Petition for Writ of Certiorari — Tempesta v. Motorola, Inc.

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011442 mar 272002

No. 01- OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

MICHAEL J. TEMPESTA,

Petitioner,

v.

MOTOROLA, INC.,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

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PETITION FOR A WRIT OF CERTIORARI

JupitH M. PRAKEL

JupitH M. PRAKEL, P.C.

331 North First Avenue

Suite 103

Phoenix, AZ 85003

(602) 253-7399

Attorney for Petitioner

172646 c

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

Boer

+ NSF RRR

1

QUESTION PRESENTED

In McDonnell Douglas v. Green (1973), this Court

articulated a rule of law for the circumstantial proof of an

individual disparate treatment employment discrimination

case. The McDonnell Douglas rule has been refined and

explained by the Court, most recently in Reeves v. Sanderson

Plumbing (2000). In Reeves the Court explained that at the

“pretext” stage ordinarily evidence sufficient to prove pretext

is also sufficient to prove discrimination, because the

plaintiff-employee’s prima facie case plus the proof of pretext

will eliminate most non-discriminatory reasons for the

employer’s action, leaving discrimination as the most likely

alternative explanation. However, the Court also included in

its opinion a proviso that there might sometimes be factual

circumstances where a jury could not rationally infer the fact

of discrimination from the fact of a pretextual reason having

been given by the employer (the “Reeves Exception’).

The Reeves Exception applies, “if the record conclusively

revealed some other, nondiscriminatory reason for the

employer’s decision, or if the plaintiff created only a weak

issue of fact as to whether the employer’s reason was untrue

and there was abundant and uncontroverted independent

evidence that no discrimination had occurred.”

In this case the question presented is whether, at the

pretext stage in an employment discrimination case,

the reviewing court may, in reliance on the Reeves Exception,

routinely place an additional evidentiary burden on the

plaintiff-employee, namely a weighing of his evidence of

pretext against the defendant-employer’s proffered evidence

of its “non-discriminatory” reason, to test whether the

plaintiff’s evidence may be found wanting as “weak”

compared with the defendant’s, and then grant summary

:

il

judgment to the defendant if that weighing is unfavorable to

plaintiff, in spite of the fact that the plaintiff has provided

sufficient evidence of pretext from which a rational jury could

have found the defendant’s proffered non-discriminatory

reason to be unworthy of belief, while at the same time

refusing to review the evidentiary record as a whole.

lll

TABLE OF CONTENTS

Page

SIN IIIS occ c ca sucrcccdcvccccsccces i

a i en ill

pe ee Vv

BU CUTIE oon cess ccccccccccasaccs ix

I ee te 2 ee ke |

Statement of Jurisdiction .............ccccccu. l

Statutory Provisions Involved ................. l

so ule hace nenceuk. 2

Reasons for Granting the Writ ................. 8

I. Certiorari Is Warranted Because the Decision

below Conflicts with this Court’s Decision

I rn A pe nn Pe i)

A. The Decision below Conflicts with the

Holding of this Court in Reeves in that it

Misconstrues the Circumstances under

which the Reeves Exception Applies .. 10

iv

Contents

B. The Decision below Conflicts with the

Holding of this Court in Reeves in That

it Impermissibly Fails to Base the

Summary Judgment Ruling on the Entire

Evidentiary Record, and Makes

Determinations That Are for the Jury . .

Il. The Decision Below Is Not Isolated but

Represent a Trend in Misapplying Reeves, and

the Reeves Exception, in the Lower Courts .

I 2300 oe ee oe nn ee eee

Page

15

ee te thes ed RO eanivE Be

TABLE OF CITEDAUTHORITIES

Page

Cases:

Carberry v. Monarch Marking Systems, 2002

WL 220634 (6th Cir., Feb. 11, 2002) .......... 20

Hicks vy. St. Mary’s Honor Center, 509 U.S. 502,

SES Oe CE. Se COW. oxo oWa ca cdeasnweti 8

Hughes v. Home Savings of America, FSB, 2002

WL 220773 (Cal. Ct. App., Feb. 13, 2002) ..... 20

Leeny v. Clark County, 2001 WL 1294867 (9th Cir.,

Comeur 26, BOGa) ois cs ccccsudisee ee. 18

Leichter v. St. Vincent's Hospital, 2001 WL 1160748

GBP A.F. BOOUD x aon inne casdcoksenne lee 20

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

POP err eT ere er es Cie eS ios ip 1, 2,9, 10

SOGED vkndencevisads eee 19

Milligan v. Thompson, 2002 WL 398774 (Wash. Ct.

Fit, WER Tay Be ho nbd ndecnttse 19, 20

Price v. Federal Express Corp.,__ F.3d __, 2002

WL 264247 (Sth Cir, March 12, 2002) ........ 19

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

Lae me. GA, Bet LOD 64k kv dds ke ee passim

vi

Cited Authorities |

Page

Richards v. Farner-Bocken Co., 145 F. Supp. 2d 978

(RD. tome BUOED xc ckcckdabxceresasekseens 20

Rubinstein v. Adm'rs of the Tulane Educ. Fund ,

218 F.3d 392 (Sth Cir. 2000) cert. denied, 532 U.S.

FS7, 125 DB. Ce, TIGS CRS See vac ccaeseuavesaes 19

Swenson v. Potter, 271 F.3d 1184 (9th Cir. 2001) .. 18

Vadie v. Mississippi State University, 218 F.3d 365

tte FBP ee rte ey ee 19

Zapata-Matos v. Reckitt & Colman, 277 F.3d 40

(let Cie DOOR)... isdee ee ee 19 .

