Amicus Curiae Brief — Sprint/United Management Co. v. Mendelsohn

j s4 CW

UY No. 06-1221

IN THE

Supreme Court of the United States

SPRINT/UNITED MANAGEMENT Co.,

Petitioner,

Vv.

ELLEN MENDELSOHN,

Respondent.

On Writ or CERTIORARI TO THE UNITED STATES

Court OF APPEALS FOR THE TENTH CIRCUIT

— —_

— Shee

Brier or Amici CuriAg Lawyers’ CoMMITTEE FOR Civit RIGHTS

UNpDER Law, Asian AMERICAN JUSTICE CENTER, MEXICAN AMERICAN

LEGAL DEFENSE AND EDUCATIONAL FuND, NATIONAL ASSOCIATION

FOR THE ADVANCEMENT OF CoLorep Peopte, NAACP LEGAL

DEFENSE AND EDUCATIONAL FunD, [Nc., NATIONAL ASSOCIATION OF

SoctaL Workers, NATIONAL EMPLOYMENT LAWYERS ASSOCIATION,

NATIONAL PARTNERSHIP FOR WOMEN & FAMILIES, NATIONAL

Women’s Law CentER, PEOPLE FOR THE AMERICAN Way

FOUNDATION, PueRTO RICAN LEGAL DEFENSE AND EDUCATION

FunbD, AND WomMEN EmpLoyvep IN Support OF RESPONDENT

——__—

MICHAEL FOREMAN MICHAEL B. DE LEEUW

MEGAN MoRAN-GATES Counsel of Record

LAWYERS’ COMMITTEE Darcy M. GopDARD

For Crvit Ricuts UNpER Law ELIZABETH A. WALSH

1401 New York Ave. NW SARAH L. HINCHLIFF

Suite 400 FRIED, FRANK, HARRIS,

Washington, DC 20005 SHRIVER & Jacospson LLP

(202) 662-8600 One New York Plaza

New York, NY 10004

(212) 859-8000

Counsel for Amici Curiae

October 19, 2007

TABLE OF CONTENTS

ie STEED siccnicosnncpncsnsinnesnccreenstncenignn iii

INTEREST OF AMICI CURIA ..............ccccccesccccssssessossee 1

SUMMARY OF ARGUMENT. ............cc0cccccsscccsssscsscsseosees 2

IE citecnscicisncicnilicuiietnciiisitpiictniinininseiinveanininisenvel 4

I. THE ABILITY TO INTRODUCE “OTHER

SUPERVISOR” EVIDENCE IS VITAL TO

EFFECTIVE ENFORCEMENT OF OUR

NATION’S ANTI-DISCRIMINATION

A. Eliminating Discrimination is a Nationally

Recognized Priority That is Furthered by

the Admission of “Other Supervisor”

IR siceneserseneennesrictmimicinnanisniancvtnannieneneesscd 6

B. Because Direct Evidence of Discrimination

is Rarely Available, Circumstantial

Evidence, Including “Other Supervisor”

Evidence, May Be Critical to Proving

Employment Discrimination.............c::.00000+ 9

If. JURIES CAN ANALYZE “OTHER

SUPERVISOR” EVIDENCE PROPERLY AND

WITHOUT UNDUE PREJUDICE TO THE

ee iiciire sinctenasinntinieseentnidonnehianiiioniapinndinnieinni 14

A. Juries Have Long Been Trusted to Evaluate

Evidence and to Make Unbiased Decisions

in Even the Most Emotionally Charged

SSID: wicisiesisochecsesihieiinealapnieniuidinahabidtciihdaieiabancitillbinia 14

ii

TABLE OF CONTENTS - continued

B. Juries are Fully Capable of Properly

Evaluating “Other Supervisor” Evidence in

Cases Alleging Discrimination. ..................+++ 16

C. The Trial Court's Limiting Instructions Can

Assist a Jury to Determine the Weight to be

Afforded to “Other Supervisor” Evidence. ..19

Ill. ADMITTING RELEVANT “OTHER

SUPERVISOR” EVIDENCE WILL NOT

UNNECESSARILY BURDEN COURTS OR

ee ercnsssnccsnsiccconensitinhombestnsemenenentesboons 21

A. The Federal Rules of Evidence Provide

Judges with Safeguards to Protect Against

Uninformative or Duplicative Evidence.......21

B. Sprint's and Its Amici’s Fears of Groundless

Employment Discrimination Claims are

I ciininictncoanicneninteniiiapscninnicgmintnnimennined 23

C. Admitting Other Supervisor Evidence

Should Reduce Discrimination Claims by

Encouraging Employers to Adopt

Reasonable Measures to Ensure

Compliance with Anti-Discrimination

I cctctaineiicitnniinnigcetnsicceiiducsinnenineionininneneiiianiait 24

ET ticsiidicnccncilaiitscdaesabscadsiicncsiaiuininsuatinamesiieil 27

TABLE OF AUTHORITIES

CASES Page

Adler v. Wal-Mart Stores, Inc.,

144 F.3d 664 (10th Cir. 1998) ..0..... cc ecceeceeeeeeen 10 n.12

Aman v. Cort Furniture Rental Corp.,

85 F.3d 1074 (3d Cir. 1996) ...............cscsserescesesreceerers 12

Blakely v. Washington,

BEE Ey, Fe Oe cece sicesencesesccceenccnesccessesnosencaionnsenes 13°.

Coghlan v. American Seafoods Co. LLC, -

413 F.3d 1090 (9th Cir. 2005) ..........eccscceeseeeeeeene 10 n.12

Coleman v. Giles, .

