Petition for Writ of Certiorari — University of Pittsburgh v. Jackson

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No. Bn

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Supreme Court of the United States

October Term, 1987

UNIVERSITY OF PITTSBURGH,

Petitioner,

MATTHEW E. JACKSON, JR..,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

*MARTHA HARTLE MUNSCH

STEVEN P. FULTON

REED SMITH SHAW & McCLAY

Mellon Square

435 Sixth Avenue

Pittsburgh, PA 15219

(412) 288-4118

Counsel for Petitioner,

University of Pittsburgh

*Counsel of Record

for Petitioner

QUESTION PRESENTED

May a plaintiff in an employment discrimination case

survive a motion for summary judgment merely by con-

testing the employer’s legitimate, nondiscriminatory rea-

son for terminating his employment—without presenting

any direct or indirect evidence linking his discharge to his

race—despite the holdings of four other courts of appeals

that, in employment discrimination cases, there must be a

causal nexus between the employment decision and the

alleged basis of the discrimination?

LIST OF PARTIES

The caption of the case contains the names of all

remaining parties in this action. Two additional parties,

University officials Wesley W. Posvar and David C. Sulli-

van, were defendants in the district court and parties on

appeal. The district court’s grant of summary judgment in

favor of these two individuals was affirmed by the court of

appeals. Thus, they are no longer parties in this action.

Petitioner, the University of Pittsburgh, has no parent

companies, subsidiaries or affiliates to list pursuant to Rule

28.1.

TABLE OF CONTENTS

Page

So 3) 2) i

Se li

pe es 6 ee iv

I os ok occ cscs se esscesccsccss l

JURISDICTIONAL STATEMENT ................ 2

ss 2

memunemeees Gr Btee CASE .................5. 2

REASONS FOR GRANTING THE WRIT.......... 8

I. The Third Circuit’s Standard Concerning

The Evidentiary Burdens At The Summary

Judgment Stage In Discrimination Cases

Conflicts With That Of At Least Four Other

Ee nas accuseesccce 8

A. The Third Circuit’s Standard Improp-

erly Shifts The Burden Of Persuasion

In Discrimination Cases From The

Plaintiff To The Defendant............ 12

B. The Third Circuit’s Standard Places

Such A Light Burden On A Discrimi-

nation Plaintiff That It Essentially

Eliminates Summary Judgment For

Employers In Discrimination Cases ..... 15

C. The Third Circuit’s Standard Elimi-

nates The Necessity For Race-Related

Evidence In Race Discrimination Cases. . 16

ee Were res ag 6 ae 6a ds nana ves ewan 18

TABLE OF AUTHORITIES

CASES

Page

Anderson vy. Liberty Lobby, Inc.,

477 U.S. 242, 106 S.Ct. 2505 (1986) ............ 13

Celotex Corp. v. Catrett,

477 U.S. 317, 106 S.Ct. 2548 (1986)....... 9, 13, 16

Chipollini v. Spencer Gifts, Inc.,

814 F.2d 893 (3d Cir.), cert. dismissed,

Rak OR Me! so) ee 7, 43

Clark v. Huntsville City Bd. of Educ.,

ive © g-2i). Le 5 re 10, 12

Dale v. Chicago Tribune Co.,

797 F.2d 458 (7th Cir. 1986), cert. denied,

ce} ee Sf re 10, 11

Dea vy. Look,

Ew Bee Pe Ae: er seras 10, 11

Matsushita v. Zenith Radio Corp.,

ee oor s deepens aeanens 13

McDonnell Douglas Corp. v. Green,

CER ef Rae er ee see passim

Pollard v. Rea Magnet Wire Co.,

S26 F.28 S57 C7 Ct. ISBT) . 5c wc ccaess 10, 11

Slaughter y. Allstate Ins. Co.,

ae Fe ee Ce Gi, PED cca cecccsacs 10, 11, 12

Texas Dept. of Community Affairs v. Burdine,

ee ee ee ED hs a wae eee we aeeees passim

Trustees of Keene State College v. Sweeney,

ee eR a) ks eae keene ae 13

United States Postal Service Board of Governors vy.

po Kk i St i 6

White v. Vathally,

732 F.2d 1037 (Ist Cir.), cert. denied,

gh, er 10, 11

STATUTES

Judicial Code,

es NS sie’. oun gl ko ba bod b kas 0s 2

Civil Rights Acts of 1866,

te | ORE ne

Title VII of the Civil Rights Act of 1964,

as amended, 42 U.S.C. § 2000e ef seg....... passim

FEDERAL RULES

Se SD on oo beens cae ee eee 12

OTHER AUTHORITIES

Reports of the Proceedings of the Judicial Conference of

the United States, Annual Report of the Director of the

Administrative Office of the United States Courts

(NE Week news seeds adeneekes ance ee Y

No.

In the

Supreme Court of the United States

October Term, 1987

UNIVERSITY OF PITTSBURGH,

Petitioner,

Wa

MATTHEW E. JACKSON, JR.,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Petitioner, the University of Pittsburgh (“Univer-

sity”), respectfully prays that a writ of certiorari issue to

review the Judgment and Opinion of the United States

Court of Appeals for the Third Circuit entered in this

proceeding on August 19, 1987.

OPINIONS BELOW

The August 19, 1987 Judgment and Opinion of the

United States Court of Appeals for the Third Circuit

(“Third Circuit”), which is reported at 826 F.2d 230 (3d

Cir. 1987), is reprinted in Appendix A hereto at la, infra.

The June 11, 1986 Judgment of the United States

District Court for the Western District of Pennsylvania

2

granting summary judgment in favor of all defendants,

which is not officially reported, is reprinted in Appendix B

hereto at 17a, infra.

JURISDICTIONAL STATEMENT

The Third Circuit entered its Judgment on August 19,

1987. Its decision is in direct conflict with decisions of at

least four other United States courts of appeals concerning

the evidentiary burdens under anti-discrimination statutes

such as Title VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. § 2000e et seg. (“Title VII"). This

Court has jurisdiction to review the Judgment pursuant to

28 U.S.C. § 1254(1).

STATUTES INVOLVED

The Civil Rights Act of 1866, 42 U.S.C. § 1981, pro-

vides in relevant part:

All persons within the jurisdiction of the United

States shall have the same right...to make and

énforce contracts...as is enjoyed by white

citizens ....

Title VII provides in relevant part:

It shall be an unlawful employment practice for an

employer ...to discharge any individual... because

of such individual’s race ....

42 U.S.C. § 2000e-2(a)(1).

STATEMENT OF THE CASE

In 1982, the University appointed a blue ribbon com-

mittee to review and to evaluate its in-house legal depart-

ment. Following its review and evaluation, the committee

recommended that the University develop a centralized,

3

well-structured office of legal services that was qualified to

deal with a broad range of legai matters akin to those dealt

with in a large corporate environment. After a nationwide

search, the University hired David C. Sullivan as Univer-

sity Counsel, effective January 3, 1983, to carry out the

committee’s recommendations.

Upon his arrival at the University, Mr. Sullivan inher-

ited a professional staff of two lawyers, one of whom was

the Respondent, Matthew E. Jackson, Jr. (“Jackson”).

After observing and evaluating the job performance of

those two attorneys, Mr. Sullivan determined that Jackson,

unlike the University’s other Assistant University Coun-

sel, had a number of performance problems.' Jackson’s

performance deficiencies were highlighted by complaints

Mr. Sullivan received from Jackson’s clients at the Univer-

sity as well as other third-party communications which

were critical of Jackson’s performance. For example, one

client asked Mr. Sullivan to remove Jackson from its mat-

ters because of his failure to service them skillfully and

promptly:

'The record before the District Court and the Third Circuit con-

tains an abundance of evidence that Jackson's performance as an in-

house attorney for the University suffered from at least the following

deficiencies: (1) inability to organize his work; (2) failure to complete his

work in a timely fashion and to meet deadlines: (3) procrastination

which transformed routine tasks into crisis situations: (4) failure to pay

careful attention to detail in the preparation and review of documents:

(5) unsatisfactory drafting skills: (6) failure to keep the necessary per-

sons informed as to the status and progress of projects: (7) failure to

perform and/or to complete all necessary and essential tasks in connec-

tion with projects; (8) failure to exercise sound judgment in connection

with matters on which he was working: (9) inability to comprehend and

to handle complex legal matters and transactions; (10) lack of punctual-

ity and reliability: (11) failure to make suitable arrangements for cover-

age in his absence; and (12) lack of initiative.

