BCI Coca-Cola Bottling Company of Los Angeles v. Equal Employment Opportunity Commission Brief Amici Curiae of the National Employment Lawyers Association, the NAACP Legal Defense and Educational Fund, and Marianne Sawicki in Support of Respondent

    No. 06-341

3n m*
Supreme Court of tf)t Mntteb States

BCI COCA-COLA BOTTLING 
COMPANY OF LOS ANGELES,

Petitioner,
v.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Respondent.

On Writ Of C ertiorari To The U nited  States  
Court Of A ppeals For The Tenth Circuit

BRIEF AMICI CURIAE OF THE NATIONAL 
EMPLOYMENT LAWYERS ASSOCIATION,

THE NAACP LEGAL DEFENSE AND EDUCATIONAL 
FUND, INC., AND MARIANNE SAWICKI,

IN SUPPORT OF RESPONDENT

Eric Schnapper 
Counsel of Record 
School of Law 
University of Washington 
P.O. Box 353020 
Seattle, WA 98195 
(206) 616-3167
Marissa Tirona 
Program Director
National Employment Lawyers Association 
44 Montgomery Street, Suite 2080 
San Francisco, CA 94104 
(415) 296-7629 
Theodore Shaw 
Director-Counsel 
J acqueline A. Berrien 
Norman J. Chachkin 
Robert H. Stroup 
Melissa S. Woods 
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson Street, Suite 1600 
New York, NY 10013-2897 
(212) 965-2200 
Counsel for Amici

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 
OR CALL COLLECT (402) 342-2831



1

TABLE OF CONTENTS
Page

IN TEREST OF A M IC I .........................................................  1

SUMMARY OF A RGU M EN T............................................  2

I. UNDER AGENCY PRINCIPLES EMPLOYERS 
ARE LIABLE FOR THE CONDUCT OF 
EM PLOYEES IN TH E EXERCISE OF 
T H E IR  A U TH O R ITY .............................................. 4

II. EM PLOYER LIABILITY IS NOT LIM ITED 
TO THE ACTIONS OF THE LAST AGENT 
INVOLVED IN A CHAIN OF D EC ISIO N ­
M A K IN G ...................................................................... 13

III. AN EMPLOYER IS LEGALLY RESPON­
SIBLE FOR IN JU RIES CAUSED BY THE 
DISCRIMINATORY CONDUCT OF ITS 
A G E N T S ...................................................................... 23

C O N C L U SIO N .......................................................................  30



11

TABLE OF AUTHORITIES

Page

Ca se s :

Bivens v. Six Unknown Named Agents o f Federal
Bureau o f Narcotics, 403 U.S. 388 (1971)..........................5

Burlington Industries v. Ellerth, 524 U.S. 742
(1998)................................................................................. passim

Chevron U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984)........................................ 6

Delaware State College v. Ricks, 449 U.S. 250
(1980)....................................................................................  8, 24

Faragher v. City o f Boca Raton, 524 U.S. 775
(1998)..................................................................... 4, 6, 7, 15, 19

H ill v. Lockheed Martin Logistics Mgmt., Inc., 354 
F.3d 277 (4th Cir. 2004), cert, dismissed, 543 U.S.
1132 (2005)..........................................................................  2, 22

Karihian v. Columbia University, 14 F.3d 773 (2d
Cir.), cert, denied, 512 U.S. 1213 (1994)............................... 4

Lorance v. AT& T Technologies, Inc., 490 U.S. 900
(1989)................................................................................... 19, 21

M artin v. Mecklenburg County, 151 Fed. Appx. 275
(4 th  Cir. 2005 )......................................................................... 14

Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57
(1986)............................................................................ 2, 4, 5, 19

Meyer v. Holley, 537 U.S. 250 (2003).......................................4

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).............. 8

Reeves v. Sanderson Plumbing Products, Inc., 530
U.S. 131 (2000)................................................. 3, 7, 19, 25, 28

Sawicki v. Morgan State University, et al., No. 06-
6 0 3 .................................... ....................................................  1, 23



Ill

TABLE OF AUTHORITIES -  Continued

Page

Shager v. Upjohn Co., 913 F.3d 398 (7th Cir. 1990)....... 4, 8

United A ir Lines, Inc. v. Evans, 431 U.S. 553 (1977)..... 24

S tatutes:

42 U.S.C. § 706(g)(2)(B)............................  25

Ru le s :

Suprem e Court Rule 3 7 .3 ............................................................ 1

O ther  Au th o r ities :

2 F. H arper, F. Jam es & O. Gray, The Law of Torts
24 (2d ed. 1956).......................................................................... 5

5 F. H arper, F. Jam es & O. Gray, The Law of Torts,
§ 26.3, p. 15 (2d ed. 1986)..................................................... 12

R esta tem ent (Second) of Agency, § 219(2)(a).........................9

R esta tem ent (Second) of Agency, § 219(2)(d).......................... 5

R esta tem ent (Third) of Agency, §7.07................................ 5, 6

R esta tem ent (Third) of Agency § 7 .0 8 ......................................6

W. Seavey, Handbook of the  Law of Agency, 141
(1984)........................................................................................   12



1

IN TE R EST OF A M IC I1

The N ational Em ploym ent Lawyers Association 
(“NELA”) is the only professional m em bership organiza­
tion in  the  country comprised of lawyers who represen t 
employees in  labor, em ployment and civil rights disputes. 
NELA and its  67 sta te  and  local affiliates have a m em ber­
ship of over 3,000 attorneys who are com m itted to working 
on behalf of those who have been illegally trea ted  in  the 
workplace. NELA strives to protect the  rights of its m em ­
bers’ clients, and  regularly  supports precedent-setting 
litigation  affecting the  righ ts of individuals in  the work­
place. NELA advocates for employee righ ts and workplace 
fairness w hile prom oting the h ighest s tandards of profes­
sionalism , ethics and judicial integrity.

The NAACP Legal Defense and Educational Fund, 
Inc. (“LD F”) is a  non-profit corporation established under 
the  laws of the S ta te  of New York, formed to redress 
in justice caused by racial discrim ination and to assist 
African-Americans in  securing th e ir constitutional and 
sta tu to ry  rights. For over six decades, LDF attorneys have 
represen ted  parties in  litigation before this C ourt and 
o ther federal courts on m a tte rs  of race discrim ination in  
general, and em ployment discrim ination in  particular.

M arianne Sawicki is th e  petitioner in  Sawicki v. 
Morgan State University, et al., No. 06-603, now pending 
before th is Court. The question presented  in  Sawicki is 
essentially  the sam e as the  question presented in  the

1 Counsel for amici authored this brief in its entirety. No person or 
entity other than amici, their staff, or their counsel made a monetary 
contribution to the preparation or submission of this brief. Letters of 
consent to the filing of this brief have been filed with the Clerk of the 
Court pursuant to Supreme Court Kule 37.3.



2

in s ta n t case. Ms. Sawieki’s Title VII claim was dism issed 
by the  lower courts applying the  u ltim ate decisionm aker 
s tan d ard  adopted for the Fourth  C ircuit in  Hill v. Lock­
heed Martin Logistics Mgmt., Inc., 354 F.3d 277 (4th Cir. 
2004) (en banc), cert, dismissed, 543 U.S. 1132 (2005). 
Petitioner in  the in s ta n t case is urging th is Court to adopt 
the ru le  in  Hill.

SUM M ARY O F A R G U M E N T

The employer in  th is case, as commonly occurs, took 
certa in  personnel actions as the resu lt of a “chain of 
decisionm aking” (Pet. Br. 44). In  th a t decisionmaking 
process several BCI officials played d istinct roles and  were 
allocated responsibility for m aking different types of 
decisions.

