOYMENT

POLICIES ARE NOT A SUBSTITUTE

FOR THE ADMINISTRATIVE

PROCESS OR JUDICIAL

ENFORCEMENT OF TITLE VILI..............000 19

A. Employers Have a Strong Incentive

to Implement Anti-Discrimination

Ds ccrscscertetennssemnensmmnigeemenonmnin 23

B. A Title VII Plaintiff is Not Required

to Complain About Discrimination

to Corporate Human Resources......... 25

V. THE ALLEGED BURDEN ' ON

EMPLOYERS Is VASTLY

PIII, ccncencsssnnsnserscsenncesannssseanesens 26

A. The Defendant Preserves All

Defenses Regardless of Imputed

Fein TIE hicicrtiritaistnamncinidantniiansmnanidmingninanesinbiiins 26

B. An Adequate Investigation Must

Determine the Truth of the

Allegations and That They Are Not

ee cncniescnninnisionnensintenensianeins 28

C. An Adequate Investigation Does

Not Impose An Undue Burden On

IR ccccccnsctsnnemieinineneminnininns 29

CE ee cccennsecesenserenssenenneersnscossnnemenssoenanageonsens 30

TABLE OF AUTHORITIES

CASES

Barnes v. St. Catherine’s Hospital, 563 F.2d 324

I, 25

Brown v. General Services Administration, 425 U.S.

UR RPR ae a ReS OT ae RUD Sey 18

Burlington Industries, Inc. v. Ellerth, 524 U.S. 742

REET aoa ee RES AEM RT 14, 23, 25, 29

Cadena v. Pacesetter Corp., 224 F.3d 1203

ERSTE See ie s eeee 24

Desert Palace, Inc. v. Costa, 539 U.S. 90 (2008)......... 9

E.E.O.C. v. AIC Security Investigations, Ltd.,

55 F.3d 1276 (7th Cir. 1995) ooo... cececeesccceeeees 10

Equal Employment Opportunity Commission v. BCI

Coca-Cola Bottling Company of Los Angeles, 450

F.3d 476 (10th Cir. 2006) oo... ccc eccceeceseecceceseeees 6

Equal Employment Opportunity Commission v.

Warfield-Rohr Casket Co., Inc., 364 F.3d 160 (4th

Sn aid to at Dek ld Dl ee) 8

Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S.

TT RD RRS AR A ee 16

Faragher v. Boca Raton, 524 U.S. 775 (1998)

Pan eeteh Mee ste en ANSE eT MOE SSO ON art ae 1, 11, 13, 14

Farr v. NC Machinery Co., 186 F.3d 1165 (9th Cir.

a a a ea an aD 16

Gary v. Long, 59 F.3d 1391, 1399 (D.C. Cir.), cert.

denied, 516 U.S. 1011 SEES eRe. Ble 10

Grant v. Lone Star Co., 21 F.3d 649 (5th Cir. 1994) 10

iv

Griffith v. City of Des Moines, 387 F.3d 733 (8th Cir.

BIO, ascccenniinsinitiectacntstdimnmeceninmncnmnmnectennntinnmmniont 9

Hillstrom v. Best Western TLC Hotel, 354 F.3d 27

Cat Cle. BOOB) ...0..cccsesscccvssescccossescccesevesonsevevenessseners 8

Holly D. v. California Institute of Technology, 339

F.3d 1168 (Othe Cle. BODG) ........cccccccccccccsecrsscscccesceee 23

Kolstad v. American Dental Ass’n, 527 U.S. 526

I issccciicossiichiseiccinensaunsicicdiinniandiniaiansewrmeiennniaiannes 12, 24

Kotcher v. Rosa & Sullivan Appliance Center, Inc.,

OBT F.3d GO (Bnd Cie. 19BB)........ccccccsevvecesscccessscccees 14

Lenhardat v. Basic Institute of Tech. Inc., 55 F.3d

SF GBs Git, FE exccvcevvincccssccesicenessncsvesesenecsonncesons 10

Lewis v. Young Men’s Christian Ass'n, 208 F.3d

BEBE CRB Gale, BIE aces cvcececsecvescesceccvssccscesserssensed 8

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

i iccicncinncvecsicsssnecssewineninnninncniseeennationenionmns 7,9, 27

McGinest v. GTE Service Corp., 360 F.3d 1103

Ss Cie, BI ncecccticesenevveersenceetensscovesvnimnnvesemenesesecs 9

Miller v. Maxwell's Intern. Inc., 991 F.2d 583

I Te, i vininccicsscsnesinnisnsecsiscuinsninieinsesicnniincessesen 10

Obrey v. Johnson, 400 F.3d 691 (9th Cir. 2005)....... 26

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

Pi acsicccnseesecccsscuccecnescosssssnnnsesssssccnsessevsoncetuccesens 7,11

Rachid v. Jack in the Box, Inc., 376 F.3d 305 (5th

BN, I ss ssitesinnccceditesniisdnedeslidincedsinndninseneenneenenionenentitl 8

Reeves v. Sanderson Plumbing, 530 U.S. 133

Isis ciininannerneniiiniannanenabiniabadainiennennetintt 11

Sauers v. Salt Lake County, 1 F.3d 1122 (10th Cir.

SI vnksciadecceuusinsiicecnniniadesncdatneusndedniosintonssdecennsnssenennn 10

Shager v. Upjohn Co., 913 F.2d 398 (7% Cir. 1990) .14

Vv

Smith v. Lomax, 45 F.3d 402 (11th Cir. 1995)......... 10

Springer v. Seaman, 821 F.2d 871 (1st Cir.

___ EERE PREP E a DE S ER IS TSU mcs ON 15, 16

Stegall v. Citadel Broadcasting Co., 350 F.3d 1061

| UI em ee 8

Texas Department of Community Affairs v. Burdine,

ee I SETI caiicininicipniiseresseiteeesinane iicedoiumiaioaaea! 7

Tomka v. Seiler Corp., 66 F.3d 1295 (2d Cir. 1995).10

Vinieratos v. United States Air Force, 939 F.2d 762

OP NCI iicnesiticip hacia ataet et ee 18

Wathen v. General Electric Co., 115 F.3d 400 (6th

a Pee ei ereniidistannpasennicsiaiadauaiacdaint eee 10

Watson v. Southern Pennsylvania Transportation

Authority, 207 F.3d 207 (3rd Cir. 2000).................. 8

Wright v. Murray Guard Inc., 455 F.3d 702 (6th Cir.