4

Matt Jackson simply is not meeting our require-

ments for legal support in the operations of the Foun-

dation for Applied Science and Technology. This let-

ter requests immediate relief in the form of temporary

retention of outside counsel knowledgeable in securi-

ties law and long-term relief in the form of assignment

to us of counsel capable of handling our affairs more

promptly and skillfully.

The letter went on to complain about Jackson’s work on a

specific project as follows:

The errors in documentation prepared by Matt

for the Hickey-Kober Partnership were numerous and

potentially disastrous in consequence... [Matt Jack-

son’s] errors of omission and commission of the past

week will cost us over $2 million in lost revenues if

not corrected immediately.’

in late March 1983, Mr. Sullivan had begun to docu-

ment the various problems that Jackson was having in

performing his duties as Assistant University Counsel. On

August 15, 1983, Mr. Sullivan sent to Jackson a memoran-

dum outlining his performance problems. Mr. Sullivan

also conducted numerous counseling sessions with Jackson

and decreased Jackson’s work load by assigning maiters to

outside counsel. Nevertheless, Jackson’s performance did

not improve to a Satisfactory level.

On January 3, 1984, Mr. Sullivan terminated Jack-

son’s employment with the University. Mr. Sullivan

replaced Jackson with another black lawyer, Ms. Mary

Kennard, who came to the University highly recom-

mended from a position with the National Association of

College and University Attorneys.

2This letter is reprinted in Appendix C at 20a, infra.

wie ns que

5

Jackson commenced this suit in the United States Dis-

trict Court for the Western District of Pennsylvania on

February |, 1985.3 The University sought summary judg-

ment on the race discrimination claim concerning Jack-

son’s discharge because (1) Jackson had failed to establish

a prima facie case under the standard enunciated in

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

(“McDonnell Douglas’); (2) the discharge was motivated

by lawful reasons, i.e., Jackson’s poor performance; and (3)

Jackson had not produced direct or indirect evidence to

link his discharge to race. For these reasons, the University

urged that it was entitled to summary judgment because

there was no genuine issue of material fact.4 Jackson

argued that summary judgment was not appropriate

because his deposition testimony challenged the Univer-

sity’s articulated reasons for his discharge.

In granting the University’s motion for summary

judgment, the district court did not address whether Jack-

son had established a prima facie case. Rather, because the

University had articulated a legitimate, nondiscriminatory

reason for Jackson’s discharge, the district court focused its

opinion on the third prong of McDonnell Douglas/Burdine

‘In addition to a race discrimination claim under Title VII and 42

U.S.C. § 1981 against the University concerning his discharge, Jackson's

Complaint also contained a number of federal and state law causes of

action against two University officials and the University. The Third

Circuit affirmed the district court’s grant of summary judgment con-

cerning those additional causes of action. Thus, the additional causes of

action are not at issue, and will not be addressed, herein.

‘Jackson also filed a motion for summary judgment, which was

denied by the district court. Appendix B at 19a, aff'd, Appendix A at 7a-

8a n.2. an

6

allocation of proof, i.e, whether the University’s articu-

lated reason was “a pretext for discrimination.”* See

United States Postal Service Board of Governors v. Aikens,

460 U.S. 711, 715 (1983).

The district court concluded that Jackson’s record evi-

dence did not create a genuine issue concerning whether

the University’s articulated reason for discharging Jackson

was a pretext for discrimination, finding

no evidence of racial animus but on the contrary not-

ing abundant instances of unsatisfactory work perfor-

mance which plaintiff's supervisor Sullivan might rea-

sonably regard as sufficient cause for discharge. . . .

Appendix B at 18a.

On appeal, the Third Circuit reversed the district

court’s grant of summary judgment on Jackson’s discharge

claim against the University. In so doing, the Third Circuit

framed the issue before it as follows:

‘In McDonnell Douglas, and then again in Texas Dept. of Commu-

nity Affairs v. Burdine, 450 U.S. 248 (1981) (“Burdine”), this Court set

forth the basic allocations and order of presentation of proof in discrim-

ination cases:

First, the plaintiff has the burden of proving by the pre-

ponderance of the evidence a prima facie case of discrimi-

nation. Second, if the plaintiff succeeds in proving the

prima facie case, the burden shifts to the defendant “to

articulate some legitimate. nondiscriminatory reason for

the employee’s rejection.” Third, should the defendant

carry this burden, the plaintiff must then have an opportu-

nity to prove by a preponderance of the evidence that the

legitimate reasons offered by the defendant were not its

true reasons, but were a pretext for discrimination. Bur-

dine, 450 U.S. at 252-53 (citations omitted) (quoting

McDonnell Douglas, 411 U.S. at 802 and 804).

7

The true dispute in this appeal concerns the third

stage of the McDonnell Douglas method of proof: Has

Jackson introduced sufficient evidence to demonstrate

the existence of a genuine issue whether [the Univer-

sity’s] “proffered justification is merely a pretext for

discrimination’’?

Appendix A at 8a (quotation in original).

Applying its new “Chipollini’’ standard which allows a

plaintiff in a discrimination case to survive summary judg-

ment “without presenting evidence specifically relating to”

race,®° the Third Circuit held that, by contesting the Uni-

versity’s evaluation of his job performance, Jackson had

properly created a genuine and material issue for trial:

[T]hroughout nearly 700 transcript pages, Jackson’s

deposition in numerous ways calls into question [the

University’s] claims that Jackson was dismissed for

performance deficiencies. Jackson’s basic position is

that he never received any complaints about—and,

indeed, that he was often complimented for—his legal

work during his years at Pitt... [Such record evi-

dence] suffices to support an inference that Sullivan

“orchestrated a campaign to get rid of Jackson because

he was black.

Appendix A at 8a-9a.’

*In Chipollini v. Spencer Gifts, Inc., 814 F.2d 893 (3d Cir.) (en

banc), cert. dismissed, 56 U.S.L.W. 3183 (1987), the Third Circuit held

that “a plaintiff can prevail [at the summary judgment stage in an age

discrimination case] by means of indirect proof that the employer's

reasons are pretextual without presenting evidence specifically relating to

age.” 814 F.2d at 898 (emphasis added).

"In his deposition testimony, Jackson challenged the University’s

articulated reason for his discharge by asserting, among other things,

that Mr. Sullivan “never made specific complaints” about his work and

that “he was not the lawyer who was responsible for some of the matters

in question.” See Appendix A at 8a-9a.

8

Thus, the Third Circuit held that the University was

not entitled to summary judgment on Jackson’s race dis-

crimination claim even though Jackson produced no evi-

dence linking his discharge to race. In fact, the only evi-

dence Jackson produced relating to race was his prima

facie case, i.e., he is black and the other Assistant Univer-

sity Counsel who was not discharged is white.

REASONS FOR GRANTING THE WRIT

I. The Third Circuit’s Standard Concerning The Eviden-

tiary Burdens At The Summary Judgment Stage In

Discrimination Cases Conflicts With That Of At Least

Four Other Courts Of Appeals.

This Court should issue a Writ of Certiorari because a

conflict exists between the Third Circuit and at least four

other courts of appeals concerning a critically important

issue of law: In order to survive summary judgment in a

discrimination case in which the employer has articulated

a legitimate, nondiscriminatory reason for its action, must

a plaintiff offer evidence which links the adverse employ-

ment action and the alleged discriminatory basis for it, or

may the plaintiff simply attack the proffered reason?

The Third Circuit has held that no nexus need be

shown. In contrast, four other courts of appeals have inter-

preted this Court’s statements in McDonnell Douglas and

Burdine as requiring a showing of a discriminatory nexus.

