Phillips v. Martin Marietta Corporation Petition for Writ of Certiorari

    No. 99-536

In  T he

Supreme Cmirt nf the United States

R o g e r  R e e v e s ,

S a n d e r s o n  P l u m b in g  P r o d u c t s , In c .,

Respondent.

On Writ of Certiorari to the 
United States Court of Appeals For The Fifth Circuit

B rief  of A m ici C u r ia e  L a w y e r s ’ C o m m it t e e  F o r  C ivil  
R ig h t s  u n d e r  L a w ; NAACP L e g a l  D e f e n s e  & 

E d u c a t io n a l  F u n d , In c ., N a t io n a l  A s s o c ia t io n  fo r  th e  
A d v a n c e m e n t  o f  C o l o r e d  P e o p l e ; M e x ic a n  A m e r ic a n  

L egal  D e f e n se  a n d  E d u c a t io n a l  F u n d ; N a t io n a l  
P a r t n e r sh ip  fo r  W o m e n  &  F a m il ie s ; N a t io n a l  W o m e n 's 
La w  C e n t e r ; NOW L eg a l  D e f e n s e  a n d  E d u c a t io n  F u n d ; 

a n d  A m e r ic a n  C ivil  L ib e r t ie s  U n io n  
in  su p p o r t  o f  P e t it io n e r

D a n ie l  F. K o lb  

C h a r l e s  T. L e s t e r , Jr .
Co-Chairs 

N o r m a n  R e d l ic h , 
Trustee

B a r b a r a  R. A r n w in e  
T h o m a s  J. H e n d e r s o n  
R ic h a r d  T. S e y m o u r * 
T e r e sa  A . F e r r a n t e

L a w y e r s ’ C o m m it t e e  fo r  
C ivil  R ig h t s  U n d e r  L a w  
1401 New York Ave. NW 
Suite 400
Washington, DC 20005 
Telephone: 202-662-8600

January 7, 2000

*Counsel o f Record
(Additional Counsel listed on inside cover)

\



V

Elaine  R. Jones 
Director-Counsel 

Theodore  M. Shaw  
N o rm an  J. Chachkin  
Charles Stephen  Ralsto n  
NAACP Legal  D efense a n d  

Ed u c a tio n a l  Fu n d , In c .
99 Hudson Street, 16th Floor 
N ew  York, N Y  10013 
Telephone: 212-219-1900

D ennis C. Ha y e s ,
General Counsel 

N atio n a l  a sso c ia tio n  for  
the a d v a n c e m e n t  of 
Colored  People 

4805 Mt. Hope Drive 
Fifth Floor
Baltimore, Maryland 21215  
Telephone: 410-486-9191

An to n ia  Hernandez  
President
Theresa  Fa y -B ustillos 
MALDEF
634 South Spring Street 
Eleventh Floor 
Los A ngeles, CA 90014  
Telephone: 213-629-2516

Judith  L. Lichtman 
D o n n a  R. Lenhoff 
N ational  Partnership for  

W omen & Families 
1875 Connecticut Ave. NW  
Suite 710
Washington, DC 20009 
Telephone: 202-986-2600

Marcia  D. Greenberger  
Judith  C. appelba u m  
N ational w o m e n ’s 

Law  Center

11 Dupont Circle N.W . Suite 800 
Washington, D.C. 20036  
Telephone: 202-588-5180

Martha  F. Davis 
NO W  Legal D efense a n d  

Education  Fund  
395 Hudson Street, 5th Floor 
N ew  York, N ew  York 10014 
Telephone: 212-925-6635

Sa r a  L. Ma n d elba u m  
Steven  R. Shapiro 
A merican Civil 

Liberties Union  
125 Broad Street 
N ew  York, N .Y . 10004 
Telephone: 212-549-2611

Attorneys fo r  Amici Curiae



1

TABLE OF CONTENTS
Page

STATEMENT OF IN TER EST...............................  j

STATEMENT OF THE C A S E ....................................  4

SUMMARY OF ARGUM ENT...............................  7

ARGUMENT ...................................... 9

A. The McDonnell Douglas / Burdine / Hicks
Model Should be Followed in Age 
Discrimination Cases .............................  9

B. Some Courts Have Improperly Insisted on
Standards of Evidence Effectively Requiring 
Direct Proof of Discrimination....................... 12

C. The Treatment of the Discriminatory Remarks
Herein Set the Bar of Proof Too High ..................  18

D. Setting the Evidentiary Bar Too High Frustrates
the Purposes of the Fair-Employment Laws 23

E. In the Absence of Compelling Circumstances,
the Jury Should Be Allowed to Draw an 
Inference of Discrimination or Retaliation from 
Evidence that the Proffered Nondiscriminatory 
Reason Was Not the True Reason for the 
Challenged Action ......................................  26

CONCLUSION.................................................  3Q
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11

Table of Authorities

1. Cases

Annis v. County o f  Westchester,
136 F.3d 239 (2d Cir. 1998) ..................................  10

Barnett v. U.S. Air, Inc.,
157 F.3d 744 (9th Cir. 1998), modified 
in other respects, 196 F.3d 979 (9th Cir. 1999) . .  10 

Beaird v. Seagate Technology, Inc.,
145 F.3d 1159 (10th Cir.), cert, denied,
_ U .S .  119 S. Ct. 617,
142 L. Ed. 2d 556 (1998) ....................................  11

Burns v. Thiokol Chemical Corp.,
483 F.2d 300 (Former 5th Cir. 1973) ...........  25,26

Butler v. City o f Prairie Village,
172 F.3d 736 (10th Cir. 1999) ...............................  10

Cardona Jimenez v. Bancomerico de Puerto Rico,
174 F.3d 36 (1st Cir. 1999) ....................................  11

Casarez v. Burlington Northern'Santa Fe Co.,
193 F.3d 334 (5th Cir. 1 9 9 9 ) .................................. 16

Castaneda v. Partida,
430 U.S. 482 (1977) ...............................................  21