Statutes:

a6 U.S. § 1ROG. vo ixcuckoe eta l |

ae USGL. 6 3508 viscccecegeanu eee 6

$US.C.81960-. eee 6 |

29 U.S.C. 6 GRIGOS. 60 05hdpias cee 6 |

29 UB. § GEID 0 0.006ueuceeceseleseueee 7

42 U.S.C. §§ 2000e-2000e-17 ...............2.. 6

42 U.S.C. § 2000e-3(a) .......... cece eeeeeeee 7

vil

Cited Authorities

UBER. GH seeiccacetscssceeea

43 UB. FS TRUCEUSED ob cccccevcccecccazas

Ariz. Rev Stats. 41-1464(A) ...................

Other Authorities:

Kim J. Askew, Reeves v. Sanderson Plumbing

Products, Inc. (Is Pretext-Plus Really Gone?),

VPB0919 ALI-ABA (2000) .................

Catherine J. Lanctot, Secrets and Lies: The Need for

a Definitive Rule of Law in Pretext Cases,

Ol ES. Ei. ee Be 5 6.0 06-00dbneeeecaoas

Marcia L. McCormick, 7ruth or Consequences:

Why the Rejection of the Pretext Plus Approach

to Employment Discrimination cases in Reeves v.

Sanderson Plumbing Establishes the Better Legal

Rule, 21 N. Ill. U. L. Rev. 355 (2001) .........

Brandy S. Parrish, Note: Walking an Evidentiary

Tightrope: The Aftermath of Reeves v. Sanderson

Plumbing Products, Inc., 31 U. Mem. L. Rev. 677

GOON ncntbentccautvesesnces bskbkepersans

Trevor K. Ross, Casenote: Reeves v. Sanderson

Plumbing Products: Stemming the Tide of Motions

for Summary Judgment and Motions for Judgment

as a Matter of Law, 52 Mercer L. Rev. 1549

GED «<u eee ceeds sceiawicesenees ieee

20

17

17

15

18

—

vill

Cited Authorities

Michael Selmi, Why are Employment Discrimination

Cases so Hard to Win?, 61 La. L. Rev. 555

Ser pre ergy ey tre oer

David J. Turek, Comment: Affirming Ambiguity:

Reeves v. Sanderson Plumbing Products, Inc. and

the Burden-Shifting Framework of Disparate

Treatment Cases, 85 Marg. L. Rev. 283 (2001)

2a eo € 2.6 63.2.8 6:6 6 2,8. 6 8.2.2. 0 €.6 44:02 ASO 6 2 2 2.01482 6 Oo

Ryan Vantrease, The Aftermath of St. Mary's Honor

Center v. Hicks and Reeves v. Sanderson Plumbing

Products: A Call for Clarification, 39 Brandeis

Cols. FO ED cA swoaowiakidandaneseckuveas

Page

17

20

17

pweTlT a

ix

TABLE OF APPENDICES

Appendix A— Memorandum Opinion Of The United

States Court Of Appeals For The Ninth Circuit

Dated And Filed October 30,200 ............

Appendix B — Memorandum And Order Of

The United States District Court, District Of

Arizona Dated February 2, 2000 .............

Appendix C — Order Of The United States District

Court For The District Of Arizona Dated January

Be Sak be eee eee etka es ees e ees

Appendix D — Judgment Of The United States

District Court For The District Of Arizona Dated

co eee eee eee rer ren

Appendix E — Order Of The United States Court

Of Appeals For The Ninth Circuit Dated And Filed

December 28, 2001 Denying Petition For

EER re Rian flan Su Pee asm ie ae

Appendix F — Statutes Involved ...............

Page

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8a

20a

50a

]

Petitioner respectfully petitions for a writ of certiorari

to review the judgment of the United States Court of Appeals

for the Ninth Circuit in this case.

OPINIONS BELOW

The district court’s opinion (per Silver, D.J.) granting in

part the defendants’ motion for summary judgment, denying

it in part, and denying Petitioner’s cross-motion for partial

summary judgment (Appendix (“Pet.App.”) 20a-49a), is an

unpublished opinion. The district court’s subsequent

opinion (per Young, D.J.) denying Petitioner’s motion

for reconsideration, granting Defendants’ motion for

reconsideration and ordering that judgment be entered

(Pet.App. 8a-19a) is also unpublished. The court of appeals’

opinion (per Roney, Hug and Thomas, JJ.) affirming

the district court (Pet.App. 1a-7a) is also unpublished.

Finally, the court of appeals’ order denying rehearing

(Pet.App. 52a) is unpublished.