W hether an  employee who plays a role in  a decision­
m aking  process acts as an  agen t of the  employer is gov­
erned by trad itional agency law  principles. The conduct of 
an  official is properly im puted to his or her employer w hen 
the official “exercises the au thority  actually  delegated to 
h im  by his employer.” Meritor Savings Bank, FSB v. 
Vinson, 477 U.S. 57, 70 (1986). Grado w as doing precisely 
th a t  w hen he carried out the established responsibility of a 
BCI supervisor to select which potential disciplinary 
m a tte rs  to raise  w ith  the hum an  resources departm ent, 
and w hen he “presented  the  facts” to th a t departm ent.

Em ployer liability  is no t lim ited to the conduct of the 
la s t decisionm aker in  a  chain of decisionmaking, the  so- 
called “ultim ate decisionm aker.” In  the case of a  te rm ina­
tion, th a t la s t decisionm aker — in  th is case the one who 
selected te rm ination  as the sanction — is no t the only, or 
necessarily  th e  m ost im portan t, decisionm aking agent. 
“Agency principles [impose] vicarious liability  for h arm  
caused by m isuse of supervisory authority.” Burlington



3

Industries v. Ellerth, 524 U.S. 742, 764 (1998). T hat 
principle is equally applicable regardless of w hen in  the 
decisionm aking process the  m isuse of au thority  occurs. 
The fa r different “ultim ate decisionm aker” s tandard  
proposed by petitioner, and  adopted by the Fourth  Circuit, 
has -  as a d istric t judge in  th a t circuit recently observed -  
“th e  un fortunate  potential to create a safe harbor for 
workplace discrim ination.”

A p la in tiff m ust dem onstrate th a t an  im properly 
m otivated official, acting as an  agent of h is or h e r em ­
ployer, took some act th a t caused the dism issal or other 
in jury  com plained of. T hat im properly m otivated act m ust 
be a  but-for cause; it  m ust have had  “a  determ inative 
influence on the outcome” of the  decisionmaking process. 
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 
131, 141 (2000).

N either a  showing th a t the u ltim ate decisionm aker 
m ade an  “independent judgm ent” about the facts p re­
sented  by o ther officials, nor evidence th a t th a t decision­
m aker undertook an  “independent investigation” of the 
facts, will necessarily preclude in  every case a finding th a t  
the invidiously m otivated act caused the  in jury  com­
plained of. The exculpatory evidence proffered by an  
em ployer to show th a t a disputed adverse action was not 
caused by an  earlier discrim inatory act m ust specifically 
address the particu la r type of discrim inatory act taken, 
and  th e  m anner in  which th a t act assertedly  brought 
about the  adverse action.



4

I. U N D E R  AGENCY P R IN C IPL E S EM PLOYERS  
ARE LIABLE FO R THE CONDUCT OF EM ­
PLO YEES IN  THE EXERCISE OF THEIR A U ­
THORITY

This is a  case about agency law, “[T]he courts have 
consistently held employers liable for the discrim inatory 
discharges of employees by supervisory personnel.” Meri­
tor Savings Bank, FSB u. Vinson, 477 U.S. 57, 77 (1986). 
“[T]here is nothing rem arkable in  the fact th a t claims 
again st employers for discrim inatory actions . . . like . . . 
firing . . . have resu lted  in  em ployer liability  once the 
discrim ination is shown.” Faragher v. City o f Boca Raton, 
524 U.S. 775, 790 (1998).

Em ployer liability  for a  discrim inatory discharge is an 
unrem arkab le application of the established agency 
principle th a t  an  em ployer is liable w hen its  employee 
uses, or abuses, his or h e r authority. “[Tjhe supervisor acts 
w ith in  the scope of th is au thority  w hen he m akes dis­
crim inatory  decisions in  . . . firing. . . .” Faragher, 524 U.S. 
a t 791. “[A] supervisory employee who fires a subordinate 
is doing the kind of th ing  th a t he is authorized to do, and 
the  wrongful in ten t w ith  which he does i t  does not carry 
his behavior so beyond the  orbit of his responsibilities as 
to excuse the  employer.” Shager v. Upjohn Co., 913 F.3d 
398, 405 (7th Cir. 1990).

T hat principle is not lim ited to dism issals or any other 
p articu la r type of official act. Regardless of the type of 
au thority  w ielded by an  official, “[i]t is well established 
th a t  trad itional vicarious liability  ru les m ake principals or 
employers vicariously liable for the acts of th e ir agents or 
employee in  the scope of th e ir authority.” Meyer v. Holley, 
537 U.S. 250, 285 (2003); see Karibian v. Columbia Uni­
versity, 14 F.3d 773, 111 (2d Cir.) (employer liable w here



5

supervisor “wields the em ployer’s au thority”), cert, denied, 
512 U.S. 1213 (1994); 2 F. H arper, F. Jam es & O. Gray, The 
Law of Torts 24 (2d ed. 1956) (employer liable w hen “the 
servan t is engaged in  perform ing w hat he is h ired  to do”). 
“[Wjhere a supervisor exercises the au thority  actually 
delegated to him  by his employer, by m aking decisions . . . 
affecting the employment s ta tu s  of his subordinates, such 
actions are properly im puted to the employer whose 
delegation of au thority  empowered the supervisor to m ake 
them .” Meritor, A l l  U.S. a t 70. “[T]he employer is vicari­
ously liable for . . . company acts th a t can be performed 
only by the exercise of specific au thority  g ran ted  by the 
employer.” Burlington Industries v. Ellerth, 524 U.S. 742, 
768 (1998) (Thomas, J ., dissenting). Such au thority  or 
power, “once granted, does not d isappear like a  magic gift 
w hen i t  is wrongfully used.” Bivens v. Six Unknown 
Nam ed Agents o f Federal Bureau o f Narcotics, 403 U.S. 
388, 392 (1971).

The R esta tem ent of Agency, in  its  various iterations, 
has  em braced th is riile. The Second R esta tem ent of 
Agency sta tes  th a t  an  employer is liable for the torts of an  
agen t w here the agent “w as aided in  accomplishing the 
to rt by the  existence of the agency rela tion .” (R estatem ent 
(Second) of Agency, § 219(2)(d).) The T hird R estatem ent 
provides th a t an  employer is liable for to rts  com m itted by 
employees “w ith in  the  scope of em ploym ent,” and  defines 
scope of em ploym ent to m ean  “perform ing work assigned 
by th e  employer.” (R estatem ent (Third) of Agency, §7.07).2

2 The action of an employee would be part of “an independent 
course of conduct,” and thus outside his or her assigned duties, only if 
that conduct “represents a departure from, not an escalation of, conduct 
involved in performing assigned work.” Section 7.07, comment b.

(Continued on following page)



6

W hatever differences m ay exist betw een these two articu ­
lations, they  both embrace the  ru le  long applied by this 
Court th a t  an employer is liable for the conduct of its 
agent in  exercising his or h e r official authority. T hat ru le 
encom passes both au thority  in  the sense of the power to 
direct the actions of others (e.g., to tell the personnel 
departm ent w hether to stop paying a worker) and  au thor­
ity  in  the sense of delegation of the responsibility to act in

Petitioner makes much of the fact that the drafters of the Third 
Restatement, writing forty-two years after the adoption of Title VII, 
chose to omit the “aided in” language that was contained in the Second 
Restatement and that was relied on by this Court in Ellerth and 
Faragher. (Pet. Br. 42). This change, however, is expressly limited to 
the standard of vicarious liability “for a tort committed by an agent in 
dealing or communicating with a third party.” Restatement (Third) of 
Agency § 7.08. The comment to section 7.07 explains that the Restate­
ment’s analysis of tort liability to third parties “is inapplicable to an 
employer’s liability for one employee’s tortious conduct toward a fellow 
employee, a topic being considered by the Restatement. . . Employment 
Law, in preparation as the Restatement, Third, Agency was completed.” 