The Third Circuit’s decision does not follow this

Court’s instruction that, under the third stage of the

McDonnell Douglas/Burdine method of proof, a plaintiff is

required to prove that the legitimate, nondiscriminatory

reasons articulated by the defendant “were a pretext for

9

discrimination.” Burdine, 450 U.S. at 253 (emphasis

added).

Certiorari should be granted in this case to correct this

conflict between the Third Circuit and the other courts of

appeals. Otherwise, the Third Circuit’s radical change in

the evidentiary standards for discrimination cases may

affect the outcome of the thousands of employment-related

civil rights cases filed each year in the federal courts.®

In resolving this conflict, this Court should reject the

- Third Circuit’s standard, not only because it conflicts with

the way four other courts of appeals have applied decisions

of this Court, but also for three additional reasons:

(1) The Third Circuit’s holding applies Burdine

incorrectly by improperly shifting the plaintiffs bur-

den of persuasion to the defendant at a critically

important time in the lawsuit;

(2) The Third Circuit’s approach essentially elim-

inates an employer’s opportunity to obtain summary

judgment in discrimination cases, contrary to this

Court’s instruction in Celotex Corp. v. Catrett, 477

U.S. 317, 106 S.Ct. 2548 (1986); and P

(3) The Third Circuit’s approach eliminates the

necessity of race-related evidence in a race discrimina-

tion case.

The Third Circuit’s holding in this case directly con-

fiicts with the decisions from the United States Courts of

SOver 9,100 employment-related civil rights cases were filed in

fiscal 1986. Reports of the Proceedings of the Judicial Conference of the

United States, Annual Report of the Director of the Administrative

Office of the United States Courts (1986), Table C-2 at 176 and Table C-

2A at 179.

10

Appeals for the First,’ Fifth,!° Seventh,'' and Eleventh!”

Circuits. Unlike the Third Circuit, these other courts have

held that a plaintiff cannot survive summary judgment (or

meet his ultimate burden to demonstrate unlawfui dis-

crimination) merely by introducing evidence which con-

troverts the truthfulness of the employer’s articulated rea-

sons for the disputed employment decision. Instead, these

other courts of appeals require a plaintiff to link the

employment action at issue with the alleged basis of the

discrimination claim. In short, they require a discrimina-

tion plaintiff to offer proof that the employer’s proffered

explanation was “‘a pretext for discrimination,” not just

that it was not true.

For example, in Dea v. Look, 810 F.2d 12 (ist Cir.

1987), the First Circuit affirmed summary judgment for

the employer, despite the plaintiffs attempts to discredit

the employer’s articulated reason for the discharge. The

court noted that the plaintiffs challenge to the employer’s

stated justification ‘“‘merely provide[s] another reason,

totally unrelated to age, for his discharge.” Jd. at 15. The

First Circuit held that

evidence contesting the factual underpinnings of the

reason for the discharge proffered by the employer is

insufficient, without more, to present a jury question.

9Dea v. Look, 810 F.2d 12 (1st Cir. 1987); White v. Vathally, 732

F.2d 1037 (1st Cir.), cert. denied, 469 U.S. 933 (1984).

Slaughter vy. Allstate Ins. Co., 803 F.2d 857 (Sth Cir. 1986).

'Dale v. Chicago Tribune Co., 797 F.2d 458 (7th Cir. 1986), cert.

denied, — U.S... 107 S.Ct. 954 (1987); Pollard v. Rea Magnet Wire

Co., 824 F.2d 557 (7th Cir. 1987).

2Clark v. Huntsville City Bd. of Educ., 717 F.2d 525 (11th Cir.

1983).

11

Plaintiff continues to carry the burden of showing dis-

criminatory intent, and... [he] cannot meet his bur-

den of proving “pretext” simply by refuting or ques-

tioning the defendants’ articulated reason.

Id. (citations omitted). See also White v. Vathally, 732

F.2d 1037, 1043 (1st Cir.), cert. denied, 469 U.S. 933 (1984)

(“[mJerely casting doubt on the employer’s articulated rea-

son does not suffice to meet the plaintiff's burden of dem-

onstrating discriminatory intent”).

Similarly, the Seventh Circuit in Dale v. Chicago Trib-

une Co., 797 F.2d 458 (7th Cir. 1986), cert. denied, __ U.S.

—., 107 S.Ct. 954 (1987), affirmed summary judgment for

an employer which had proffered a nondiscriminatory

explanation for a discharge. The Seventh Circuit held that

a plaintiff “must establish a nexus” between the evidence

which purported to show that the employer’s explanation

was unworthy of credence and age discrimination. /d. at

465. Since the plaintiffs evidence in Dale did not relate

even indirectly to age, and consisted principally of “‘self-

interested assertions” which challenged the prudent busi-

ness judgment of his supervisors, summary judgment was

found to be appropriate. Jd. at 464-65. See also Pollard v.

Rea Magnet Wire Co., 824 F.2d 557, 559 (7th Cir. 1987)

(summarizing the law in the Seventh Circuit as requiring a

plaintiff to “show not only a false reason but also a causal

chain in which race or another forbidden criterion plays a

dispositive role’’).

The Third Circuit’s standard is also in conflict with

decisions in at least two other circuits. See Slaughter v.

Allstate Ins. Co., 803 F.2d 857, 860 (Sth Cir. 1986) (when

resisting a summary judgment motion, conclusory allega-

tions by the plaintiff, without more, are insufficient to

carry the plaintiffs burden to show that the articulated

12

reasons served “as a pretext to cloak discrimination”);

Clark v. Huntsville City Bd. of Educ., 717 F.2d 525, 529

(11th Cir. 1983) (“ta simple finding that the defendant did

not truly rely on its proffered reason, without a further

finding that the defendant relied instead on race, will 1 not

suffice to establish Title VII liability’).

Had this case arisen in one of these other four circuits,

instead of in the Third Circuit, the result surely would

have been different. Like plaintiffs in cases in these other

circuits, Jackson’s only racially related evidence was that

he is black. The balance of his record evidence is “‘self-

interested assertions” challenging his supervisor’s judg-

ment and evaluations of his job performance. In this fac-

tual setting, it was the Third Circuit’s use of the wrong

summary judgment standard which led it to issue a hold-

ing squarely contrary to the result which would have been

reached under the approach used in the four other circuits.

The appropriate standard for summary judgment in

discrimination cases is an important issue, as this case

illustrates, and it affects thousands of cases per year. It,

therefore, would be appropriate for this Court to issue a

Writ of Certiorari to resolve the conflict among the circuits

on this important issue.

A. The Third Circuit’s Standard Improperly Shifts

The Burden Of Persuasion In Discrimination

Cases From The Plaintiff To The Defendant.

Summary judgment is appropriate if the evidence of

record shows that “there is no genuine issue as to any

material fact and that the moving party is entitled to judg-

ment as a matter of law.” Fed.R.Civ.P. 56(c). As this Court

emphasized last year in its trilogy of cases examining the

burdens of proof and persuasion in summary judgment

13

proceedings,'? no genuine issue of material fact remains for

trial “unless there is sufficient evidence favoring the non-

moving party for a jury to return a verdict for that party.”

Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2511

(1986).

This Court explained that a judge ruling on a sum-

mary judgment motion must “‘view the evidence presented

through the prism of the substantive evidentiary burden”

that the parties must bear at trial. Anderson, 106 S.Ct. at

2513. Thus, if the nonmovant will bear the burden of

persuasion at trial, the party moving for summary judg-

ment may meet its burden by showing that the evidentiary

materials of record, if reduced to admissible evidence,

would be insufficient to carry the nonmovant’s burden at

trial. See Celotex Corp. v. Catrett, 106 S.Ct. at 2555.

In a discrimination action, the plaintiff has the burden

of persuasion on the issue of discriminatory intent (for

example, in this case, the plaintiff must prove that the

decision to discharge him was the result of intentional

racial bias). Burdine, 450 U.S. at 253. Furthermore, at the

third stage of the McDonnell Douglas/Burdine analysis, the

plaintiff must persuade the trier of fact that the defendant’s

proffered explanation is a “pretext for discrimination.” /d.