STATEMENT OF JURISDICTION

The court of appeals entered its opinion and order on

October 30, 2001, and denied rehearing on December 28,

2001. Petitioner invokes this Court’s jurisdiction under

28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The provisions of Title VII of the Civil Rights Act

(“Title VII’), the Age Discrimination in Employment Act

(the “ADEA”) and the Arizona Civil Rights Act (“the

ACRA”) relevant to this petition are reprinted in the

Appendix at 53a-54a.

2

STATEMENT OF THE CASE

Petitioner Michael Tempesta used to be employed by

Defendant Motorola, Inc. This Petition relates to Tempesta’s

claim that Motorola retaliated against him because he

complained about age and gender discrimination (that is,

discrimination against older employees and particularly older

males) in the department where he then worked, Purchasing.

The district court for the District of Arizona heard

Tempesta’s retaliation claim on cross-motions for summary

judgment. Although the district court agreed that Tempesta

has made his prima facie case under McDonnell-Douglas,

it found that there was insufficient evidence for Tempesta to

avoid summary judgment — even though Tempesta had argued

that he had sufficient evidence so that he should have

prevailed on summary judgment. The Court of Appeals for

the Ninth Circuit affirmed. In reaching its decision the circuit

court relied on the Reeves Exception, and declined to review:

all the evidence in the record before reaching its decision.

In particular, it failed to consider Tempesta’s prima facie

evidence it impermissibly considered the facts in the light

most favorable to Motorola, and it weighed credibility, thus

encroaching on the jury’s territory. .

The Court of Appeals’ decision merits this Court’s review

because it flies directly in the face of this Court’s decision in

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

120 S. Ct. 2097 (2000), and because there is now a split in

the circuits concerning the interpretation of Reeves, and in

particular, the interpretation of the Reeves Exception.

1. Tempesta was a Motorola employee from December

1983 until he was terminated, supposedly for “job

abandonment” in April 1996. Tempesta worked at various

3

positions during this time. Of relevance to this petition,

his first position was working with chemicals, but he

developed respiratory problems as a result of his exposure

to those chemicals, and also suffered severe burns that

resulted in a plastic surgery referral. In September 1985,

Motorola had Tempesta examined by a physician, who placed

Tempesta on a “lifetime” restriction from working around

acids and fumes.

From 1985 through 1991, Tempesta worked in various

positions including polishing, wafer inspection, personnel,

and quality assurance. He was a quality assurance inspector

for several years. Because of a workplace injury, however,

Tempesta was “temporarily” reassigned in 1991 to the System

Support (data entry) section of the Purchasing Department.

Larry McLaughlin was the Supervisor of the System Support

section, and he reported to Terry Hanley, the Manager of the

System Support section.

In early 1993 Supervisor McLaughlin hired Tempesta as

a permanent System Support employee. In February 1994

Kathy Hand became Director of Purchasing. After Director

Hand took over Purchasing, Tempesta began to notice that

her decisions for promotions and hiring in Purchasing

reflected a bias towards women, and particularly younger

women, at the expense of the men particularly older men.

Beginning in early 1994, and throughout the remainder of

his employment, Tempesta openly, and regularly, voiced these

concerns to Director Hand, to Manager Hanley and to

Director McLaughlin. At the end of May 1995 Tempesta sent

a lengthy e-mail to Motorola’s internal “EEOC” department

complaining about discrimination against men in the

Purchasing Department, following it up with another e-mail

the next day raising age and gender discrimination issues.

2. Within days of his first contacting Motorola’s EEOC

Department, Tempesta was called into a meeting with

Supervisor McLaughlin, Director Hand, Joann Hardwick

(the second person who worked in data entry), and a person

from Human Resources. Supervisor McLaughlin shown

Tempesta a chart that he had prepared, showing a downturn

in some of the work done in data entry and told Tempesta

that the chart justified eliminating either his job or Joann

Hardwick’s and that Tempesta’s had been chosen.

3. Under Motorola’s standard practice, Tempesta was

given a period of time’ to find another position at Motorola.

Tempesta made efforts to obtain a replacement job

at Motorola and kept weekly notes on the positions he

applied for. In addition, Tempesta visited an internal job

placement service twice a week in June 1995, and applied

for at least sixteen of the jobs he learned of there. Tempesta

was, however, unable to find a replacement position. During

the period of time when he was searching for a new position, .

he write to Charles Burtner, the District Director of the United

States Equal Employment Opportunity Commission, saying

that Motorola was retaliating against him.

4. Very soon after it had informed Tempesta that

it was “eliminating” his job, Motorola offered Tempesta

a job working with chemicals, in spite of Motorola’s

knowledge of his “lifetime” restriction and of his prior

respiratory problems and burns from the same chemicals.

Tempesta protested at this “offer.” There followed a long

dispute between Motorola and Tempesta about whether he

was indeed medically restricted from the chemical handling

position, a dispute which continued through until April 1996,

1. The parties disagreed about how long a period was usually

given — but there is no dispute that this was Motorola’s practice.