To the extent that the drafters of the Third Restatement decided to 
omit the “aided in” standard in the Second Restatement, that is of no 
significance to the meaning of Title VII. The Second Restatement 
described prevailing law when it was adopted in 1958, and remained 
unquestioned for four decades after the enactment of Title VII. In 
directing that agency principles be applied to determine the scope of 
employer liability under Title VII, Congress did not intend to give to the 
members of the American Law Institute authority to promulgate, and 
change at will, legal standards accorded the great weight of federal 
regulations under Chevron U.S.A., Inc. v. Natural Resources Defense 
Council, Inc., 467 U.S. 837 (1984). The drafters candidly acknowledged 
that for years the “aided in” standard in section 219(2)(d) of the Second 
Restatement was “widely” construed in a literal manner. Restatement 
(Third) of Agency, § 7.08, Rptrs. Note b. The fact that the drafters (or, at 
least, the reporter) of the Third Restatement in 2006 feared that this 
widespread view of agency law would unduly expose employers to 
vicarious liability does not retroactively change the prevailing agency 
law on which Congress relied in enacting the 1964 Civil Rights Act.



7

the nam e of the  em ployer (e.g,, to decide w hether to 
reim burse an  employee for a claimed business expense).

W here a  company official, acting w ith  an  unlaw ful 
purpose, uses his or her au thority  to dism iss an  employee 
or take  some other official action, the courts have held  the 
em ployer liable w ithout regard  to why the  official chose to 
d iscrim inate on the basis of race, gender, national origin, 
age, disability, or other prohibited characteristic. Specifi­
cally, a  p la in tiff who has been the victim of a discrim ina­
tory  official action is not required  to prove th a t the official 
involved believed th a t th a t discrim ination was somehow in  
the in terests  of the employer. Doubtless i t  is frequently  the 
case th a t  a  biased official believes th a t employees of a 
particu la r race, gender, or age are inferior w orkers, bu t 
proof of such a belief is not necessary to establish  employer 
liability  for the exercise of official authority. U nder 
Faragher and  Ellerth, for example, an  employer is strictly  
liable if a supervisor dism isses a  subordinate because she 
spurned his sexual advances, even though the supervisor 
in  doing so would be acting for “personal motives, motives 
un re la ted  and even an tithetica l to the objectives of the 
employer.” Ellerth, 524 U.S. a t 776.

The application of th is principle is easy in  a  case in  
which a disputed em ploym ent action, such as a dism issal, 
w as solely the resu lt of a single decision. But, except for 
very sm all employers, em ploym ent actions are more often 
the re su lt of a  num ber of discrete decisions th a t  m ay 
involve two or more different officials, each authorized to 
play a  distinct role. This Court has repeatedly recognized 
th a t  employers, ra th e r  th a n  leaving decisions (particularly  
im portan t decisions such as promotions and  dism issals) to 
the exercise of ad  hoc discretion, frequently  utilize instead  
some sort of s tructu red  “decisionm aking process.” Reeves v.



8

Sanderson Plumbing Products, Inc., 530 U.S. 133, 137, 141 
(2000) (plaintiff dism issed by company president based on 
recom m endations of and inform ation from th ree supervi­
sors); Price Waterhouse v. Hopkins, 490 U.S. 228, 236, 248 
(1989) (partnersh ip  denied by Policy Board after comments 
by numerous partners and recommendation by Admissions 
Committee); see Delaware State College v. Ricks, 449 U.S. 
250, 252 (1980) ("tenure denied by Board of Trustees based on 
recommendation of tenure committee and Faculty Senate). 
Petitioner aptly characterizes such processes as involving a 
“chain of decisionmaking.” (Pet. Br. 44).

Litigation in  th is Court and  the  lower courts illus­
tra te s  the range of d istinct decisions th a t, tak en  in  con­
cert, m ay lead to the dism issal of an  employee:

(1) the  adoption of ru les regard ing  employee 
conduct, disciplinary procedures, and/or 
sanctions to be imposed,

(2) the in itia tion  of the disciplinary process,
(3) assem bling the body of inform ation on the 

basis of which action will be taken,
(4) factual determ inations,
(5) determ inations as to w hether the facts so 

found violate the em ployer’s rules,
(6) recom m endations regard ing  factual deter­

m inations, applicability of employer rules, or 
the appropriate sanction to be imposed, and

(7) the  selection of the sanction to be imposed.
Any of these decisions can be among “the kind[s] of 
thing[s] th a t  [an official] is authorized  to do,” Shager, 913 
F.2d a t 405, and a  decisionm aking process sim ply could 
not function unless a t le ast m ost of these responsibilities 
w ere given to some official or officials. Em ployers are free



9

to divide responsibility for these different decisions be­
tw een or among any num ber of officials and employees.3

Each of these actions involves a  distinct decision; thus 
a  single employment action (e.g., a dismissal) m ay involve 
several different decisionm akers each dealing w ith  differ­
en t aspects of the process. Petitioner stresses th a t Edgar 
w as “the  decisionm aker”; th a t is correct in  the sense th a t 
it  w as E dgar who m ade the  decision to select dism issal 
(ra th e r than , for example, suspension or demotion) as the 
sanction to be imposed. B ut Grado, too, made several key 
decisions; for example, i t  was Grado, and  he alone, who 
decided to bring th is en tire m a tte r to the atten tion  of the 
Phoenix office -  the only office, according to BCI, which 
could select dism issal as a decision.

In  determ ining  w hether an  employer is legally 
responsible for a  particu lar decision in  a chain of deci­
sionm aking, the usual agency standards apply. For exam ­
ple, i f  a  personnel recom m endation were m ade by a  
com pany’s president, the employer would be legally 
responsible, since such a  h igh-ranking official is deemed 
an  a lte r  ego of the employer. Ellerth, 524 U.S. a t 758 
(citing R esta tem ent (Second) of Agency, § 219(2)(a)). If  
m aking  personnel recom m endations w as among the duties 
of a  supervisor, hum an resources official or other em ­
ployee, th a t employee’s exercise of th a t au thority  would be 
an  act of the  employer. Conversely, if  an  employee who 
m ade an  unsolicited recom m endation (that, for example, 
a  co-worker be fired) h ad  no responsibility for m aking

3 Brief Amicus Curiae of the Equal Employment Advisory Council, 
14 (“Large employers often delegate initial investigations of workplace 
misconduct to local human resources personnel, who in turn report 
their findings to a more senior manager who may work in a different 
city or state.”).



10

personnel recom m endations, and did not act for the 
purpose (however misguided) of advancing the em ployer’s 
in terest, the  employer would not be responsible for th a t 
recom m endation or for a possibly invidious motive behind 
it. Similarly, an  employer which decides not to h ire  an  
applicant because of the  adverse recom m endation of a  
form er em ployer is not liable (at least absent some form of 
negligence on its  own part) if  th a t th ird  p arty ’s negative 
report w as m otivated by a  discrim inatory purpose.

In  the  in s ta n t case, a  reasonable tr ie r  of fact could 
certain ly  conclude th a t Grado was carrying out his official 
duties w hen he took the  actions which led to P ete rs’ 
dism issal. First, bringing personnel problems to the 
a tten tio n  of the  hum an  resources departm ent w as clearly 
am ong Grado’s official duties. As BCI itse lf stipulated, 
“Mr. Grado w as responsible for m onitoring the employees 
w orking under his supervision, and w hen an employee had  
an attendance, perform ance, and/or disciplinary issue, he 
w as responsible for bringing the issue to the a tten tion  of 
the BCI H um an Resources D epartm ent.”4 Second, w hen a 
disciplinary m a tte r was under consideration by the BCI 
hum an  resources departm ent, i t  was the  responsibility of 
the re levan t m anager -  here Grado -  to “presen t the  facts” 
to the  h u m an  resources official. Pederson explained th a t 
as a  h u m an  resources official she would “rely on m anage­
m en t to give me th[e] facts”5 and m ade decisions based on

4 Memorandum in Support of Defendant’s Motion for Summary 
Judgment, “Statement of Undisputed Material Facts” (p. 2), p. 4; see 
Declaration of Patricia Edgar, par. 2; Declaration of Cesar Grado, par. 8, 
17; Declaration of Sherry Pederson, par. 2; Pet. Br. 5 (“under BCI’s . . . 
system. . . . BCI supervisors such as Grado brought issues regarding 
employee discipline to the attention of Pederson [and] Edgar.”).