Thus, it is the plaintiff who must prove discrimination; the

defendant is not required to prove the absence thereof.

Trustees of Keene State College v. Sweeney, 439 U.S. 24

(1978) (per curiam).

'3Matsushita vy. Zenith Radio Corp., 475 U.S. 574 (1986): Anderson

v. Liberty Lobby, Inc., 477 U.S. 242. 106 S.Ct. 2505 (1986); and Celotex

Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548.

14

The Third Circuit, however, permits a plaintiff to

defeat an otherwise meritorious motion for summary judg-

ment simply by disputing the legitimate, nondiscrimina-

tory reasons proffered by the employer for its actions. The

Third Circuit does not require a plaintiff to produce any

evidence linking the employment decision at issue to the

basis for the discrimination claim. By adopting this stan-

dard, the Third Circuit has effectively and impermissibly

shifted the burden of persuasion from the plaintiff to the

defendant, in clear violation of this Court’s holding in

Burdine.

The effect of this improper shifting of the burden of

persuasion on the outcome of discrimination cases is to

change the nature of the anti-discrimination statutes. An

employer motivated by unpublicized financial problems, a

desire to spare the feelings of a loyal or long-term

employee, or even nepotism may communicate to a dis-

charged employee an explanation for the decision which is

less than brutally frank, even if well intentioned. Under

such circumstances, the employer has committed no illegal

act under any of the civil rights statutes. Nevertheless, if

the employer had explained the discharge as being based

upon poor job performance, and if the employee were to

allege reasons why he believed that his job performance

was not substandard, the plaintiff (in the Third Circuit)

could survive summary judgment (assuming an ability to

meet the light burden of proving a prima facie case) and

proceed to trial on a claim of race discrimination, sex

discrimination, age discrimination, or all three. The case

would proceed to trial (in the Third Circuit) even though

there is no evidence that the employee’s race, sex or age

was a reason for his discharge.

|

15

In attempting to minimize the significance of its

approach, the Third Circuit offered this advice: “A defen-

dant which is less than honest in proffering its reason for

discharge risks an unnecessary age discrimination verdict.”

Chipollini v. Spencer Gifts, Inc., 814 F.2d at 899. This

advice protests too much because it admits that the Third

Circuit’s approach has the effect of turning federal anti-

discrimination statutes into federal codes of good faith and

fair dealing. These laws, however, were drafted to prevent

discrimination, Burdine, 450 U.S. at 259, not to punis’

employers for not being brutally frank to their employees.

Thus, as the Third Circuit itself seems to recognize, its new

standard has the result of giving the anti-discrimination

laws an effect which was not intended by Congress. This

Court, therefore, should issue a Writ of Certiorari to

review the Third Circuit standard and to restore the origi-

nal intent of the anti-discrimination laws.

B. The Third Circuit’s Standard Places Such A Light

Burden On A Discrimination Plaintiff That It

Essentially Eliminates Summary Judgment For

Employers In Discrimination Cases.

Under the Third Circuit standard, a discrimination

plaintiff can survive a motion for summary judgment so

easily that summary judgment is essentially eliminated for

defendants in employment discrimination cases. As long

as the plaintiff raises a factual dispute concerning the

employer's proffered reasons, summary judgment would

not be appropriate, according to the Third Circuit.

In the instant case, the Third Circuit overturned the

district court’s grant of summary judgment because Jack-

son, in his deposition, tendered self-serving statements

which disputed the University’s evaluation of his job per-

formance. None of Jackson’s evidence, however, linked his

16

discharge to race, either directly or indirectly. He was

merely second guessing his employer's evaluation of his

work.

The effect of this decision is to permit every plaintiff

who is discharged for poor performance, and who brings a

discrimination action, to avoid summary judgment merely

by challenging his employer's assessment of his job perfor-

mance. This rule stands in clear conflict to the proposition

that Title VII “was not intended to ‘diminish traditional

management perogatives.’” Burdine, 450 U.S. at 259 (quo-

tation in original).

More importantly, the Third Circuit’s approach effec-

tively eliminates summary judgment in discrimination

cases. This result stands in stark contravention to this

Court's recent reaffirmation that the “[s]}ummary judgment

procedure is properly regarded not as a disfavored proce-

dural shortcut, but rather as an integral part of the Federal

Rules as a whole, which are designed ‘to secure the just,

speedy and inexpensive determination of every action.’ ”

Celotex Corp. v. Catrett, 106 S.Ct. at 2555 (quotation in

original).

A Writ of Certiorari, therefore, should be granted in

this case so that summary judgment can be returned to its

integral role in the Federal Rules in discrimination cases

arising in the Third Circuit, as well as in ones arising

elsewhere in the country.

C. The Third Circuit’s Standard Eliminates The

Necessity For Race-Related Evidence In Race Dis-

crimination Cases.

Under the standard which the Third Circuit applied in

this case, a race discrimination plaintiff can avoid sum-

mary judgment, can plead his case to the jury and can

a

17

ultimately prevail without providing any direct or indirect

evidence linking the adverse job action at issue to his race.

Instead, a plaintiff in the Third Circuit can secure a

favorable verdict merely by raising a factual dispute about

the employer’s stated nondiscrim‘natory reasons for an

employment decision.

Federal anti-discrimination statutes, however, includ-

ing Title VII, do mot impose (and were never intended to

impose) upon employers the burden of establishing a just

or proper cause for their personnel actions. Rather, they

are statutes which were enacted to remedy only a certain

narrowly-defined type of employment decisions—ones

which are based upon a statutorily-prohibited reason (such

as race, age, or sex).

In these discrimination cases, it is critical that the

plaintiff prove not only that something adverse happened

to him, but also that it happened to him because of his

race, age, or sex. This Court acknowledged the importance

of this nexus in Burdine, as have four other courts of

appeals which have addressed the issue.

The Third Circuit, however, has adopted an approach

which incorrectly eliminates the proof of race discrimina-

tion from a race discrimination case. This error is so

important that intervention by this Court is appropriate.

For these and the other reasons set forth above, this

Court should grant the petition, issue a Writ of Certiorari,

reverse the Third Circuit, and reiterate that a plaintiff in a

discrimination case must produce more than a factual dis-

pute with his employer's articulated reasons for a job

action in order to survive summary judgment. Instead,

such a plaintiff must establish some nexus between the

18

employment action at issue and the alleged basis of dis-

crimination, as four other courts of appeals which have

addressed this issue have held.

CONCLUSION

In order to resolve this conflict between the Third

Circuit and four other courts of appeals, and for all of the

other foregoing reasons, it is respectfully submitted that

this Petition for a Writ of Certiorari should be granted.

Respectfully submitted,

*MARTHA HARTLE MUNSCH

STEVEN P. FULTON

REED SMITH SHAW & McCLAY

Mellon Square

435 Sixth Avenue

Pittsburgh, PA 15219

(412) 288-4118

Counsel for Petitioner,

University of Pittsburgh

*Counsel of Record

for Petitioner

Dated: November 13, 1987

la

APPENDIX A

United States Court of Appeals

For THE THIRD CIRCUIT

No. 86-3391

MATTHEW E. JACKSON, JR..,

Appellant

Vv.

UNIVERSITY OF PITTSBURGH, DAVID C.

SULLIVAN and WESLEY W. POSVAR,

in their official and individual capacities

ON APPEAL FROM THE UNITED STATES

DistRIiCT COURT FOR THE WESTERN DISTRICT

OF PENNSYLVANIA

(D.C. Civit AcTION No. 85-264)

Argued

February 11, 1987

Before: HIGGINBOTHAM and STAPLETON,

Circuit Judges, and RODRIGUEZ,

District Judge.*

(Filed August 19, 1987)

* Honorable Joseph H. Rodriguez, United States District Judge for

the District of New Jersey, sitting by designation.

2a

MATTHEW E. JACKSON, JR., ESQ. (ARGUED)

1017 Fifth Avenue

Pittsburgh, PA 15219

Attorney Pro Se

STEVEN P. FULTON, ESQ.