Sis ioissicisnensvecnasindibesdsenanmiiintteintaicaeniiaaaasea nn 9

STATUTES AND REGULATIONS

42 U.S.C. § 2000-16 (C) ...ecceccccseccssessssessssescssecseccescese 18

42 U.S.C. § 2000e 16(c); oo... ineaiideaicidadimal 18

42 U.S.C. § 2000¢ 2(a)(1)-occcseccsscscssessssesssecsssessecesceseee 7

ee ee ee I I cinitticesdichioeacistcdarnnaadtaceanantaee 7,9

42 U.S.C. § 20000 5(b) ....ecccscsssssessssssssecssssscssecsseccoseee 19

42 U.S.C. § 20000 5(e)(1) .ccscccssescssessssesessescsssessecceeeee 19

42 U.S.C. § 20000 5(f)(1) occeecccecccssecessescsscecseceseccoscese 19

42 U.S.C. § 2000 5(g)(2)(B) coecccecscsssscsssccseccoseccssee 8, 29

QB UDG. © ODD scessinccntssceceesecscovseceseseessesesssessecess 9

ee 18

TEES 18

29 C.F.R. § 1614.105(a)(1)......cesccesccecsvecssessneesseeesneene 18

LL 18

OTHER AUTHORITIES

Susan Bisom-Rapp, An Ounce of Prevention is a Poor

Substitute for a Pound of Cure: Confronting the

Developing Jurisprudence of Education and

Prevention in Employment Discrimination Law,

22 Berkeley J. of Emp. and Labor Law 1 (2001) ..22

John M. Darley & Paget Gross, A Hypothesis-

Confirming Bias in Labeling Effects, 44 J.

Personality & Soc. Psychol. 20 (1983)................... 21

John M. Darley & Russell H. Fazio, Expectancy

Confirmation Processes Arising in the Social

Interaction Sequence, 35 Amer. Psychologist

I aici iat ebdibgtereneannensenneneneornensqeneet 21

Joanna L. Grossman, The Culture of Compliance:

The Final Triumph of Form Over Substance In

Sexual Harassment Law, 26 Harv. Women’s

tinier ararnsennmnnnninnniccunasunnennns 22

Einhorn J. Hillel & Robin Hogarth, Confidence in

Judgment: Persistence of the Illusion of Validity,

85 Psychological Rev. 395 (1978) ..............cccccceeeees 21

Robert E. Keeton, Legal Cause In the Law of Torts

arian niinnaninenensanineenensentt 16

Charles G. Lord, Lee Ross & Mark Lepper, Biased

Assimilation and Attitude Polarization: The Effects

of Prior Theories on Subsequently Considered

_Evidence, 37 J. Personality & Soc. Psychol. 2098

vii

W. Prosser & W. Keeton, The Law of Torts (5th Ed.

SUNN irilininttscinina it aa a 16

Restatement of Agency (Second) § 219(1) (1958) .....11

Restatement of Agency (Second) § 228 (1958),...12, 13

Restatement of Agency (Third) § 7.07(2) (2006) 12, 13

Restatement (Second) of Torts § 431 ....0...0.......ccccc. 15

Restatement (Second) of Torts § 442 .................. 15, 17

Restatement (Second) of Torts § 870 ...............ccccc.0-. 15

Restatement of Torts (Third) Apportionment of

Liability § 3 (2000).........ccccceccsccssecscesscoseseesceseseesee 15

Mark Snyder & William B. Swann, Hypothesis-

testing Processes in Social Interaction, 36 J.

Personality & Soc. Psychol. 1202 (1978)............... 21

Mark Snyder, Seek and Ye Shall Find: Testing

Hypotheses About Other People, in Social

Cognition: The Ontario Symposium (E. T.

Higgins, E. P. Herman, & Mark P. Zanna, eds.,

P. C. Wason, On the Failure to Eliminate Hypotheses

in a Conceptual Task, 12 Quarterly Rev. of Exp.

ii i 22

P.C. Wason & P.N. Johnson-Laird, The Psychology

Of Reasoning: Structure and Content (1972)....... 22

IDENTITY AND INTEREST OF AMICUS CURIAE

The Association of American Justice (AAJ)

respectfully submits this brief as amicus curiae.!

AAJ, formerly the Association of Trial

Lawyers of America, is a voluntary national bar

association whose approximately 50,000 trial lawyer

members primarily represent individual plaintiffs in

civil actions. Among those plaintiffs are persons

whose civil rights have been violated by employers

who take adverse employment actions because of

race, color, religion, sex or national origin. In AAJ’s

view, freedom from illegal discrimination is

fundamental to the enjoyment of all opportunities

offered in a free society. Illegal discrimination not

only frustrates the individual’s right to equal

opportunity, it also prevents society from reaping the

benefits of the contributions which highly qualified

individuals are capable of making. AAJ has the firm

conviction that diversity in the work place is

essential both for the fulfillment of individual

liberty, and to enable society to its true potential.

SUMMARY OF THE ARGUMENT

Restatement of Agency (Third) §2.04 (2006)

provides, “An employer is subject to liability for torts

committed by employees while acting within the

scope of their employment.” In Faragher v. Boca

Raton, 524 U.S. 775 (1998), the Court declined to

1 This brief is filed with the consent of both parties. Their

letters of consent have been filed with the Clerk. Pursuant to

Rule 37.6, Amicus discloses that no counsel for a party authored

any part of this brief, nor did any person or entity other than

Amicus Curiae, its members, or its counsel make a monetary

contribution to the preparation or submission of this bricf.

2

recognize this theory of agency as a basis of imputing

liability for sexual harassment, but only because it

was unclear whether harassers were acting within

the scope of their employment. Jd. at 793-801. In this

case, there is no question that the biased supervisor

was the agent of the employer. Whether the

supervisor was designated as an agent for the

purpose of making personnel decisions is completely

irrelevant. It further appears that he was acting

within the scope of his employment. The only

remaining question concerns causation. In this case,

the biased supervisor initiated a process which

caused an adverse employment action — but for his

involvement there would have been no investigation

and no adverse employment action. Applying

traditional common law principles, the employer's

investigation was entirely foreseeable and not an

independent superseding cause sufficient to break

the causal chain and defeat employer liability.

Liability, if any, should be imputed to BCI for the

discriminatory acts of its supervisor.

In this case, the employers motion for

summary judgment was denied. At trial the

employer will be able to make all of the factual

arguments that it now makes to this Court in an

effort to convince a jury that race was not a

motivating factor, and that even if it were, it would

have still made the same decision. If BCI succeeds in

that effort, it will win regardless of imputed liability.

BCI Coca-Cola argues that employers should

be able to insulate themselves from liability in

virtually all cases of discrimination initiated by non-

decisionmakers. It would achieve that goal by

establishing internal human resource policies for

reporting allegations of discrimination and vesting

3

final decision making authority in human resource

personnel. The rule of law advocated by BCI won't

diminish the incidence of discrimination, but will

make it virtually impossible to hold most employers

accountable for the illegal discrimination in the

workplace. Because Title VII does not recognize

individual liability, the inability to hold the employer

liable results in no liability and no accountability.

According to BCI, their “employment policies

embody everything that Congress sought to

accomplish in Title VII.” BCI Brief, at 20. But if that

were true, Congress would never have provided a

judicial remedy to enforce the provisions of Title VII.