Chambers v. TRM Copy Centers Corp.,
43 F.3d 29 (2d Cir. 1994) ......................................  13

Cowan v. Glenbrook Security Services, Inc.,
123 F.3d 438 (7th Cir. 1997) 29



------------------------------------------m-----------------------------------

Duffy v. Wolle,
123 F.3d 1026 (8th Cir. 1997),
cert, denied, 523 U.S. 1137 (1998) ....................... n

Fisher v. Vassar College,
114 F.3d 1332 (2d Cir. 1997),
cert, denied, 522 U.S. 1075 (1998) ....................... \e

Fuller v. Rayburn,

161 F.3d 516 (8th Cir. 1 9 9 8 ) ..................................  jq

Gallagher v. Delaney,

139 F.3d 338 (2d Cir. 1998) ..................................  28
Gantt v. Wilson Sporting Goods Co.,

143 F.3d 1042 (6th Cir. 1 9 9 8 ) ................................ i 0
Geraci v. Moody-Tottrup, International. Inc.,

82F.3d 578 (3d Cir. 1996) ....................................  13
Grimes v. Texas Department o f Mental Health 

and Mental Retardation,
102 F.3d 137 (5th Cir. 1 9 9 6 )..................................  13

Harrington v. Harris,
118 F.3d 359 (5th Cir.),
cert, denied, 522 U.S 1016 (1997) ....................... 13

Hindman v. Transkrit Corp.,
145 F.3d 986 (8th Cir. 1 9 9 8 ) ..................................  \ \

Hodgens v. General Dynamics Corp.,
144 F.3d 151 (1st Cir. 1998) ..................................  ]g

Hollander v. American Cyanamid Co.,
172 F.3d 192 (2d Cir. 1999),
cert, denied, __ U.S. 120 S. Ct. 399 (1999) . 1 5  *



IV

Hunt v. Cromartie,
526 U.S. 541, 119 S. Ct. 1545,
143 L. Ed. 2d 731 (1999), ......................................  12

Indurante v. Local 705, International 
Brotherhood o f Teamsters,
160 F.3d 364 (7th Cir. 1 9 9 8 )...........................  22,23

King v. Preferred Technical Group,
166 F.3d 887 (7th Cir. 1 9 9 9 ) ..................................  U

Kline v. Tennessee Valley Authority,
128 F.3d 337 (6th Cir. 1 9 9 7 )..................................  13

LaPierre v. Benson Nissan, Inc.,
86 F.3d 444 (5th Cir. 1996) ..................................  13

Lattimore v. Polaroid Corp.,
99 F.3d 456 (1st Cir. 1996) ....................................  14

Lawrence v. University o f Texas Medical 
Branch at Galveston,
163 F.3d 309 (5th Cir. 1 9 9 9 ) ..................................  10

Luciano v. Olsten Corp.,
110 F.3d 210 (2d Cir 1997) ..................................  13

Marshall v. Federal Express Corp.,
130 F.3d 1095 (D.C. Cir. 1997) ....................  10,11

McDonald v. Santa Fe Trail Transp. Co.,
427 U.S. 273 (1976) ................................................ 22

McDonnell Douglas Corp. v. Green,
411 U.S 792 (1973) ......................  9 ,1 1 ,2 2 ,2 5 ,2 6

Mills v. First Federal Savings & Loan 
Association o f Belvidere,
83 F.3d 833 (7th Cir. 1996) ..................................  14



Mulero-Rodriguez v. Ponte, Inc.,
98 F.3d 670 (1st Cir. 1996) ........................

NAACP v. Button,
371 U.S. 415 (1963) ...................................

New York State National Organization for Women 
v. Pataki, 189 F.R.D. 286 (S.D. N.Y. 1999) 

Neu'ton v. Cadwell Laboratories,
156 F.3d 880 (8th Cir. 1998)

Nichols v. Lewis Grocer,
138 F.3d 563 (5th Cir. 1 9 9 8 )......................

Nichols v. Loral Vought Systems Corp.,
81 F.3d 38 (5th Cir. 1996)

Norville v. Staten Island University Hosp.,
196 F.3d 89 (2d Cir. 1999)

O Connor v. Consolidated Coin Caterers Corp.,
517 U.S. 308 (1996)

O Sullivan v. Minnesota,
191 F.3d 965 (8th Cir. 1 9 9 9 )......................

Price v. Marathon Cheese Corp.,
119 F.3d 330 (5th Cir. 1 9 9 7 )......................

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

Pullman-Stcmdard v. Swint,
456 U.S. 273 (1982)

Ray v. Tandem Computers, Inc.,
63 F.3d 429 (5th Cir. 1995)

Roberts v. Separators, Inc.,
172 F.3d 448 (7th Cir 1 9 9 9 )........................



VI

Ross v. University o f Texas at San Antonio,
139 F.3d 521 (5th Cir. 1 9 9 8 ) ..................................  n

Rothmeier v. Investment Advisers, Inc.,
85 F.3d 1328 (8th Cir. 1 9 9 6 ) ..................................  14

Scott v. University o f Mississippi,
148 F.3d 493 (5th Cir. 1 9 9 8 ) ..................................  13

Shealyv. City o f Albany,
89 F.3d 804 (11th Cir. 1 9 9 6 ) ..................................  14

Sheridan v. E.I. DuPont de Nemours and Co.,
100 F.3d 1061 (3d Cir. 1996),
cert, denied, 521 U.S. 1129 (1997) .............. 13,16

Sherrod v. American Airlines, Inc.,
132 F.3d 1112 (5th Cir. 1 9 9 8 ) ................................  10

Smith v. Borough o f Wilkinsburg,
147 F.3d 272 (3d Cir. 1998) ..................................  13

Spencer v. Stuart Hall Co., Inc.,
173 F.3d 1124 (8th Cir. 1999) ................................  15

Sreeram v. Louisiana State University 
Medical Center- Shreveport,
188 F.3d 314 (5th Cir. 1 9 9 9 ) ..................................  20