MARTHA HARTLE MUNSCH, ESQ. (ARGUED)

Reed, Smith, Shaw and McClay

P.O. Box 2009

Pittsburgh, PA 15230

Attorneys for Appellees

OPINION OF THE COURT

A. LEON HIGGINBOTHAM, JR., Circuit Judge.

This appeal requires us to determine whether sum-

mary judgment was properly granted for the defendants-

appellees in an employment discrimination case. Because

record evidence demonstrates the existence of genuine

issues of material fact that must be resolved at trial, we

determine that, in part, it was not properly granted. We

therefore will reverse the judgment of the district court on

appellant’s federal claims concerning his discharge and

remand them for trial.

I. Background

Appellant Matthew E. Jackson, Jr., who is black, was

hired on July 15, 1975 by appellee the University of Pitts-

burgh (“Pitt”) to work as an attorney in its legal depart-

ment, Jackson continued in this position until January 3,

3a

1984, when he was discharged by appellee David C. Sulli-

van, who had then been Pitt’s general counsel, and Jack-

son’s supervisor, for one year. Jackson thereafter filed an

internal grievance with Pitt concerning his termination; he

also complained to the Pennsylvania Human Relations

Commission (“PHRC’”), the Equal Employment Opportu-

nity Commission (“EEOC”) and the Office of Federal Con-

tract Compliance Programs (“OFCCP”’), that his discharge

was racially motivated.'! On February 1, 1985, Jackson

commenced this action, alleging federal claims under Title

VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e-2

(1982), and Section 1981 of the Civil Rights Act of 1866

and the Voting Rights Act of 1870, 42 U.S.C. § 1981

(1982), and pendent state claims. After discovery and a

hearing, the district court denied Jackson’s motion for

summary judgment and entered summary judgment for

appellees. Jackson v. University of Pittsburgh, No. 85-0264

(W.D. Pa. June 11, 1986). This appeal followed. Our juris-

diction is conferred by 28 U.S.C. § 1291 (1982).

II. The Governing Law

We review grants and denials of summary judgment

by applying the same test a district court should employ.

Marek v. Marpan Two, Inc., 817 F.2d 242, 244 (3d Cir.

1987); Goodman v. Mead Johnson & Co., 534 F.2d 566,

573 (3d Cir. 1976), cert. denied, 429 U.S. 1038 (1977); see

generally Bushman v. Halm, 798 F.2d 651, 656-57 (3d Cir.

'On December 20, 1984, the OFCCP concluded that “[n]Jo elements

of race consideration were found in complainant’s termination.”

Appendix for Appellant (“App.”) at 838. The record also indicates that

Jackson withdrew his PHRC and EEOC charges before either of those

agencies had made a determination. See id. at 529, 531 (Deposition of

Matthew E. Jackson, Jr.). Jackson did, however, receive right to sue

letters from these agencies on November 11, 1984, and December 17,

1984, respectively. Brief for Appellant at 27.

4a

1986). Rule 56 permits a district court to grant a summary

judgment motion only when “the pleadings, depositions,

answers to interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is

entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c). A disputed factual matter is a “genuine” issue “if the

evidence is such that a reasonable jury could return a ver-

dict for the nonmoving party.” Anderson v. Liberty Lobby,

inc., — U.S. —., 106 S. Ct. 2505, 2510 (1986). “Material”

facts are those “that might affect the outcome of the suit

under the governing law... .” Id.

Inferences to be drawn from the underlying facts con-

tained in the evidential sources submitted to the tral

court must be viewed in the light most favorable to

the party opposing the motion. The non-movant’s

allegations must be taken as true and, when these

assertions conflict with those of the movant, the for-

mer must receive the benefit of the doubt.

Goodman, 534 F.2d at 573 (footnote omitted).

In a federal discrimination case such as this one, the

governing law includes the “method of... presumptions

and shifting burdens of production” set forth by the

Supreme Court in McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973) (“McDonnell Douglas”’), and its progeny.

Dillon v. Coles, 746 F.2d 998, 1003 (3d Cir. 1984).

First, the plaintiff has the burden of proving by the

preponderance of the evidence a prima facie case of

discrimination. Second, if the plaintiff succeeds in

proving the prima facie case, the burden shifts to the

defendant “to articulate some legitimate, nondiscrimi-

natory reason for the employee’s [dismissal].” Third,

should the defendant carry this burden, the plaintiff

Sa

must then have an opportunity to prove by a prepon-

derance of the evidence that the legitimate reasons

offered by the defendant were not its true reason, but

were a pretext for discrimination.

Texas Dep’t of Community Affairs v. Burdine, 450 US.

248, 252-53 (1981) (“Burdine”’) (quoting McDonnell Doug-

las, 411 U.S. at 802); see generally Robinson v. Lehman,

771 F.2d 772, 777 n.13 (3d Cir. 1985); Kunda v. Muhlen-

berg College, 621 F.2d 532, 541-43 (3d Cir. 1980).

This Court noted recently, in the context of a federal

age discrimination claim, that “a defendant’s burden of

production as the moving party on summary judgment

generally is to show that the plaintiff cannot meet his [or

her] burden of proof at trial.” Chipollini v. Spencer Gifts,

Inc., 814 F.2d 893, 895 (3d Cir. 1987) (in banc), petition for

cert. filed, 56 U.S.L.W. 3013 (U.S. July 14, 1987) (No. 86-

2007). This burden on the moving defendant is not satis-

fied, however, “merely by showing the plaintiffs inability

to prove by direct evidence that the defendant’s proffered

reason is a pretext for... discrimination.” Jd. (original

emphasis). At the summary judgment stage, in other

words, “all that is required [for a non-moving party to

survive the motion] is that sufficient evidence supporting

the claimed factual dispute be shown to require a jury or

judge to resolve [at trial] the parties’ differing versions of

the truth... .” First Nat'l Bank of Ariz. v. Cities Servs. Co.,

391 U.S. 253, 288-89 (1968). Further, because

intent is a substantive element of this cause of

action—generally to be inferred from the facts and -

conduct of the parties—the principle is particularly

apt that courts should not draw factual inferences in

favor of the moving party and should not resolve any

genuine issues of credibility.

6a

Ness v. Marshall, 660 F.2d 517, 519 (3d Cir. 1981) (original

emphasis).

III. Appellees’ Motion for Summary Judgment

Appellee’s motion for summary judgment, which the

district couri granted, sought judgment in its favor “in all

respects.” App. at 791. Thus, while the district court’s brief

opinion is less than clear in explaining the precise claims

to which its order appiies, we have concluded that the

district court entered summary judgment for appellees on

Jackson’s Title VII and Section 1981 claims concerning his

discharge, on his similar federal claims concerning Pitt’s

processing of his grievance, and on his pendent state

claims alleging fraud, defamation and invasion of privacy.

‘We will address these distinct summary judgments in that

order.

A. Pitt's Discharge of Jackson

Appellees make no contention that Jackson has failed

to establish a prima facie case under the McDonnell Doug-

las method of proof. We note that (i) he belongs to a racial

minority; (ii) he was employed as one of Pitt’s in-house

attorneys and was qualified for that position; (i11) he was

discharged from that position; and (iv) his co-workers,

who are white, were not discharged. The district court

correctly found that Jackson established a prima facie

case . See McDonnell Douglas, 411 U.S. at 802; Bellissimo

v. Westinghouse Elec. Corp., 764 F.2d 175, 179-80 (3d Cir.

1985) (“A plaintiff alleging a discriminatory firing need

only show that he [or she] was fired from a job for which

he [or she] was qualified while others not in the protected

class were treated more favorably... . Proof of discharge

will estab‘ish a prima facie showing in a Title VIi suit.’’),

cert. denied, __U.S. __, 106 S. Ct. 1244 (1986). Jackson, in

Ta

other words, carried his “initial burden of showing actions

taken by the employer from which one can infer, if such

actions remain unexplained, that it is more likely than not

that such actions were “based on a discriminatory criterion

illegal under [Title VII].’”’ Furnco Constr. Corp. v. Waters,

438 U.S. 567, 576 (1978) (‘‘Furnco”’) (quoting Interna-

tional Bhd. of Teamsters v. United States, 431 U.S. 324,

358 (1977)); cf EEOC vy. Hall’s Motor Transit Co., 789

F.2d 1011, 1015 (3d Cir. 1986) (“an employer’s decision to

discharge an employee may superficially appear to be justi-

fied by legitimate business reasons and yet [may] have

been motivated by racial prejudice’’).