5

when Motorola finally fired Tempesta, supposedly for

“job abandonment” because he would not report for work at

the chemical handler position. Throughout the dispute

Tempesta continued to protest about discrimination,

including a meeting with a senior person in Motorola’s

Human Resource Department, and writing to a Vice-President

supervising Human Resources and the United States

Department of Labor, Office of Federal Contract Compliance

Programs. For the purposes of this petition what is of most

significance is that Motorola knew that the chemical handling

position was the one position that Tempesta did not want —

Motorola knew this not only because of Tempesta’s

protestations at the time he was offered the job, but because

of Tempesta’s history of respiratory problems and burns

working around those same chemicals. Motorola gave no

explanation to Tempesta then, and has still provided no

explanation of why this was the one job it offered to

Tempesta, and why Motorola was so insistent that that would

be the job he would take.

5. The decision to “eliminate” Tempesta’s Purchasing

job was very suspect in the first place. The “chart” on which

Director McLaughlin relied showed only that the work

reflected in the chart could be done by one person. But the

work reflected in the chart was (as Motorola never disputed)

restricted to particular categories of data entry work that in

fact only one person was doing at that time — Joann Hardwick.

By the time the chart was prepared and used to justify

“eliminating” Tempesta’s job he had, for a long time, being

doing, virtually exclusively (except on the occasions when

Hardwick particularly asked for his help on a computer

screen), different work which was not reflected at all on the

“chart.” In other words the work supposedly only sufficient

for one person was being done only by one person, so that

6

the “chart” did not justify any job elimination. To add to the

suspicious circumstances, not long before the meeting in

which Tempesta was told his job was being eliminated, he

had also been told by Director McLaughlin that he could no

longer do equipment maintenance, something that had been

part of his job duties for four years. No explanation has ever

been provided for this action, either.

Tempesta in fact continued to do his job in Purchasing

after it was “eliminated,” until mid-July 1995, when he was

asked to clean out his desk and leave. Within days of

Tempesta’s job being “eliminated,” Motorola had an intern

placed in Purchasing to cover Tempesta’s duties, and had

Tempesta train the intern in how to perform those duties.

Tempesta’s job duties did not “go away” — other witnesses

in Purchasing supported Tempesta’s evidence that his job

duties continued despite his job being “eliminated.”

6. Tempesta filed a pro per complaint in the

district court, on February 20, 1996, alleging violations of

the ADEA, Title VII, the Americans with Disabilities Act

(the “ADA”), the ACRA, and for violation of public policy,

intentional infliction of emotion distress and breach of

contract. The district court had “fedéral question”

jurisdiction, 28 U.S.C. § 1331, under Title VII of the Civil

Rights Act, 42 U.S.C. §§ 2000e through 2000e-17, the ADEA,

29 U.S.C. §§ 621 through 634, pursuant to 42 U.S.C. § 2000e-

5, the ADA, 42 U.S.C. §§ 12101-12133, pursuant to

42 U.S.C. 2000e-5, and the Arizona law claims under

supplemental jurisdiction, 28 U.S.C. § 1367. The complaint

was later amended to include as Defendants, a co-worker,

Sheila Jones (and her husband, Timothy, for purposes of

reaching community property with a judgment) for

intentional interference with contract.

7

7. By the time this case reached the dispositive motion

stage, Tempesta had acknowledged that the heart of his

federal and state discrimination claims was retaliation, for

his complaints about age and gender discrimination in the

Purchasing Department at Motorola under Manager Hand's

leadership, and that the offering of the chemical job was not

a separate act of “disability” discrimination but all part of

the same retaliation. Tempesta accordingly refocused his

discrimination claims specifically on retaliation, based on

the prohibitions against retaliation to be found in the ADEA

(29 U.S.C. § 623(d)), Title VII (42 U.S.C. § 2000e-3(a))

and the ACRA (Ariz. Rev Stats. 41-1464(A)), since he

had complained specifically about age and gender

discrimination. Judge Silver noted that the analysis for

retaliation under the ADEA and Title VII was identical and

that the Arizona courts generally look to federal law in

interpreting in ACRA. Pet.App. 34a and 41a.

The district court found that Tempesta had made out a

prima facie case of retaliation. Pet.App. 38a. Judge Silver

also decided that Motorola had provided an explanation

for the elimination of Tempesta’s job. Pet.App. 38a-39a.

Judge Silver never addressed the fact that Motorola had

provided no explanation for the elimination of Tempesta’s

equipment maintenance duties, before the “elimination”

of his job, or for offering him, and only offering him, the

chemical handling job as a substitute position. Moreover,

Judge Silver concluded that Tempesta had provided

insufficient evidence of pretext or other evidence of

retaliation to withstand summary judgment.

Tempesta’s motion for reconsideration of Judge Silver’s

ruling on his retaliation claim came before a second district

judge (Judge Silver recused herself when Defendants retained

8

new counsel), Judge Young, who denied the motion.

Both Judge Silver’s decision and Judge Young’s decision

were before June 2000, when this Court decided Reeves.