140 Fed. Appx. 895 (11th Cir. 2005)..................- 16 n.16

Combs v. Plantation Patterns,

106 F.3d 1519 (11th Cir, 1997) ........cccceeeceeeseeeee 10 n.12

Conway v. Electro Switch Corp.,

GD FB TED Chat Cae. BOGT)2xnosevecrcccccevccnscsssccsescsnees 8 n.9

Crawford v. Formosa Plastics Corp., Louisiana,

234 F.3d 899 (5th Cir. 2000).............ccccecseseeeeeeeees 10 n.12

Cuddy v. Carmen,

GOS FB Ge GAL... COW. TIGR) nsrcvcescoscvesessscsonessess 10 n.12

Cummings v. Standard Register Co.,

265 F.3d 56 (1st Cir. 2001)................0. 5 n.4, 22, 23 n.23

Desert Palace, Inc. v. Costa,

Se SN tonncietesesihvinnietnionantdininniiennieses 11, 12n.14

iv

TABLE OF AUTHORITIES - continued

Duncan v. Louisiana,

EE sensinitsntetnitsinicssinenishsocsenniapbisinibiennieiiatt 14

Durr v. Mitchell,

487 F.3d 423 (6th Cir. 2007) 0.0.0.0... eeeeeeeeeteeee 16 n.16

EEOC v. Liberal Rhode Island School District,

314 F.3d 920 (8th Cir. 2002) 0.0... eee eects 10 n.12

Estes v. Dick Smith Ford, Inc.,

85 F.2d 1097 (Sth Cir. 1988).................cssssscessseee 11, 22

Franks v. Bowman Transportation Co.,

FC etccnsivccennnerensscnseveessosmnetacsnseneenens 7n8

Huddleston v. United States,

IE crrricenrcenascsnanccuncecmnevennesssnencsenuines 4n.2

Hunter v. Allis-Chalmers Corp.,

797 F.2d 1417 (7th Cir. 1986) .............00000. 8 n.9, 23 n.23

Jadimarco v. Runyon,

190 F.3d 151 (3d Cir. 1999) ............ceccccssscesseesees 10 n.12

International Brotherhood of Teamsters

v. United States, 431 U.S. 324 (1977) .0...... cece 8

Johnson v. California,

a I snicisieieineiidietiiciactniiainsigseiisiles 7n8

Jordan v. City of Cleveland,

464 F.3d 584 (6th Cir. 2006)... eeeeeeeneeee 10 n.12

LaClair v. City of St. Paul,

1B7 F.3d G26 Gtr Cie. 1999) ...........cccsceceresserssressseoee 8n9

>

V

TABLE OF AUTHORITIES - continued

Markman v. Westview Instruments, Inc.,

52 F.3d 967 (Fed. Cir. 1995)...............ccccccrorssosssorerenress 18

McDonnell Douglas Corp. v. Green,

GR GR. FR GO cece sccncenvnenesecescccenemesnnninvininenesnnnsts 5

Mendelsohn v. Sprint/United Mgmt. Co.,

466 F.3d 1223 (10th Cir. 2006) ...........ccccceeceseeseees passim

Meritor Savings Bank, FSB v. Vinson,

GF TA Be Ge scerencnsnecvecccnsencenmnsenevennssennmmnsii 9n.11

Michelson v. United States,

Be Oy Br Ge esse seserresenrnevesenseneneionnonsnsovonenesvensiaien 19

Morris v. WMATA,

FOR POG WEST (DC. Cie. 2GGB) ...rccveccecsccsccsseceresseese 5 n.4

NAACP v. FPC,

SD ae GP srctencccestncanienessarninencemmeiiiiiaiien 7n8

Oest v. Illinois Department of Corrections,

240 F.3d 605 (7th Cir. 2001) ...........:cccccseeeeesneeees 10 n.12

Patterson v. McLean Credit Union,

a ee Se iicinictiicsnscncicsnicsnoiinivinnsniniunen 7n8, 8 n.9

Philip v. ANR Freight System, Inc.,

945 F.2d 1054 (8th Cir. 1991)... 5 n.4, 23 n.23

Pinchback v. Armistead Homes Corp.,

907 F.2d 1447 (4th Cir. 1990) .........cceceeeeseeseeees 10 n.12

Price Waterhouse v. Hopkins,

A OP, GP IO vcesocscccscnssesessscnstschensstnieneninaniaasinniinan 9

vi

TABLE OF AUTHORITIES - continued

Quinn v. Consolidated Freightways Corp.

of Delaware, 283 F.3d 572 (3d Cir. 2002).........

Riordan v. Kempiners,

831 F.2d 690 (7th Cir. 1987) ....cccccsssssssesssessseee

Rose v. Mitchell,

443 US. 545 (1979) ..ccccccccscsessssssseessesesssessesesvee

Rosen v. Thronburgh,

928 F.2d 528 (2d Cir. 1992) ..ecccccccsseseveseeseeeeee

Ryder v. Westinghouse Electric Corp.,

128 F.3d 128 (3d Cir. 1997) ..ccccccccccssvsvsseeseeeeee

Thomas v. Eastman Kodak Co.,

183 F.3d 38 (Ist Cir. 1999).....cccccccsssevscseseeeseee

Trans World Airlines, Inc. v. Thurston,

469 US. 111 (1985) o....cccccccccsesssveessesseseeseeveseee

United States v. De La Rosa,

911 F.2d 985 (5th Cir. 1990) ......ccccccscsssseeeeseeee

United States v. Harvey,

117 F.3d 1044 (7th Cir. 1997) ......cccccccccceseseeeee

United States Postal Service Board of Governors

v. Aikens, 460 U.S. 711 (1983)..........0ccccceee

Zafiro v. United States,

506 U.S. 534 (1993) ...cccccccscsssvsssseesssssesesensesveeee

vii

TABLE OF AUTHORITIES - continued

CONSTITUTIONAL PROVISIONS _

ee A Wn ainmmaiael 16.17

EEE enn ee see mre nese re 16n.17

NN I I i airclcalinitacentiaiiid 16 n.17

RULES

eee 24

ele 5, 21

I 6, 22

By ele GE GED crevccesccensccnntcssccncssnsescsscsnctsnnieniscti’ 5n4

ARTICLES

Paul D. Carrington, The Civil Jury and American

Democracy, 13 Duke J. Comp. & Int'l L. 79

TET dacicicncinsetesansinnssenenitgesinitiansacneabinddmnimnteisicnapenessnagsens 16

Kevin M. Clermont & Theodore Eisenberg,

Plaintiphobia in the Appellate Courts: Civil Rights

Really Do Differ From Negotiable Instruments,

2002 U. Ill. L. Rev. 947 (2002). .........ccc:ccccceeeeseeees lin3

Kevin M. Clermont & Stewart J. Schwab,

How Employment Discrimination Plaintiffs

Fare in Federal Court, 1J. of Empirical Legal

I OE ciececcscccnccenensineniiensiilineeneensomiones 11 n.13

Vili

TABLE OF AUTHORITIES - continued

Lisa Kern Griffin, ‘The Image We See Is Our Own':

Defending the Jury's Territory at the Heart of the

Democratic Process, 75 Neb. L. Rev. 332 (1996).......... 21

Paula L. Hannaford, B. Michael Dann, & G.

Thomas Munsterman, How Judges View Civil

Juries, 48 DePaul L. Rev. 247 (1998)................... 20 n.21

Jennifer K. Robbennolt, Evaluating Juries by

Comparison to Judges: A Benchmark For Judging?,

32 Fla. St. U. L. Rev. 469 (2005)...........ccccceseesereerennees 20

Richard C. Waites & David A. Giles, Are Juror

Equipped to Decide the Outcome of Complex Cases?,

29 Am. J. Trial Advoc. 19 (2005).............+. 17 n.18, n.19

1

INTEREST OF AMICI CURIAE

The Lawyers’ Committee for Civil Rights Under

Law, Asian American Justice Center, Mexican

American Legal Defense and Educational Fund,

National Association for the Advancement of Colored

People, NAACP Legal Defense and Educational Fund,

Inc., National Association of Social Workers, National

Employment Lawyers Association, National

Partnership for Women & Families, National Women’s

Law Center, People for the American Way

Foundation, Puerto Rican Legal Defense and Education

Fund, and Women Employed submit this Brief as amici

curiae with the consent of the parties,’ in support of

Respondents’ argument that “other supervisor”

evidence should not be per se inadmissible under the

Federal Rules of Evidence.

Amici represent large segments of our society

who rely on our nation’s civil rights laws to ensure that

they are not victims of workplace discrimination.

Amici submit this brief because of the direct impact this

ruling will have on victims of unlawful discrimination.

If the victim’s evidence is limited by a per se rule of

exclusion, then unlawful discrimination may go

without remedy. The interests of the employees served

by amici will be directly affected by this Court's ruling

in this matter.

Summary descriptions of each of the amici are

included in the appendix to this brief.

' Counsel for amici curiae authored this brief in its entirety. No

person or entity other than amici curiae, their staffs, or their

counsel made a monetary contribution to the preparation or

submission of this brief. Letters of consent to the filing of this

brief have been filed with the Clerk of the Court pursuant to

Supreme Court Rule 37.3.

2

SUMMARY OF ARGUMENT

Circumstantial evidence, such as “other

supervisor’ evidence, that an employer either tolerates

or encourages unlawful discrimination may be a key

component of a victim’s proof of intentional

discrimination. The issue presented in this case is as

important as it is simple—whether this Court should

decline Petitioner Sprint/United Management

Company’s (“Sprint”) suggestion of a rigid per se rule

excluding all “other supervisor” evidence in all

employment discrimination cases. The per se rule of

exclusion urged by Sprint would replace the commonly

understood and universally followed analysis for

determining admissibility under the Federal Rules of

Evidence, which gives trial courts the flexibility to

control the presentation of evidence based on the

specific facts at issue in each of the individual cases

before them.

Because Respondent and the Solicitor General

provide a detailed analysis of why “other supervisor”

evidence may be both relevant and not unduly

prejudicial, this brief will focus instead on the

devastating effect that the per se exclusion of such

evidence would have on employees’ ability to prove

individual claims of discrimination. This brief will also

refute several misconceptions presented by Sprint and

its business amici regarding the effect of admitting

“other supervisor” evidence.

As discriminatory employment practices

become less overt, and thus increasingly difficult to

prove, plaintiffs who bring discrimination actions must

rely more and more on circumstantial evidence to

establish that they have been discriminated against.

Endorsing the per se rule requested by Sprint, which

3

would exclude all “other supervisor” evidence, would

further reduce these plaintiffs’ already limited store of

available evidence to prove and combat illegal

discrimination. In so doing, it would undermine our

nation’s express commitment to _ eradicating

discrimination.