If that were true, Congress would have never created

the EEOC to imvestigate claims of illegal

discrimination as a prerequisite for filing suit. If that

were true, Congress would have simply required that

all employers develop and implement sufficient

employment polices, and employ human resources

professionals who are trained in equal employment

opportunity and who, according to BCI,

“unquestionably harbor{] no animus.” Jd. This Court

should not indulge in the fiction that corporate

human resources personnel are neutral

decisionmakers, unaffected by the reports and

recommendations of line supervisors and managers.

This Court should not allow the fox to guard the

chicken coop.

BCI argues nevertheless that employees

alleging illegal discrimination must first internally

complain about the alleged discriminatory practice

and pursue whatever remedies are made available

under the employer's anti-discrimination polieies. It

then argues that the employer’s determination that

an allegation of discrimination is without merit

4

absolves it from liability, even if that determination

proves to be wrong. According to BCI, the relevant

inquiry is not whether the employer's proffered

reasons were “wise, fair or correct” but whether they

were “honestly believed.” BCI Brief at 26. But where

a federal agency or the EEOC honestly determines

that a complaint of discrimination is without merit,

an employee may still thereafter pursue the merits of

a claim in federal district court.

Contrary to the implied assertion of BCI,

Congress did not intend to give greater weight to a

private employer's internal administrative

determination than is given to either a federal

agency acting as an employer, the EEOC or

administrative law judges. Congress never intended

to replace the civil justice system with the self-

policing efforts of private employers. Congress never

intended to require employees to either complain to

their employer about discriminatory practices or

exhaust corporate administrative remedies as a

prerequisite for filing suit. A rule to the contrary

would dramatically alter the enforcement

mechanism of the statute.

The recognition of employer liability for the

discriminatory acts of its agents will create a strong

incentive to train managers and scrutinize their

conduct to prevent discriminatory practices, thereby

fulfilling the prophylactic goals of Title VII. While

enlightened corporate human resource policies are to

be encouraged, their utilization by employees can

never be a substitute for the civil justice system.

BCI argues that the Tenth Circuit's decision

requires it to conduct a complete investigation in

advance of virtually every adverse employment

action involving an employee who falls into a

5

protected classification. This, they argue, would

impose an impossible burden on employers. BCI

Brief at 45. Contrary to BCI’s representations, even

a so-called “rubber stamp” dees not automatically

result in employer liability. In all cases, an employee

must still prove that the protected characteristic is a

“motivating factor.” In all cases, the employer

preserves all remaining defenses and in particular

may avoid liability or damages by proving that it

would have made the same decision even without

consideration of the protected characteristic. In all

cases, the basic structure for proving a violation of

Title VII remains unchanged.

In order to break the causal chain, an

investigation must be an intervening superseding

cause. An employer’s’ so-called independent

investigation is not a superseding cause of

termination from employment, but even it were, an

employer investigation must establish that the

employer would have taken the same action even

without the input from the _ biased _ non-

decisionmaker. To _ satisfy this burden, the

investigation must determine the truth of the

allegations against the employee and establish that

they are not pretextual. BCI’s investigation was

conspicuously deficient to establish either, and

liability, if any, should be imputed to BCI.

6

ARGUMENT

I. A CLEAR RULE WHEN A SUBORDINATE’S

BIAS MAY BE IMPUTED TO THE EMPLOYER

Is CRUCIAL IN TITLE VII DISCRIMINATION

CASES, UNDER EITHER SHIFTING-BURDENS

OR MIXED-MOTIVES FRAMEWORK.

Stephen Peters was fired by BCI Coca-Cola

Bottling Co. after an altercation with his supervisor

regarding week-end work. The supervisor, Mr.

Grado, allegedly harbored racial bias against black

employees, including Mr. Peters. However, the

decision to fire Mr. Peters for insubordination was

made by Ms. Edgar, in the company’s Human

Resources Department, who had no discriminatory

motive and acted on Mr. Grado’s report of the

incident.

The Tenth Circuit, addressing the question of

when the discriminatory animus of a subordinate

who was not the decisionmaker might be imputed to

the employer, ruled:

To prevail on a subordinate bias claim, a plaintiff

must establish more than mere “influence” or

“input” in the decisionmaking process. Rather,

the issue is whether the biased subordinate’s

discriminatory reports, recommendation, or other

actions caused the adverse employment action. . .

. [AJn employer can avoid [imputed] liability by

conducting an independent investigation of the

allegations against an emplovee.

Equal Employment Opportunity Commission v. BCI

Coca-Cola Bottling Company of Los Angeles, 450 F.3d

476, 487-88 (10th Cir. 2006). The court found Ms.

Edgar's “investigation” was “inadequate, as a matter

of law, to defeat the inference that Mr. Grado’s racial

7

bias tainted the decision.” Jd. at 492. Summary

judgment was therefore inappropriate. Jd. at 493.

AAJ suggests that well-settled agency rules

and tort principles regarding superseding cause

provide a clear rule in subordinate bias cases that

serves the purpose of Title VII.

Title VII provides:

It shall be an unlawful employment practice for

an employer to fail or refuse to hire or to

discharge any individual, or otherwise to

discriminate against any individual with respect

to his compensation, terms, conditions, or

privileges of employment, because of such

individual's race, color, religion, sex, or national

origin.

42 U.S.C. § 2000e 2(a)(1).

For many years there have been two well-

recognized frameworks for analyzing disparate

treatment discrimination cases. First is the so-called

“pretext” framework with its origins in McDonnell

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

Texas Department of Community Affairs v. Burdine,

450 U.S. 248 (1981). The McDonnell Douglas

evidentiary framework is a guideline using shifting

burdens to assist the court in determining the

existence of an illegal motive. The second framework,

known as “mixed-motives,” was recognized in Price

Waterhouse v. Hopkins, 490 U.S. 228 (1983), and was

later codified in the Civil Rights of Act of 1991; 42

U.S.C. § 2000e-2(m).’

* The Civil Rights Act of 1991 did not amend the ADEA. Even

though both statutes provide for a violation of the statute where

an adverse action is taken “because of’ the protected

8

The mixed-motive model does not utilize

shifting burdens, but instead focuses more directly

on proving that a protected characteristic was a

motivating or substantial factor in the decision

making process. Under a mixed-motive analysis

Plaintiff does not have to prove pretext. See Stegall

uv. Citadel Broadcasting Co., 350 F.3d 1061, 1067 (9th

Cir. 2003) (“In mixed motive cases, . . . it does not

make sense to ask if the employer’s stated reason for

terminating an employee is a pretext for retaliation,

when the employer has offered more than one reason

for the action that it took. Rather, the relevant

inquiry in a ‘mixed motive’ case is distinct from that

of a ‘single motive’ or pretext case”). If Plaintiff

establishes that the illegal reason was a motivating

factor, the burden then shifts to the employer to

prove as an affirmative defense that it would have

made the same decision even without consideration

of the protected characteristic. 42 U.S.C. § 2000e

5(g)(2)(B).

classification, a number of circuits have held that the mixed

motive standard of the 1991 Act does not apply to cases under

the ADEA. See Lewis v. Young Men’s Christian Ass'n, 208 F.3d

1303, 1305 (11 Cir. 2000); Watson v. Southern Pennsylvania

Transportation Authority, 207 F.3d 207, 215 (34 Cir. 2000);

Equal Employment Opportunity Commission v. Warfield-Rohr

Casket Co., Inc., 364 F.3d 160, 163 n.1 (4th Cir. 2004) (“We have

_ previously assumed, without deciding, that direct evidence is

still a prerequisite for a mixed-motive analysis in ADEA cases.