Under McDonnell Douglas, appellees have aiso ful-

filled their ensuing burden of production “to articulate

some legitimate, nondiscriminatory reason” for Jackson’s

dismissal. 411 U.S. at 802. The summary judgment record

now before us includes depositions, affidavits, documents

and other evidence supporting appellees’ position that

Jackson “‘was simply a poor performer,” Brief of Defend-

ants-Appellees at 21, who was, accordingly, dismissed

from his job.” .

2At the same time the district court granted appellees’ motion for

summary judgment, it also denied Jackson’s contemporaneous motion

for summary judgment. Jackson separately appeals the denial of his

summary judgment motion, claiming that, at stage two of the shifting

McDonnell Douglas burdens, appellees failed to articulate a legitimate,

nondiscriminatory reason for their challenged acts. In reality, however,

this aspect of Jackson’s appeal amounts to a claim that appellees’ prof-

fered reasons for terminating him are unsupported by a preponderance

of the evidence and therefore are not worthy of credence. See Brief for

Appellant at 39-46. We conclude that any such assessment must be

made by the factfinder at trial; “‘[a]t the summary judgment stage, ‘the

judge’s function is not....to weigh the evidence and determine the

truth of the matter but to determine whether there is a genuine issue for

trial.” *» Equimark Commercial Fin. Co. v. C.I.T. Fin. Servs. Corp., 812

(Continued on next page)

8a

The true dispute in this appeal concerns the third

stage of the McDonnell Douglas method of proof: Has

Jackson introduced sufficient evidence to demonstrate the

existence of a genuine issue whether appellees’ “proffered

justification is merely a pretext for discrimination”?

Furnco, 438 U.S. at 578. The district court concluded that

Jackson’s record evidence does not create such an issue; it

“ffound] no evidence of racial animus but on the contrary

not[edj abundant instances of unsatisfactory work perfor-

mance [by Jackson that Sullivan] might reasonably regard

as sufficient cause for discharge....” Jackson, No. 85-

0264, mem. op. at 2 (W.D. Pa. June 11, 1986).

We reject the district court’s conclusion. The record,

including Jackson’s lengthy deposition, contains more

than “‘a scrap of evidentiary material to support h[is] argu-

ment.” Alizadeh v. Safeway Stores, Inc., 802 F.2d 111, 113

(Sth Cir. 1986). Instead, throughout nearly 700 transcript

pages, Jackson’s deposition in numerous ways calls into

question appellees’ claims that Jackson was dismissed for

performance deficiencies. Jackson’s basic position is that

he never received any complaints about—and, indeed, that

he was often complimented for—his legal work during his

years at Pitt. E.g., App. at 59, 427, 482-84, 527 (Deposition

of Matthew E. Jackson, Jr.). Jackson also claims that Sulli-

van in particular never made specific complaints or gave

Jackson “facts about anything,” id. at 234 (same); that

Sullivan, after discharging Jackson, began to solicit com-

plaints about his work by calling “numerous individuals”

at Pitt, id, at 352 (same); that Sullivan, after discharging

Jackson, was seen “walking around the halls like a wild

(Continued)

F.2d 141, 144 (3d Cir. 1987) (quoting Anderson, —_ U.S. at —, 106 S.

Ct. at 2511). Accordingly, we will affirm the district court's denial of

Jackson’s motion.

tines

9a

man,” id. at 283 (same), “talking about he was going

to ruin [Jackson’s] reputation and destroy [him],” id at

286 (same); and that Sullivan told Jackson’s attorney

“that [Sullivan] would ruin and destroy [Jack-

son,]...something to the effect that [Jackson] would

never be able to practice law in Pittsburgh again.”? Jd. at

360-61 (same). As a whole, such record evidence is more

than sufficient to support the reasonable inference that Sul-

livan’s criticisms of Jackson’s performance are post hoc

concoctions. It also suffices to support an inference that

Sullivan orchestrated a campaign to get rid of Jackson

because he was black. In refusing to draw such obvious

inferences, and thus in entering summary judgment for

appellees, it appears that the district court “invaded for-

bidden territory” that is reserved for a factfinder at trial.

Fireman’s Fund Ins. Co. v. Videfreeze Corp., 540 F.2d

1171, 1178 (3d Cir. 1976), cert. denied, 429 U.S. 1053

(1977).

Additionally, as to the substantive legal tasks that

appellees allege Jackson mishandled during his years of

employment at Pitt, Jackson counters with claims that he

was not the lawyer who was responsible for some of the

matters in question, App. at 111-12 (Deposition of Mat-

thew E. Jackson, Jr.), and that Sullivan refused Jackson’s

requests to bring in outside counsel to handle other spe-

cialty matters. Jd. at 546-50 (same). In addition, Jackson

claims that he was the only attorney in the office who had

no secretary, id. at 63-64; 87, 96, 137, 542 (same), and that

he alone was denied the assistance of less-experienced legal

staff members who were otherwise available. Jd. at 205-06,

*We also note Sullivan’s alleged statement of “hope [that Jackson]

doesn’t think the black judges can help him.” App. at 52a (Deposition of

Matthew E. Jackson, Jr.); see also id. at 284 (same).

10a

542-44 (same). Such evidence supports the reasonable

inference that Jackson was treated less favorably than his

white colleagues in ways that could explain any “defi-

ciency” in his performance. Cf Bellissimo, 764 F.2d at 180

(trial court finding that Ms. Bellissimo proved pretext was

“clearly erroneous because [she] failed to make any show-

ing of disparate treatment and because [defendant] proved

that its male attorneys were treated the same as she in the

disputed areas’’). It suffices, in short, to raise a genuine

issue of fact whether Jackson’s dismissal really had any-

thing at all to do with his performance.

We make no claim to believe or to disbelieve Jack-

son’s evidence. That, we emphasize, is wholly the province

of the factfinder at trial. See Bushman, 798 F.2d at 660

(“While plaintiff's credibility may be challenged by oppos-

ing counsel at trial, it is not the function of the court to

assume the role of the factfinder upon summary judg-

ment.”); Graham vy. F.B. Leopold Co., Inc., 779 F.2d 170,

173 (3d Cir. 1985) (“What the district court chooses to

infer or chooses not to infer is simply not relevant to

consideration of a summary judgment motion.”); Fire-

man’s Fund Ins. Co., 540 F.2d at 1178 (“[iJt is the function

of the trier of fact alone... . to evaluate contradictory evi-

dence’). We do note, and by reciting the deposition evi-

dence in such detail we mean to demonstrate, however,

that a factfinder reasonably could conclude that appellees’

position is mere pretext. Jackson’s opposition to the sum-

mary judgment motion was therefore not based only upon

“t{he] bare-bone allegations in h{is] brief and plead-

ings....” Alizadeh, 802 F.2d at 113; cf Sola v. Lafayette

College, 804 F.2d 40, 45 (3d Cir. 1986) (affirming summary

judgment where plaintiff “produced no evidence [beyond

her allegations] that she was denied tenure in part based on

lla

her gender”); accord Kephart v. Institute of Gas Technol-

ogy, 630 F.2d 1217, 1218 (7th Cir. 1980) (per curiam)

(affirming summary judgment for employer in age discrim-

ination case where “the subsidiary facts plaintiff put for-

ward as evidence . . . [gave] no indications of motive and

intent, supportive of his position, to put on the scales for

weighing [-ilt was a wholly empty case’’), cert. denied, 450

U.S. 959 (1981); Pierce v. New Process Co., 580 F. Supp.

