St. Mary's Honor Center v Hicks Brief Amicus Curiae

    1
TABLE OF CONTENTS

PAGE
TABLE OF AUTHORITIES . . . ...............  Ill
INTEREST OF THE AMICUS CURIAE ............  1

SUMMARY OF THE ARGUMENT . . . .  0
ARGUMENT . . ..........................  4

1. Most Disparate Treatment Plaintiffs
Rely Upon the Three Stage McDonnell 
Douglas-Burdine Analysis to Establish 
Employment Discrimination ..........  4

2. If Plaintiff Carries His Ultimate Burden
of Proof that the Defendant's Articulated 
Reasons are Pretextual, the Initial 
Presumption of Discrimination Stands 
Unrebutted and Plaintiff Prevails . , 8

3. The Decision of the District Court
to Choose a Reason for Discharge Not 
Articulated by the Defendant is 
Contrary to McDonnell Douglas and 
Clearly Erroneous . . .  1c

4. Racial Stereotypes or Antagonistic
Behavior Can Mask Racial 
Discrimination ..................  22

5. Black Males Remain Victims of
Employment Discrimination ..........  23



6. Access to Legal System Continues to 
Remain Restricted for Plaintiffs .

7. Reduction of Case Backlog Should Be 
Accomplished by Increased Use of 
Alternative Dispute Resolution (ADR) 
and Other Settlement Techniques 
Rather than by Summary Judgment 
Which is Rarely Appropriate in Cases 
Alleging Discriminatory Intent . . . .

CONCLUSION

TABLE OF AUTHORITIES
CASES PAGE
Bibbs v. Block. 778 F.2d 1318, 1320 (8th
Cir. 1985 ) (en b a n c ) ..................... 23

Bishopp v. District of Columbia. 788 F.2d
781, 789 (D.C. Cir. 1986)............... 14

iii

Casey v. General Motors Corp.. No. 85-3107, 
slip op. at 2. (6th Cir. March 12, 1986 ) . 21

Chipollini v. Spencer Gifts. Inc.. 814 
F.2d 893 (3rd Cir.)(en banc), cert. 
dismissed. 483 U.S. 1052 (1987 ) ........  29

Dister v. Continental Group. Inc.. 850 F.2d
1108, 1112 (2d Cir. 1988).............  5-6

Eddington v. Fitzmaurice, 29 ch. d . 459,
48 3 ( 1885 ) ............................ 5

Furnco Construction Corp. v. Waters, 438
U.S. 567 , 577 ( 1978 ) ...................7

Hicks v. St. Mary's Honor Center. 756
F. Supp. 1244, 1246 (E.D. Mo. 1991) . passim

International Brotherhood of Teamsters v.
United States. 431 U.S. 324, 335 n.15 . 7, 11

Martin v. Thompson Tractor Company. 486 
F2d 510, 511 (5th Cir. 1973) 22



IV

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

Pettit v. Sears. Roebuck & Co.. 32 Fair Emp. 
Prac. Cases (BNA) 1867 (D.C. Kan. 1983 . 17

Price-Waterhouse v. Hopkins. 490 U.S.
228, 235-36 (1989) ................  21, 22

Reeder-Baker v. Lincold Nat11 Corp.. 834 F.
2d 1373 , 1377 n.9 (7th Cir. 1987 ) ........ 5

Smith v. Board of Education. 365 F.2d 770
(8th Cir. 1966)........................  17

Texas Department of Community Affairs
v. Burdine. 450 U.S. 248 (1981) . . . passim

Thornbrouqh v, Columbus and Greenville 
Railroad Co.. 760 F.2d 633, 638,
640-41 ( 5th Cir. 1985 ) ..............  5, 1 4

Tye v. Board of Education. 811 F.2d 315 
318-320 (6th Cir.) cert denied. 484 
U.S. 924 (1987 ) ....................  12, 13

United States Postal Service Board of 
Governors v. Aikens. 460 U.S. 711,
714 n. 3, 716-717 ( 1963)............  4, 5, 9

Whatley v. Metropolitan Atlanta Rapid 
Transit Auth.. 632 F.2d 1325, 1327 
(5th Cir. 1980)....................  21, 22

v
Alicevi llo, 779 F-2d 

631, 633 (11th Cir. 1986)
,njj Hlscel|--- H

— 5Jjiilk_and Male Under 
H,rv*rd Lau Rev,ew 749' 
....................  24, 25
_TM_Increasing fillers Preventing Victims of 

£ffl£loYment Discrimination F 7 ^
1991 . .

