Reply Brief — Thweatt v. Electronic Data Systems Corp.

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fe Supreme Court, U.S.

(7 FILED

No. 03-349 NOV 17 2003

age ge OFFICE OF THECLERK

In The

Supreme Court of the Anited States

JACK THWEATT,

on behalf of himself and all others similarly situated,

Petitioner,

ELECTRONIC DATA SYSTEMS CORPORATION,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

PETITIONER’S REPLY MEMORANDUM

Of counsel: JOHN G. CRABTREE

Parrick J. BALLARD Counsel of Record

BALLARD LAW OFFICES JOHN G. CRABTREE, P.A.

205 Twentieth Street North 240 Crandon Boulevard

Suite 629 Suite 279

Birmingham, Alabama Key Biscayne, Florida 33149

35203 Telephone (305) 423-4350

Telephone (205) 321-9600

EDWARD L. SCOTT

409 Southeast Fort King

Street

Ocala, Florida 34471

SCOTT CHARLTON

CLARK, CHARLTON &

MARTINO, P.A.

3407 West Kennedy

Boulevard

Tampa, Florida 33623

———

Counsel for Petitioner

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

I. THIS CASE PRESENTS AN OUTSTANDING

VEHICLE FOR RESOLVING THE CIRCUIT

SPLIT.

EDS tries to shoehorn this case into Adams v. Florida

Power, 255 F.3d 1322 (CA11 2001), cert. dismissed as

improvidently granted, 535 U.S. 228 (2002), claiming that

the petitioner has failed to identify a specific employment

practice causing the disparate impact he alleges. (Indeed,

most of EDS’s response is lifted directly from Florida

Power’s certiorari response in the Adams case.) But unlike

the bottom-line challenge in Adams—in which the peti-

tioners simply challenged the statistical end result of a

reduction-in-force—the petitioner in this case has chal-

lenged EDS’s ranking process, which the company used as

part of a reduction-in-force. And the petitioner has identi-

fied the precise components within that process that

caused it to be wholly arbitrary. Pet., pp. 9-11.

II. THE CONFLICT IN THE CIRCUITS IS NOT

GOING AWAY.

As EDS correctly observes, “[alfter Hazen Paper [Co.

v. Biggins, 507 U.S. 604 (1993)], three circuits — the

Second, the Eighth and the Ninth — have continued to

recognize disparate impact claims under the ADEA.” Brief

in Opp., p. 14. With the Fifth Circuit’s recent decision in

Smith v. City of Jackson, __ F.3d _, 2003 WL 22671061

(CA5 Nov. 13, 2003), five circuits have declined to recog-

nize such claims. EDS nonetheless claims that the 5-3

circuit split does not present an important issue for this

Court because the pro-disparate impact circuits have not

“analyzed anew whether such claims are properly recog-

nized” after Hazen Paper. Brief in Opp., p. 14 (emphasis

added). The company concedes, however, that those

circuits have “chosen” to follow their pre-Hazen Paper

precedent. Ibid. There is no need for further analysis

where a circuit court is not breaking from its established

precedent, and the Second, the Eighth, and the Ninth

circuits have elected to adhere to their precedent. With the

passing of the ten-year anniversary of Hazen Paper, it is

clear that the circuit conflict is not going to be resolved

until this Court intervenes.

Ill. THE COURT OF APPEALS’ RULING UNDER-

SCORES THE NEED FOR REVIEW.

The petition briefly explains why the Eleventh Cir-

cuit’s decision is erroneous. Pet., pp. 14-19. EDS responds

that the decision is correct. Brief in Opp., pp. 16-27. The

petition and the response reveal the parties’ drastically

different understandings of the law. If the Court grants

review, there will be time enough to reply to EDS’s argu-

ments in detail. For present purposes, however, the depth

of the parties’ disagreement on the merits—which mirrors

* This is precisely why the Eleventh Circuit’s opinion is unpub-

lished in this case. Pet., pp. 2a-3a.

the deep division among the circuits—only underscores the

need for review.

Respectfully submitted,