St. Mary’s Honor Center v. Hicks,
509 U.S. 502 (1993) .............. 9 ,1 0 ,1 1 ,1 6 ,1 7 ,2 7

Stalterv. Wal-Mart Stores, Inc.,
195 F.3d 285 (7th Cir. 1 9 9 9 ) ..................................  29

Tennant v. Peoria & Pekin Union Ry. Co. ,
321 U.S. 29 (1944) ..................................... 27, 29, 30

Texas Department o f Community Affairs v. Burdine,
450 U.S. 248 (1981) ............................................ 9, 11



Vll

U.S. Postal Service Board o f Governors v. Aikens, 
460 U.S. 711 (1983)

Whitaker v. Wallace,
170 F.3d 541 (6th Cir. 1999)

Young v. Wamer-Jenkinson Co., Inc.,
152 F.3d 1018 (8th Cir. 1998)

2. Constitutional Provisions

First Amendment, U.S. Constitution 
Seventh Amendment, U.S. Constitution 
Due Process Clause, Fourteenth Amendment, 

U.S. Constitution...........

3. Statutes and Rules

42 U.S.C. § 1981 
42 U.S.C. § 1981 a(c)
42 U.S.C. § 1983 ....................................

Age Discrimination in Employment Act,
29 U.S.C. §§ 621 et seq.............
29 U.S.C. § 626(c)(2) ..............

Americans with Disabilities Act,
42 U.S.C. §§ 12101 et seq. 

Family and Medical Leave Act,
29 U.S.C. §§ 2601 et seq...........

Rehabilitation Act of 1973,
29 U.S.C. § 794a

10
27
10

9, 11, 12, 27 
.............26

10, 27

11, 18

27



Title VI of the Civil Rights Act o f 1964,
42U.S.C. §§ 2000d et seq...........

V • Title VII of the Civil Rights Act of 1964,

Vlll

42 U.S.C. §§ 2000e et seq.............. 10, 15, 21, 23,
Supreme Court Rule 37.3(a) ...............................................
Supreme Court Rule 37.6 ....................................................
Rule 11, Fed. R. Civ. P ....................................................  16,
Rule 50, Fed. R. Civ. P...........................  9, 12, 18, 19, 20,
Rule 56, Fed. R. Civ. P ...........................  9, 12, 18, 19, 20,
1993 Amendments to the Discover)- Rules,

146F.R.D. 401 ........................................................

4. Treatises, Law Reviews, and Other Materials

Larson, LexK., 1 Employment Discrimination 
(2d ed., Matthew Bender,
New York, NY, 1 9 9 9 )......................................  H ,

Lindemann, Barbara, and Grossman, Paul,
Employment Discrimination Law 
(3d ed.. Bureau o f National Affairs,
Washington, D.C., 1 9 9 6 ) .........................................

Schnapper, Eric, Judges Against Juries — Appellate 
Review o f Federal Civil Jury Verdicts,
1989 Wis. L. Rev 237 (1989) ................................

10

27
. 1
. 1
28
29
29

25

12

12

30



IX

Seymour, Richard T., and Brown, Barbara Berish, 
Equai Employment Law TIpHatp 
Spring 1999 Edition (Bureau of National 
Affairs, Washington, D.C., 1999) . . . .  12,

Seymour, Richard T., and Brown, Barbara Berish, 
Equal Employment Law TTpHatp 
Spring 1998 Edition (Bureau of National
Affairs, Washington, D.C., 1998)

Seymour, Richard T., and Brown, Barbara Berish, 
Equal Employment Law Update 
Summer 1996 Edition (Bureau of National
Affairs, Washington, D.C., 1996)

Wald, Hon. Patricia M., Summary Judgment at Sixty, 
76 Tex. L Rev 1897 (1998)

>, 19, 22

16, 22

16, 22

. . 30



1

STATEMENT OF INTEREST1

The amici have a strong interest in the standards by /
which unlawful discrimination may be inferred from 
circumstantial evidence, because these standards will determine 
whether numerous victims with meritorious claims will be able 
to prove their claims and obtain relief. The amici oppose 
standards of proof so high that many violations of the civil 
rights laws will go unrecognized and unremedied. One or more 
of the amici have, singly or jointly, filed briefs in the majority of 
this Court s civil rights cases over the last twenty years.

The Lawyers’ Committee for Civil Rights Under Law is 
a tax-exempt, nonprofit civil rights organization, founded in 
196j  by the leaders of the American Bar, at the request of 
President Kennedy, in order to help defend the civil rights of 
minorities and the poor. Its Board of Trustees presently 
includes several past Presidents of the American Bar 
Association, past Attorneys General of the United States, law 
school deans and professors, and many o f the nation’s leading 
lawyers. It has independent local affiliates in Boston, Chicago,
Denver, Los Angeles, Philadelphia, San Antonio, San Francisco, 
and Washington, D.C. Through the Lawyers’ Committee and

Written consent to the filing of this brief has been obtained from 
the parties in accordance with Supreme Court Rule 37.3(a). Copies of the
consent letters have been filed with the Clerk. Pursuant to Supreme Court ' *
Rule 37.6. the amici state that this brief was not authored in whole or part 
by counsel for any party and that no party or entity, other than the amici 
and their counsel, made any monetary contribution to its preparation or
submission.



2

its affiliates, hundreds of attorneys have represented thousands 
of clients in civil rights cases across the country-, including a 
large number of cases challenging employment discrimination.

The NAACP Legal Defense & Educational Fund, Inc. 
(“the Fund”), is a nonprofit corporation that was established for 
the purpose of assisting African Americans in securing their 
constitutional and civil rights. The Court has noted the Fund s 
“reputation for expertness in presenting and arguing the difficult 
questions of law that frequently arise in civil rights litigation.” 
NAACP v. Button, 371 U.S. 415, 422 (1963).