6 Pederson Deposition, p. 31.



11

“the facts presented to m e” by the  supervisor.6 Grado 
described the role of a  supervisor in  sim ilar term s. “I 
gather the facts and  I p resent them  to our HR departm ent 
. . .  I will p u t the facts in  front of HR . . .  I would p resent 
the facts to HR.”7 Third , there  w as substan tia l evidence 
th a t i t  w as Grado (not Edgar) who on behalf of BCI made 
the critical (and incorrect) decision th a t  Peters was not 
actually  sick on Septem ber 30.8 C learly a  decision as to 
w hat factual inferences an  em ployer will draw  from a body 
of inform ation is “an official act of the enterprise, a com­
pany act,” Ellerth, 524 U.S. a t 762, requiring the exercise 
of delegated authority.

Regardless of w hether Grado was biased, BCI objects 
th a t  other company officials m ade a  serious effort to 
prevent supervisors like Grado from engaging in  racial 
discrim ination. H um an resources officials educated the 
workforce about Title VII, circulated anti-discrim ination 
policies, and tra ined  personnel such as Edgar to avoid 
discrim ination. (Pet. Br. 33). B ut to the ex ten t th a t  Grado 
w as using his official au thority  or otherw ise carrying out 
his official responsibilities, Grado w as as m uch an agent of

6 Pederson Declaration, par. 11; see Pet. Br. 15 (Edgar acted on the 
basis of “the facts presented to her.”).

7 Grado Deposition, pp. 31-32.
8 In a letter dated July 12, 2002, to the EEOC, Edgar (writing on 

behalf of BCI) stated:
Respondent’s attendance policy states that misrepresenting 
a reason for absence is dishonesty and grounds for immedi­
ate termination. As a result of Mr. Peters’ actions, Mr. Grado 
reached the reasonable conclusion that he had simply de­
cided not to work as scheduled.

(Letter of Patricia Edgar to Geraldine Herrera, July 12, 2002, p. 2) 
(Exhibit B to the EEOC Response in Opposition to Defendant’s Motion 
for Summary Judgment).



12

BCI as E dgar or the head of the  hum an  resources depart­
m ent. Agency law  imposes stric t liability on an  employer 
for the conduct of all of its  agents, in  p a r t because doing so 
creates a g rea ter incentive th a n  the negligence standard  
urged by petitioner. W. Seavey, H andbook of the Law of 
Agency, 141 (1984).9

Petitioner argues th a t “BCI could no t have done 
anyth ing  more to comply w ith  the s ta tu te .” (Pet. Br. 14). 
B ut there  was, of course, more th a t Grado could have 
done; he could have chosen not to discrim inate on the 
basis of race. W hat petitioner m eans is th a t, even if  BCI 
supervisors or m anagers engaged in  invidious discrim ina­
tion, there was nothing more th a t the BCI hum an  re ­
sources departm ent could have done to prevent those 
violations. B ut w hether the hum an  resources departm ent 
did all i t  could is beside the  point; Title VII applies to all of 
BCI’s officials, not ju s t to its  personnel w orkers. Agency 
law  imposes on a  principal Lability for the  actions of its 
agents because the principal, having re ta ined  those agents 
to conduct its  business and stand ing  to profit from the ir 
activities, can in  re tu rn  fairly be held responsible for the 
in juries inflicted by those agents in  the course of the ir 
activities.10 A t BCI profits are generated, no t by the hum an  
resources personnel, bu t by operational m anagers like

9 5 F. Harper, F. James & O. Gray, The Law of Torts, § 26.3, p. 15 
(2d ed. 1986) (“Pressure of legal liability on the employer therefore is 
pressure put in the right place to avoid accidents. This reasoning has 
nothing to do with fault. It is true of course that liability based on a 
finding of the master’s fault will put pressure on the employer to be 
careful. But the imposition of strict liability on an employer will exert 
even greater pressure. . . .”).

W. Seavey, Handbook of the Law of Agency, 141 (1984); 5 Harper, 
James & Gray, supra, § 26.5, p. 17; D. Dobbs, The Law of Torts, 908 
( 2000).



13

Grado, who actually solicit sales and deliver product, or 
who supervise those BCI employees who do. Grado is a 
profit center; Edgar is ju s t overhead.

Finally, BCI complains th a t it would be im practical to 
oversee the activities, and detect any m isconduct by, its 
thousands of employees, scattered  as they  are over a 
substan tia l num ber of states. (Pet. Br. 45). B ut i t  is the 
very purpose of agency law  to impose responsibility and 
liability  of th a t m agnitude on principals th a t decide to hire 
a  g rea t num ber of agents in  order to engage in  a large 
commercial or o ther enterprise. BCI Coca-Cola is a  sub­
sidiary of Coca-Cola E nterprises, a  m ulti-billion dollar 
corporation w ith  vast assets and operations. The founders 
of th a t  en terprise  w ere not obligated to expand in th is way, 
or to h ire  countless officials -  like Grado -  to s ta ff an  
exceptionally successful corporate empire. The successors 
of A tlan ta  pharm acist Dr. John  Pem berton, who invented 
Coca-Cola and  originally brew ed it  in  a  kettle  in  his 
backyard, could have chosen instead  only to m ake and 
deliver the beverage them selves; by doing so they could 
have avoided any need to supervise far flung subordinates, 
and  any risk  of liability for m isconduct by persons other 
th a n  them selves. N either the owners of the very different 
and  fa r more lucrative en terprise  th a t emerged, nor 
subsidiaries like BCI, can ju stly  com plain if  the m agnitude 
of the  vast operations th a t  generate g reat income brings 
w ith  i t  a com m ensurate degree of legal responsibility and 
poten tial liability.

II. EM PLOYER LIABILITY IS NOT LIM ITED TO 
THE ACTIO NS OF THE LAST AGENT IN ­
VOLVED IN A CHAIN OF DECISIONM AK ING

Petitioner urges th is C ourt to adopt a novel and quite 
ex traord inary  ru le  of agency law: w hen in jury  is sustained



14

as the re su lt of a chain of decisionm aking by company 
officials, only the official who m ade the  last decision is an  
agent of the  employer. BCI fram es this proposed ru le  
som ew hat opaquely, asserting  th a t solely the  “actual,” 
“form al,” or “tru e ” decisionm aker is the agent of the 
employer. (Pet. Br. 20, 23, 47). The Fourth  C ircuit has 
aptly  labeled th is s tan d ard  as requiring  a  discrim inatory 
purpose on the p a rt of “the u ltim ate decisionm aker.” 
M artin v. Mecklenburg County, 151 Fed. Appx. 275, 280 
(4th Cir. 2005). A chain of decisionmaking usually  involves 
several decisionmakers. Petitioner’s contention is th a t 
w here a  series of decisions, by several decisionm akers, 
re su lt in  th e  dism issal of an  employee, only the  la s t  
decision -  to impose the sanction of dism issal -  is legally 
“re levan t.” (Pet. Br. 15).

W hen BCI insists th a t Grado had  no decisionm aking 
authority ,11 it  is not denying th a t Grado h ad  the  power to 
m ake and actually  m ade several decisions, e.g., the  deci­
sion to call Edgar, the decision to provide certain  inform a­
tion, the decision to not respond to K att’s phone calls, etc. 
Rather, BCI is asserting  th a t only Edgar, and not Grado, 
h ad  the power to m ake a  particu lar decision, the  decision 
to select dism issal -  ra th e r  than , say, a  suspension, or 
demotion, or a  le tte r  of reprim and -  as the sanction to be 
im posed on Peters. Thus, BCI contends, w hen an  employee 
is dism issed, only the official selecting th a t sanction acts 
as an  agent of the  employer.