Sprint’s and its amici’s professed mistrust of

juries is no basis for excluding all “other supervisor”

evidence. The Court and recent scientific scholarship

have recognized that juries can and do function as fair

and unbiased arbiters of the evidence presented to

them, and that individual jurors can and should be .

trusted to make sound decisions free from emotional or .

personal bias. Juries are routinely asked to parse

through even the most complex and difficult facts, and

to decide emotionally charged matters including,

literally, matters of life and death. There is simply no

justification for treating juries differently in cases

involving employment discrimination.

Rejecting Sprint’s proposed per se rule of

exclusion will not create a significant burden on courts

or defendants. The Federal Rules of Evidence already

provide sufficient safeguards against the admission of

irrelevant, unduly prejudicial, or cumulative evidence;

pursuant to the rules, trial courts routinely decide

questions of admissibility that are no more or less

complicated than the question of whether “other

supervisor” evidence should be admissible in certain

employment discrimination cases. Moreover,

admitting “other supervisor” evidence does not change

the legal standard for determining liability in

discrimination cases. Rejection of Sprint’s proposed

per se rule of exclusion will not encourage plaintiffs to

pursue frivolous lawsuits, despite Sprint's and its

4

amici’s unsubstantiated arguments to the contrary. A

rule that permits the admission of “other supervisor”

evidence in appropriate cases will actually encourage

compliance with anti-discrimination laws, thus

reducing discrimination claims.

ARGUMENT

The Federal Rules of Evidence provide an

appropriate vehicle for analysis of the admissibility of

“other supervisor” evidence.2 As recognized by the

Solicitor General, this evidence is both relevant and not

unduly prejudicial in many circumstances. (Solicitor

General's Br. at 16, 23-24.)°

2 Sprint and its amici argue that in order to lay a proper foundation

for “other supervisor” evidence, the plaintiff must present

independent evidence demonstrating that Sprint has company-

wide discriminatory practices. (Chamber of Commerce's Br. at 7;

Pet's Br. at 31-32.) As the Solicitor General correctly points out

(Solicitor General’s Br. at 21), this argument is not supported by

the Federal Rules of Evidence, which indicate that a foundation is

laid when the evidence as a whole could lead a reasonable fact-

finder to conclude that the employer has a policy of

discrimination. See Fed. R. Evid. 104(b); of. Huddleston v. United

States, 485 U.S. 681, 689-90 (allowing evidence of “other wrongs” if

a jury could conclude by a preponderance of the evidence as a

whole that the “other wrongs” occurred). This burden can be, and

often is, met with circumstantial evidence. See, e.g., United States v.

Harvey, 117 F.3d 1044, 1049 (7th Cir. 1997).

3 Despite its characterization of “other supervisor” evidence as

“sometimes” admissible, the Solicitor General's brief demonstrates

that this type of evidence is often relevant, rarely unduly

prejudicial, and admissible in most circumstances. (See Solicitor

General's Br. at 14 (recognizing that “Rule 401 sets a purposely

low gateway threshold for the introduction of evidence,” which

“may be satisfied even if the evidence ‘only slightly affects the

trier’s assessment of the probability of the matter to be proved’”)

(internai citations omitted); id. at 23 (acknowledging that “when

other-supervisor evidence has substantial probative force,

5

Rule 401 of the Federal Rules of Evidence states

that evidence is relevant if it has “any tendency” to

make a party’s claim more probable. In many

‘circumstances, “other supervisor” evidence will make

it more probable that the employer has a company-

wide practice of discrimination. It may help to prove

an employer’s motive and intent to discriminate,* and

may be especially germane to proving that an

employer's actions are a pretext for discrimination.

Indeed, the Court held that “evidence that may be

relevant to any showing of pretext includes facts as to .

. . [an employer]‘s general policy and practice with respect to

minority employment.” McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 804-05 (1973) (emphasis added).°

generalized concerns of jury confusion and unfair prejudice

ordinarily do not outweigh, much less substantially outweigh, the

probative value of the other-supervisor evidence and therefore do

not justify the exclusion of the evidence under Rule 403”)

(emphasis in original).)

4 See Fed. R. Evid. 404(b); see also Cummings v. Standard Register Co.,

265 F.3d 56, 63 (1st Cir. 2001) (stating that “other supervisor”

evidence of a discriminatory atmosphere may be relevant to

showing “the corporate state-of-mind” at the time of the plaintiff's

termination); Philip v. ANR Freight Sys., Inc., 945 F.2d 1054, 1056

(8th Cir. 1991) (concluding that evidence of discrimination claims

by other employees “may be critical for the jury’s assessment of

whether a given emplo) .: was more likely than not to have acted

from an unlawful motive”); Morris v. WMATA, 702 F.2d 1037, 1046

(D.C. Cir. 1983) (finding that testimony from other employees

showing a broad practice of retaliation “has some probative value

on the issue of the employer's likely motivation here”).

> Contrary to the Chamber of Commerce's assertion that

McDonnell Douglass held that a plaintiff is limited to using

statistics to prove an employer's general policy of discrimination

(Chamber of Commerce’s Br. at 8), there is nothing in that opinion

or other opinions that indicate the Court meant to restrict

plaintiffs from also using other forms of evidence. See McDonnell

Douglas, 411 US. at 805. Indeed the opposite is true; as discussed

6

Thus, when determining whether to permit such

evidence at trial, the trial court should - and must -

determine whether, based on the facts of that

individual case, the proposed “other supervisor”

evidence has “any tendency” to demonstrate the

employer's general policies and practices with regard

to protected employees.

Relevant evidence may, of course, be excluded if

its probative value is substantially outweighed by its

prejudicial effect. Fed. R. Evid. 403. This, too, involves

a fact-intensive inquiry that would be subverted by a

per se rule excluding all “other supervisor” evidence.

I. THE ABILITY TO INTRODUCE “OTHER

SUPERVISOR” EVIDENCE IS VITAL TO

EFFECTIVE ENFORCEMENT OF OUR

NATION’S ANTI-DISCRIMINATION LAWS.

A. Eliminating Discrimination is a Nationally

Recognized Priority That is Furthered by

the Admission of “Other Supervisor”

Evidence.

Our employment laws reflect our national

commitment to eliminating discrimination in the

workplace. The Civil Rights Act of 1964 affirmed our

nation’s commitment to eradicate discrimination in the

United States. In signing the bill, President Lyndon B.

Johnson stated that “[the denial of equal rights} cannot

continue. Our Constitution, the foundation of our

Republic, forbids it. The principles of freedom forbid

it. Morality forbids it. And the [Civil Rights Act]

infra, the Court has recognized the need to protect the ability to

introduce all relevant evidence.

7

forbids it.”© More than 25 years later, President George

H. W. Bush reiterated the country’s continued

commitment to equality when he signed the Americans

with Disabilities Act to “remove the physical barriers

we have created and the social barriers we have

accepted. For ours will never be a truly prosperous

nation until all within it prosper.”” In keeping with

these fundamental principles, the Supreme Court has

time and again recognized that anti-discrimination

laws reflect an “important national policy.” United

States Postal Serv. Bd. of Governors v. Aikens, 460 U.S.

711, 716 (1983).8

The Court's ruling in this case will have broad

implications for the realization of the national goal of -

eliminating discrimination in the workplace. First,

although Respondent's claim is limited to age

discrimination, a per se rule excluding all “other

supervisor” evidence would ‘severely hamper future

plaintiffs’ ability to prove all types of employment

6 Lyndon B. Johnson, President of the U.S., Remarks Upon Signing

the Civil Rights Bill (July 2, 1964).

? George H. W. Bush, President of the U.S., Remarks on the

Signing of the Americans with Disabilities Act (July 26, 1990).

8 See also Franks v. Bowman Transp. Co., 424 U.S. 747, 779 (1976)

(stating that “ameliorating the effects of past racial discrimination

[is] a national policy objective of the ‘highest priority’”); Johnson v.