............................ 28

4 3 LaborLaw Journal 249, 254 (1992) .............2 6
Purity Of Life

Farley & w. Allen,
.............................. 25

y^fnd_WlLU£_^txL£5_in Conflict-T. Kochman, 7-15, 74-88 (1981) . [ 25

Wash. Post,September 24, 1989 .................... 24
U.S. Dep't of Labor, Employment and

• • • c. 4, 2 5



NO. 92-602

Supreme (Uourt of tfje Bniteb ^tatco
OCTOBER TERM, 1992

ST. MARY'S HONOR CENTER 
and STEVEN LONG,

Petitioners, 
v.

MELVIN HICKS,
Respondent.

On Writ of Certiorari to the 
United States Court of Appeals 

for the Eighth Circuit
BRIEF AMICUS CURIAE OF THE NATIONAL EMPLOYMENT 

LAWYERS ASSOCIATION (NELA)
IN SUPPORT OF RESPONDENT

INTEREST OF THE AMICI CURIAE
The National Employment Lawyers 
Association respectfully submits this 
brief amicus curiae in support of 
Respondent in this case. The written 
consents of all parties have been 
filed with the Clerk of this Court.



I

i

1

I. INTEREST OF THE AMICUS CURIAE
The National Employment Lawyers Association 

(NELA) is a nationwide bar association of over 
1500 lawyers who represent individual employees. 
Founded in 1985 and headquartered in San 
Francisco, NELA members comprise a large segment 
of the leaders of the bar specializing in 
employment discrimination on behalf of 
employees. NELA members regularly handle cases 
of discrimination.

In light of its interest in the 
application of employment law, NELA has filed 
several amicus briefs in this Court as well as 
briefs before the Circuit Courts of Appeals and 

various State Supreme Courts.
Because of its practical experience with 

the issues at bar, NELA is well suited to brief 
this Court on the importance of the issues and



2

the practical effects of the Court's decision 
beyond the immediate concerns of the parties.

II. SUMMARY OF THE ARGUMENT
Employer petitioners and their supporting 

amici seek to undermine the longstanding burden 
of proof analytic framework established for the 
disposition of employment discrimination cases. 
NELA respectfully suggests that the extant 
burden of proof scheme established by this Court 
is well grounded in law, fair in application and 
sound as a matter of public policy. It presents 
no undue burden on truthful defendant employers 
nor does it create an undue burden on the 
judicial system. The Eighth Circuit followed 
such burden of proof framework in this disparate 
treatment racial discrimination case; no legal 
or policy basis exists for reversal herein.

Further, changes suggested by petitioners 
in the burden of proof scheme would allow lower

3
court judges to substitute hypothetical 
conjecture or their own business judgment for 
the articulated reasons actually proffered by 
defendant employers. The district court's 
decision also violates the holding of McDonnell
B ga glas cg>rp,_____ Sisaii;  411 u . s .  792 (1973)

providing that plaintiffs be afforded a fair 
opportunity to demonstrate pretext.

Lastly, although progress has been made in 
the elimination of discrimination, individuals 
seeking to employ the disparate treatment model, 
particularly moderate income complainants, 
continue to have difficulty obtaining legal 
representation and prosecuting their claims. 
Change in the shifting burden of proof scheme 
would undercut the ability of plaintiffs to 
utilize circumstantial evidence and would 
decrease the ability of employees to obtain 
legal representation.