8. Tempesta timely appealed to the Ninth Circuit.

Tempesta specifically argued that his evidence must be

evaluated under the Reeves standard, but Appellees argued

that this case came under the Reeves Exception. The circuit

court agreed with Appellees, and evaluated Tempesta’s case

without ever considering his prima facie case at all, without

considering the facts in the light most favorable to Tempesta,

impermissibly weighing the strength of Tempesta’s

explanation (it was found to be “weak”) against Motorola’s

(once again restricting the review to the explanation for the

elimination of Tempesta’s job — and deciding that Motorola

had “abundant and uncontroverted evidence that no

discrimination had occurred”), so that the district court had

correctly decided that Tempesta had failed to meet his burden

on pretext. Pet.App. 3a-5a.

9. This timely petition followed.

REASONS FOR GRANTING THE WRIT

The petition should be granted for two reasons.

First, the decision of the Court of Appeals for the Ninth

Circuit in this case is contrary to the opinion of this Court in

Reeves v. Sanderson Plumbing. Second, Tempesta is not the

only case where the Ninth Circuit has similarly misapplied

Reeves. Nor is the Ninth Circuit the only federal court to

have similarly misapplied Reeves. The scholarly commentary

on the Reeves decision had widely predicted that the split in

the circuits created after Hicks v. St. Mary's Honor Center,

509 U.S. 502, 113 S. Ct. 2742 (1993), which the Court

‘

—

9

granted certiorari in Reeves to resolve, would in fact continue

after Reeves, precisely because of the Reeves Exception and

interpretations likely to be given to that exception.

Accordingly, the Ninth Circuit decision in this case is no

aberration, but rather it represents an interpretation of Reeves,

although patently an incorrect one, which has gained, and is

continuing to gain, footholds in the federal courts.

I. Certiorari Is Warranted Because the Decision below

Conflicts with this Court’s Decision in Reeves

The Ninth Circuit’s holding that Tempesta failed to

present sufficient evidence of pretext to avoid summary

judgment conflicts with two important principles settled by

this Court in Reeves, and misapplies the Reeves Exception,

which must be interpreted in light of those two principles.

The first principle is that evidence that the defendant-

employer’s proffered non-discriminatory reason is not worthy

of credence is evidence that the real reason was

discriminatory. Reeves serves to remind the lower courts that

the purpose of the McDonnell Douglas framework is to

provide for a manner of proving intentional discrimination

by eliminating alternative explanations for adverse actions

taken by the employer. The prima facie case has already

eliminated the most obvious alternatives: if then the

employer’s proffered explanation is shown to be unworthy

of belief, ordinarily discrimination will be left as the most

likely alternative. The Reeves Exception concerns those cases

that are out of the ordinary — where the evidentiary record

shows another alternative to discrimination that a rational

jury would have to accept as the true reason.

10

The second principle is that in an employment

discrimination case, just because a McDonnell Douglas

shifting burden framework has been employed with its

different “stages” of production of evidence does not mean

that the reviewing court can excuse itself from its customary

burden on summary judgment of reviewing all of the evidence

in the record in considering what a rational jury could find:

moreover, in doing so the reviewing court must not overstep

its bounds into the province of the jury and substituting its

views of credibility and persuasiveness for those of the jury.

A. The Decision below Conflicts with the Holding

of this Court in Reeves in that it Misconstrues

the Circumstances under which the Reeves

Exception Applies

Prior to Reeves many lower courts had failed to accord

sufficient evidentiary weight to a plaintiff-employee’s proof

that its employer’s proffered explanation for its actions was

unworthy of belief. This Court made clear in Reeves,

reasoning from basic evidentiary principles, that a plaintiff's

proof of pretext can indeed be powerful proof, entitled to

considerable weight. The Court reasoned that:

Proof that the defendant’s explanation is unworthy

of credence is simply one form of circumstantial

evidence that is probative of intentional

discrimination, and it may be quite persuasive. In

appropriate circumstances, the trier of fact can

reasonably infer from the falsity of the explanation

that the employer is dissembling to cover up a

discriminatory purpose. Such an inference is

consistent with the general principle of evidence

law that the factfinder is entitled to consider a

11

party’s dishonesty about a material fact as

“affirmative evidence of guilt.” Moreover, once

the employer’s justification has been eliminated,

discrimination may well be the most likely

alternative explanation, especially since the

employer is in the best position to put forth the

actual reason for its decision.

530 U.S. at 147, 120 S. Ct. at 2108-9, citations omitted.

As the above reasoning demonstrates, the only

circumstances under which it would not be rational to make

“(s]uch an inference”, i.e. from the fact of pretext to the fact

of dissembling to cover up a discriminatory motive, would

be where there is sufficient additional credible evidence in

the record that although the dissembling was indeed present

it was dissembling to cover up some third alternative, not

discrimination.

To explain how a reviewing court must account for the

possibility of such circumstances, the Court continued its

analysis by setting forth the proviso referred to in this petition

as the Reeves Exception:

This is not to say that such a showing by the

plaintiff will always be adequate to sustain a

jury’s finding of liability. Certainly there will be

instances where, although the plaintiff has

established a prima facie case and set forth

sufficient evidence to reject the defendant’s

explanation, no rational factfinder could conclude

that the action was discriminatory. For instance

an employer would be entitled to judgment as a

12

matter of law if the record conclusively revealed

some other, nondiscriminatory reason for the

employer’s decision, or if the plaintiff created only

a weak issue of fact as to whether the employer’s

reason was untrue and there was abundant and

uncontroverted independent evidence that no

discrimination had occurred.