California, 545 U.S. 162, 172 (2005) (recognizing “the overriding

interest in eradicating discrimination from our civic institutions”);

Patterson v. McLean Credit Union, 491 U.S. 164, 174 (1989) (pointing

out “society's deep commitment to the eradication of

discrimination based on a person’s race or the color of his or her

skin”); Rose v. Mitchell, 443 U.S. 545, 578 (1979) (noting the

“compelling constitutional! interest of our nation in eliminating all

forms of racial discrimination”); NAACP v. FPC, 425 U.S. 662, 665

(1976) (concluding, “the elimination of discrimination from our

society is an important national goal”).

8

discrimination.? Second, if this Court were to adopt the

per se rule of exclusion urged by Sprint and its business

amici, then individual victims alleging discriminatory

employment policies would be forced to choose

between two alternatives: either rely on statistics alone

or plead and present evidence of a pattern and practice

of discrimination in every case. Being forced to depend

on statistics alone would severely inhibit the plaintiff's

ability to make his or her case because, as the Court has

recognized, testimony regarding “personal experiences

with the company [brings] the cold numbers to life.”

See Int’l Bhd. of Teamsters v. United States, 431 U.S. 324,

339 (1977)° Furthermore, given the significant

expense of procuring expert testimony, it is often not

feasible for individual plaintiffs to obtain the refined

statistics necessary to prove a pattern and practice of

discrimination.

This Court should not compel plaintiffs to bring

a pattern and practice claim simply so they will be

allowed to introduce “other supervisor” evidence.

Sprint's proposal of a per se exclusion would have the

perverse effect of actually encouraging broader claims

by plaintiffs.

9 See, e.g., LaClair v. City of St. Paul, 187 F.3d 824 (8th Cir. 1999)

(analyzing the admissibility of “other supervisor” evidence in a

retaliation claim); Conway v. Electro Switch Corp., 825 F.2d 593, 596-

597 (1st Cir. 1987) (upholding the admission of “other supervisor”

evidence in a gender discrimination case); Hunter v. Allis-Chalmers

Corp., 797 F.2d 1417, 1423-24 (7th Cir. 1986), abrogated on other

grounds by Patterson v. McLean Credit Union, 491 US. 164 (1989)

(admitting “other supervisor” evidence in a race discrimination

claim).

10 Ironically, employers have previously urged the Court to rely

not on statistics, but rather on anecdotal evidence. See, ¢.g., Int'l

Bhd. of Teamsters, 431 U.S. at 339-43.

9

Given the vital interests at stake, the Court

should not prevent plaintiffs from presenting all

evidence that is relevant and not unduly prejudicial or

burdensome. A _ per se exclusion of all “other

supervisor” evidence would unfairly impede the

ability of plaintiffs to prove all future claims of

discrimination.

B. Because Direct Evidence of Discrimination

is Rarely Available, Circumstantial

Evidence, Including “Other Supervisor”

Evidence, May Be Critical to Proving

Employment Discrimination.

The Court has repeatedly observed that direct,

“smoking gun” evidence of discrimination can be very _

difficult to uncover. See Price Waterhouse v. Hopkins, 490 ©

U.S. 228, 271 (1989) (O’Connor, J., concurring) (“As

should be apparent, the entire purpose of the

McDonnell Douglas prima facie case is to compensate

for the fact that direct evidence of intentional

discrimination is hard to come by.”).!! Similarly, every

Court of Appeals has recognized the “elusive” nature:

of direct proof of discrimination and_ plaintiffs’

subsequent need, in many cases, to rely on

11 See also Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121

(1985) (“The shifting burdens of proof set forth in McDonnell

Douglas are designed to assure that the plaintiff has his day in

court despite the unavailability of direct evidence.”) (internal

quotations omitted); Meritor Savings Bank, FSB v. Vinson, 477 US.

57, 75 (1986) (Marshall, J., concurring) (recognizing that

“discrimination is rarely carried out pursuant to a formal vote of a

corporation's board of directors”); U.S. Postal Serv. Bd. of Governors

v. Aikens, 460 U.S. 711, 716 (1983) (“ All courts have recognized that

the question facing triers of fact in discrimination cases is both

sensitive and difficult . . . There will seldom be ‘eyewitness’

testimony as to the employer’s mental processes.”).

10

circumstantial evidence.!? Indeed, the Court “has often

acknowledged the utility of circumstantial evidence in

12 See also Jordan v. City of Cleveland, 464 F.3d 584, 596 (6th Cir.

2006) (” Proof of discriminatory animus presents ‘an elusive factual

question’ that is often difficult to determine by way of direct

proof.”); Coghlan v. Am. Seafoods Co. LLC, 413 F.3d 1090, 1100 (9th

Cir. 2005) (“Employment discrimination cases inevitably present

difficult problems of proof, precisely because we cannot peer into

the minds of decisionmakers to determine their true

motivations.”); EEOC v. Liberal R-II Sch. Dist., 314 F.3d 920, 923

(8th Cir. 2002) ("A ‘smoking-gun’ case in the discrimination arena

is rare.”); Oest v. Illinois Dept. of Corrections, 240 F.3d 605, 612 (7th

Cir. 2001) (acknowledging that “employers usually are ‘careful not

to offer smoking gun _ remarks indicating _ intentional

discrimination’”) (internal citations omitted); Crawford v. Formosa

Plastics Corp., Louisiana, 234 F.3d 899, 902 (Sth Cir. 2000) (“We have

often recognized the difficulty of proving discrimination by direct

evidence.”); Thomas v. Eastman Kodak Co., 183 F.3d 38, 58 n.12 (1st

Cir. 1999) (recognizing that “’smoking gun’ evidence is rarely

found in today’s sophisticated employment world”) (internal

citations omitted); ladimarco v. Runyon, 190 F.3d 151, 157 (3d Cir.

1999) (“The Supreme Court has recognized that an employer who

discriminates will almost never announce a discriminatory animus

or provide employees or courts with direct evidence of

discriminatory intent.”); Adler v. Wal-Mart Stores, Inc., 144 F.3d

664, 685 (10th Cir. 1998) (noting that “direct evidence is rarely

available in a discrimination case and circumstantial evidence is

sufficient”); Combs v. Plantation Patterns, 106 F.3d 1519, 1537 (11th

Cir. 1997) (Frequently, acts of discrimination may be hidden or

subtle; an employer who intentionally discriminates is unlikely to

leave a written record of his illegal motive, and may not tell

anyone about it”); Rosen v. Thronburgh, 928 F.2d 528, 533 (2d Cir.

1991) (“An employer who discriminates is unlikely to leave a

‘smoking gun,’ such as a notation in an employee's personnel file,

attesting to a discriminatory intent.”); Pinchback v. Armistead Homes

Corp., 907 F.2d 1447, 1452 (4th Cir. 1990) (“The McDonnell Douglas

scheme is a _ recognition that direct proof of unlawful

discrimination is often difficult to obtain.”); Cuddy v. Carmen, 694

F.2d 853, 860 (D.C. Cir. 1982) (“Employees and applicants for

employment have great informational disadvantages: they cannot

reach into the minds of decision makers, and therefore they

11

discrimination cases,” and that such evidence is no less

compelling, persuasive, or valuable than more direct

methods of proof. Desert Palace, Inc. v. Costa, 539 U.S.

90, 99-100 (2003) (acknowledging that “juries are

routinely instructed that ‘the law makes no distinction

between the weight or value to be given to either direct

or circumstantial evidence’”) (citations omitted).

The need to rely on circumstantial evidence

often makes it very difficult for plaintiffs to prevail in

employment discrimination cases, even under existing

evidentiary standards.’3 A per’se rule excluding all

“other supervisor” evidence, regardless of

circumstances, would further constrain victims of

discrimination and render it even more difficult to hold

employers responsible for discriminatory conduct. As

the Eighth Circuit explained, “[t]he effects of blanket .

evidentiary exclusions can be especially damaging in

employment discrimination cases, in which plaintiffs

must face the difficult task of persuading the fact-

finder to disbelieve an employer's account of his own

motives.” Estes v. Dick Smith Ford, Inc., 856 F.2d 1097,.

usually can gather only circumstantial evidence of discriminatory

motives.”).