[citing cases] We are not called on to decide that issue because

the EEOC has presented direct evidence of discrimination.”).

But see Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th

Cir. 2004) (deciding that the standards established by the Court

in Desert Palace and by the Civil Rights Act of 1991 apply to the

ADEA); Hillstrom v. Best Western TLC Hotel, 354 F.3d 27, 31

(1st Cir. 2003) (deciding whether “the real reason, at least in

part, was age and gender discrimination’).

9

In Desert Palace, Inc. v. Costa, 539 U.S. 90

(2003), this Court rejected the distinction between

direct and circumstantial evidence and ruled that, to

obtain a mixed-motive instruction under § 2000e

2(m), “a plaintiff need only present sufficient

- evidence for a reasonable jury to conclude, by a

preponderance of the evidence, that ‘race, color,

religion, sex, or national origin was a motivating

factor for any employment practice.” 539 U.S. at 101.

Numerous lower courts have applied this same

reasoning to summary judgment rulings. :

The Tenth Circuit decided this case using the

McDonnell Douglas shifting-burden model. But the

mixed-motive model is used by many lower courts in

many cases. The Court should take care not to

endorse one model at the expense of the other.

Title VII defines an employer as “a person

engaged in an industry affecting commerce who has

fifteen or more employees for each working day in

each of twenty or more calendar weeks in the current

or preceding calendar year, and any agent of such a

person.” 42 U.S.C. § 2000e(b). Individuals, however,

* See McGinest v. GTE Service Corp., 360 F.3d 1103, 1122 (9%

Cir. 2004) (“[W]hen responding to a summary judgment motion,

the plaintiff is presented with a choice regarding how to

establish his or her case. [Plaintiff] may proceed by using the

McDonnell Douglas framework, or alternatively, may simply

produce direct or circumstantial evidence demonstrating that a

discriminatory reason more likely than not motivated [the

employer}”); But see Griffith v. City of Des Moines, 387 F.3d 733,

735 (8 Cir. 2004) (“Desert Palace, a decision in which the

Supreme Court-decided only a mixed motive jury instruction

issue, is an inherently unreliable basis for district courts to

begin ignoring this Circuit's controlling summary judgment

precedents’); Wright v. Murray Guard Inc., 455 F.3d 702, 716

(6th Cir. 2006) (Moore, J., concurring) (collecting cases).

10

are not liable for damages under Title VII.” As a

consequence, if liability is not imputed to the

employer, there is no liability or accountability at all.

II. AGENCY THEORY SUPPORTS IMPUTING

LIABILITY WHERE THE BIASED EMPLOYEE

WAS THE CAUSE OF THE TERMINATION

WITHOUT ANY INTERVENING SUPERSEDING

CAUSE.

According to BCI, when an employer institutes

effective policies designed to root out animus among

* See Miller v. Maxwell's Intern. Inc., 991 F.2d 583, 587 (9% Cir.

1993) (“If Congress decided to protect small entities with

limited resources from liability, it is inconceivable that

Congress intended to allow civil liability to run against

individual employees”); Tomka v. Seiler Corp., 66 F.3d 1295,

1313 (2d Cir. 1995) (“We now hold that individual defendants

with supervisory control over a plaintiff may not be held

personally liable under Title VII"); E.E.0.C. v. AIC Security

Investigations, Lid., 55 F.3d 1276, 1282 (7th Cir. 1995)

(“individuals who do not otherwise meet the statutory definition

of ‘employer’ cannot be held liable under the ADA”); Lenhardt v.

Basic Institute of Tech. Inc., 55 F.3d 377, 381 (8th Cir. 1995)

(supervisors and managers not subject to individual liability);

Gary v. Long, 59 F.3d 1391, 1399 (D.C. Cir.), cert. denied, (1995)

(Title VII does not impose individual liability. on supervisory

employees); Smith v. Lomax, 45 F.3d 402, 403 (11th Cir. 1995)

(employees cannot be held liable under the ADEA or Title VII);

Grant v. Lone Star Co., 21 F.3d 649, 653 (5th Cir. 1994) (Title

VII does not permit imposition of liability upon an individual

unless they meet Title VII's definition of employer); Sauers v.

Salt Lake County, 1 F.3d 1122, 1125 (10th Cir. 1993) (under

Title VII, suits must proceed against individuals in their official

capacities only; individual capacity suits are inappropriate);

Wathen v. General Electric Company, 115 F.3d 400, 405 (6th

Cir. 1997) (“an individual employee/supervisor, who does not

otherwise qualify as an ‘employer, may not be held personally

liable under Title VII”).

11

non-decisionmaking subordinates, those

subordinates are not the employer's agents whose

discriminatory bias may be imputed to the employer.

BCI Brief at 16. Thus, BCI argues, an employer is

liable for the acts of non-decisionmakers only if it

knew or should have known of the subordinates’

discriminatory animus, and the protected trait was a

determinative influence in the adverse action. BCI

Brief at 29. BCI is wrong.

A. The Biased Supervisor Was Acting

Within the Scope of Employment.

In Faragher v. Boca Raton, 524 U.S. 775

(1998), the Court considered the agency theory to be

applied for imputing liability to the employer in

cases involving sexual harassment. In discussing the

Restatement of Agency (Second) § 219(1) (1958), the

Court acknowledged that a “master is subject to

liability for the torts of his servants committed while

acting in the scope of their employment.” 524 U.S. at

793. The Court declined to apply that theory of

agency, but only because it was unclear whether a

harasser was acting within the scope of employment

or a frolic. Listing examples, the Court clearly

* BCI and its amici rely upon Reeves v. Sanderson Plumbing.

530 U.S. 133 (2000), for the proposition that Plaintiff must

prove that race played a “determinative influence” in the

outcome. But Reeves was decided under the ADEA, which was

not included in the amendments to the Civil Rights Act of 1991.

Moreover, this heightened showing is at odds with this Court's

decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

which simply required that plaintiff establish that a protected

characteristic was a “substantial factor” in the decisionmaking

process, even though other factors also motivated the practice.

490 U.S. at 258-59 (White, J., concurring). Justice White's

opinion is controlling for cases not decided under the Civil

Rights Act of 1991.

12

indicated that types of discrimination other than

harassment were within the “scope of employment”

theory. Jd. at 793-801. Also relying upon the

Restatement of Agency (Second) § 228(1) (1958), the

Court in Kolstad v. American Dental Ass’n, 527 U.S.