The National Association for the Advancement of 
Colored People (“NAACP”), established in 1909, is the nation’s 
oldest civil rights organization. The NAACP has state and local 
affiliates throughout the nation, including the State of Maryland 
where it maintains its national headquarters. The fundamental 
mission of the NAACP includes promoting equality of rights, 
eradicating caste and race prejudice among the citizens of the 
United States and securing for African Americans and other 
minorities increased opportunities for employment. The 
NAACP has appeared before courts throughout the nation in 
numerous important civil rights cases.

The Mexican American Legal Defense and Educational 
Fund (“MALDEF”) is a national not-for-profit organization that 
protects and promotes the civil rights of more than 29 million 
Latinos living in the United States. MALDEF is particularly 
dedicated to securing such rights in the areas of employment, 
education, immigration, political access and public resource



3

equity. The question presented by this case is of great interest 
to MALDEF because it implicates the scope of the remedies 
available to victims of discrimination, as well as how courts 
should view the act o f intentional discrimination itself.

The National Partnership for Women & Families, a 
nonprofit, national advocacy organization founded in 1971 as 
the Women’s Legal Defense Fund, promotes equal opportunity 
for women, quality health care, and policies that help women 
and men meet both work and family responsibilities. The 
National Partnership has devoted significant resources to 
combating sex and other forms o f invidious workplace 
discrimination and has filed numerous briefs amicus curiae in the 
United States Supreme Court and in the federal circuit courts o f 
appeal to advance women’s opportunities in employment.

The National Women’s Law Center (“NWLC”) is a non­
profit legal advocacy organization dedicated to the advancement 
and protection of women’s rights and the corresponding 
elimination of sex discrimination from all facets of American 
life. NWLC has worked since 1972 to secure equal opportunity 
m the workplace through the full enforcement of Title VII o f 
the Civil Rights Act o f 1964. NWLC has filed numerous 
amicus curiae briefs on employment law and civil rights issues.

? The N0W  Le§al Defense and Education Fund (“NOW 
LD EF’) is a leading national non-profit civil rights organization 
that performs a broad range of legal and educational services in 
support of women s efforts to eliminate sex-based 
discrimination and secure equal rights. A major goal of NOW



4

LDEF is the elimination of barriers that deny women economic 
opportunities, such as employment discrimination. In 
furtherance of that goal, NOW LDEF litigates cases to secure 
full enforcement oflaws prohibiting employment discrimination. 
NOW LDEF has appeared before this Court, both as direct 
counsel and as amicus, in numerous employment discrimination 
cases.

The American Civil Liberties Union (ACLU) is a 
nationwide, nonprofit, nonpartisan organization with nearly 
300,000 members dedicated to the principles of liberty and 
equality embodied in the Constitution and this nation’s civil 
rights laws. Since its founding in 1971, the ACLU Women's 
Rights Project has appeared in nearly every major women's 
rights case before this Court. A longstanding goal of the ACLU 
Women’s Rights Project has been the elimination o f barriers to 
women's economic equality and independence, such as 
employment discrimination. Toward this goal, the ACLU is 
dedicated to preserving the gains made by women and 
minorities through such key civil rights statutes as Title VII.

STATEMENT OF THE CASE

Sanderson Plumbing Products makes toilet seats r 
covers. At the time of his discharge, Roger Reeves wa 
years old, and had worked for the company for 40 year 
was the supervisor of the “regular line” in the Hinge 
under department manager Russell Caldwell. Caldv 
supervised Joe Oswalt, who was 35 years old and ran 
line” in the Hinge Room. Pet. 2a.



5

In the Fall o f  ] 993, Powe Chesnut (then the Director o f  
Quality Control, and married to Ruth Sanderson, the company 

resident) placed Reeves on a 90-day probation because o f 
productivity problems on his line. In the Summer o f 1995 

^ ^ e H  told Chesnut (now the Director ofManufacturing) that 
he Hinge Room again had production problems, and blamed 

them on excessive absenteeism and tardiness An audit revealed 

Uf r-Ta us ̂ e ^ e p tn g  errors and misrepresentations on the part 
o f Caldwell, Reeves, and Oswalt. Dana Jester, Vice President 
o f  Human Resources, confirmed these findings. “Armed with

T ^  ™  t CheSnU' ' ,eSter> “ d Vice Presidem ° f  Operations 
om Whitaker, recommended to Company President Sandra

Sanderson that Caldwell and Reeves be dismissed Ms
Sanderson-who was 52 years old at the time-heeded this
advice, firing both Caldwell and Reeves in October 1995
Thereafter, Sanderson filled Reeves’s position, on three

successive occasions, with men in their thirties” Pet 2a-3a
Oswalt had quit earlier, and Chesnut testified that he would 
otherwise have been “subject to dismissal." Pet. 3a n.2.

Reeves filed suit under the ADEA and won a jury 
verdict of $35,000 in back pay, a finding tha, the discriminating 
was willful, and liquidated damages doubling his back pay The 
dismct court awarded $28,490.80 in front pay, and dented the

company's mot,on for judgment as a matter o f law Pet 4a
The company appealed, and the Fifth Circuit reversed.

Rceves reiied four strands o f evidence These are set
forth below, along with the Fifth Circuit’s reasons for deciding 
that each w as not probative of discrimination First, Chesnut

■%



6

allegedly made two age-biased statements several months before 
Reeves was fired: “namely (1) that Reeves was so old that he 
‘must have come over on the Mayflower,’ and (2) that he was 
‘too damn old to do the job.”’ Pet. 3a-4a. The Fifth Circuit 
held that this was not probative because “these comments were 
not made in the direct context o f Reeves’s termination,” 
Chesnut was just one o f the persons making the discharge 
recommendation to Chesnut’s wife, and there was no evidence 
suggesting that the other decisionmakers were motivated by age 
bias. Pet. 9a.