There is simply nothing in  agency law th a t supports 
th is  peculiar lim itation  on who is an  agent. P e titioner’s 
sum m ary of argum ent opens w ith  a straightforw ard  
assertion  of agency law. “P r in c ip le s  of agency law . . . look

11 Pet. Br. 16, 17, 19, 20, 23, 28, 40, 43.



15

to the employee who has ‘principal responsibility’ for the 
relevan t em ployment decision. Burlington Indus., Inc. v. 
Ellerth, 524 U.S. 742 (1998).” (Pet. Br. 14). B ut the quoted 
phrase “principal responsibility” does not appear any­
w here in  the decision in  Ellerth ; indeed, th is apparently  
pivotal quotation never reappears anyw here in  petitioner’s 
b rief a t  all.

Later, petitioner asserts th a t
[a]n employer may be liable for the conduct of its 
agents acting within the scope of their actual author­
ity, or, specifically, when an adverse employment ac­
tion is taken by its formal decisionmaker with 
discriminatory animus. Faragher, 524 U.S. a t 790; 
Restatement (Third) of Agency, §§ 2.04, 7.03(2)

(Pet. Br. 19) (Em phasis added). B ut w hether an  agent was 
utilizing his or h e r authority  (as was Grado) em phatically 
is not the sam e th ing  (petitioner uses the phrase “or, 
specifically” to suggest an  equivalence) as w hether an 
agent m ade the “form al” decision (i.e., the la s t decision, to 
impose dism issal as a  sanction). (Equating the two s tan ­
dards in  th is m anner is like saying “The perm issibility of 
using a designated h itte r  is governed by the rules for the 
A m erican League, or, specifically, the rules for the N a­
tional League.”) N either the phrase “formal decision­
m aker,” nor the  proposed equation of these two very 
different s tandards, is anyw here to be found in  Faragher 
or the cited sections of the R estatem ent.

P etitioner’s proposal th a t only the  person who “for­
m al [ly]” takes an  em ployment action is the em ployer’s 
agen t would largely override established agency princi­
ples. O n th is  view, so long as Edgar selected dism issal as 
the  sanction to be imposed on Peters, no one else involved 
in  the  decisionm aking process could be considered an



16

agen t of BCI. Those other decisionm akers would not be 
acting  as BCI agents even if  a decision to refer for disci­
pline only blacks who object to Sunday work had  been 
m ade by the BCI board of directors, or if  a  pretex tual 
finding th a t Peters was loafing on Septem ber 30 (ra ther 
th a n  actually sick) had  been m ade by BCI’s president.12 
U nder th a t sam e approach, BCI would not be liable in  to rt 
i f  Grado had  an  accident while driving a  delivery truck  he 
knew  had defective brakes, so long as i t  was Edgar who 
m ade the final decision to perm it use of the truck  and 
Grado had  never told Edgar th a t the  brakes did not work.

If  th is  s tan d ard  w ere adopted by th is Court as a 
general rule of agency law, the ram ifications would reach 
fa r beyond Title VII. The U nited S tates Code is replete 
w ith  provisions whose applicability depends (like certain  
Title VII claims) on the existence of a  particu la r in ten t or 
purpose. (Westlaw reports th a t more th a n  3,000 federal 
provisions use the te rm  “in ten t.”) Insofar as these laws 
apply to corporations, governm ent bodies, or other en tities

12 Petitioner repeatedly argues that it should not be liable for 
discriminatory conduct by a “subordinate” official in the decisionmaking 
chain. (Pet. Br. 15, 16, 28, 29, 32, 43, 45, 47). But the logic of BCI’s 
argument is fully applicable regardless of whether the earlier partici­
pants in that chain of events outranked Edgar.

In this case it is not clear in what sense, if any, Grado was the 
“subordinate.” The record does not suggest that Edgar was Grado’s 
supervisor, that she outranked him in some company system of job 
grades, that she supervised a larger number of actual subordinates, or 
that she was paid more than he was. This is, rather, a situation in 
which Edgar and Grado had been given different responsibilities within 
BCI and different roles to play in a disciplinary matter.

In the armed forces, the court martial convening authority will 
usually outrank the officers, and will always outrank any non­
commissioned officers, who sit on the court martial panel and deter­
mine guilt and punishment.



17

of any  size, th e ir effectiveness and even viability would be 
substan tia lly  im paired if  the only in ten t th a t m attered  
w as the motive of the employee who m ade the  last, formal 
decision in  a  decisionmaking chain. If, for example, super­
visors a t a  governm ent contractor prepared lavishly 
exaggerated statem ents of expenses and wrote up charges 
for costly bu t non-existent services, the False Claims Act 
w ould not be violated so long as the  accountant who 
finalized and  subm itted  the bill to the U nited S tates did 
no t know w hat was going on. A wide range of s ta tu tes  th a t 
govern the rights of corporations and legal relations 
am ong them  -  copyright, paten t, securities, an ti-tru st, 
trade  and other laws -  would be seriously affected. I t is 
perhaps for th a t reason th a t the N ational Cham ber of 
Commerce does not endorse the ex traord inary  agency rule 
proposed by BCI, bu t insists instead  th a t an  employer is 
responsible for the m isuse of any “delegated au thority” by 
a  company official.13

In  th e  in s ta n t case, BCI contends th a t  Grado accu­
ra te ly  reported  to E dgar w hat was occurring in  the Albu­
querque office. B ut on petitioner’s view, i t  would not have 
m a ttered  if  Grado w as lying through his teeth . BCI insists 
th a t  i t  would not be liable even if  w hat really  happened 
w as th a t P eters happily agreed to the requests from K att 
and  Grado th a t  he work over the  weekend, th a t Peters in  
fact pu t in  a  full day’s w ork on Sunday, and  th a t Grado 
nonetheless used h is official position to sell Edgar a 
completely different story fabricated by Grado because he 
believed African-Americans are racially inferior. Similarly, 
i f  Grado acting for such an  invidious purpose subm itted

13 Brief of the Chamber of Commerce of the United States of 
America as Amicus Curiae in Support of Petitioner, 4, 16, 18, 20, 21.



18

tim e or sales records for Peters th a t understa ted  the hours 
he h ad  worked or the  am ount of sales for which he had  
earned  commissions, on petitioner’s view BCI would not be 
liable so long as the officials in  the payroll departm ent 
who underpaid  Peters did not know th a t they  w ere receiv­
ing inaccurate inform ation.

The sole exception suggested by BCI to its  proposed 
“form al decisionm aker” ru le is an  equally strange depar­
tu re  from agency law. An em ployer would be legally 
responsible for the motives of any person who had  such 
“leverage or influence” th a t he could “impose his will” on 
or “dupe” the  form al decisionmaker. (Pet. Br. 24).14 U nder 
BCI’s theory, agency could be established by showing th a t 
some such other person had  an  overbearing personality 
(like th e  influence of the m onk Grigori R asputin  over Tsar

14 Petitioner also argues that Edgar was not Grado’s “cat’s paw.” 
(Pet. Br. 14, 15, 23, 24, 28).

The charming fable at issue, created in the seventh century B.C. by 
the Greek writer Aesop, and put into verse by the seventeenth century 
French poet Jean de La Fontaine, has outlived its usefulness as a guide 
to the meaning of twenty-first century agency law.

In the Aesop fable, a monkey and a cat observe chestnuts roasting 
on a fire in the home of their owner. The monkey persuades the cat to 
pull the chestnuts from the fire, promising to share the chestnuts and 
flattering the cat with compliments about his feline dexterity. The cat 
(after an independent evaluation of the circumstances) is persuaded by 
the monkey, and pulls chestnuts from the fire, singeing his paw in the 
process. Unfortunately for the cat, he (like Edgar in dealing with 
Grado) had misjudged the motives of the monkey. While the cat is 
taking the chestnuts from the fire, the monkey eats them all.

Nothing that occurs in the employment context bears any resem­
blance to the tactics used by the monkey in this story. Supervisors do 
not persuade personnel officials to fire workers by promising to share 
some sort of bonus that the supervisor will receive as a result of the 
dismissal; employers do not provide financial rewards for adverse 
employment actions.