13 Employment discrimination plaintiffs fare worse at the trial

court level than plaintiffs in nearly all other classes of cases. See

Kevin M. Clermont & Stewart J. Schwab, How Employment

Discrimination Plaintiffs Fare in Federal Court, 1]. of Empirical Legal

Studies 429, 444, 452 (2004). Should an employment

discrimination plaintiff actually prevail at trial, they face reversal

in nearly 42 percent of cases appealed by defendants. See id. at

449-451; see also Kevin M. Clermont & Theodore Eisenberg,

Plaintiphobia in the Appellate Courts: Civil Rights Really Do Differ

From Negotiable Instruments, 2002 U. Ill. L. Rev. 947, 957-58 (2002).

By contrast, when a plaintiff appeals a judgment for an employer,

the judgment is reversed less than 8 percent of the time. See

Clermont & Schwab, at 442, 452.

12

1103 (8th Cir. 1988). Without effective means of

proving employment discrimination, existing anti-

discrimination statutes would essentially become

broken promises of equality. Laws would remain on

the books, but due to court-imposed evidentiary

constraints could practically be rendered meaningless.

As_ discriminatory employment practices

become less overt, the evidentiary problems for

employees adversely affected by discrimination have

become more pronounced. Racial epithets and

blatantly discriminatory policies and personnel

decisions have largely been replaced by subtle

comments, seemingly neutral policies that are unfairly

applied, and private personnel discussions held behind

closed doors. See, e.g., Aman v. Cort Furniture Rental

Corp., 85 F.3d 1074, 1082 (3d Cir. 1996) (“Discrimination

continues to pollute the social and economic

mainstream of American life, and it is often simply

masked in more subtle forms .. . [Whhile

discriminatory conduct persists, violators have learned

not to leave the proverbial ‘smoking gun’ behind.”).

Given the evidentiary problems posed by

clandestine discrimination, circumstantial evidence,

such as “other supervisor” testimony, is essential to the

continued efficacy of our anti-discrimination laws.

Creating an additional and arbitrary rule categorically

excluding specific forms of circumstantial evidence in

employment discrimination cases would be contrary to

the Federal Rules of Evidence and would do great

damage to our anti-discrimination laws."

‘4 This Court pointed out in Desert Palace that circumstantial

evidence is sufficient to support a criminal conviction, even

though guilt must be proved beyond a reasonable doubt. See 539

US. at 100. It stands to reason, therefore, in a civil context where

13

Excluding “other supervisor” evidence in all

discrimination cases would not only contradict the

Court's endorsement of the use of circumstantial

evidence in appropriate circumstances, but would also

ignore the realities of contemporary discrimination. It

is precisely because the forms of discrimination have

changed over time that broad evidentiary exclusions,

such as those advanced by Sprint and its amici, are

inappropriate. See Riordan v. Kempiners, 831 F.2d 690,

698 (7th Cir. 1987). The burdens already placed on

plaintiffs in discrimination cases have prompted an

appropriate “judicial inhospitability to blanket

evidentiary exclusions in discrimination cases.” Quinn.

v. Consol. Freightways Corp. of Del., 283 F.3d 572, 578 (3d.

Cir. 2002).

If our anti-discrimination laws are to have any

sustained force, and if our nation’s stated commitment

to eradicating discrimination is to have continued

meaning, this Court should not abandon the Federal

Rules of Evidence and establish a per se rule excluding:

all “other supervisor” evidence no matter what the’

circumstances of each individual case. The decision

whether to admit such evidence should be left to the

sound discretion of the trial court.

liability is established by a preponderance of the evidence, that the

Federal Rules of Evidence also afford sufficient safeguards for the

admission of circumstantial evidence in discrimination cases,

namely “other supervisor” evidence.

14

Il. JURIES CAN ANALYZE “OTHER

SUPERVISOR” EVIDENCE PROPERLY AND

WITHOUT UNDUE PREJUDICE TO THE

EMPLOYER

Sprint and its amici claim, without support, that

even the strongest jury instruction could not protect

against the potential for undue prejudice caused by

“other supervisor” testimony, and thus juries will

cavalierly impose liability if they find that the

defendant discriminated against any single witness.

(Pet. Br. at 44; Chamber of Commerce's Br. at 9-10.) In

so doing, Sprint and its amici assert that juries simply

cannot be trusted—a view that has been widely

discredited as both elitist and scientifically unsound.

There is no justification for allowing Sprint's and its

amici’s claimed fears, however unfounded they may be,

to prevent victims of discrimination from holding

employers responsible. See Riordan, 831 F.2d at 698 (“A

plaintiff's ability to prove discrimination indirectly,

circumstantially, must not be crippled by evidentiary

rulings that keep out probative evidence because of

crabbed notions of relevance or excessive mistrust of

juries.”).

A. Juries Have Long Been Trusted to Evaluate

Evidence and to Make Unbiased Decisions

in Even the Most Emotionally Charged

Cases.

Our legal system has consistently operated

under the assumption that juries not only can but

should, and in many cases must, be trusted. In the

seminal ruling of Duncan v. Louisiana, 391 U.S. 145, 156-

57 (1968), for example, the Court affirmed our

centuries-old tradition of entrusting juries with the

power to decide the weightiest of issues, explaining:

15

We are aware of the long debate,

especially in this century, among those

who write about the administration of

justice, as to the wisdom of permitting

untrained laymen to determine the facts

in civil and criminal proceedings . . . [A]t

the heart of the dispute have been express

or implicit assertions that juries are

incapable of adequately understanding

evidence or determining issues of fact,

and that they are unpredictable, quixotic,

and little better than a roll of dice. Yet,

the most recent and exhaustive study of

the jury in criminal cases concluded that

juries do understand the evidence and

come to sound conclusions in most of the

cases presented to them.

Justice Scalia, writing for the majority in Blakely

v. Washington, 542 U.S. 296, 305-06 (2004), counseled

that the right to a jury “is no mere procedural

formality, but a fundamental reservation of power in-

our constitutional structure. Just as suffrage ensures

the people's ultimate control in the legislative and

executive branches, a jury trial is meant to ensure their

control in the judiciary.” As Justice Scalia emphasized,

the importance of the jury has been recognized since

the time of the Founding Fathers.'®

15 John Adams wrote in 1771 that “‘[T]he common people, should

have as complete a control . . . in every judgment of a court of

judicature’ as in the legislature.” Blakely, 542 U.S. at 296, 306.

Thomas Jefferson, writing in 1789, similarly declared, “[w]ere |

called upon to decide whether the people had best be omitted in

the Legislative or Judiciary department, I would say it is better to

leave them out of the Legislative.” Id. (internal citations omitted).

16

In espousing its flawed position, Sprint seeks to

undermine the very nature and unique power of the

American judicial system. Sprint would have this

Court exclude all “other supervisor” evidence in

employment discrimination cases based on the

unsupported —and insupportable —assertion that juries

are fickle and untrustworthy entities that would

“inevitabl[y]” be swayed by “personable, sympathetic

and attractive persons.” (Pet. Br. at 44.) To the

contrary, the likelihood that juries will be unduly

swayed by sympathy or emotion as a result of “other

supervisor” evidence pales in comparison to the highly

charged matters, such as those involving life and

death,'® that courts routinely ask juries to adjudicate.

Juries, far from being erratic and naive, “take seriously

their duties as officers of the law.” Paul D. Carrington,

The Civil Jury and American Democracy, 13 Duke J.

Comp. & Int'l L. 79, 88.

B. Juries are Fully Capable of Properly

Evaluating “Other Supervisor” Evidence in

Cases Alleging Discrimination.

Ignoring our centuries-old trust in juries of our

most complex disputes of all shapes and sizes,'” Sprint

'© See, e.g., Durr v. Mitchell, 487 F.3d 423, 447 (6th Cir. 2007)

(upholding jury’s imposition of the death penalty); Coleman v.

Giles, 140 Fed. Appx. 895, 900 (11th Cir. 2005) (upholding jury

verdict in rape case); United States v. De La Rosa, 911 F.2d 985, 992

(5th Cir. 1990) (upholding jury verdict in kidnapping case).