1543, 1546 (W.D. Pa.) (granting summary judgment for

employer in age discrimination case where “plaintiff [was

unjable to present any facts to indicate pretext or discrimi-

natory intent”), aff'd, 749 F.2d 27 (3d Cir. 1984). It was,

rather, based upon his own evidence and comprehensive

testimony, and was sufficient to withstand the motion for

summary judgment. See J.E. Mamiye & Sons, Inc. v. Fidel-

ity Bank, 813 F.2d 610, 617 (3d Cir. 1987) (where “reason-

able minds could differ[,]...an issue of material fact

remains... for the trier of fact’); Miller v. Fairchild

Indus., Inc., 797 F.2d 727, 732 (9th Cir. 1986) (race dis-

crimination plaintiffs relied upon evidence including

“their declarations” to survive employer’s summary judg-

ment motion); Walters v. President & Fellows of Harvard

College, 645 F. Supp. 100, 102 (D. Mass. 1986) (“plaintiff's

contentions . . . [placed] the underlying facts . . . sufficiently

in question that summary judgment is not warranted”)

(emphasis added).

Appellees’ central argument in this appeal—a position

that the district court appeared to adopt in granting their

motion for summary judgment—is that Jackson’s deposi-

tion, because it is his only record evidence, is insufficient

to create a genuine factual issue on the ultimate question

of race discrimination. This position relies upon our deci-

sion in Molthan v. Temple Univ., 778 F.2d 955 (3d Cir.

l2a

1985), affirming the entry of judgment for the defendant in

a Title VII sex discrimination suit. In Molthan, “we

agree[d] with the district court that no evidence was

adduced from which a jury could reasonably have inferred

that sex discrimination played any part in the denial of

[plaintiff's] promotion,” and we concluded that plaintiff's

evidence there “was insufficient as a matter of law to war-

rant any [such] inference....” Jd. at 962. We did not

hold, however.—contrary to appellees’ assertions and oral

argument before this Court—that a discrimination plaintiff

must offer “some evidence other than [his or] her own

subjective belief” or “put on at least one other witness

other than [himself or] herself” before his or her case will

survive motions for summary judgment and/or directed

verdict,‘ and we explicitly reject any intimations to the

contrary. There is simply no rule of law that provides that

a discrimination plaintiff may not testify in his or her own

behalf, or that such testimony, standing alone, can never

make out a case of discrimination that will survive a

motion for summary judgment.

In today’s climate of public opinion, blatant acts of

discrimination—the true “smoking guns’”—can easily be

identified, quickly condemned and often rectified in the

particular settings where they occur. Much of the discrimi-

nation that remains resists legal attack exactly because it is

so difficult to prove. Discrimination victims often come to

the legal process without witnesses and with little direct

evidence indicating the precise nature of the wrongs they

have suffered. That is one of the reasons why our legal

system permits discrimination plaintiffs to “prove [their]

‘Although the oral argument has not, to our knowledge, been tran-

scribed, these quotations from appllees’ argument were obtained with

care from the Court's audio tape.

l3a

case[s] by direct or circumstantial evidence.” United States

Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714

n.3 (1983) (emphasis added); accord Maxfied v. Sinclair

Int'l, 766 F.2d 788, 791 (3d Cir. 1985), cert. denied, __ U.S.

—, 106 S. Ct. 796 (1986); Lewis v. University of Pittsburgh,

725 F.2d 910, 919 n.10 (3d Cir. 1983), cert. denied, 469

U.S. 892 (1984). This record, unlike that in Molthan, con-

tains both circumstantial evidence and Jackson’s direct

evidence from which a jury could reasonably infer that

Jackson’s performance as a lawyer was not deficient, that

appellees’ claims to the contrary are mere pretext, and that

race discrimination played a role in Jackson’s discharge.*

Therfore, because “the issue of pretext turns on [Jackson’}s

credibility[, it] is not appropriate for resolution on a sum-

mary judgment motion.” Chipollini, 814 F.2d at 901;

accord Pollock v. American Tel. & Tel. Long Lines, 794

F.2d 860, 865 (3d Cir. 1986) (where “record contains more

than simple accusations and speculation[,] . .. there is suf-

ficient evidence to put [the employer’s] motivation in

issue”); cf, Attorney Gen. of the United States v. Irish Peo-

ple, Inc., 796 F.2d 520, 523 (D.C. Cir. 1986) (per curiam)

(Bork, Scalia and Gesell, JJ.) (“affidavits from [nonmovant

organization’s] officers and staff,” which “District Court

dismissed ...as conclusory and iacking particular-

ity,... were adequate to raise a genuine issue of fact in

light of the nature of the Attorney General’s evidence and

the issue involved”).

‘This is the record evidence and the inferences drawn therefrom

that a court is not, at the summary judgment phase, free to minimize

much less disbelieve. Molthan, which was not a summary judgment

case, did, by contrast, involve our Court's refusal to credit evidence—

allegations that defendants there made a number of sexist comments—

that “[t}he district judge did not believe ....” 778 F.2d at 962 n.1.

all

l4a

B. Pitt's Handling of Jackson’s Grievance

Count II of Jackson’s complaint alleges that Pitt, in

processing Jackson’s grievance, intentionally deviated

from the provisions of its Staff Handbook, provisions that

Pitt had previously represented as applying to all of its

employees, and that this deviation itself was racially moti-

vated, in violation of Title VII and Section 1981. See App.

at 11. Appellees answer, inter alia, that Jackson, who held

a nonclassified staff position at Pitt, is not covered by the

handbook’s grievance procedure for classified employees.

On appellees’ motion for summary judgment, the district

court denied Jackson’s claim, which it called a “procedural

due process” claim, accepting instead appellees’ arguement

that Jackson is not covered by the Staff Handbook proce-

dure.® Jackson, No. 85-0264, mem. op. at 2 (W.D. Pa. June

11, 1986).

Jackson has not addressed this aspect of the district

court’s judgment in either of his briefs or in his oral argu-

ment to this Court. Accordingly, we conclude that it has

not been appealed. See generally Delaware Valley Citizens’

Council for Clean Air v. Pennsylvania, 755 F.2d 38, 40 n.2

(3d Cir.), cert. denied, __ U.S. __, 106 S. Ct. 67 (1985).

C. Jackson’s Pendent Claims

After disposing of Jackson’s federal claims, the district

court asserted that it was within “its discreticn [to] decline

to consider the pendent State claims....” Jackson, No.

6The district court found that “the grievance procedure upon which

plaintuff relies is applicable only to classified employees whose code

numbers appear in a specified list of job titles, which does not include

plaintiff's job.” Jackson, No. 85-0264, mem. op. at 2 (W.D. Pa. June 11,

1986).

15a

85-0264, mem. op. at 2 (W.D. Pa. June 11, 1986). Con-

vinced that these pendent claims “raise[d] no peculiarly

difficult or doubtful questions of State law [that] should be

reserved for disposition by State courts,” id., however, the

district court also granted appellees’ motion for summary

judgment on these claims.

We conclude that this aspect of the district court judg-

ment also has not been appealed. The only reference to

these claims is the final words on the final page of Jack-

son’s brief, which asks us to remand “for trial on the pen-

dent state claims.” Brief for Appellant at 50. This is insuffi-

cient to put the issue before us. See Fed. R. App. P.

28(a)(2) (appellant’s brief must contain a statement of the

issues presented for review); cf. Brown v. Sielaff, 474 F.2d

826, 828 (3d Cir. 1973) (per curiam) (citing Rule 28 for the

proposition that, where the “appellant has not pressed a

point in this appeal, we are unable to notice it’). Further,

these claims are not addressed at all in Jackson’s Reply

Brief and were not raised in the course of his oral argu-

ment. Accordingly, under the law of this Circuit, he has

“waived this issue on appeal.” Delaware Valley Citizen’s

Council For Clean Air, 755 F.2d at 40 n.2 (issue “‘not

addressed in appellant’s brief, reply brief or at oral argu-

ment”); accord Lugar v. Texaco, Inc., 755 F.2d 53, 57 n.2

(3d Cir. 1985); NLRB v. Wolff & Munier, Inc., 747 F.2d

156, 167 (3d Cir. 1984) (Sloviter, J., dissenting); Batile v.

Pennsylvania, 629 F.2d 269, 271 n.1 (3d Cir. 1980), cert.

denied sub nom. Scanlon y. Battle, 452 U.S. 968 (1981).