530 U.S. at 148, 120 S. Ct at 2109. From the Court’s

reasoning to reach its first principle in Reeves and from the

cases to which the Court cites to illustrate its proviso, it is

apparent that the Reeves Exception applies in those usual

cases where the evidence reveals a third alternative to explain

the employer’s actions, so much more persuasive than the

inference of discrimination that a rational jury would have

to believe it as the true explanation over discrimination.

It is, therefore, a serious misapplication of Reeves, one which

completely undermines the first principle articulated in

Reeves, for a reviewing court to even attempt to apply the

Reeves Exception unless the evidentiary record before it

reveals (“conclusively” or on “abundant and uncontroverted

independent” evidence) that the true explanation for the

employer’s actions is neither its explanation proffered at the

second stage of the McDonnell Douglas burden-shifting

nor the discriminatory explanation offered by the plaintiff,

but rather some third explanation. If there is no third

alternative revealed then the reviewing court’s task ends with

its review of plaintiff’s pretext evidence.

In this case the Ninth Circuit’s first serious mistake was

is trying to apply the Reeves Exception at all when there was

13

not even a hint in the record?, let alone “conclusive”

or “abundant” evidence, that any third alternative existed.

There were two competing explanations: Tempesta’s that

three of his supervisors at Motorola to whom he had

repeatedly complained of age and gender discrimination in

the Purchasing Department where they all worked

had conveniently created a misleading chart supposedly

showing that one of two jobs (his or a co-worker’s) had to

be eliminated in data entry, and made the choice based on

seniority, which easily targeted him as the one to go, rather

than the co-worker, even though Motorola policy called for

consideration of competency, which would have made the

choice much harder to justify, then, during the time period

when Motorola policy provided for him to find another

position within the company, mysteriously the only job

Motorola could offer him, in spite of his many applications

and past experience in different positions, was a job which

involved handling chemicals, a job Motorola knew he was

adamantly opposed to taking because of his unfortunate past

history of medical problems and injury while working with

those same chemicals. Motorola’s proffered explanation was

that their chart showed they needed to let one of two workers

go in data entry, Tempesta or his co-worker, they were entitled

to rely on seniority to make the choice, they immediately

offered Tempesta an alternative position in chemical handling

and were patient and understanding in putting up with

Tempesta’s objections to taking that position for months and

months before sadly having to fire him for job abandonment.

There was never any third alternative presented and so no

excuse for subjecting Tempesta to any additional evidentiary

burden — weighing his explanation against Motorola’s,

and declaring Tempesta’s to be “weak.”

2. And not even a suggestion to the contrary by any of the

parties, or either of the reviewing courts, that a third alternative was

shown in the record.

14

Nonetheless, this is what the Ninth Circuit did.

After (inaccurately’) citing to the Exception language in

Reeves, articulating why it found Motorola’s explanation for

its actions to be “credible,” and dismissively declining to

discuss Tempesta’s “other indicia of discrimination,”

it concluded that:

Thus, because the record persuasively reveals

“some other, nondiscriminatory reason for the

employer’s decision,” and “the plaintiff created

only a weak issue of fact as to whether the

employer’s reason was untrue and there was

abundant and uncontroverted independent

evidence that no discrimination had occurred,”

see Reeves, 530 U.S. at 148, the district court

correctly concluded that Tempesta had failed to

meet his burden to establish pretext.

Pet.App. 5a. Thus Tempesta was not only subjected to an

additional evidentiary burden, but he was also improperly

deprived of any proper evaluation of his evidence.

3. The court of appeals’ version was:

However, if the record persuasively (sic — not

“conclusively” as this Court required) reveals “some

other, nondiscriminatory reason for the employer’s

decision,” or “the plaintiff created only a weak issue of

fact as to whether the employer’s reason was true and

there was abundant and uncontroverted evidence that

no discrimination had occurred,” then the absence of a

completely satisfactory explanation as to the basis of the

employment actions is not enough to raise a genuine issue

of material fact sufficient to avoid summary judgment.

Pet.App. 4a.