19

Nicholas II), wove a  hypnotic trance (like the evil Svengali 
in  George Du M aurier’s n ine teen th  century novel Trilby), 
or used trickery to bamboozle the formal decisionm aker 
(as did Delilah in  persuading  Sam son to disclose the 
source of his g rea t strength .) I t  apparently  would not 
m atter, however, w hether th is other highly influential 
person was not an  employee of the defendant. On the other 
hand , trad itional agency considerations, such as delegated 
job responsibilities, the exercise of official power, or an 
in te n t to serve one’s employer, could not be relied on to 
show th a t any other person w as acting as an  agent. 
U nsurprisingly, BCI does not point to anyth ing  in  any 
version of the R esta tem ent of Agency supporting such 
distinctions.

This proposed lim itation on agency-based liability 
cannot be reconciled w ith  the p as t decisions of th is Court. 
In  both Ellerth and Faragher th is  C ourt expressly ac­
knowledged and applied the “agency principle [] of vicari­
ous liability  for harm  caused by m isuse of supervisory 
authority .” Ellerth, 524 U.S. a t 764 (emphasis added); 
Faragher, 524 U.S. a t 577 (emphasis added); see Meritor, 
477 U.S. a t 70 (employer liable for use of delegated au thor­
ity  “affecting the employment s ta tu s” of a worker) (em pha­
sis added). Reeves re ite ra ted  th a t  a  discrim ination p lain tiff 
can prevail by dem onstrating th a t an  im perm issible 
consideration “actually  played a role in  [the em ployer’s 
decisionmaking] process and  h ad  a determ inative influ­
ence on the  outcome.” 530 U.S. a t 141 (quoting Hazen 
Paper Co. v. Biggins, 507 U.S. 604, 610 (1993) (bracketed 
m a teria l in  Reeves)).

Lorance v. AT& T Technologies, Inc., 490 U.S. 900 
(1989) illu stra tes  the  principle th a t employer liability  is 
no t lim ited to situations in  which the person actually



20

tak ing  the adverse action acted w ith  a  discrim inatory 
purpose. In  Lorance the plaintiffs were demoted in 1982 as 
a  resu lt of the  application of a seniority ru le th a t had  been 
adopted in  1979. There w as no claim th a t the  company 
officials who in  1982 actually  ordered the demotion had  
them selves acted w ith  an  unlawful purpose; the alleged 
discrim inatory purpose w as on the p a rt of earlier company 
and  union negotiators who drafted  the facially neu tra l 
seniority rule. U nder BCI’s view of agency law, the benign 
purpose of the  1982 dem otion decision (taken by the 
“form al decisionm aker”) would by itse lf have barred  any 
Title VII claim; the earlier invidiously m otivated ru le 
adoption would have been legally irrelevant. This Court, 
however, agreed th a t  the  plaintiffs would have been 
en titled  to re lief if  the invidiously m otivated seniority ru le 
h ad  itse lf been the  subject of a  timely Title VII charge. 490 
U.S. a t  906-13.

N othing like the ru le  proposed by petitioner exists in  
analogous areas of anti-discrim ination law. I f  a govern­
m en t employee w as ta rge ted  for discipline because he was 
A frican-Am erican and found guilty of m isconduct because 
he w as a B aptist, no one would seriously claim th a t his 
dism issal w as nonetheless constitutional because the 
official who th e n  im posed the  sanction of dism issal did not 
know w hat w as going on. Similarly, if  a  defendant had  
been a rrested  by a b iased police officer because he was 
H ispanic, indicted by a  biased prosecutor because he was 
Catholic, and  convicted by a  biased ju ry  because his 
paren ts  w ere from Mexico, the defendant’s resu lting  
im prisonm ent would violate equal protection -  and could 
be successfully challenged in  a  habeas corpus proceeding -  
regardless of w hether the  sentencing judge was personally 
unaw are of those earlier discrim inatory acts.



21

BCI’s insistence on focusing solely on the la s t decision 
-  in  a  dism issal case the decision to select term ination  as 
the sanction — m akes little  practical sense. In  m any 
situations th a t “formal decision” m ay be little  more th a n  a 
formality. In  the in stan t case, for example, BCI’s hum an 
resources officials insisted th a t  the ir role was lim ited to (1) 
determ ining w hether the “facts presented” by m anage­
m ent constituted a violation of some BCI rule, and (2) 
determ ining w hat sanction was required  for th a t particu ­
la r  violation.15 BCI argues th a t the facts presented to 
E dgar clearly constituted flag ran t insubordination, and 
th a t dism issal w as the obvious penalty  for such insubordi­
nation. Once Grado had  decided to take the m a tte r up 
w ith  the Phoenix office, and  “presented” the “facts” regard ­
ing the events of Septem ber 28-30, the resu lt m ay well 
have been v irtually  a  foregone conclusion. Similarly, in 
Lorance the “form al decisionm akers” who demoted the 
plaintiffs both properly and predictably applied the re le­
v an t ru les to the  circum stances before them ; the critical 
decisions had  been made by others several years earlier.

The agency ru le  proposed by BCI perm its an  employer 
to place largely outside the  reach of Title VII alm ost all of 
the  decisions leading to an  adverse employment action. 
The employer could generally do so by giving responsibil­
ity  for the “u ltim ate ,” sanction-fixing decision to an  official 
who personally has no o ther role in  the decisionmaking

15 Declaration of Cesar Grado, par. 6 (“I bring the facts relating to 
the matter to the attention of our Human Resources Department. The 
Human Resources representative then makes the decision about which 
company policy or policies applies in the situation, if any, and the 
appropriate action to take based upon what has occurred.”); Declaration 
of Sherry Pederson, par. 2; Pederson Deposition, pp. 30-31; see Pet. Br. 4 
(“A Human Resources representative . . . determines whether a work­
place policy applies to the situation and orders appropriate action.”).



22

process. T hat w as precisely the allocation of decisionm ak­
ing roles in  the leading Fourth  C ircuit decision of Hill v. 
Lockheed Martin Logistics Mgmt. Inc., 354 F.3d 277 (4th 
Cir. 2004) (en banc). In  H ill the  only decision m ade by the 
“actual decisionm akers” was to determ ine the level of 
sanction.16 The N ational School Boards Association rep re­
sen ts th a t school boards v irtually  always lim it th e ir role in  
disciplinary m atters  to selecting the appropriate sanction 
based on the recom m endation of and  inform ation provided 
by school adm inistrators. The Association insists th a t 
school boards have no legal responsibility under Title VII 
for any discrim ination by those adm in istrato rs.17 Absolving 
employers in  this m anner of responsibility for any and all 
discrim inatory actions occurring prior to the “ultim ate 
decision” will immunize from the prohibitions of Title VII 
much, in  some instances virtually  all, invidiously m otivated 
conduct. As a district court judge required to adm inister the 
Fourth  Circuit’s “ultim ate decisionmaker” standard  re ­
cently observed, “[t]he rule has the unfortunate potential to 
create a  safe harbor for workplace discrim ination by any

16 The allegedly biased job site official was entirely responsible for 
initiating the disciplinary actions (a flurry of misconduct charges 
immediately following Hill’s complaint of discrimination), making the 
relevant factual findings (allegedly knowingly inaccurate), and deter­
mining that the facts so found violated company rules. 354 F.3d at 282- 
83 (majority opinion), 300-01 (dissenting opinion).

17 Brief of Amicus Curiae National School Boards Association in 
Support of Petitioner, 4-5:

[M]ost school boards have no role in evaluating employees, 
in investigating employee complaints, or in developing rec­
ommendations for . . . discipline, or termination. . . . [S]chool 
boards rely on the recommendations and input of adminis­
trators to inform their . . . decisions. . . .  [A] school board 
will only act based on the facts presented to it.

(Footnote omitted).