526 (1999) acknowledged,

[Even intentional torts are within the scope of

an agent’s employment if the conduct is “the kind

[the employee] is employed to perform,” “occurs

substantially within the authorized time and

space limits,” and “is actuated at least in part, by

a purpose to serve the” employer.

Id. at 543-544. An employee who satisfies these rules

is acting within the scope of employment “even if the

employee engages in acts ‘specifically forbidden’ by

the employer and uses ‘forbidden means of

accomplishing results.” Jd.°

The Restatement of Agency (Third) § 7.07(2)

(2006) addresses when an employee is acting within

the scope of employment for the purpose of vicarious

liability somewhat differently:

An employer acts within the scope of

employment when performing work assigned by

the employer or engaging in a course of conduct

subject to the employer's control. An employee's

act is not within the scope of employment when

it occurs within an independent course of conduct

* While the Court in Kolstad declined to apply the Restatement

rule to impute liability for punitive damages, the issue before

the Court now involves only compensatory damages. Applying

this rule within the context of compensatory damages would not

diminish the incentive to implement anti-discrimination

programs, just to the contrary. See infra at 22-24.

13

‘ not intended by the employee to serve any

purpose of the employer.’

In this case, the biased supervisor was acting

within the scope of employment. The employer

delegated to the biased supervisor the authority to

report insubordination to human resources, which is

exactly what he did. The biased supervisor was the

agent of the employer and at all times was acting

within the employer’s control. Whether the agent

was specifically designated to make personnel

decisions is irrelevant if the agent was acting within

the scope of employment and his conduct “caused”

the harm to Plaintiff. An employer is responsible for

the wrongful acts of all its employees, not only those

in personnel.

Like harassment, disparate treatment

discrimination is a persistent problem in the

workplace. As this Court has recognized,

An employer can, in a general sense, reasonably

anticipate the possibility of such conduct

occurring in its workplace, and one might justify

the assignment of the burden of the untoward

behavior to the employer as one of the costs of

doing business, to be charged to the enterprise

rather than the victim. . . . developments like

this occur from time to time in the law of agency.

Faragher, 524 U.S. at 798.

’ This section of the Restatement of Agency (Third) differs with

the Restatement Second because it is phrased in more general

terms. Under Restatement Second § 228(1)(c), conduct is not

within the scope of employment unless “it is actuated, at least

in part, by a purpose to serve” the employer. The Restatement

of Agency (Third) exempts only that “conduct intended to serve

no purpose of the employer.” See Restatement of Agency

(Third), Section 7.07 comment b (2006).

14

The Court in Faragher declined to impose this

burden on the employer, but only because “there is

no reason to suppose that Congress wished courts to

ignore the traditional distinction between acts falling

within the scope and acts amounting to what the

older law called frolics or detours from the course of

employment.” Jd. But this case does not involve

harassment, and the biased supervisor was acting

within the scope of employment and not acting on a

frolic or detour. The discriminatory behavior of the

non-decisionmaking supervisor is easily anticipated,

and should be charged to BCI as one of the costs of

doing business. *

B. The Employer’s Investigation is Not a

Superseding Cause Sufficient to Break

the Causal Chain.

BCI argues that the employer should be liable

where one link in the chain is infected by bias,

* In Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998),

this Court recognized vicarious liability where the actions of the

supervisor “culminates” in tangible employment action. 524

U.S. at 765. In Ellerth, the Court recognized that supervisors

without final decisionmaking authority would “cause” tangible

employment action by officials higher in the decisionmaking

process. “The decision in most cases is documented in official

company records, and may be subject to review by higher level

supervisors. . . . The supervisor often must obtain the

imprimatur of the enterprise, and use its internal processes.”

524 U.S. at 762, citing Shager v. Upjohn Co., 913 F.2d 398, 405

(7 Cir. 1990) (noting that the supervisor did not fire plaintiff;

rather, the Career Path Committee did, but the employer was

still hable because the Committee functioned as the supervisor's

‘cat's-paw’); Kotcher v. Rosa & Sullivan Appliance Center, Inc.,

957 F.2d 59, 62 (2™¢ Cir. 1992) (“From the perspective of the

employee, the supervisor and the employer merge into a single

entity”). As applied to non-harassment discrimination, however,

all cases necessarily culminate in tangible employment action.

15

unless the causal chain is broken by an independent

investigation. BCI Brief at 44. Whether a causal

chain can be broken by a so-called independent

investigation is determined by traditional principles

of common law tort.

The traditional tort principles for determining

when an intervening event rises to the level of a

superseding cause are couched in the language of

negligence, but apply to intentional torts as well. See

Springer v. Seaman, 821 F.2d 871, 877 (1st Cir.

1987) (citing Restatement (Second) of Torts § 870

cmt. |, and § 431 cmt. d). The Restatement of Agency

(Second) lists six considerations to determine the

existence of a superseding cause.’ Every one of the

considerations listed in the Restatement militates

against treating an employers personnel

* “The following considerations are of importance in

determining whether an intervening force is a superseding

cause of harm to another: (a) the fact that its intervention

brings about harm different in kind from that which would

otherwise have resulted from the actor's negligence; (b) the fact

that its operation or the consequences thereof appear after the

event to be extraordinary rather than normal in view of the

circumstances existing at the time of its operation; c) the fact

that the intervening force is operating independently of any

situation created by the actor's negligence, or, on the other

hand, is or is not a normal result of such a situation; (d) the fact

that the operation of the intervening force is due to a third

person’s act or to his failure to act; (e) the fact that the

intervening force is due to an act of a third person which is

wrongful toward the other and as such subjects the third person

to liability to him; (f) the degree of culpability of a wrongful act

of a third person which sets the intervening force in motion.”

Restatement (Second) of Torts § 442. The issue of superseding

cause is not address in the Restatement of Torts (Third). See

Restatement of Torts (Third) Apportionment of Liability § 3

emt. c (2000).

16

investigation for discipline as a superseding

intervening cause. In particular, “[t}he courts are

quite generally agreed that [foreseeable] intervening

causes . . . will not supersede the defendant's

responsibility.” W. Prosser & W. Keeton, The Law of

Torts § 44, at 303 04 (5th Ed. 1984). See also Exxon

Co., U.S.A. v. Sofec, Inc., 517 U.S. 830, 837 (1996)

(“The doctrine of superseding cause is . . . applied

where the defendant's negligence in fact

substantially contributed to the plaintiffs injury, but

the injury was actually brought about by a later

cause of independent origin that was _ not

foreseeable”); Farr v. NC Machinery Co., 186 F.3d

1165, 1169 (9th Cir. 1999) (“the doctrine of

superseding intervening cause is at bottom an

expression of the requirement of foreseeability”)

(citing Robert E. Keeton, Legal Cause In the Law of

Torts 38-41 (1963)).

In Springer v. Seaman, 821 F.2d 871 (1st Cir.