4

1. Most Disparate Treatment Plaintiffs 
Relyypon the Three Stage McDonnell 
pouqlas-Burdlne Analysis to 
EgtefrUsh Employment Discrimination:
A disparate treatment plaintiff can prove

discrimination either by direct evidence of
discrimination or by use of the shifting burden
of proof scheme. McDonnell Douglas Corp. v.
Grgen, 411 U.S. 792 (1973); Texas Department of
Community Affairs v, Burdine. 450 U.S. 248
(1981).

Discrimination, however, is an elusive
entity, involving intent of the alleged
discriminating official. As this Court noted in
United States Postal Service Board of Governors
V. Aikens. 460 U.S. 711, 716-717 (1963):

The law often obliges finders of fact to 
inquire into a person's state of mind.... 
It is true that it is very difficult to 
prove what the state of a man's mind at a 
particular time is, but if it can be 
ascertained, it is as much a fact as 
anything else."

III. ARGUMENT
5

Id* at 716-717 (quoting Edainqton v.
Fitzmaurice. 29 Ch. D. 459, 483 (1885).

In proving such state of mind or discriminatory 
intent, this Court noted in Aikens that direct 
evidence of employment discrimination is 
difficult if not impossible to obtain. Thus, as 
noted in Aikens, 460 U.S. at 716: "There will
seldom be 'eyewitness' testimony to the
employer's mental processes." In other words, 
few employers leave behind the veritable 
"smoking gun."1

Sefi alSQ Reeder-Baker v. Lincoln Nat. 
Carp,, 834 F.2d 1373, 1377 n.9 (7th Cir. 1987) 
("Defendants of even minimal sophistication will 
neither admit discriminatory animus nor leave a 
paper trail demonstrating it; and because most 
employment decisions involve an element of 
discretion, alternative hypotheses ... will 
always be possible and often plausible."); 
Iharnbraugh v. Columbus and Greenville Railroad 
£p_i., 760 F. 2d 633, 638 ( 5th Cir. 1985) ("Unless 
the employer is a latter-day George Washington, 
employment discrimination is as difficult to 
prove as who chopped down the cherry tree .... 
Employers are rarely so cooperative as to 
include a notation in the personnel file, 'fired 
because of age---'"); Dieter v. Continental



6

Accordingly, the vast majority of disparate
treatment plaintiffs must rely upon the three
part McDonnell Douglas - Burdine analysis. Under
such analysis, a presumption of discrimination
is established once an employee establishes a
prima facie case of discrimination. Burdine,
450 U.S. at 253-54. Should the defendant choose
not to articulate a reason for its actions, the
presumption goes unrebutted and the plaintiff
establishes his case. As the Court noted in
Burdine. 450 U.S. at 254:

Establishment of the prima iacie case 
in effect creates a presumption that 
the employer unlawfully discriminated 
against the employee. If the trier of 
fact believes the plaintiff's 
evidence, and if the employer is 
silent in the face of the presumption, 
the court must enter judgment for the 
plaintiff because no issue of fact 
remains in the case.

Group. Inc.. 859 F.2d 1108, 1112 (2d Cir. 1988) 
("Direct evidence of discrimination is difficult 
to find precisely because its practitioners 
deliberately try to hide it.")

7
See also Furnco Construction Corp. v. Waters. 
438 U.S. 567, 577 ( 1978 ), citing Teamsters v.
United States. 431 U.S. 324, 358 n.44 (1977), 
wherein this Court noted that a defendant whose 
acts are unexplained will be presumed to have 
discriminated because "these acts, if otherwise 
unexplained, are more likely than not based on 
the consideration of impermissible factors."

Should the defendant so choose, it may 
rebut the presumption by the articulation of 
legitimate, nondiscriminatory reason or reasons 
for the adverse action. Burdine. 450 U.S. at
254-55. The reasons to be proffered through the 
introduction of admissible evidence, however, 
are "the reasons for the plaintiff's rejection" 
Burdine. 450 U.S. at 255, rather than some
after-articulated but plausible reasons that 
could have been - but were not - the reason for 
the action taken. Burdine further cautions that:



8
"An articulation not admitted into evidence will
not suffice." Id., 450 U.S. at 255 n.9.