IV. Conclusion

For the foregoing reasons, we will affirm the district

court’s denial of appellant’s motion for summary judg-

ment. We will reverse the district court’s entry of summary

l6a

judgment for appellees on appellant’s federal claims con-

cerning his discharge and remand them for trial on the

merits. Costs will be taxed against appellees.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

17a

APPENDIX B

IN THE UNITED STATES District Court

For THE WESTERN DistRICT OF PENNSYLVANIA

+

MATTHEW E. JACKSON, JR.,

Plaintiff,

V. .

UNIVERSITY OF

PITTSBURGH, et al.

Civil Action

No. 85-0264

4

JUDGMENT 7

AND Now, this 11th day of June, 1986, upon consider-

ation of cross-motions for summary judgment and of

briefs in support thereof and in opposition thereto, and of

other affidavits, depositions, and documents of record,

after argument; and it appearing that plaintiffs action is

for unlawful discharge as assistant counsel of the Univer-

sity of Pittsburgh allegedly because of his race and color,

pursuant to 42 U.S.C. 2000e-2(a) (“Title VII’) and 42

U.S.C. 1981 [1983] (“Civil Rights”), and denial of proce-

dural due process, together with pendent State claims for

breach of contract, fraud, defamation and invasion of pri-

vacy; and the Court being of opinion that under the

schema of McDonnell Douglas Corp. v. Green, 411 U.S.

792, 802, 804-805 (1973), and its progeny, the crucial issue

here is whether defendants’ articulated legitimate reasons

for discharging plaintiff were pretextual and constituted

mere subterfuge; and that plaintiff must ultimately prove

that racial reasons were the true motivation for his dis-

charge [Alexander v. Northern Arizona Counsel of Govern-

ments, 447 F. Supp. 1364, 1367 (D. Ariz. 1978); Flucker v.

Fox Chapel Area School Dist., 461 F. Supp. 1203, 1204,

18a

1205 (W.D. Pa. 1978); and the Court finding no evidence

of racial animus but on the contrary noting abundant

instances of unsatisfactory work performance which plain-

tiffs supervisor Sullivan might reasonably regard as suff-

cient cayse for discharge under the “new broom” tight-ship

regime of high-quality low-cost legal service prescribed by

Sullivan as the remedy for Pitt’s excessive expenses for

legal services formerly paid to down-town law firms (one

striking example being plaintiff's lack of diligence in effec-

tuating a bequest to the University where the Dilworth

firm of Philadelphia wrote two letters urging completion of

the transactior ,; and the Court finding no denial of proce-

dural due process, since the grievance procedure upon

which plaintiff relies is applicable only to classified

employees whose code numbers appear in a specified list of

job titles, which does not include plaintiff's job; and while

the Court might in its discretion decline to consider the

pendent State claims, yet they seem to raise no peculiarly

difficult or doubtful questions of State law which should be

reserved for disposition by State courts; and the Court

being of opinion that no contractual action of assumpsit of

fraud is established; and that no actionable defamation or

invasion of privacy has been shown, the Court being of

opinion that it is ordinary prudence to keep a so called

“secret file’ such as Sullivan did, in order to be prepared

for the spate of wrongful discharge cases likely to arise

whenever a person of protected race, age, or sex is dis-

charged, or even for any discharge of an employee at will

since the decision in Novosel v. Nationwide Ins., Co., 721

F. 2d 894 (C.A. 3, 1983), and that keeping such data is no

evidence of wrongful animus or racial discrimination; and

the Court being of opinion that the data regarding plain-

tifPs performance was not disseminated to persons other

than those having a reasonable connection either with the

19a

termination process itself or with the climate of opinion on

black issues which was appropriately kept informed in

order to protect the image of the University and to justify

and defend Sullivan’s and Posvar’s actions against any

suspicions or allegations of racism; and that accordingly

defendants are entitled to the defenses of non-publication,

privilege, or statute of limitations as applicable to the par-

ticular statements charged as defamatory or as invading

privacy; and the Court therefore being of opinion that

there is no genuine issue as to any material fact and that

defendants are entitled to judgment as a matter of law;

IT is ORDERED, ADJUDGED, DECREED, AND FINALLY DETER-

MINED that plaintiffs motion be and the same hereby is

denied; thet defendants’ motion be and the same hereby is

granted, and that judgment be and it hereby is entered in

favor of defendants University of Pittsburgh, David C.

Sullivan, and Wesley W. Posvar, in their official and indi-

vidual capacities, and against plaintiff Matthew E. Jackson,

Jr., each party to bear its own costs and attorney fees.

United States Senior District Judge

20a

APPENDIX C

BUSINESS AND HIGHER EDUCATION

PARTNERS IN PROCESS

Foundation for Applied Science and Technology

December 5, 1983

Mr. David C. Sullivan, Esq.

University Legal Counsel

3201 Cathedral of Learning

Dear David:

Matt Jackson simply is not meeting our requirements

for legal support in the operations of the Foundation for

Applied Science and Technology. This letter requests

immediate relief in the form of temporary retention of

outside counsel knowledgeable in securities law and long-

term relief in the form of assignment to us of counsel

capable of handling our affairs more promptly and

skillfully. |

Specifically, we have two Research and Development

Limited Partnerships which must be processed within the

next several days. Follow up on these may continue

through most of December. I request that you assign Alan

Finegold of Kirkpatrick, Lockhart, Johnson & Hutchison,

to provide needed legal counsel in these matters. We also

require continuing and prompt assistance in working out

our Memorandum of Understanding with the University,

Confidentiality Agreements, contract documents, etc. To

date, our support has been lacking in both responsiveness

and precision.

The precipitating events leading to this request

include the following:

1)

2la

Matt promised the attorneys for Hickey-Kober

Inc., the Partnership syndicator, a package of data

by, Wednesday, 30 November. That package was

finally mailed—incomplete and incorrect—on

Friday, 2 December.

Judgments relating to quality of legai services may be sub-

jective, but issues of effort and promptness are not. Matt

told me that you had him tied up on another assignment

on Friday morning when he arrived here at approximately

11:30 AM for a meeting scheduled for early Friday morn-

ing. You have told me this was not the case. His absence

during this critical period had a devastating effect on the

quality of our preparation.

2)

a)

b)

The errors in documentation prepared by Matt

for the Hickey-Kober Partnership were numerous

and potentially disasterous in consequence. For

example; he proposed an option for the Founda-

tion to be exercised if a similar option was not

exercised by another party within one year. His

proposal had that party notify FAST of its intent

not to exercise on January 30, 1985 with FAST

required to exercise on January 30, 1985. He also

listed the distribution of royalties during one

phase of commercial exploitation as

Until the net proceeds equal the initial invest-

ment of the Limited Partners

1.) 60% to the Partnership

2.) 40% to Scopas and FAST in accordance with

the provisions of paragraph 7, below

Until the Limited Partners receive and additional

- amount equal to eight (8) times their initial

investment

1.) 3% to the Partnership

22a

2.) 97% to Scopas and FAST in accordance with

the provisions of paragraph 7

c) Thereafter, perpetual payments will be made

1.) 1% to the Partnership

2.) 99% to Scopas and FAST allocated in accor-

dance with the provisions of paragraph 7

whereas the correct distribution is

a) 6% of net proceeds until the partners recover their

initial investment

b) 3% of net proceeds until the partners have

received a total of eight times their initial

investment

c) Thereafter, 1% in perpetuity.

A draft of the document referred to above is attached.

Please note that this is not the first draft. It contains sev-

eral corrections of errors which were contained in earlier

drafts, yet there are still errors in items 2, 3, 4, 5 and 7.

+ wvonicennadel

23a

Since he has commenced to work on Foundation busi-

ness, Matt has stated that your assignment of his time to

other University business has prevented his concentration

on meeting our requirements. I cannot judge the accuracy

of these excuses. I do know that we need more prompt and

effective legal assistance. The errors of omission and com-

mission of the past week will cost us over $2 million in lost

revenues if not corrected immediately.

Sincerely,

} Richard K. Olson

RKO:slm

Attachments