# Reply Brief — Thweatt v. Electronic Data Systems Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_2077%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 2003 - **Citation:** 540 U.S. 1073 ## Text 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, v. 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 @ Vv 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 1 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. 3 the deep division among the circuits—only underscores the need for review. Respectfully submitted, Of counsel: JOHN G. CRABTREE PATRICK 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 Counsel for Petitioner 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_2077%3A3. Public record. Not legal advice.