Once the Defendant having introduces its
asserted reasons, the plaintiff must then prove
that the proffered reasons were not the true
reasons but rather were merely a pretext for
discrimination. Burdine. 450 U.S. at 253. This
three part analytic framework, unanimously
adopted by this Court in McDonnell Douglas, and
unanimously reaffirmed by this Court in Burdine.
has long been accepted and is remarkably
successful in sifting through factually
intensive cases to discern the real reason for
the defendant's adverse action.

2* If_Plaipt_Uf C a r r i e s  his Ultimate Burden of 
PrQQt that the Defendant's Articulated 
Reasons are Pretextual, the Initial 
Presumption of Discrimination Stands 
Hnrebutted and Plaintiff Prevails.
Employees do not have direct access to the 

employer's decision making. Accordingly,

9
plaintiffs most often present their case by 
circumstantial evidence.2

Hicks presented circumstantial evidence of 
discrimination; it established an illegitimate 
racially motivating reason for the actions of 
the defendants. Especially critical evidence 
herein is petitioner employer's "percentages and 
numbers" memorandum which sought to "balance" 
the numbers of whites to blacks in the 
supervisory workforce. Hicks introduced that 
study in which petitioner's agent analyzed each 
supervisory position by race. The study 
concluded that white employees at St. Mary's 
"control only 38.62% (8.11 divided by 21) of the

As noted in Aikens. 460 U.S. 711, 714 n.3 
( 1983): "As in any lawsuit, the plaintiff may 
prove his case by direct or circumstantial 
evidence. The trier of fact should consider all 
the evidence, giving it whatever weight and 
credence it deserves ... [T]he District Court 
should not have required [plaintiff] to submit 
direct evidence of discriminatory intent."



10
decision making power." The study then made 
suggestions to increase the number of whites so 
that they would control "55.29% of the power." 

(Joint Appendix 81—85).3
Plaintiff further showed that after

issuance of this memorandum, four black

supervisors and no white supervisors were

discharged at St. Mary's. All four black

supervisors were replaced by white supervisors.

Hicks v. St. Mary's. Honor Center, 756 F. Supp.

1244, 1246 (E.D. Mo. 1991). Hicks also presented 
evidence of actions evidencing animus4 and

3 Defendants' decision makers self-servingly 
disclaimed knowledge of this "smoking gun" 
study. However, an employer can not create a 
racial "numbers and percentages" memorandum, set 
about to achieve the goals of that memorandum by 
discharging black supervisors and replacing them 
with white supervisors and then, when 
challenged, "stick its head in the sand" and 
disclaim knowledge.

4 After demotion, Powell, the white Chief of 
Custody, followed plaintiff outside, stepping on 
his heels and provoking him to fight. Hicks

11
disparate treatment between plaintiff and 
comparator employees3 as he is entitled to do. 
As noted in Teamsters v. United States, 431 U.S. 
at 335 n.15, "Proof of discriminatory motive is 
critical, although it can in some situations be 
inferred from the mere fact of differences in 

treatment."
As this Court noted in Burdins, 450 U.S.

testified:
So, I asked him, I said, "Hey, you're a man 

and I am a man. Hey, you don't have to treat me 
like that, you know, treat me like a man."

Just like that.
And he kept looking at me, laughing in my

f d C 6  • So I asked him, "What are you trying to do, 
provoke me and make me fight you?"

And he said yes. (Joint Appendix 22-24).
3 Hicks, a black supervisor, was

disciplined not for his own infractions but for 
those of his subordinates; Hefele, a white 
supervisor, was not so disciplined. Further, 
white employees Newland, Doss, Ratliff and 
Slinkard were either not disciplined or 
disciplined less severely for infractions as or 
more serious than those of Plaintiff s 
subordinates. Hicks v. St. MarY_ia, ?56 F. Supp. 
at 1246-49.