15

B. The Decision below Conflicts with the Holding

of this Court in Reeves in That it Impermissibly

Fails to Base the Summary Judgment Ruling on

the Entire Evidentiary Record, and Makes

Determinations That Are for the Jury

Based on the reasoning of the Court in Reeves discussed

in the above section, since there was no evidence in this case

of any “third alternative” to discrimination and the proffered

nondiscriminatory reason, there should also, logically, have

been no need for the reviewing court to go any further in its

review of the evidence once a determination had been reached

that Tempesta’s evidence of pretext was sufficient that a

rational jury could believe that Motorola’s proffered reasons

were pretextual.’ In this respect the Reeves decision lends

itself to some ambiguity — in spite of the Court’ 's holding as

to the probative force of pretext evidence in the ordinary

case, and the unusual circumstances that would have to occur

so before a rational factfinder could not infer discrimination

from the giving of a pretextual reason, the Court not only

appears to require a full review of the record to determine

whether there is sufficient evidence for the jury to decide

the ultimate issue of intentional discrimination, but itself

conducts such a review of the facts in Reeves. Assuming,

4. Brandy S. Parrish, Note: Walking an Evidentiary Tightrope:

The Aftermath of Reeves v. Sanderson Plumbing Products, Inc.,

31 U. Mem. L. Rev. 677, n.108 (2001)

It is important to note that the Supreme Court states any

other evidence which supports the employer’s case, not

any other evidence which supports the plaintiff’s

case. [referring to language in Reeves, 530 U.S. at

148-9] This suggests that unless there is additional

evidence in favor of the employer, a jury will always be

permitted to infer discrimination from the plaintiff’s

prima facie evidence and sufficient evidence to prove

that the employer’s explanation is false.

SP a ee ee

16

however, that under Reeves, a review of the evidence is

necessary to specifically ascertain whether a rational jury

could find intentional discrimination, then there is certainly

no doubt under Reeves that that review must be of the entire

record and undertaken with care that the jury’s province is

not invaded.

Reeves requires the reviewing court to review the entire

record in making its ultimate determination of whether a

rational jury could find intentional discrimination. Moreover,

the court must draw all reasonable inferences in

favor of the nonmoving party, and it may not make

credibility determinations or weigh the evidence.

Thus, although the court should review the record

as a whole, it must disregard all evidence

favorable to the moving party that the jury is not

required to believe.

530 U.S. at 150-151, 120 S. Ct. at 2110, citations omitted.

In this case, because the Ninth Circuit focused on the more

limited review it apparently discerned as being called for

under the Reeves Exception, it also deprived Tempesta of a

decision based on the whole record, and deprived him of a

decision that avoided the court substituting its own view of

the evidence for the jury’s.

Had the reviewing courts in this case properly considered

the record as a whole, with the constraints necessary to

avoid invading the province of the jury, the proper decisions

would have been made both that Tempesta had sufficient

evidence of pretext and that intentional discrimination could

rationally be inferred from that evidence combined with his

prima facie case.

17

II. The Decision Below Is Not Isolated but Represent a

Trend in Misapplying Reeves, and the Reeves

Exception, in the Lower Courts

After Reeves was decided, the scholarly commentary

widely noted the potential for abuse in the language of the

opinion. The language of what is referred to in this Petition

as the Reeves Exception was particularly the target of

commentary. One commentator has referred to the Exception

as a “cryptic loophole’”® with an “unusual evidentiary

standard” “mysterious . . . for litigants and the lower courts”

and noted the potential for “confusion” caused by the Court’s

“waffling” Catherine J. Lanctot, Secrets and Lies: The Need

for a Definitive Rule of Law in Pretext Cases, 61 La. L. Rev

539, 545 (2001).° Already in 2000 “an usually large number

of courts [were] seizing” on the Reeves Exception language,

to support not inferring (and not allowing juries to decide

whether to infer) discrimination from pretext. Michael Selmi,

Why are Employment Discrimination Cases so Hard to Win?,

61 La. L. Rev. 555, 574 and n.68 (2001).’

5. See also Marcia L. McCormick, 7ruth or Consequences:

Why the Rejection of the Pretext Plus Approach to Employment

Discrimination cases in Reeves v. Sanderson Plumbing Establishes

the Better Legal Rule, 21 N. Ill. U. L. Rev. 355, 378, n.186 (2001) —

the Exception is a “cryptic comment.”

6. Also noting: “the loophole language in Reeves seems to be

inconsistent with traditional evidentiary burdens in civil cases.”

Id. at 553, n.47.

7. See also Ryan Vantrease, The Aftermath of St. Mary's Honor

Center v. Hicks and Reeves v. Sanderson Plumbing Products:

A Call for Clarification, 39 Brandeis L.J. 747, 753-755 (2001).

While the Supreme Court’s opinion in Reeves has yet to

be fully interpreted by all the circuits, it seems that, like

(Cont'd)

18

The circuit court’s decision in Tempesta is, therefore,

not an aberration. Rather it is part of a trend that started

almost as soon as Reeves was decided — and the trend

continues. Nor is the Tempesta case an aberration in the Ninth

Circuit. Just six days before Tempesta was decided the Ninth

Circuit issued another unpublished opinion, which relied on

just the same erroneous view of Reeves.® Leeny v. Clark

County, 2001 WL 1294867 (9th Cir., October 24, 2001).?

(Cont’d)

Hicks, each circuit has found language within the opinion

of Reeves to support its divergent view pertaining to the

level of proof which a plaintiff must provide before she

may survive summary judgment in an employment

discrimination action based on circumstantial evidence.

citing specifically to the Reeves Exception as creating “conflicting

language reminiscent of Hicks” which provides, and has been used

to create, just such opportunities for the circuit courts; Trevor K.