Second, the company’s explanation for Reeves’ 
discharge changed over time. At the time, Reeves was told that 
he had been fired because he had caused a specific employee to 
be paid for time she had not worked; at trial, the defendant 
claimed that the plaintiffs timekeeping mistakes had resulted in 
the overpayment of numerous employees. The court o f appeals 
saw no difference in kind between the two explanations and 
added: “That Sanderson may have explained this charge at the 
time o f dismissal with only one instance o f inaccurate record 
keeping, but buttressed its defense by adducing evidence o f 
other similar infractions at trial smacks more of competent trial 
preparation than telling a lie.” Pet. 7a-8a.

Third, Reeves put on evidence that he did not engage in 
inaccurate record keeping at all, explained the apparent 
discrepancies, and asserted that any errors were the result o f 
Caldwell’s inattentiveness. He pointed out that “at trial Chesnut 
was unable to testify as to the cost to the company, if any, o f 
Reeves’s alleged record falsifications.” Pet. 8a. Reeves argued



7

that this showed Sanderson’s proffered reason for his discharge 
to be pretextual. The court o f appeals conceded that “[o]n this 
point, Reeves very well may be correct,” but held that it must 
also “determine whether Reeves presented sufficient evidence 
that his age motivated Sanderson’s employment decision.” Id

Fourth, Reeves relied on evidence that he was treated 
less favorably than younger employees. Oswalt testified that 
Chesnut treated Reeves like a child. In addition, Oswalt, then 
m his early thirties, was not put on probation in 1993 despite 
similar production problems on the special line in the Hinge 
Room. “Likewise, argues Reeves, when Quality Control 
initiated its investigation o f his timekeeping records in 1995, 
none of the supervisors from other departments were singled 
out for such scrutiny.” Pet 9a. The Fifth Circuit held that this 
did not prove age discrimination, because Oswalt was also 
accused of inaccurate record keeping. Id

In reversing the trial court and rendering judgment for 
the company as a result of its “plenary review,” Pet. 10a, the 
Fifth Circuit also relied on the facts (1) that the company 
President was 52, (2) that Jester was 56, and (3) at the time of 
the discharge, “20 o f the company ’ s management positions were 
filled by people over the age o f 50, including several employees 
in their late 60’s,” Pet. 9a-10a.

SUMMARY OF ARGUMENT

The inferential model of proof has been applied widely 
across the field of employment discrimination law, and has 
worked as well for ADEA cases as for other types o f cases. It



8

should continue to be available in age cases.

V . Because few wrongdoers admit discrimination, the
standards under which an inference of discrimination can be 
drawn from circumstantial evidence govern the disposition o f 
the vast majority o f civil rights cases. If those standards are set 
too high for ordinary claimants with meritorious claims, they 
will be unable to prove the merits of their claims. The 
inferential model already requires plaintiffs to engage in 
significant discovery o f the defendant and its officials as to 
pretext, and raising the evidentiary bar makes plaintiffs’ task far 
harder, even as the discovery rules impose increasing limits on 
discovery. Thus, only claimants with extraordinary proof will 
be able to prevail. Such a regime of adjudication frustrates the 
Congressional intent o f providing a make-whole remedy for 
victims and deterring future acts of discrimination.

The lower court’s limitations on the probative value of 
discriminatory remarks, its failure to consider the more 
favorable treatment of a younger employee, and its presumption 
that discrimination did not occur because some members o f a 
protected class are in management, all impermissibly tilt the 
process of adjudication in favor o f the defendant.

The decision below is an illustrative example o f a regime 
of adjudication constructed by several Circuits, placing the bar 
of proof too high. They have unjustifiably limited the evidence 
that can be considered probative of discrimination, and have 
routinely substituted their own inferences for the inferences that 
could reasonably be drawn by a jury. The lower courts that



9

have adopted a “pretext-plus” standard for the determination of 
claims o f discrimination under the inferential model, and those 
courts that have adopted an adequacy-of-evidence standard 
coupled with limitations on the probative value o f evidence, 
have misapplied the teachings of o f* . Mary's Honor Center 
v. Hicks, 509U.S. 502(1993), misunderstood their limited roles 
under Rules 50 and 56, and failed to respect the restrictions 
imposed by the Seventh Amendment.

Where the evidence is sufficient to justify a jury 
inference that the defendant has presented a “nondiscriminatory 
reason that is not the defendant’s actual reason, the intent of 
Congress can be fulfilled only by allowing the case to proceed 
to trial, and according strong presumptive finality to the jury’s 
decision to draw the further inference of discrimination. The 
jury s decision should be overturned only in limited 
circumstances, as is done in other cases. Plaintiffs’ verdicts in 
civil rights cases should not be singled out for heightened 
review.

ARGUMENT

A. The McDonnell Douglas / Burdine / Hicks Model 
Should be Followed in Age Discrimination Cases

In 0  ’Connor v. Consolidated Com Caterers Corp. ,517 
U S. 308, 311 (1996), this Court left open the question whether
claims under the Age Discrimination in Employment Act, 29 ' 4
U S C. §§ 621 et seq., could properly be resolved under the 
burden-shifting, inferential model of proof set forth in McDon­
nell Douglas Corp. v. Green, 411 U S. 792 (1973), Texas Dept.



10

o f Community Affairs v. Burdine, 450 U.S. 248 (1981), and* . 
M ary’s Honor Center v. Hicks, 509 U.S. 502 (1993).

We urge the Court to follow the same model in ADEA 
cases as it has followed in cases under Title VII of the Civil 
Rights Act of 1964, 42 U.S.C. §§ 2000e etseq. Where there is 
no direct evidence of discrimination, the lower courts have 
found the inferential model useful in resolving claims under 42 
U .S .C . §§ 1981 and 1983,2 under the Americans with 
Disabilities Act, 42 U.S.C. §§ 12101 el seq., where the 
defendant denies basing its decision on disability3 or the claim 
involves retaliation,4 under Title VI of the Civil Rights Act o f 
1964, 42 U.S.C. §§ 2000d et seq.,5 under the First Amendment 
where the plaintiffis a public employee and the defendant denies 
that the challenged action was taken because of the plaintiffs

: E.g.,Annisv. County o f  Westchester, 136 F.3d 239,245 (2dCir. 
1998); Lawrence v. University ofTexas Medical Branch at Galveston, 163 
F.3d 309, 311 (5th Cir. 1999).