12

248, 255 n.10: "(T]here may be some cases where 
the plaintiff's initial evidence combined with 
effective cross-examination of the defendant, 
will suffice to discredit the defendant's 
explanation." This is just such a case.6

In the instant case, the defendants 
articulated two reasons for the demotion and 
discharge of Hicks: the severity and
accumulation of violations committed by Hicks. 
Through effective cross-examination of the 
decision maker and reliance upon plaintiff's

6 Thus, based on the totality of the 
evidence, this case can not be characterized as 
a "pretext only" case, e. q. a case where the 
sole reason for finding discrimination is the 
discrediting of the Defendant's reason for 
discharge. It is more akin to the "pretext plus" 
case presenting a multitude of circumstantial 
evidence. Such labels may present a false 
dichotomy, however, as each case must be 
determined at trial on its particular facts. In 
a "pretext only" case, the credibility, vel non. 
of the decision maker often sways the 
factfinder. Safi Tve v. Board of Education. 811 
F. 2d 315, 318-320 ( 6th Cir.) cert, denied. 484 
U.S. 924 (19871.

13
testimony and evidence, Hicks discredited - or 
established as pretext - the defendants' 
asserted reasons for their action. The district 
court, Hicks v. St. Mary's, 756 F. Supp. at 
1251, affirmed by the circuit court, found that 
Hicks proved that the reasons proffered by 
defendants were pretextual.

Once plaintiff proves that the asserted 
reasons for the discriminatory action are not 
the true reasons - in other words once he proves 
such reasons pretextual - such discredited 
reasons (now little more than rationales) drop 
from the case.7 Defendant then is left in no 
greater stead than had he not presented a

See Tye y. Board of Education, e n  F.2d 
at 318-320 (Reversal of lower court's dismissal 
on grounds that defendant had given "evasive and 
contradictory testimony," had admitted that the 
articulated reasons were "reconstructed" for the 
litigation, and that, in actuality, had had no 
reason for his decision.)



14
defense at all.8

Plaintiff's prima facie case thus standing 
effectively unrebutted, the presumption of 
discrimination stands and plaintiff prevails as 
a matter of law. Tfrornbrough v. Columbus and 
Sreenville Railroad Co,. 760 F.2d 633, 639 (5th 
Cir. 1985):

By disproving the reasons offered by 
the employer to rebut the plaintiff's 
EliPl a facie case, the plaintiff 
recreates the situation that obtained 
when the prima facie case was 
initially established: in the absence 
of any known reason for the employer's 
decision, we presume that the employer 
was motivated by discriminatory 
reasons.

See also, Bishopp V. District of Columbia. 788
F. 2d 781, 789 (D.C. Cir. 1986):

Defendant's explanation for its 
decision was unworthy of credence as a 
matter of law. Such a blatantly

8 Because the plaintiff retains the burden 
of proof of the issue of pretext, such analysis 
does not unfairly convert the defendant's burden 
of presentation to a burden of persuasion.

15
pretextual defense carries the seeds 
of its own destruction. That is, it 
does not even satisfy the defendant's 
"intermediate burden" of producing 
"admissible evidence which would allow 
the trier of fact rationally to 
conclude that the employment decision 
had not been motivated by 
discriminatory animus."

Policy as well as legal reasoning supports 
such a conclusion. To otherwise accord the 
defendant, whose pretextual reasons did not 
withstand scrutiny, a greater legal footing than 
that accorded the defendant who, by truthfully 
standing mute before the court, faced a 
presumption of discrimination, would place a 
wholesale premium on dishonest defendant 
ingenuity at the expense of the tribunal.

3- Ihe Decision of the District Court to 
Choose a Reason for Discharge Hot 
Articulated bv the Defendant la Contrary 
Ig-McDoBDelL Douglas and Clearly Erroneous:

Once the defendant's articulated reasons 
are discredited by the factfinder, only two



16
choices remain: credit the plaintiff's reasons 
or roam outside the record to find yet a third 
reason not articulated by defendant. In the 
instant case, rather than granting judgment for 
the plaintiff, the district court engaged in the 
clearly erroneous conduct of straying from the 
articulated reasons of the petitioners evidenced 
on the record and finding yet a third secret 
reason - alleged "personal" motivation - that 
"could have" motivated the defendant. Hicks v. 
St, Mary's. 756 F. Supp. at 1251-52.