1987), an independent contract postal carrier alleged

that the U.S. Post Office terminated his contract as

the result of an investigation instigated by third

parties who were racially motivated. Jd. at 873. The

district court granted the defendants’ motion for

summary judgment because it concluded that the

third parties’ actions were not the proximate cause of

the Plaintiffs contract termination. The Court of

Appeals reversed.

The Court of Appeals held that generally

proximate causation was a question of fact for the

jury. The Court concluded that “traditional tort rules

determine when an intervening cause rises to the

level of a superseding cause, destroying proximate

causation by the primary act and thus relieving the

defendant of liability.” Jd. at 877. The Court relied

17

upon the six factors set forth in the Restatement of

Torts (Second) § 442 and concluded that- the

defendants “have not shown that the investigation

and termination decision were _ sufficiently

independent of the individual defendants’

discriminatory actions to constitute superseding

causes under the Restatement as a matter of law.”

Id. at 879."

The Tenth Circuit did not apply the “scope of

employment” theory of agency. It did not analyze

whether BCI’s investigation could be an independent

superseding cause of Plaintiffs termination from

employment. If it had, it could not have concluded

that “an employer can avoid liability by conducting

an independent investigation of the allegations

against the employee.” 450 F.3d at 488.

'° Applying the Restatement considerations to this case, a) the

employer's investigation did not bring about a harm different in

kind from that which would otherwise have resulted from the

supervisor's conduct. The supervisor's conduct was intended to

result in disciplinary action against the employee, which is

exactly what happened; b) The employer's investigation and

subsequent termination was absolutely normal, as opposed to

extraordinary in view of the circumstances existing at the time

of its operation; c) The investigation is not independent of the

supervisor's conduct, but is the normal result of his report to

human resources; d) The employer's investigation is not the

result of a third person’s act; the supervisor and the human

resources representative conducting the investigation work for

the same employer; e) the employer's investigation is not in and

of itself wrongful and would not otherwise subject the employer

to lability; and f) the supervisor was motivated by race in

reporting the employee to human resources - the culpability is

high.

18

III. TITLE VII REQUIRES THE EXHAUSTION OF

ADMINISTRATIVE REMEDIES PRIOR TO

SUIT.

To bring a Title VII cause of action against a

federal agency in district court, an employee must

first exhaust all administrative remedies. 42 U.S.C.

§ 2000e 16(c); Brown v. General Services

Administration, 425 U.S. 820, 832 (1976). A plaintiff

must comply with regulatory and judicially imposed

exhaustion requirements, including the requirement

to pursue the administrative claim “with diligence

and in good faith.” Vinieratos v. United States Air

Force, 939 F.2d 762, 771 (9th Cir.1991)." Thereafter,

an aggrieved employee may file suit in district

court.”

" The employee “must initiate contact with a Counselor within

45 days of the date of the matter alleged to be discriminatory,”

29 C.F.R. § 1614.105(a)(1). The EEO officer then conducts an

investigation and comes to a conclusion The employee can then

file an appeal to the EEOC and thervafter proceed to federal

court, without the obligation to present evidence to an ALJ in

order to exhaust his or her administrative remedies. See 42 U.

S. C. § 2000e-16(c); 29 C.F.R §§1614 401. 1614.407. .

” “Within 90 days of receipt of notice of final action taken by a

department, agency, or unit referred to in subsection (a) of this

section, or by the Equal Employment Opportunity Commission

upon an appeal from a decision or order of such department,

agency, or unit on a complaint of discrimination based on race,

color, religion, sex or national onmgin ... an employee or

applicant for employment, if aggrneved by the final disposition

of his complaint . . . may file a civil action as provided in section

2000e-5 of this title, in which civil action the head of the

department, agency, or unit. as appropriate -shal' be the

defendant.” 42 U.S.C. § 2000e-16ic) Even a decision by an

administrative law judge 1s not binding upon an employee, who

may appeal that decision to either the EEOC or district court.

29 C.F.R. § 1614.110(a).

19

A Title VII plaintiff employed in the private

sector must file an administrative charge with the

EEOC wz.thin 180 or 300 days of the last act of

discrimination. 42 U.S.C. § 2000e 5(e)(1). If, after

investigating, the EEOC finds reasonable cause to

believe the charges are true, it undertakes to

eliminate the disputed employment practice “by

informal methods of conference, conciliation, and

persuasion.” 42 U.S.C. § 2000e 5(b). If the EEOC

finds no reasonable cause or if conciliation is

unsuccessful, the employee must obtain a right to

sue notice, and then file suit within 90 days. See 42

U.S.C. § 2000e 5(f)(1).

BCI argues that its own personnel policies and

efforts at self-policing discrimination should

supersede the administrative process created by

Congress and that, unlike the congressionally

mandated administrative process, its own

administrative process would be binding on the

employee. But Congress did not intend a corporate

human resources policy to substitute for either the

EEOC or the civil justice system.

ITV. CORPORATE EMPLOYMENT POLICIES ARE

NOT A SUBSTITUTE FOR THE

ADMINISTRATIVE PROCESS OR JUDICIAL

ENFORCEMENT OF TITLE VII.

BCI argues that it is the “model of equal

employment opportunity” because it has established

policies to encourage discrimination complaints and

employs highly trained human resources personnel

to oversee the process. According to BCI, “[t]he

relevant inquiry is whether the employer has

established an_ effective policy for reporting

allegations of discrimination and has any reason to

20

suspect that animus infected the relevant decision.

The employer is not liable if, despite its best efforts,

it has no reason to believe that some other employee

without decisionmaking authority has infected the

employment decision with racial bias.” BCI Brief at

15-16. According to BCI, “the relevant inquiry is not

whether BCI’s proffered reasons were ‘wise, fair or

correct’ but whether BCI “honestly believed those

reasons and acted in good faith upon those beliefs.”

BCI Brief at 26.

In effect, BCI argues that the determination

by corporate human resources personnel should be

sufficient to insulate it from lability — even if the

determination of no discrimination is wrong. But as

explained above, even a “no cause” finding by the

EEOC is not binding, and the employee may litigate

the merits of the discrimination claim de novo in

federal district court. It is extraordinarily unlikely

that Congress intended the judgment of corporate

human resources personnel to carry greater weight

than the EEOC or even Administrative Law

Judges.”

'° In the world according to BCI, an employee who is

dissatisfied with the employer's “independent” investigation

and its determination of “no discrimination” could still file a

charge of discrimination with the EEOC. In the employer’s

response to the EEOC, the employer would argue that the

alleged discriminatory supervisor was not the final

decisionmaker, and that the employer did an independent

investigation sufficient to break the causal chain. If the EEOC

confirmed these facts, its investigation would be concluded

without ever reaching the merits of the discrimination claim.

After having received a right to sue notice, the employee could

then file a Complaint in district court. In a summary judgment

motion, the employer would make the same arguments that

were made at the administrative level, and if confirmed the

21

Much like a police department's internal

investigation of an excessive force complaint, an

employers human resources personnel are not

unbiased decisionmakers. It would be nothing less

than folly to assume the neutrality of an employer's

“independent” investigation, and would be even

greater folly to accord its decision binding effect.