Ross, Casenote: Reeves v. Sanderson Plumbing Products: Stemming

the Tide of Motions for Summary Judgment and Motions for Judgment

as a Matter of Law, 52 Mercer L. Rev. 1549, 1566 n.106 (2001)

(“The limiting language found in Reeves [including the Reeves

Exception language] presents the most likely avenue lower courts

may take in the future to avoid the Reeves burden of proof standard.”)

8. And also made the same error in failing to quote accurately

the language from Reeves.

9. The Ninth Circuit has also had problems with the second

principle of Reeves — that which requires a full review of the record

without encroaching on the jury function. Swenson v. Potter, 271

F.3d 1184, 1198-9 (9th Cir. 2001) (The strong dissenting opinion

accuses the majority of “tak[ing] the law into its own hands.”

In reversing the jury verdict, the majority has

“disregarded critical evidence favorable to” Swenson,

has “failed to draw all reasonable inferences in favor”

(Cont’d)

19

The Ninth Circuit is not alone in its erroneous

interpretation of Reeves. In Zapata-Matos v. Reckitt &

Colman, 277 F.3d 40, 47-8 (1st Cir 2002), the First Circuit,

concluded, after comparing plaintiff’s explanation with the

employer’s, that the employer’s version was “quite credible”

and that “a trier of fact could much more readily conclude

that the employer’s explanation was not a pretext” so that

“(t}his case falls into the category Reeves describes [in the

Exception].” The Fifth Circuit in Price v. Federal Express

Corp.,__ F.3d ___, 2002 WL 264247, *6-*7 (Sth Cir, March

12, 2002), relying on the Reeves Exception, reasoned that

plaintiff’s evidence of pretext did not support the inference

that intentional discrimination was the real reason for the

employment decision and cited with approval to two of its

earlier (post-Reeves) decisions, Vadie v. Mississippi State

University, 218 F.3d 365 (Sth Cir 2000), and, Rubinstein v.

Adm’rs of the Tulane Educ. Fund, 218 F.3d 392 (Sth Cir.

2000) cert. denied, 532 U.S. 937, 121 S. Ct. 1393 (2001)

in both of which the Fifth Circuit had ruled against the

plaintiff based on a lack of any [direct] evidence of

discriminatory intent, ignoring Reeves’ teaching on the power

of evidence of pretext. In Millbrook v. IBP, Inc., 280 F.3d

1169, 1183 (7th Cir. 2002), the Seventh Circuit, again relying

on the Reeves Exception language, reasoned that plaintiff

“at best” “created only a weak issue of fact as to whether the

employer’s reason was untrue” and had “absolutely no

[direct] evidence of intentional discrimination.”"°

(Cont’d)

of Swenson, and has “impermissibly substituted its

judgment concerning the weight of the evidence for the

jury’s.” Reeves, 530 U.S. at 152, 120 S. Ct. [at] 2097.

I dissent.

10. In addition, state courts have followed the same incorrect

reasoning. Two recent examples are: Milligan v. Thompson,

(Cont'd)

20

In contrast, at least the Sixth Circuit has correctly

understood the Reeves Exception. In Carberry v. Monarch

Marking Systems, 2002 WL 220634, *3 (6th Cir., Feb. 11, 2002),

the Sixth Circuit refused to apply the Reeves Exception as urged

by defendant, reasoning that the Exception applies where there

is some third explanation (emphasizing the Court’s use of “other

nondiscriminatory reason for the employer’s decision” in

Reeves), and further noting that there was “no such ram in the

bush for Monarch in this case.””!!

In her concurring opinion in Reeves, Judge Ginsburg states:

I write separately to note that it may be incumbent

on the Court, in an appropriate case, to define more

precisely the circumstances in which plaintiffs’ will

be required to submit evidence beyond these two

categories in order to survive a motion for judgment

as a matter of law.

530 U.S. at 154, 120 S. Ct. at 2112. Justice Ginsburg may have

been clairvoyant in her comments.’ And Tempesta is such an

“appropriate case.”

(Cont’d)

2002 WL 398774 (Wash. Ct. App., March 15, 2002); Hughes v.

Home Savings of America, FSB, 2002 WL 220773 (Cal. Ct. App.,

Feb. 13, 2002).

11. Some district courts have applied the same reasoning:

Richards v. Farner-Bocken Co., 145 F. Supp. 2d 978, 995 (N.D. Iowa

2001); Leichter v. St. Vincent’s Hospital, 2001 WL 1160748, *13

(S.D.N.Y. 2001).

12. See Kim J. Askew, Reeves v. Sanderson Plumbing Products,

Inc. (Is Pretext-Plus Really Gone?), VPB0919 ALI-ABA 457, 491

(2000); David J. Turek, Comment: Affirming Ambiguity: Reeves v.

Sanderson Plumbing Products, Inc. and the Burden-Shifting

Framework of Disparate Treatment Cases, 85 Marq. L. Rev. 283,

302-303 (2001). Justice Ginsburg’s concurrence is a prediction that

has come true.

kk ___h

21

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

JupiTH M. PRAKEL

JupiTH M. PRAKEL, P.C.

331 North First Avenue

Suite 103

Phoenix, AZ 85003

(602) 253-7399

Attorney for Petitioner