In the instant case, at no time did the 
defendants assert - nor did the record evidence 
establish - that Chief of Custody Powell had 
claimed a personality conflict or personally 
motivated difficulties with the plaintiff.9

9 Thus, Supervisor Powell denied on cross 
examination that there were "difficulties" 
between himself and plaintiff, stating: "I 
can't say that there was difficulties between he 
and I At no time was there any kind of personal

17
Indeed, the sole evidence cited by 

petitioners in their attempt to buttress the 
lower court's substitution of his own conjecture 
for the defendants' articulated reasons is the 
plaintiff's testimony that his white supervisor 
admitted that he wanted to pick a fight with 
plaintiff. When a white supervisor admits to a 
black subordinate that he wants to pick a fight 
and deliberately attempts to provoke that fight, 
and the record establishes no other motivating 
rationale for the white supervisor's actions, 
that incident constitutes circumstantial 
evidence of race discrimination rather than some 
secret reason of "personal" motivation plucked 
from the air by the lower court judge.10

- (sic)" (Joint Appendix 46).
10 Pettit v. Sears, Roebuck & Co.. 32 

Fair Emp. Prac. Cases (BNA) 1867 (D.C. Kan. 
1983) ("Unexplained, unfair treatment meted out 
to a black man carries an inference of racial 
discrimination with it."); C. f. Smith v. Board



18
It is not the provence of the tribunal in a 

pretext discrimination case to scour the record 
- as Judge Limbaugh apparently did here - to 
determine if there may possibly be an 
unarticulated reason to support discharge. 
Since few employees of long standing have a 
perfect record, there often can be found such 
plausible non-discriminatory reasons. Rather, 
it is the job of the factfinder to attempt to 
determine the actual mindset of the alleged 
discriminating official at the time of the 
adverse action - to determine what actually did 
transpire as contrasted to speculation as to 
what could have or should have transpired.

of Education. 365 F.2d 770 (8th Cir. 1966) 
(decision of then Judge Powell) ("However, in 
this day race per se is an impermissible 
criterion for judging either an applicant's 
qualifications or the district's needs. And 
this applies equally to considerations ... when 
these descriptions amount only to euphemistic 
references to actual or assumed racial 
distinctions.)

19
So too, interjection of unarticulated 

rationales fundamentally shifts the factual 
inquiry, distracting the tribunal into the 
irrelevant inquiry as to whether an employer can 
now find a legitimate reason for discharge, even 
if that reason is found only in the course of 
litigation long after the discharge.

Pretext analysis assists in the 
determination of actual occurrences by allowing 
the factfinder to assess all of the evidence 
proffered by the defendant and all of the 
evidence and arguments of plaintiff to rebut 
such reasons or rationales. Should the 
defendant proffer two reasons but hold a third 
"up its sleeve" only to be presented if 
necessary, or should the factfinder substitute 
such third reason at the close of the trial, 
then the three part analytic framework must 
necessarily fail. In that instance, the



20

plaintiff employee then has been deprived of the 
opportunity to rebut the asserted reasons for 
discharge. Accordingly, no analysis of pretext 
can be applied.

Moreover, allowing the factfinder to stray 
from the record to find "hypothetical" reasons 
imposes a fundamentally unfair burden on the 
plaintiff. The plaintiff is effectively denied 
the opportunity to present evidence to rebut the 
non-disclosed, assertedly "true" reason for 
discharge. Such action flies in the face of the 
teaching of McDonnell Douglas which holds that 
plaintiff "must be afforded a fair opportunity 
to demonstrate that petitioner's assigned reason 
for refusing to reemploy was a pretext or 
discriminatory in its application." Id* 411 U.S. 
at 807.

Had the defendants presented the asserted 
third reason at trial, Hicks could have further

21
developed the record to establish the lack of 
"personal" motivation for animosity. Plaintiff 
could have also introduced expert witness 
evidence to establish the types or effects of 
racial stereotyping behavior, similar to the 
expert testimony introduced by the plaintiff in 
Price Waterhouse v. Hopkins, 490 U.S. 228, 235- 
36 (1989).