Cognitive social psychology teaches that once a

recommendation has been made, it will tend to

function as a prior theory — a tentative hypothesis.

As such, it can reasonably be expected to influence

the ultimate decisionmaker’s judgment in a

recommendation-consistent direction, even if the

employer conducts its own investigation. This

tendency is known as expectancy confirmation bias.

The empirical and_ theoretical literature on

expectancy confirmation bias is vast. Moreover,

case would be dismissed with prejudice and again without ever

reaching the merits. In the world according to BCI, its

judgment about the merits of an employee’s discrimination

claim is in effect res judicata.

'* See Charles G. Lord, Lee Ross & Mark Lepper, Biased

Assimilation and Attitude Polarization: The Effects of Prior

Theories on Subsequently Considered Evidence, 37 J.

Personality & Soc. Psychol. 2098 (1979); Einhorn J. Hillel &

Robin Hogarth, Confidence in Judgment: Persistence of the

Illusion of Validity, 85 Psychological Rev. 395 (1978); Mark

Snyder & William B. Swann, Hypothesis-testing Processes in

Social Interaction, 36 J. Personality & Soc. Psychol. 1202

(1978); John M. Darley & Paget Gross, A Hypothesis-

Confirming Bias in Labeling Effects, 44 J. Personality & Soc.

Psychol. 20 (1983)(demonstrating how expectancy confirmation

bias leads to the reinforcement of social stereotypes); John M.

Darley & Russell H. Fazio, Expectancy Confirmation Processes

Arising in the Social Interaction Sequence, 35 Amer.

Psychologist 867 (1980)(same) Mark Snyder, Seek and Ye Shall

Find: Testing Hypotheses About Other People, in Social

Cognition: The Ontario Symposium 277 (E. T. Higgins, E. P.

22

many legal scholars seriously question whether

employer anti-discrimination policies are effective in

preventing discrimination. E.g. Susan Bisom-Rapp,

An Ounce of Prevention is a Poor Substitute for a

Pound of Cure: Confronting the Developing

Jurisprudence of Education and Prevention in

Employment Discrimination Law, 22 Berkeley J. of

Employment and Labor Law 1 (2001); Joanna L.

Grossman, The Culture of Compliance: The Final

Triumph of Form Over Substance In Sexual

Harassment Law, 26 Harv. Women’s L.J. 3 (2003).

Congress created a comprehensive

administrative process which employees are required

to initiate and exhaust as a prerequisite for filing

suit under Title VII. BCI would have this Court

require the exhaustion of corporate administrative

remedies as a substitute for administrative remedies

required by the EEOC, which would then insulate

the employer from liability even where its decision

was wrong. If any employer investigation is

sufficient to break the causal chain and insulate the

employer from liability, then the employer will

invariably conduct whatever investigation is

required to achieve that end. The employee will then

be denied the opportunity to litigate the merits of his

claim in district court. Congress never intended

employer internal processes to replace the civil

justice system.

Herman, & Mark P. Zanna, eds., 1981)(review of literature on

hypothesis-confirming strategies); P.;C. Wason & P.N. Johnson-

Laird, The Psychology Of Reasoning: Structure and Content

(1972); P. C. Wason, On the Failure to Eliminate Hypotheses in

a Conceptual Task, 12 Quarterly Rev. of Exp. Psychol. 129

(1960).

23

A. Employers Have a Strong Incentive to

Implement Anti-Discrimination Policies.

BCI vehemently argues that Congress

intended the provisions of Title VII be prophylactic,

and that employers should have an incentive to

adopt and implement corporate policies to root out

discrimination in the work place. Those incentives

already exist, and additional incentives are not

needed.

In Burlington Industries, Inc. v. Ellerth, 524

U.S. 742 (1998), the Court established a two prong

affirmative defense to defeat vicarious liability: “(a)

that the employer exercised reasonable care to

“prevent and correct promptly any sexually harassing

behavior, and (b) that the plaintiff employee

unreasonably failed to take advantage of any

preventive or corrective opportunities provided by

the employer or to avoid harm otherwise.” 524 U.S.

at 765. But it is clear that “[n]Jo affirmative defense is

available, however, when the _ supervisor's

harassment culminates in a tangible employment

action, such as discharge, demotion, or undesirable

reassignment.” Jd. In only those cases which do not

culminate in tangible employment action, a

successful affirmative defense requires an employer

to create sufficient policies and practices to prevent

and correct sexually harassing behavior. E.g., Holly

D. v. California Institute of Technology, 339 F.3d

1158, 1177 (9th Cir. 2003)(reasonable care to prevent

sexual harassment where employer promulgated a

written policy which defined prohibited behavior,

identified contact personnel, and_ established

procedures to investigate and resolve any claims,

made policy available in several publications, and

conducted periodic training on sexual harassment).

24

In Kolstad v. American Dental Ass'n, the Court

established a three part inquiry to address when the

evidence supports a punitive damages verdict. 527

U.S. at 530. The Court reaffirmed that the employee

must demonstrate that “the respondent engaged in a

discriminatory practice or practices with malice or

_ with reckless indifference to the federally protected

rights of an aggrieved individual,” but rejected the

argument that the heightened standard requires

that an employer's behavior be “egregious.” Kolstad,

527 U.S. at 534 35. The Court also held that, “in the

punitive damages context, an employer may not be

vicariously liable for the discriminatory employment

decisions of managerial agents where those decisions

are contrary to the employer’s ‘good faith efforts to

comply with Title VII.” Jd. at 545. This good faith

defense to punitive damages requires that the

employer adopt and implement anti-discrimination

policies. E.g. Cadena v. Pacesetter Corp., 224 F.3d

1203, 1210 (10th Cir. 2000) (“[T]o avail itself of

Kolstad’s good-faith compliance standard, an

employer must at least adopt anti-discrimination

policies[,] make a good taith effort to educate its

employees about these policies, and ‘make good

efforts to enforce’ the policy”).

BCI argues that allowing liability to be

premised upon a discriminatory motive of a non-

decisionmaker who infects the decisionmaking

process will create a disincentive for employers to

maintain a centralized decisionmaking process as a

preventative measure. BCI Brief at 47. To the

contrary, imputing employer liability for the acts of

its agents will create an even stronger incentive to

train managers and scrutinize them to prevent

discriminatory practices. Moreover, there is no

reason to believe that employers will ignore the

25

strong incentives which already exist if the Court

declines BCI’s invitation to subordinate the EEOC

administrative process and the civil justice system to

corporate human _ resource _ anti-discrimination

policies.

B. A Title VII Plaintiff is Not Required to

Complain About Discrimination to

Corporate Human Resources.

The second prong of the Ellerth affirmative

defense generally requires a victim of harassment to

complain to corporate management. Ellerth, 524 U.S.

at 765. Harassment, however, is distinguishable

from other forms of discrimination.