3 E.g., Marshall v. Federal Express Corp., 130 F.3d 1095, 
1099-1100 (D.C. Cir. 1997); Sherrod v. American Airlines. Inc., 132 F.3d 
1112, 1121-22 (5th Cir. 1998); Ganttv. Wilson Sporting Goods Co., 143 
F.3d 1042,1047 (6th Cir. 1998); Young v. Wamer-Jenkinson Co., Inc., 152 
F.3d 1018,1021 (8th Cir. 1998), Butler v. City o f Prairie Village, 172F.3d 
736. 747 (10th Cir. 1999).

4 Barnett v. U.S. Air. Inc., 157 F.3d 744, 753 (9th Cir. 1998), 
modified in other respects, 196 F.3d 979 (9th Cir. 1999).

5 E.g., Lawrence v. University o f Texas Medical Branch at 
Galveston, 163 F.3d 309, 311 (5th Cir. 1999);Fu//erv. Rayburn, 161F.3d 
516, 518 (8th Cir. 1998).



11

speech or association,6 in retaliation cases under the Family and 
Medical Leave Act, 29 U.S.C. §§ 2601 et seq„ 7 8 in
constitutional-tort cases against Federal officials,* and in ADEA
cases.9

The reception given by the lower courts to the McDon- 
n d l Douglas / Burdine / Hicks inferential model of p roof 
reflects their shared judgment of its utility in helping to winnow 
meritorious cases from those that lack merit. Describing 
McDonnell Douglas, a leading commentator stated that this 
Court “deliberately used this case as the occasion and the 
vehicle for the promulgation of a general rule designed to bring 
order to a chaotic situation that had developed within the lower 
courts. Lex K. Larson, 1 Employment Discrimination (2d ed., 
Matthew Bender, New York, NY, 1999) § 8.01 [1] at 8-5. He 
stated that the formula “is entitled to unusual weight at any 
point where it might be relevant ” Id.

The use o f the inferential model in ADEA cases has been

6E.g., Whitaker v. Wallace, 170 F.3d 541, 544 (6th Cir. 1999).

King v. Preferred Technical Group, 166 F.3d 887. 892 (7th Cir.

8 Duffy v. Wolle, 123 F.3d 1026, 1035-37 (8th Cir. 1997) cert 
denied, 523 U.S. 1137 (1998).

E.g., Cardona Jimenez v. Bancomerico de Puerto Rico, 174F.3d 
36, 40-41 (1st Cir. 1999); Ross v. Univ. o f  Texas, 139 F.3d 521, 525 (5th 
Cir. 1998); Hindman v. Transient Corp., 145 F.3d 986. 990 n.19 (8th Cir. 
1998); and Beaird v. Seagate Technology. Inc.. 145 F.3d 1159 1165 (10th 
Cir.). cert, denied, _  U.S. _ .  119 S Ct. 617. 142 L. Ed. 2d 556 (1998).



12

successful, and parallels its use under Title VII. Larson, 8 
Employment Discrimination $ 135 at 135-1 to 135-56; Barbara 
Lindemann and Paul Grossman, Employment Discrimination 
Law (3d ed., Bureau o f National Affairs, Washington, D.C., 
1996) 586-96; Richard T. Seymour and Barbara Berish Brown, 
Equal Employment Law Update. Spring 1999 Edition (Bureau 
of National Affairs, Washington, D.C., 1999) at 14-263 to 
14-525. While fine-tuning is an essential part o f the inferential 
model, there is risk of undesirable confusion across the field of 
employment law if numerous ADEA cases are to be subject to 
standards departing sharply from those of the inferential model.

B. Some C ourts H ave Im properly  In sisted  on 
Standards of Evidence Effectively Requiring Direct 
Proof of Discrimination

This is not to say that further clarification is unneces­
sary. Some courts have applied the inferential model in ways 
that raise the plaintiffs’ burden of proof higher than many 
plaintiffs with meritorious claims can reach. As a result, a large 
number of cases are thrown out by judges under Rules 50 and 
56, Fed. R. Civ. P., and meritorious cases are among them.

This Court has noted that proving discriminatory intent 
“is both sensitive and difficult,” and has recognized that “[tjhere 
will seldom be ‘eyewitness’ testimony as to the employer’s 
mental processes.” U.S. Postal Service Board o f Governors v. 
Aikens, 460 U.S. 711, 716(1983). Accord, Hunt v. Cromartie, 
526 U.S. 541, 119 S. Ct. 1545, 1552, 143 L. Ed. 2d 731 (1999) 
(racial redistricting case; “Outright admissions o f impermissible



13

racial motivation are infrequent and plaintiffs often must rely 
npon other evidence "). The courts o f  appeals, including the 

Ifth Circuit, have often recognized the unavailability o f direct 
evidence and the need to rely on circumstantial evidence.10

■ . . SeveraJ C-cuits have emphasized the rareness of cases

on infrn8? rieCtPT f0fdlSCnrninatJOn’ and the corresponding need to rely
1 9 9 h LT n° V- ° lstenCorP-  110 F.3d 210, 215 (2d Cir