While untruthful defendants rightfully 
bear the risk of an adverse judgment if 
plaintiff establishes pretext, this differs in 
no manner from any other civil suit in which the 
party who lies loses the suit. Moreover, 
truthful defendant employers are not victimized 
by the three part analytic framework, for it is 
well recognized by the federal judiciary that an 
employer can fire an employee for a good reason 
or a bad reason, so long as the reason is not a 
discriminatory one. What the defendant must do



22

in a pretext analysis case, however, is present 
all its reasons to the tribunal or face the 
consequences that its unexplained conduct will 
subject it to a presumption of discrimination, 

gspla; Stgrcptypeg or Antaaonl.ti^

Just as this Court found offensive 
stereotypical assertions concerning women, Price 
Waterhouse v. HopKin?, 490 u . s .  228, 235 (1939) 
this Court should also look with skepticism on 
the district court's assertion that a discharge 
of a black male first line supervisor by his 
white superior may be due to a -personally 
motivated- decision. Such finding is similar to 
a finding that the black subordinate has a 
"personality conflict- or an -attitude problem" 
and can often mask discriminatory intent. ^  
Ma£tia_v„. Thompson Tractor Company 486 F.2d 
510, 511 (5th Cir. 1973): -The trial court was 
not insensitive to the danger of accepting a

23
general ter. such as ’poor attitude' as adequate 
grounds for a discharge, if any racial overtones 
were present in the relationship between the 
parties." The Fifth Circuit noted that the 
district court carefully recognized that:

Lila L
very tough one for the courtTtems 
from the fact that the SorSs 
attitude,' 'good attitude, ' or 'bad 

attitude,' or 'lack of cooperation' 
can very easily be the label to cover 
and conceal racially motivated 
prejudices and discriminations, in 
fact, under some other title that 
looks acceptable. tftat

Courts have found black males to have been 
painted with stereotypical labels that mask 
discriminatory intent. Thus, the black male 
plaintiff in fiibfrg y, 61 pcfc, 778 F.2d 1318, 
1320 (8th Cir. 1985) (fln was characterized
as a "black militant." Another black applicant 
was found to be "a little on the smart aleck 
Side-" Wilson V, City of AHr»v 1 n « 
fi31, 633 (llth Cir. 1986).

779 F.2d



24
5. jlacK Males Remain Victims of 

Employment Discrimination:
Black men remain "unchallenged for last 

place in every important demographic 
statistic."11 Persistent evidence of societal 
racial discrimination exists. Black men are 
disproportinately unemployed, having an 
unemployment rate of 12.2% compared with 11.5% 
for black women, 4.4% for white men and 4.9% for 
white women.12

Further, black men disproportionately are 
found in low-status labor occupations. Only 
14% of working black men are employed in 
managerial and professional jobs, as compared

Ti 11 e'vrV6 'i ,y _ isible Man; BUck and Male 1Int1pr im ?  VII/ 104 H arvard law review 749 ( 1991) guotina
Douglas Glascoe, Dean of Howard University
2 eV nvWelcSh' Xoung, Black, Male and Trapped. Wash. Post, Sept. 24, 1989.

nf I" N°te' at 752, citing U.S. Dep't
1990̂  C/ Empl°YTneT't aPd garni nqR 19 (Aug.

25
with 18.2% of working black woman, 26.4% of 
white men and 26.5% of white women>i3

Commentators also note the difficulty faced 
by the black male such as plaintiff Hicks who 
attains a supervisory position of authority over 
subordinate white employees.1* mdeed, this 
record shows evidence of such conflict. Thus, 
the lower court noted that Tunney, a white 

subordinate, cursed Hicks, his black supervisor, 
“1th highly profane language. Hicks reguested 
that Tunney be disciplined but Hick's white 
superior denied the request.

RgM l n  Restricted f9r Plaintiff.

" k V ! s ; o , ° f Labor'

7°i^“ '



Access to the legal system for alleged 
victims of employment discrimination continues 
to remain limited. In many cases, the actions 
of the defendant - particularly discharge - 
renders the putative plaintiff financially 
encumbered and resourceless.