23

prejudiced supervisor who can fairly be described as not 
being the final decisionm aker on personnel decisions.”18 

BCI insists  th a t an  em ployer could not perm it the 
“form al” decisionm aker to be th e  “conduit” of the biases of 
other officials. (Pet. Br. 23, 47-48). But a decisionmaking 
process in which different decisionmakers are responsible 
for d istinct decisions is by definition one in  which the la te r 
decisionm akers are conduits for the actions and purposes 
of those who acted earlier. In  th is case Edgar worked 470 
m iles from the Albuquerque office; she had  never m et 
Peters, did not have a copy of his personnel file, and 
concluded (since it w as G rade’s job to “presen t the facts”) 
th a t  there  was no need to h ea r P e te rs’ side of the story or 
ta lk  w ith  P e te r’s im m ediate supervisor, K att. BCI insists 
th a t Edgar was not “isolated” from w hat was really happen­
ing; as a  practical m atter, the “formal” decisionmaker in this 
situation would hardly have been more isolated if  BCI had 
outsourced its personnel decisions to an  office in  Bangalore. 
The problem, however, concerns not isolation but the very 
natu re  of th is type of decisionmaking process. Whenever an  
employer takes action on the basis of a chain of decisionmak­
ing, the acts of an  official who participates a t an  earlier stage 
in  the process always have the potential to tu rn  the events 
th a t follow into a conduit for achieving his or her purposes.

I I I .  AN  E M P L O Y E R  IS  LEG A LLY  R E S P O N S IB L E  
F O R  IN JU R IE S  C A U SED  BY T H E  D IS C R IM I­
N A TORY  C O N D U C T O F IT S  A G E N T S

Title VII imposes liability on an  employer for an  adverse 
action brought about by the discriminatory conduct of one of

18 Petition for Writ of Certiorari, Sawicki v. Morgan State Univer­
sity, No. 06-306, App. 20a.



24

its  agents.19 W hen a  biased supervisor personally decides 
to fire a worker, the causal connection betw een th a t 
decision and the resu lting  in jury  is obvious; the decision 
causes in ju ry  because it invariably  leads other officials to 
take  th e  specific acts which directly inflict h a rm  -  the 
payroll departm ent stops issu ing  paychecks and the front 
desk or gate no longer perm its the w orker to en ter the 
office or plant. W hen the alleged discrim inatory official did 
not directly order the  adverse action, the p la in tiff m ust 
m ake two specific dem onstrations. F irst, the p la in tiff m ust 
prove th a t the biased official in  question took some act 
w ith  a  discrim inatory purpose.20 Second, the p la in tiff m ust

19 In some situations the discriminatory conduct that brought 
about the injury will itself have occurred so long before that injury that 
it lies outside the 180 or 300 day charge filing period. If, as in Delaware 
State College v. Ricks, 449 U.S. 250 (1980), the conduct mandates a 
particular adverse action, which is postponed for some specific period of 
time (in Ricks, for a year), the employee may have to file a charge 
without awaiting that injury. Similarly, if (as in United Air Lines, Inc. v. 
Evans, 431 US. 553 (1977)), the discriminatory conduct causes a 
substantial injury at the time when it occurs (e.g., a discriminatory 
layoff), the employee must file a charge at that point, and cannot do so 
for the first time only when subsequent developments give that 
discriminatory act additional impact (e.g., a second layoff because of the 
failure to accrue seniority during the first layoff period).

On the other hand, in some cases the initial discriminatory act may 
have little or no practical consequence at the time, and may affect the 
employee only because of subsequent developments. For example, 
under a progressive discipline system, a worker might receive only a 
letter of reprimand for his or her first infraction (an action with no 
economic or other consequence), and later be fired because a subse­
quent infraction was his or her second. If in such a situation a worker is 
cited for a first infraction by a discriminatory supervisor, Title VTI does 
not require the worker to file a charge with EEOC, and ultimately a 
lawsuit, to challenge a discriminatory action which as yet has not had, 
and might never have, any significant adverse impact.

20 Under section 703(m) of Title VII, the plaintiff need only prove 
that an invidious purpose was “a motivating factor” behind the act in

(Continued on following page)



25

dem onstrate th a t th is im properly m otivated conduct, 
actually  caused the adverse action th a t injured the p la in ­
tiff. The pla in tiff m ust estab lish  but-for causation: if  the 
im properly m otivated conduct h ad  not tak en  place, the 
complained-of-injury would not have occurred.

Resolution of the issue of but-for causation will often 
tu rn  largely on the trie r of fact’s assessm ent of the credi­
bility of the officials involved. The respective actions of 
those various officials m ay consist of verbal exchanges (in 
th is case, a series of telephone calls), and all the relevant 
w itnesses are likely to be employees of th e  defendant. 
W ritten  allocations of decisionm aking roles m ay not exist, 
and  even if  ex tan t m ight not have been followed. In some 
instances causation m ay depend largely on the thought 
process of a  particu lar official; did he or she, for example, 
give any w eight to the recom m endation of another, alleg­
edly biased official? However specific, consistent, and self- 
exonerating the testim ony of the defendant’s officials, i t  
will usually  be for the tr ie r  of fact to decide, a t tim es based 
largely on dem eanor and  cross-exam ination, w hether then- 
testim ony is to be believed. Reeves v. Sanderson Plumbing 
Products, Inc., 530 U.S. 133, 151 (2000).

The circum stances of th is case illu stra te  the  critical 
role of the tr ie r  of fact. On the  day th a t Peters was dis­
m issed on October 2, 2001, he w as given a  w ritten  s ta te ­
m en t signed by Grado and  Pederson explaining the 
dism issal was based on his failure to come to work on

question. If the employer demonstrates that the discriminatory official 
would for other reasons have taken the same act, even absent that 
impermissible motivating factor, the employer is still liable, but the 
remedies available are substantially limited. 42 U.S.C. § 706(g)(2)(B).



26

Septem ber 30."1 T hat sam e explanation w as repeated  on 
October 16, 2001, in  a w ritten  s ta tem en t subm itted by 
Pederson to the New Mexico D epartm ent of Labor.22 In  
November 2001, Edgar wrote to the EEOC o ffe r in g  a 
second, perhaps more persuasive account, sta ting  th a t 
Peters w as fired because, having promised to bring P eder­
son and Grado a note from his physician, Peters failed to 
do so.23 In  July, 2002, Edgar gave the EEOC a  th ird , 
possibly even more convincing explanation, insisting  th a t 
Peters was dism issed because Grado concluded th a t P eters 
had  lied to K att about being sick on Sunday, Septem ber 
30.24 Finally, in  February  2004, Edgar signed, in  support of 
BCI’s m otion for sum m ary judgm ent, a  s ta tem en t w ith  yet 
a fourth  account, explaining th a t she h ad  fired Peters 
because his rem arks to Edgar on Friday, Septem ber 28 
w ere an  act of insubordination. The 2004 declarations by 
E dgar and  Grado regard ing  th e ir  respective roles in  the 
decisionm aking process are consistent w ith  E dgar’s 2004 
account of why Peters w as dismissed, bu t no t w ith  E dgar’s 
Ju ly  2002 explanation, w ith  E dgar’s November 2001 
explanation, w ith  Pederson’s October 2001 explanation, or

21 Defendant’s Motion for Summary Judgment, Exhibit B-3. The 
notice, evidently written by Grado, stated “I explained how [the order to 
work on September 30] was a direct order and failure to comply with 
the directive would be considered insubordination. . . . You did not 
report on Sunday 9-30-01, and therefore your employment is being 
terminated for insubordination.”

22 Plaintiff EEOC’s Response in Opposition to Defendant’s Motion 
for Summary Judgement, Exhibit I (“[Peters] was told by Cesar Grado 
that if he didn’t show up, it would be considered insubordination.”).

23 Id., Exhibit J  (“Mr. Peters told Mr. Grado and the local HR 
Administrator, Sherry Perderson, in a meeting that he had a doctor’s 
note, but he did not provide one.”).

24 See n.8, supra.



27

w ith  th e  explanation se t forth  in  the dism issal sta tem en t 
signed in  October 2001 by Grado and Pederson.