1994 V  b Z  V' C°Py CemerS C°rp-  43 F 3d 29- 37 (2d Cir 1994) ( Because an employer who discriminates is unlikely to leave a
smoking gun’ attesting to a discnmmatorv intent a ^  0f
sonmination ,s seldom able to prove his claim bv direct eridence and is

usually constrained to rely on circumstantial evidence ”)■ Smith v R 1

f  147 R3d 272' 278 (3d a r  1998>1

deSnd Z nm  ±SC" m,™ ° ' '  ^  “ il" 'ly  difficult prove and often uepend upon circumstantial evidence mi; ^

employer’s motivation will often be unavailable or d iff ic iT to ^ m m  “
cert, denied, 521 U.S. 1129 H997V r *  ■ *, , wpure- >>
o-) -5 j __ * ' )> Geraci v. Kdoodv-TottruD Int'l Inr

evidence o f’d i L ^ ^  ^

~ n “  emp,0yer Mould adlTut to firing'an e m p l o ^ u s e X

denied, 522 U.S. 1016 ( 1997) m ,  “ 7 ’ (3th Q r )- cerL

2 ^ “^  IS rar£; therefore- P l ^ ^ l ^ X v e  

bUmu! Health andMenu! Retardation, 102F.3d 137,140 (5lh C iM
aPierre v. Benson Nissan, Inc. , 86 F.3d 444 449 (5th Cir 1996 V V a ! ’

V- W  Vous h, Systems Corp „ 8 ,  FJd 38 40 (5m Cm 1996) rm  
evidence of discrimination is rare ”V Prirp v u ^  ) (  direct
F.3d 330, 336 (5th Cir 1997) r ’n , C evM ° rathmCh“ «C orp., 119 
rare ”)• Kline r  . rect ^ d en ce  of discrimination is

PKUnev. Tennessee ValleyAuth . m Y . M ^ l ,348 (6thCir 1997)
” • me distric, ooun placed ,  nearly impossible b„ dcn „„

*



14

Unfortunately, some of these courts have not heeded the 
resulting holding of Aikens that plaintiffs are not required to 

V • submit direct evidence of discriminatory intent. 460 U.S. at
716. The court below stated: “To establish pretext, a plaintiff 
must prove not only that the employer’s stated reason for its 
employment decision was false, but also that age discrimination 
‘had a determinative influence on’ the employer’s decision­
making process.” Pet. 6a (footnote omitted). There are 
numerous similar decisions suggesting strongly that a jury 
cannot draw a reasonable inference of discrimination from 
adequate evidence that a proffered reason is a sham, but can 
only draw the inference if the plaintiff also produced evidence 
pointing directly at the unlawful motive.11 One en banc court

requiring direct evidence of discrimination. Rarely can discriminatory 
intent be ascertained through direct evidence because rarely is such 
evidence available.”); Mills v. First Federal Savings & Loan Ass'n of 
Belvidere, 83 F.3d 833,841 (7th Cir. 1996) (remarks revealing hostility to 
older workers are ‘“ rarely found’”; citation omitted); Rothmeier v. 
Investment Advisers, Inc., 85 F.3d 1328, 1332 (8th Cir. 1996); Shealv v. 
City o f Albany, 89 F.3d 804, 806 (11th Cir. 1996) (“direct evidence of 
intent is often unavailable”).

“ E.g., Lattimore v. Polaroid Corp., 99 F.3d 456, 460, 465-67 
465 (1st Cir. 1996) (holding that there was not enough evidence to justify 
an inference of racial discrimination, although the jury could reasonably 
find (a) that the employer had departed from its otherwise uniform practice 
in denying short-term disability benefits to an African-American employee, 
(b) that the denial of disability benefits occurred before the results of an 
independent medical examination were known, (c) that the employer had 
rigged the independent medical examination, and (d) that the employee’s 
supervisor — who was involved in the decision —  had repeatedly 
complained that “you people” are lazy);Mulero-Rodriguez v. Ponte, Inc.,



15

has not only held that something more is often needed to justify 
a finding o f discrimination, but did so on the basis that employ­
ers should frequently be excused from making false statements

98 F.3d 670, 67c (1st Cir. 1996) (holding that the Title Vn plaintiff had 
shown enough evidence that the defendant’s proffered reasons for fii^ g  

General Manager were pretextual, and that the question then

„ i " t r e r prove ■ha‘ the ” ■— «based on his Puerto Rican national hentage); NorvUle v. Staten Island 
, * FJd 98 (2d Cir i m  rthe disuia 2 ^  

no err in granting judgment as a maner of law on Norville's age 
Knramauon claim because Norville produced no evidence that the 

hospital s reasons, even i f  pretexmai. served as pretext for age

not Hnr-H l  V 11111115 summai > ' t o  the defendant) (“We need
S L  d I t "  H° llMder 0fferKi evidence ,o eslablish t o
Cyanamid used his allegedly poor inleiperaonal skills as a pretext for to

f t l ' r ° ° d rf,er inati"S him- A™ S  arguendo that he did. this is far
^ . H o l l a n d e r h a :

° Z ^ l T y p,mxL 50 °f ° * *  M / w t o
m Z T  a ” *  " • ^ p r s te s t to  * i *  oge discrimination

s cl in “ * * * *  -  u s . n o
IMS) (the I X ' S Gr°Cer 138 F 3d 563- 566 <501 Cir

98) (the plaintiff can prevail only “if  the record as a whole (1) creates a
faa issue as ,o whether Supervalu’s spued reason was ' t o  «

t o r e t o  to to x '" '' T  “ “  Pr0n,C” ° n °"d  <2) CTeaKS a "asonable 
in o r im t o t  o l T  ‘ * * 7 * " * faaor “  “■» « l« o o „ "  (emphasis 
1999) r & e ’ f ‘ 191 F 3d 965, 969-70 (8th Cir

99) ( Eten if  we agreed with O ’Sullivan t o  LSC did not convey the

“  Epencer must also prove mat die proffered reason was a 
pretext for age discrimination.”).