Although the EEOC has extensively litigated 
employment discrimination cases, and while its 
litigation efforts have been responsible for 
many of the larger class action victories, its 
ability to litigate many of the single discharge 
cases has necessarily been restricted by 
budgetary and personnel constraints.

Plaintiffs have the right to bring their 
own lawsuit. However, few discharged 
complainants have the financial resources to pay 
for legal services - especially if the skirmish 
turns into a nine year war such as in the 
instant case. Such putative plaintiffs are often

27
dependent upon attorneys able to accept their 
cases on contingency. However, attorneys with 
experience in employment discrimination able to 
undertake such litigation are increasingly rare. 
As a practical matter, those attorneys that do 
agree to representation of the near resourceless 
plaintiff screen their cases rigorously and can 
take only a limited few.

Thus, the "pretext only" case - not present 
herein - where there is no other circumstantial 
evidence of discrimination except the asserted 
pretextual nature of the defendant's reason for 
discharge is a statistical rarity.15 Far more 
frequent is the case of the putative plaintiff 
with "pretext plus" evidence of discrimination

How truly rare "pretext only" cases are 
can be seen by contrasting the limited handful 
of such cases with the number of EEOC charge 
filings - 945,000 in nine years. See Perceptions 
and Research on the Effectiveness of the rfop 43 Lab. L. J. 249, 254 (1992).



28
who simply can not afford an attorney nor find 
one willing to undertake the long legal battle 
on a contingent fee basis.16 The inability to 
find counsel is especially true with respect to 
complainants of low and moderate income, because 

the backpay damages are likely to be low.

7. Reduction of Case Backlog Sboujj je 
arrnwpllghed Bv Inc£e5ge4_me^_S>l 
Alternative Dispute Resolution (APR) ftPd 
Other Settlement Techniques Rather Th«a 
py SmpipyrY Judgment_Nhlch—1j —
Appropriate in Case* Alleging 
Discriminatory Intent?

In the twenty nine years since the 
enactment of Title VII, discrimination cases 
have unfortunately remained a federal mainstay.

16 Thus, in a 1991 survey and report 
conducted by NELA entitled "Unprotected Riqht&l 
The Tnrrpani na Barriers Preventing— Victims— Si
Employment niscrimination F/ 9^nQftrai^ uni<lx^ ^  RpnrPRPntationr" NELA found that complainants 
S f S S ' y  finding a 1Layer. TJi. survey
found that almost two thirds (61%) of the 
lawyers surveyed stated that they reject 80% or 
more of requests for employee representation; 
forty-four percent (44%) decline to represen 
more than 90% of the employees seeking help.

29
However, attempts at a reduction o£ the 

case backlog by tinkering with the established 
burden of proof scheme or by summary judgment 
disposition will undoubtedly fail for the 
factual inquiry in a pretest disparate treatment 
case remains the determination of the intent of 

the defendant at the time of tiiS alleged 

discriminatory action. Such inquiry, dependent 
largely upon the credibility of the parties, is 
not readily disposed of by summary disposition.

See, for example,
Tnc. . 814 F.2d 893 (3rd Cir.Xen bans). SSIiw-

cLUmiasfid, 483 u.s. 1052 (1987 ).
Reduction of case backlog can best be 

achieved by increased use of alternative dispute 
resolution mechanisms, (ADR), particularly the 

increased use of mediation. It has now taken 
Hicks close to nine years to litigate him 

discharge. It i. the rare plaintiff who would



30
relish such a protracted battle if a reasonable 
truce can be structured through the offices of a 

court appointed mediator seeking resolution at 

the early litigation stage.
III. CONCLUSION

Changes in early settlement procedures are 

well warranted; restricting plaintiff's access 
to the courts by the change in the well 

established burden of proof scheme is neither 
well founded in law or public policy. 
Accordingly, NELA respectfully seeks affirmance 

of the decision of the Eight Circuit herein.
Respectfully submitted,

Janette/Johnson
Law Offices of Janette Johnson 
3614 Fairmount Street, Suite 100 
Dallas, Texas 75219 
(214) 522-4090

I