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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0528%3A15

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2008
- **Citation:** 552 U.S. 379

## Text

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

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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

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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

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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

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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

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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.

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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. ;

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0528%3A15. Public record. Not legal advice.