17 See U.S. Const. art. ITI § 2 (“The trial of all crimes, except in cases

of impeachment, shall be by jury”); US. Const. amend. VI (“In all

criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury of the state and

district wherein the crime shall have been committed”); US.

Const. amend. VII (“In suits at common law, where the value in

controversy shall exceed twenty dollars, the right of trial by jury

shall be preserved”).

17

argues that juries should not be trusted when it comes

to analyzing “other supervisor” evidence. Sprint

asserts that, “in any RIF axiomatically there will be

personable, sympathetic and attractive persons,” that

“[j]uror sympathy to these individuals is inevitable,”

and that therefore this Court should not trust juries to

make rational decisions in such cases. (Pet. Br. at 44.)

Sprint’s argument, in this regard, is fundamentally

flawed.

Much of the most recent and authoritative

scholarship on the value of the jury system reinforces

the most basic tenet of our system of justice: in almost

all cases, juries can be counted on to make the most

difficult of decisions fairly. Researchers have found

that judges and juries reach the same conclusion in’

most cases and, where they disagree, judges and juries:

are evenly split on which party should win.!* Indeed,

in a classic study comparing the decision-making of

judges and juries, the evidence indicated that there was

“no relationship between the complexity of a case and

the differences in their decisions.”!”

18 See Richard C. Waites & David A. Giles, Are Jurors Equipped to

Decide the Outcome of Complex Cases? 29 Am. J. Trial Advoc. 19, 24

(2005) (“[A] team of prominent legal and social science

researchers, led by Harry Kalven and Hans Zeisel, compared the

decisions of trial judges and juries in 3576 criminal and civil trials

and found that trial judges and juries made identical decisions in

the same case seventy-eight percent of the time . . . [The study]

further determined that, in the remaining twenty-two percent of

cases, judges and juries were about evenly split on which party

should win . . . More recently, in a study of the effects of jury trial

innovations on jury decision-making, researchers found similar

agreement between the decisions of trial judges and juries. Their

findings were consistent with those of the prior Kalven and Zeisel

study.”).

19 Id.

18

The scholarship highlights that the complexity

of an issue does not affect the rationality of a jury’s

decision. Indeed, studies indicate that, although “there

is neither objective nor scientific proof that trial judges

are generally more capable than juries in

comprehending complicated subject matter,” both

“research and anecdotal evidence indicate that trial

judges are usually no more capable than lay jurors in

comprehending and interpreting complicated subject

matter or in determining the reliability and value of . . .

testimony.” Id. at 23-24. Further, the relevant evidence

points to a finding that juries are likely better at

combing through difficult evidence and concepts than

trial judges.”

Jurors are routinely called on to parse through

difficult evidence and to understand complex and

frustrating concepts. See, e.g., Markman v. Westview

Instruments, Inc. 52 F.3d 967, 993 (Fed. Cir. 1995)

(“There is simply no reason to believe that judges are

any more qualified than juries to resolve the complex

technical issues often present in patent cases.”). There

is no reason to assume, as Sprint contends, that juries

are incapable of such analysis in cases involving the

comparatively simple issue of whether a plaintiff was

treated unfairly for discriminatory reasons.

Understanding the distinction between “same

supervisor” evidence and “other supervisor” evidence

is far from the most challenging intellectual feat juries

are expected to perform. Unless this Court is willing to

erode the axiom that jurors are capable of fulfilling

their fundamental duties—a decision that would have

® See Jennifer K. Robbennolt, Evaluating Juries by Comparison to

Judges: A Benchmark For Judging?, 32 Fla. St. U. L. Rev. 469, 509

(2005).

19

significant consequences in all areas of the law —it is

untenable to suggest that trial judges and juries should

be prohibited from engaging in this simple task.

C. The Trial Court’s Limiting Instructions Can

Assist a Jury to Determine the Weight to be

Afforded to “Other Supervisor” Evidence.

Juries are often asked to digest evidence and

arguments presented by both parties in the context of

the judge’s limiting instructions. There is no basis to

assume —as Sprint apparently does (Pet. Br. at 43-44) —

that juries are incapable of performing that function in

a case involving “other supervisor” evidence, and so ..,

will unthinkingly accept a plaintiff's evidence over that

offered by the defendant. Sprint argues that allowing

“other supervisor” evidence will create “an intolerably —

high risk of jury confusion.” (Pet. Br. at 42.) Yet it isa

fundamental tenet of our system of justice that juries

are able to comprehend and follow a judge’s limiting

instructions.

The Court has repeatedly held that, when a trial .;

judge gives a jury limiting instructions, those

instructions can be assumed to have been followed. In

Michelson v. United States, 335 U.S. 469, 484-485 (1948),

the Court explained:

[L]imiting instructions on this subject are

no more difficult to comprehend or apply

than those upon various other subjects;

for example, instructions that admissions

of a co-defendant are to be limited to the

question of his guilt and are not to be

20

considered as evidence against other

defendants.*?

Sprint’s contention that juries cannot be trusted

to act in conformity with a trial court’s instructions

shows an extreme and unjustified lack of faith in juries

contrary to the unwavering commitment to the jury

system expressed by the Founding Fathers and the

members of the Court.

Although Sprint argues that juries are easily

swayed, and will automatically accept a plaintiff's

evidence with little or no critical analysis, both the

Court and recent scholarship on the matter have

confirmed that juries can be trusted to digest even the

most difficult evidence rationally and _ logically.”

21 The Court has rejected the argument that jurors will assign guilt

to all co-defendants if they believe that at least one defendant is

guilty, instead holding that a district court's instruction that each

defendant is entitled to separate consideration is sufficient to cure

any possible prejudice. See Zafiro v. United States, 506 U.S. 534,

540-41 (1993). The same principle applies here; the Court should

reject Sprint's amici’s argument that allowing “other supervisor”

evidence will invite juries to find liability if it finds that any one of

the witnesses suffered unlawful discrimination, regardless of

whether Mendelsohn proves her claim. (Chamber of Commerce's

Br. at 14.) As in Zafiro, evidence should not be taken away from

the jury where a proper limiting instruction will adequately serve

to eliminate any possible prejudice.

2 A recent study indicates that trial judges have consistently given

“their civil juries high marks for their process of decision making.”

Paula L. Hannaford, B. Michael Dann, & G. Thomas Munsterman,

How Judges View Civil Juries, 48 DePaul L. Rev. 247, 249-250.

Indeed, “over 98% of state and federal judges believe that jurors

usually make a serious effort to apply the law as they are

instructed .. . Seventy-nine percent of the survey respondents

rejected the suggestion that bias in favor of a party was the reason

for judge-jury disagreement and 92% _ rejected jury

miscomprehension as the reason for the disagreement.” Id.

21

“Most commentators conclude that a carefully selected

jury given accurate instructions and presented with

coherent evidence will be superior to a judge because

of jurors' collective comprehension and independent,

earnest approach to the proceedings.” Lisa Kern

Griffin, ‘The Image We See Is Our Own’: Defending the

Jury's Territory at the Heart of the Democratic Process 75

Neb. L. Rev. 332, 365-66 (1996).

Il. ADMITTING RELEVANT “OTHER

SUPERVISOR” EVIDENCE WILL NOT

UNNECESSARILY BURDEN COURTS OR

DEFENDANTS

A. The Federal Rules of Evidence Provide.

Judges with Safeguards to Protect Against-

Uninformative or Duplicative Evidence.

Sprint and its amici argue that, without a per se

exclusion of “other supervisor” evidence, courts and

defendants will be overcome by excessive testimony

about discrimination suffered by non-party witnesses’

at the hands of non-party supervisors. (Pet. Br. at 40;

EEAC et al.’s Br. at 12-13.) But there is no reason to

believe that trial courts are not fully capable of

managing their trials and the evidence admitted

therein. As with nearly all evidentiary issues, trial

courts must be permitted to consider evidentiary

questions on a case-by-case basis and should be

afforded broad discretion to preclude the introduction

of evidence that is duplicative or that does not have

sufficient probative value.

The Rules already provide that only relevant

“other supervisor” evidence may be admitted at trial.

