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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2002
- **Citation:** 535 U.S. 1057

## Text

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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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— cee

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

la

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1646%3A1. Public record. Not legal advice.