BCI’s sum m ary judgm ent motion relied heavily on the 
type of in terested , unverifiable testim ony which the tr ie r  
of fact, although perm itted  to accept, is not required  to 
believe. In  declarations filed some th ree  years afte r Peters 
w as dism issed, Edgar and Grado provided (largely for the 
first tim e) pointedly detailed  descriptions of exactly w hat 
they h ad  said  to one ano ther in  private telephone conver­
sations on Septem ber 28 and  October 1, 20Q1.25 Edgar and 
Grado also swore to highly nuanced accounts of th e ir 
respective motives in  each of those conversations.26 BCI 
repeatedly  insists  th a t all th is self-exonerating testim ony 
w as “undisputed .” (Pet. Br. 11, 15, 37, 39). I t  is, of course, 
tru e  th a t  no one but Edgar and Grado was on the phone 
during th e  critical conversations, and th a t only Edgar and 
Grado, respectively, h ad  personal knowledge of w hat was

26 According to those accounts, Grado offered no recommendations, 
made no requests regarding how Peters was to be dealt with, never 
disparaged Peters, only asked Edgar for help in solving his staffing 
problem, and did not “confer” with Edgar about whether or how Peters 
should be disciplined. (Pet. Br. 8, 9 n.4, 25). For her part, Edgar 
assertedly never asked Grado’s views about the matter, and carefully 
instructed Grado to find out if Peters had called in to Katt about being 
absent on September 30. (Pet. Br. 9, 25).

26 Grado insisted that when he first called Edgar his sole purpose 
was to seek advice about his authority to order Peters to work on his 
day off, that he never envisioned or intended that the call would lead to 
any disciplinary action (Pet. Br. 37, 39, 49), and that at no point in any 
of the conversations did he intend to influence what Edgar would 
decide. (Pet. Br. 24). Edgar recalled with equal clarity that it was she 
who concluded, from the fact that Peters had called Katt rather than 
Grado, that Peters was not really sick (Pet. Br. 11, 25-26; but see n.8, 
supra), and that she decided to fire Peters because of insubordinate 
remarks on Friday, September 28, not because he failed to go to work on 
Sunday, September 30. (Pet. Br. 26 n.9, 27 n.10).



28

on her or his m ind during  those critical days. B ut th a t 
circum stance does not provide the  solution to th is contro­
versy; ra ther, i t  fram es the very problem th a t the tr ie r  of 
fact m ust resolve. Were such self-serving statem ents about 
m a tte rs  know n directly only to the  defendant’s own em ­
ployees deem ed conclusive, few Title VII claims would ever 
survive to tria l. Reeves m akes clear th a t it  is ordinarily for 
the  tr ie r  of fact to decide w hether such accounts are 
reliable and credible, or are m erely clever after-the-fact 
explanations contrived to explain w hy a w orker who had  
perm ission from his supervisor not to work on Sunday, 
Septem ber 30, and who w as in  fact sick on th a t day, was 
nonetheless la te r told th a t he was being fired for not 
w orking on Septem ber 30.

BCI contends th a t, regardless of the n a tu re  of a 
d iscrim inatory official act or the  w ay in  which it m ight 
tend  to lead to an  adverse action, there  is one m ethod by 
w hich an  em ployer always can prove th a t  th a t discrim ina­
tory  act did not cause any subsequent adverse action; the 
em ployer need only dem onstrate th a t  the final decision­
m aker m ade an  “independent evaluation” of the  facts. 
(Pet. Br. 48). The Tenth C ircuit took a  different approach, 
holding th a t an  em ployer always can prove th a t an  alleged 
discrim inatory act did not cause a  subsequent adverse 
action by dem onstrating  th a t  the final decisionm aker 
m ade an  “independent investigation” of the relevant facts. 
(Pet. App. 21a). N either of these proposed per se ru les 
adequately  takes into account the  wide variety  of ways in  
w hich such a  discrim inatory act would lead to the d is­
m issal of, or some other adverse action against, an  em ­
ployee.

There are, to be sure, situations in  which a  finding 
th a t  th e  final decisionm aker m ade such an  independent



29

evaluation would dem onstrate the lack of the requisite 
causation. I f  the  sole alleged discrim inatory act was a 
biased recom m endation th a t an  employee be dismissed, an  
em ployer would prevail if  the  tr ie r  of fact concluded th a t 
the  u ltim ate decisionm aker had  expressly disregarded any 
recom m endations, and had  m ade an  independent, de novo 
evaluation of the evidence and  appropriate sanction. But 
such an  independent evaluation would be entirely ineffec­
tive in  breaking the causal connection if  the discrim ina­
tory  action a t issue consisted of providing the  final 
decisionm aker w ith  false inculpatory evidence. (Regard­
less of w hether a  ju ry  independently  evaluates the  evi­
dence before it, a conviction would not be valid if  the 
defendant w as arrested , searched and prosecuted because 
of his race, or if  the prosecutor knowingly introduced 
highly inculpatory perjured testimony.)

Similarly, an  independent investigation would break 
the  causal connection if  the discrim inatory act was provid­
ing inaccurate inform ation, and th a t independent investi­
gation led the  u ltim ate decisionm aker to disregard th a t 
m isinform ation, and to base an  adverse decision on other, 
un ta in ted  evidence. B ut such an  independent investiga­
tion w ould be beside the point if  the discrim inatory act 
w as no t providing false inform ation bu t m aking a  biased 
recom m endation (e.g., to fire ra th e r  th a n  m erely rep ri­
m and the w orker), and the  u ltim ate decisionm aker -  after 
personally looking into the facts -  gave dispositive w eight 
to th a t ta in ted  recom m endation.

In  all cases, exculpatory evidence proffered by an 
em ployer to show th a t the  adverse action was not caused 
by an earlie r discrim inatory act m ust specifically address 
the  particu la r type of discrim inatory act alleged, and  the



30

m anner in  which th a t act assertedly  brought about the 
disputed adverse action.

W here an  employer confers upon a given official the 
au thority  to take a significant step in  the disciplinary (or 
other decisional) process, and  the official uses th a t au tho r­
ity  to take a discrim inatory act likely to cause injury, it 
will not invariably be the case th a t a second official -  a t a 
la te r point in  the process -  will be able to remove the 
resu lting  ta in t of the  decisionm aking process. In  the 
in s ta n t case, for example, the governm ent contends th a t 
Grado engaged in  race-based selective reporting, notifying 
Edgar th a t Peters had  refused to work on a  weekend, even 
though Grado would not have so reported a w hite or 
H ispanic w orker who h ad  done the  same thing. If  such 
selective reporting indeed occurred, nothing thereafte r 
done by some other BCI official could elim inate the but-for 
causation; if  Peters h ad  been w hite or H ispanic, Edgar 
would not have been called, Grado would not have issued 
an u ltim atum , Pederson would never have been asked to 
pull P e te rs’ old file, and no one would have questioned 
P eters’ bona fides w hen he called in  sick. BCI, having 
opted to give Grado control over w hether to take  the steps 
th a t would trigger a  disciplinary process, cannot complain 
if  as a  practical m a tte r  no other official w as th e reafte r in  a 
position to undo the resu lting  im pact of th a t biased act on 
the decisionm aking process. U nder Title VII, unlike 
friendly games of golf, there  are no m ulligans.

CO NCLUSION

For the above reasons, the decision of the  court of 
appeals should be affirmed.



Respectfully subm itted,

E ric Schnapper  
Counsel o f Record 
School of Law 
U niversity of W ashington 
P.O. Box 353020 
Seattle, WA 98195 
(206) 616-3167

Marissa  T irona  
Program  Director 
N ational E mployment Lawyers 

A ssociation
44 M ontgomery S treet, Suite 2080 
San  Francisco, CA 94104 
(415) 296-7629

Theodore  Shaw 
Director-Counsel 
N orman J , Chachkin  
J acqueline  A. Berren  
Robert H. Stroup 
M elissa  S. W oods 
NAACP Legal D e fen se  and 

E ducational F u n d , In c .
99 H udson S treet, Suite 1600 
New York, NY 10013-2897 
(212) 965-2200

Counsel for Amici