See Fed. R. Evid. 401. Sprint’s claimed fear that

evidence that is too far removed in time or

circumstance will be admitted ignores the vital role

22

that the trial judge plays in managing a trial and

making evidentiary determinations. Where evidence

demonstrating the bias or discriminatory acts of other

supervisors is too remote to warrant its admission, the

trial court has the discretion to exclude it. See, e.g.,

Cummings v. Standard Register Co., 265 F.3d 56, 63 (1st

Cir. 2001) (recognizing that “other supervisor”

evidence can be too attenuated and that testimony to

this effect should be let in sparingly). In other cases,

circumstantial evidence of discrimination by other

supervisors will not only be relevant, but also crucial to

the plaintiff's claim. See, e.g., Ryder v. Westinghouse Elec.

Corp., 128 F.3d 128 (3d Cir. 1997) (upholding the

admissibility of comments made by individuals that

were not involved in the decision to terminate the

plaintiff). Indeed, in this case, the Tenth Circuit

performed this analysis and found that the “other

supervisor” evidence in question was not too removed

by either time or circumstance because the other

employees were terminated within a year of

Mendelsohn and their selection was based on similar

criteria. Mendelsohn v. Sprint/United Mgmt. Co., 466

F.3d 1223, 1228 (10th Cir. 2006).

Of course, trial courts may disallow even

relevant evidence if its probative value is substantially

outweighed by its prejudicial effect, or if the evidence

is unnecessarily cumulative or would confuse the jury.

See Fed. R. Evid. 403. In light of these safeguards, a per

se rule of exclusion is unnecessary, and would

undercut the discretion of trial court judges who know

the particular facts of each case and who are in the best

position to determine evidentiary questions. See Estes

v. Dick Smith Ford, 85 F.2d 1097, 1103 (8th Cir. 1988)

(recognizing the evidentiary limitations a per se rule of

23

exclusion in employment discrimination cases would

place on plaintiffs).

B. Sprint's and Its Amici’s Fears of Groundless

Employment Discrimination Claims are

Unfounded.

Sprint and its amici express doomsday fears

about the potential implications of the introduction of

“other supervisor” evidence into employment

discrimination cases. They contend that preserving

judicial discretion on the admissibility of “other

supervisor” evidence will result in uncontrollable,

never-ending trials and will lead plaintiffs to file.

frivolous lawsuits. Neither Sprint nor its amici, present.

any evidence in support of this argument, and they.

omit reference to the many Circuit Courts of Appeal

that have long held that this category of evidence

should be subject to the standard discretionary rules of

evidence. If allowing “other supervisor” evidence

would force such drastic consequences, then the effects

would presumably already be apparent in those

circuits that allow plaintiffs to present such evidence.

Surely, if Sprint had any evidence to support its

position, it would be cited in its brief. Given that

neither Sprint nor any of its amici have come forth with

any such evidence, it seems likely that these fears are

highly exaggerated or entirely unwarranted.

There is similarly no basis to believe Sprint's

amici’s suggestion that, unless this Court adopts the per

se exclusionary rule urged by Sprint, employers will be

23 See Mendelsohn v. Sprint/United Management Co., 466 F.3d 1223

(10th Cir. 2006); Cummings v. Standard Register Co., 265 F.3d 56 (1st

Cir. 2001); Philip v. ANR Freight Systems, Inc., 945 F.2d 1054 (8th

Cir. 1991); Hunter v. Allis-Chalmers Corp., 797 F.2d 1417 (7th Cir.

1986).

24

forced to settle all lawsuits filed by employees accusing

the company of discrimination. (Employer's Grp. Br. at

7.) Admitting “other supervisor” evidence will not

change the legal test for determining liability—a

plaintiff must still prove that he or she suffered an

adverse employment action because of a protected

characteristic. Moreover, as in any civil case, the threat

of frivolous lawsuits is curbed by the availability of

Rule 11 sanctions to deter and punish attorneys who

file meritless claims.

C. Admitting Other Supervisor Evidence

Should Reduce Discrimination Claims by

Encouraging Employers to Adopt

Reasonable Measures to Ensure

Compliance with Anti-Discrimination

Laws.

Sprint and its amici allege that, if this Court

allows plaintiffs to present “other supervisor”

evidence, large employers will be forced to ensure that

all decisions are made in accordance with a common

policy by adopting a more centralized management

structure. (EEAC ef al.'s Br. at 11; Chamber of

Commerce's Br. at 17.) They further claim that a

centralized structure is inefficient and would put

corporations at a competitive disadvantage in the

marketplace. (EEAC et al.’s Br. at 11.) Again, Sprint

and the business community fail to support their claim

with even a single instance in which a corporation

conducting business in the circuits allowing “other

supervisor” evidence has had to change to its corporate

structure.

25

In another case that was recently before this

Court, the business community stated that the

Human Resources or General Counsel's office of many

large employers already conduct formal reviews of all

termination decisions. For instance, the Equal

Employment Advisory Council discussed the

prevalence of this type of review in the amicus brief it

filed in BCI Coca-Cola v. EEOC. That brief described the

management structure as follows:

Large employers often delegate initial

investigations of workplace misconduct

to local human resources personnel, who

in turn report their findings to a more

senior manager who may work in a

different city or state. Often, the

individual making the employment

decision is not the same person who

conducted the initial investigation.

Similarly, the Chamber of Commerce asserted that the

actual decision-maker in a large corporation may often

be a senior manager rather than an employee's direct’

supervisor, allowing the senior manager to ensure

consistency with company policies.“ Surely, the

business community cannot tout this review process

** BCI Coca-Cola v. EEOC, No. 06-341 (U.S. Feb. 20, 2007) (Petition

withdrawn prior to oral argument.

% Brief Amici Curiae of the Equal Employment Advisory Counsel

in Support of Petitioner at 14, BCI Coca-Cola v. EEOC, No. 06-341

(U.S. Feb. 20, 2007).

26 Brief of the Chamber of Commerce of the United States of

America as Amicus Curiae in Support of Petitioner at 16, BC] Coca-

Cola v. EEOC, No. 06-341 (U.S. Feb. 20, 2007).

26

when they seek to avoid liability in one case, and then

claim it is overly burdensome in another.””

Contrary to the fears expressed by Sprint and its

amici, the likely result of allowing plaintiffs to present

relevant “other supervisor” evidence will be to

encourage employers to _ reasonably oversee

employment decisions, thereby preventing upper-

management from overlooking discriminatory

employment practices. Such a review may illuminate

latent discriminatory practices, thereby preventing

future discrimination and reducing the employer's

exposure to lawsuits.

2? If an employer performs the type of review herein descnibed, even

under Sprint's rationale which requires a “demonstrated link” between

“other supervisor” evidence and the challenged employment decision

(Pet. Br. at 38), plaintiffs should be able to present “other supervisor”

evidence to the trier of fact: If a senior manager or human resources

employer reviews the personnel decisions of several different

supervisors, this provides a sufficient link between the decisions of all

supervisors subject to such review.

27

CONCLUSION

For the foregoing reasons, this Court should

decline to adopt the per se rule of exclusion urged by

Sprint and its amici. This Court should instead

continue to permit trial courts to determine the

admissibility, and juries to weigh, the “other

supervisor” evidence on the case-by-case basis

provided for in the Federal Rules of Evidence.

Respectfully submitted this 19th day of October,

2007.

Respectfully Submitted,

MICHAEL FOREMAN MICHAEL B. DE LEEUW

MEGAN MORAN-GATES (Counsel of Record)

Darcy M. GODDARD

LAWYERS’ COMMITTEE ELIZABETH A. WALSH

FOR CIVIL RIGHTS SARAH L. HINCHLIFF

UNDER LAW

1401 New York Ave. NW FRIED, FRANK, HARRIS,

Suite 400 SHRIVER & JACOBSON LLP

Washington, DC 20005 One New York Plaza

(202) 662-8600 New York, New York 10004

(212) 859-8000

Counsel for Amict

APPENDIX

APPENDIX

List of Amici:

Organizations

The Lawyers’ Committee for Civil Rights Under

Law (the “Lawyers’ Committee”) is a nonprofit civil

rights organization that was formed in 1963 at the

request of President Kennedy in order to involve

private attorneys throughout the country in the

national effort to insure the civil rights of all

Americans. Its Board of Trustees 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. Through the Lawyers’ Committee and its

independent local affiliates, hundreds of attorneys

have represented thousands of clients in civil rights

cases across the country. The Lawyers’ Committee is

interested in ensuring that the goal of civil rights

legislation, to eradicate discrimination, is fully realized.