Victims of harassment necessarily know they

are being harassed, and the expectation that they

should complain seems reasonable. Employees who

are subject to adverse employment actions, however,

may not be aware that they are victims of illegal

discrimination. Often a review of a co-worker’s

personnel files is required to demonstrate that an

employee is being treated differently from those not

within a protected classification. E.g., Barnes v. St.

Catherine’s Hospital, 563 F.2d 324, 327 (7th Cir.

1977) (“The plaintiff compiled a __§ statistical

compilation drawn from the personnel files of

employees discharged by the hospital in an attempt

to demonstrate that white employees’ were

consistently given more written warnings and were

permitted more infractions of the hospital rules prior

to any suspension or termination against them”).

Access to the personnel files of co-workers is

routinely and understandably denied to employees.

Access to other information exclusively in the

possession of the employer may be necessary to

establish a_ statistical disparity or pattern and

26

practice of discrimination. E.g., Obrey v. Johnson,

400 F.3d 691, 694 (9th Cir. 2005) (“In a case in which

the plaintiff has alleged that his employer has

engaged in a ‘pattern or practice’ of discrimination,

“[s]tatistical data is relevant because it can be used

to establish a general discriminatory pattern in an

employer's hiring or promotion practices. Such a

discriminatory pattern is probative of motive and can

therefore create an inference of discriminatory intent

with respect to the individual employment decision

at issue”). Often this information is only uncovered

in litigation during the process of formal discovery,

and almost always over the vigorous objections of the

employer. Because many employees may be unaware

that their treatment is based upon a discriminatory

motive or unaware how to prove it, it would be

unreasonable to expect them to complain before the

adverse action or “within a _ reasonable time

thereafter.”

BCI would apparently require that the

employee complain about discrimination prior to the

adverse action or “within a reasonable time

thereafter.” BCI Brief, at 17. Employees are

apparently left to guess at what constitutes “a

reasonable time thereafter.” This issue is more than

academic because in effect this requirement would

create a new statute of limitations which would be

dramatically shorter than anything contemplated by

Congress.

V. THE ALLEGED BURDEN ON EMPLOYERS IS

VASTLY OVERSTATED.

A. The Defendant Preserves All Defenses

Regardless of Imputed Liability.

27

Defendant and amict in support

mischaracterize the Tenth’s Circuit’s ruling. BCI

argues that the court “held that liability attaches

merely upon a showing of a causal relationship

between any employee’s biased conduct and an

employment decision.” BCI Brief at 18. The Advisory

Council argues that “under Tenth Circuit’s ana’) sis,

if a plaintiff alleges discrimination resulting froza the

bias of a subordinate, non-decionmaking employee,

liability will attach unless the employer can

demonstrate that it conducted an ‘independent’

investigation which confirmed its decision was not

caused by the alleged underlying bias.” Advisory

Council Brief at 9-10. The Advisory Council further

argues that the burden of proof shifts to the

employer to refute discrimination without the

necessity of Plaintiff proving pretext, and that this

model would be a fundamental! deviation from the

principles established by this Court in McDonnell

Douglas. Id. But this is incorrect.

The only issue before the Court concerns the

viability of the so called innocent decisionmaker

defense, and under what circumstances it applies to

foreclose the employer's financial responsibility for

the acts of its agents. The failure to prevail under

this affirmative defense does not automatically

result in employer liability and does not waive any

traditional defenses otherwise available to the

employer. It does not obviate the employee's

obligation under McDonnell Douglas to prove a

prima facie case and then subsequently to prove

pretext. Under the mixed-motive analysis, it does not

obviate the necessity to prove that a protected

classification was a motivating factor.

28

On remand BCI will have the opportunity to

persuade the jury that race was not a motivating

factor or that it would have taken the same action

even without consideration of race.

B. An Adequate Investigation Must

Determine the Truth of the Allegations

and That They Are Not Pretextual.

It should be emphasized that no investigation

is adequate to break the causal chain unless it

constitutes an intervening and superseding cause.

The Tenth Circuit erroneously ruled, however, that

in order to avoid imputed liability the employer must

prove that it conducted an independent investigation

which demonstrates that it would have made the

same decision even without the input from the

biased non-decisionmaker. The Court then ruled that

“fijndeed, under our precedent, simply asking an

employee for his version of events may defeat the

inference that an employment decision was racially

discriminatory.” 450 F.3d at 488. Unbelievably, BCI

argues that even the minimal effort of interviewing

the employee would be excessive.

To achieve the intended purpose, at a

minimum any employer investigation must seek to

determine the truth of the allegations against the

employee and that they are not pretextual. Such an

investigation will require considerably more than

asking the employee for his version of events. It may

require interviewing witnesses identified by the

employee or others and reviewing documents to

determine the possible existence of disparate

treatment. Often whether the employer has satisfied

this burden will be a question of fact for the jury. In

this case, the bare bones investigation conducted by

BCI does not satisfy this standard as a matter of law.

29

BCI argues that setting minimum standards

for investigations ignores the realities of day-to-day

human resources administration, that

administrators in each corporation should have

discretion to determine what type of investigation is

appropriate, and that courts must not be “super

personnel departments.” BCI Brief at 46. But this

Court has already required that human resources

departments exercise “reasonable care” to prevent

and protect against illegal harassment. Requiring

that they exercise “reasonable care” to assure the

truth of the allegations against an employee and that

they are not pretextual intrudes no more into the

employer's personnel functions than the Court has

already done in Ellerth.

C. An Adequate Investigation Does Not

Impose An Undue Burden On Employers.

BCI argues that the requirement of some

investigation to break the causal chain would result

in an extraordinary burden — particularly for large

employers involving all adverse actions such as

raises, demotions, promotions, suspensions. Brief at

18, 45. But BCI dramatically overstates its burden.

Under this theory, if the employer seeks to

preserve the so called innocent decisionmaker

defense, it must prove that they would have made

the same decision without the input of the biased

supervisor before the adverse action becoming final.

Logically, this would be an affirmative defense just

like the affirmative defense to damages under Title

VII. See 42 U.S.C. § 2000e 5(g)(2)(B). But even if the

employer decides to rubber stamp, it can still avoid

damages by proving after the adverse action that it

would have made the same decision even without

consideration of the protected characteristic. Jd. In

30

both cases, the factual analysis remains essentially

the same, only the timing differs. The issue for the

employer, therefore, is not what it has to prove, but

when it has to prove it.

Employer liability should be imputed where a

biased non-decisionmaker acting within the scope of

employment has caused an adverse employment

action without any intervening and superseding

cause. The minimal investigation conducted by BCI

was not sufficient to break the causal chain initiated

by a biased supervisor. Congress did not intend to

replace the civil justice system with an employer's

human resource policies.

CONCLUSION

For the above reasons, the decision of the court

of appeals below should be affirmed.

Respectfully submitted,

Jeffrey L. Needle

Law Office of Jeffrey Needle

119 Ist Ave. South - Suite #200

Seattle, WA 98104

(206) 447-1560

Attorney for Amicus Curiae

March 27, 2007