The resolution of this case will have a significant effect

on the extent to which the Lawyers’ Committee can

protect the rights of its clients. The Lawyers’

Committee has prepared or participated in numerous

amicus briefs in Title VII cases before this Court,

including BCI Coca-Cola v. EEOC, Burlington Northern v.

White, and Desert Palace v. Costa.

The Asian American Justice Center (“AAJC”) is

a national non-profit, non-partisan organization whose

mission is to advance the human and civil rights of

Asian Americans through advocacy, public policy,

public education, and litigation. Collectively, AAJC

and its Affiliates, the Asian American Institute, Asian

Law Caucus, and the Asian Pacific American Legal

Center of Southern California, have over 50 years of

ii

APPENDIX - continued

experience in providing legal public policy, advocacy,

and community education on discrimination issues.

AAJC and its Affiliates have a long-standing interest in

workplace discrimination cases that have an impact on

the Asian American community, and this interest has

resulted in AAJC’s participation in a number of amicus

briefs before the courts.

The Mexican American Legal Defense and

Educational Fund (MALDEF) is a national civil rights

organization established in 1968. Its principal objective

is to secure, through litigation, advocacy, and

education, the civil rights of Latinos living in the

United States. MALDEF’s mission includes a

commitment to employment equity and opportunity

through advocacy, community education, and the

courts, and therefore it has a strong interest in the

outcome of these proceedings.

The National Association for the Advancement

of Colored People (“NAACP”), established in 1909, is

the nation’s oldest civil rights organization. The

principle objectives of the NAACP are to ensure the

political, educational, social and economic equality of

rights and eliminate race prejudice among citizens of

the United States; to remove barriers of racial

discrimination through democratic processes; to seek

enactment and enforcement of federal, state and local

laws securing civil rights; to inform the public of the

adverse effects of racial discrimination and to seek its

elimination; to educate persons as to their

constitutional rights and to take all lawful action to

secure the exercise thereof, and to take other lawful

action in furtherance of these objectives. The NAACP

believes that every individual has a right to secure a job

iii

APPENDIX - continued

for which she is qualified without discrimination

because of race, color, religion, sex or national origin.

Consequently, the proper construction of the law,

including the law of evidence, in employment

discrimination cases is critical with respect to the

Court's role of interpreting the law to ensure that

Congress’ intent in passing anti-discrimination statutes

is duly effectuated and that justice be done.

The NAACP Legal Defense and Educational

Fund, Inc. (“LDF”) was incorporated in 1939 under the

laws of New York State to provide legal assistance to

black persons in securing their constitutional rights. .

For over six decades, LDF has appeared as counsel of

record or amicus curiae in numerous cases involving

race discrimination before the Supreme Court, the

Courts of Appeals, and the federal District Courts.

Since its passage 40 years ago, LDF has worked

ceaselessly to enforce Title VII, litigating on behalf of

individual plaintiffs and plaintiff classes against

private and public employers to challenge.

discriminatory employment practices. Among the

hundreds of Title VII cases LDF has litigated are

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

and St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993),

both considering the issue of circumstantial proof of

discrimination. Given its expertise, LDF believes its

perspective would be helpful to this Court in resolving

the issues presented in this case.

The National Association of Social Workers

(NASW), established in 1955, is the largest association

of professional social workers in the world with

145,000 members and chapters throughout the United

States, in Puerto Rico, Guam, the Virgin Islands, and an

iv

APPENDIX - continued

International Chapter in Europe. The National

Association of Social Workers, Kansas Chapter has

1410 members. With the purpose of developing and

disseminating standards of social work practice while

strengthening and unifying the social work profession

as a whole, NASW provides continuing education,

enforces the NASW Code of Ethics, conducts research,

publishes books and studies, promulgates professional

criteria, and develops policy statements on issues of

importance to the social work profession. NASW

recognizes that discrimination and prejudice directed

against any group are not only damaging to the social,

emotional, and economic well-being of the affected

group’s members, but also to society in general. The

NASW Code of Ethics directs social workers to “engage

in social and political action that seeks to ensure that all

people have equal access to the resources, employment,

services, and opportunities they require to meet their

basic human needs and to develop fully” . . . and to

“act to prevent and eliminate domination of,

exploitation of, and discrimination against any person,

group, or class on the basis of race, ethnicity, national

origin, color, sex, sexual orientation, age, marital status,

political belief, religion, or mental or physical

disability.” NASW policies state, “Given the

persistence and _ pervasiveness of workplace

discrimination, pay amd employment equity must

remain a major policy issue for the social work

profession and for the nation.” NATIONAL ASSOCIATION

OF SOCIAL WORKERS, Gender, Ethnic, and Race-Based

Workplace Discrimination, SOCIAL WORK SPEAKS, 172, 175

(7th ed., 2006). Accordingly, given NASW’s policies

and the work of its members, NASW has expertise that

v

APPENDIX - continued

will assist the Court in reaching a proper resolution of

the questions presented in this case.

The National Employment Lawyers Association

(NELA) is the largest professional membership

organization in the country comprised of lawyers who

represent workers in labor, empioyment and civil

rights disputes. NELA advances employee rights and

serves Jawyers who advocate for equality and justice in

the American workplace. NELA and its 67 state and

local affiliates have a membership of over 3,000

attorneys who are committed to working on behalf of

those who have been illegally treated in the workplace.

NELA strives to protect the rights of its members'’

clients, and regularly supports precedent-setting -

litigation affecting the rights of individuals in the

workplace.

The National Partnership for Women & Families

is a non-profit, national advocacy organization

founded in 1971 that 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, race, 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 the opportunities of women and

people of color in employment.

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

is a 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. Since

vi

APPENDIX - continued

1972, NWLC has worked to secure equal opportunity

in the workplace by supporting the full enforcement of

anti-discrimination laws, including Title VII of the Civil

Rights Act of 1964. NWLC has prepared or

participated in numerous amicus briefs in Title VII

cases before this Court.

People For the American Way Foundation

(“PFAWF”) is a nonpartisan citizens’ organization

established to promote and protect civil and

constitutional rights. Founded in 1980 by a group of

religious, civic, and educational leaders devoted to our

nation’s heritage of tolerance, pluralism, and liberty,

PFAWF now has more than 1,000,000 members and

activists nationwide. PFAWF has been actively

involved in litigation and other efforts to combat

discrimination, and is particularly concerned that

Americans have meaningful access to the courts to

enforce their right to a workplace free of unlawful

discrimination. PFAWF joins this brief to help

vindicate that important right.

The Puerto Rican Legal Defense and Education

Fund (“PRLDEF”) is a national nonprofit civil rights

organization founded in 1972. PRLDEF is dedicated to

protecting and furthering the civil rights of Puerto

Ricans and other Latinos through litigation and policy

advocacy. Since its inception, PRLDEF has

participated both as direct counsel and as amicus curiae

in numerous cases throughout the country concerning

the proper interpretation of the civil rights laws. The

resolution of this case will have significant impact

upon the extent to which PRLDEF and other civil rights

organizations can protect the rights of their

constituencies.

Vii

APPENDIX - continued

Women Employed’s mission is to improve the

ecoromic status of women and remove barriers to

economic equity. Women Employed promotes fair

employment practices, helps increase access to training

and education, and provides women with information

and tools to plan their careers. Since 1973, the

organization has assisted thousands of working

women with problems of discrimination, monitored

the performance of equal opportunity enforcement

agencies, and developed specific, detailed proposals

for improving enforcement efforts, particularly on the.

systemic level. Women Employed strongly believes

that “other supervisor” evidence can be relevant to.

proving the existence of discrimination. ;