•4



16

injudicial proceedings.12 One Circuit has imposed a test of 
“substantial evidence” that the employer’s proffered nondiscrim- 
inatory reasons are not the real reasons, before plaintiffs can 
escape the need to show greater evidence o f intentional 
discrimination.13 Adding to the confusion, these cases are 
sometimes inconsistent with other cases in the same Circuits.14

These Circuits seem to misunderstand their role in the 
review of jury verdicts under the inferential model. Hicks 
taught that “a reason cannot be proved to be ‘a pretext for

12 Without identifying any record basis for its holding, Fisher v. 
Vassar College, 114 F.3d 1332, 1346-47 (2d Cir. 1997), cert, denied, 522 
U.S. 1075 (1998) stated that “employers characteristically give false 
explanations for employment decisions for many different reasons,” that 
the stronger the e\idence of discrimination, the more likely that the reason 
for the false explanation is to conceal discrimination, and that the weaker 
the evidence of discrimination, “the less reason there is to believe that the 
employer’s false statement concealed discrimination, as opposed to the 
numerous other reasons for which employers so frequently give false 
reasons for employment decisions.” In light of Rule 11, Fed. R_ Civ. P., 
and other efforts to impress on counsel the need to perform adequate 
factual investigations to ensure that representations to a court are reliable, 
it is difficult to comprehend why defendants who fail to perform an 
adequate investigation — and therefore put on evidence that is untrue —  
should be protected from the consequences of their failure. See Sheridan 
v. E.I. DuPont de Nemours and Co., 100 F.3d at 1069.

13 E.g., Casarez v. Burlington Northern/Santa Fe Co., 193 F.3d 
334,337 (5 th Cir. 1999) (holding that a jury may infer discrimination from 
substantial evidence that the employer’s proffered reasons are false).

14 See generally, Seymour & Brown, Chapter 14 (The McDonnell 
Douglas / Burdine /Hicks Model) in the Summer 1996, Spring 1998, and 
Spring 1999 editions.



17

discrimination' unless it is shown both that the reason was 
false, and  that discrimination was the real reason,” 509 U.S. at 
515 (emphasis in original), that “[t]he factfinder’s disbelief of 
the reasons put forward by the defendant (particularly if 
disbelief is accompanied by a suspicion of mendacity) may, 
together with the elements o f the prima facie case, suffice to 
show intentional discrimination,” id. at 511, that “[e]ven though 
(as we say here) rejection o f the defendant’s proffered reasons 
is enough at law to sustain a finding of discrimination, there 
must be a finding o f discrimination," id  at 511 n.4 (emphasis 
in original), and “[tjhat the employer’s proffered reason is 
unpersuasive, or even obviously contrived, does not necessarily 
establish that the plaintiffs proffered reason of race is correct 
That remains a question for the factfinder to answer, subject of 
course, to appellate review . . . ” Id  at 524. Conflating all of 
these requirements, these courts have often in practice treated 
their review function as entitling them to discard evidence 
entirely if there is a question going to its weight, and to engage 
in ‘‘plenary review” of the reasonableness o f the jury’s drawing 
of the inference of discrimination. They have not paid attention 
to Hicks' caution that review o f an inference drawn at a bench 
trial is subject to the “clearly erroneous” standard id at 524 
and have similarly not heeded the holding o f Pullman-Standard 
v. ShM ,  456 U.S. 273 (1982), that the ultimate question of 
discrimination vel non in a bench trial is a question of fact 
subject to deferential review under the “clearly erroneous” 
standard. They have in effect misunderstood their role under 
Hicks as that of super-juries.

■%



18

In an unusually candid example, Hodgens v. General 
Dynamics Corp., 144F.3d 151, 172 (1st Cir. 1998), noted that 
the question whether to grant summary judgment “is a close one 
because both GD and Hodgens have presented probative 
evidence tending to support their respective versions o f the 
facts, on the question whether GD’s reason for discharging 
Hodgens was legitimate or merely a pretext to retaliate against 
him for taking FMLA-protected medical leave,” but simulta­
neously held that no reasonable factfinder could resolve this 
close case for the plaintiff.

C. The Treatment of the D iscrim inatory Remarks 
Herein Set the Bar of Proof Too High

In reviewing judgments under Rules 50 and 56, some of 
the Circuits have combined their high evidentiary hurdles with 
a refusal to allow juries to give weight to admissions o f bias. 
There is a difference between the eminently proper goal o f a 
system of justice that is blind, and a system that blinds itself to 
strong evidence of discrimination. O f course, we make no 
contention that all biased statements in the workplace bar the 
dismissal of a plaintiff” s claim. Clearly, a number o f factors 
affect the weight to be accorded such remarks:

The probative strength o f direct statements or 
other direct evidence of bias depends on several factors, 
including: (1) the lack o f ambiguity in the statement or 
other evidence; (2) the intensity o f any bias shown by 
the statement or other evidence; (3) the time elapsed 
between the statement or other occurrence and the



19

challenged action; (4) the frequency with which such 
statements or other events happened, (5) whether the 
statements or other indications o f bias came from 
management officials with direct or indirect power over 
the challenged actions, and (6) the employer’s response 
to the statements or other incidents in question.

Seymour & Brown at 17-602 (summarizing the case law). A 
jury should be mindful of all these factors in weighing evidence.

However, many of the lower courts have taken from the 
jury the function of determining the weight to be accorded 
biased statements. In resolving motions for summary judgment 
under Rule 56 and motions for judgment as a matter o f law 
under Rule 50, they have either weighed such evidence them­
selves or adopted bright-line rules barring much relevant 
evidence as non-probative or according preclusive effect to 
some types of defense evidence. In this case, for example, the 
court of appeals deprived the jury of its right to evaluate a 
statement by a key decisionmaker that the plaintiff was “too 
damn old to do the job” because of a number o f factors that 
should at most have gone to its weight.

First, the court of appeals held that this and another 
age-related remark were not probative because “these com­
ments were not made in the direct context o f Reeves’s termina­
tion. Pet. 9a. If they had been made in such a context, it 
would have been direct evidence o f discrimination under the 
standards of Price Waterhouse v. Hopkins, 490 U.S. 228 
(1989). In the absence of any evidence that a decisionmaker



20

had undergone a substantial change of heart in the intervening 
months, the lower court’s willingness to indulge in a conclusive 
legal presumption of a change o f heart merely because of the 
passage of a few months bespeaks both a great reluctance to 
find discrimination and the height o f the evidentiary bar the 
court has erected for plaintiffs.

Nor is this an isolated or extreme example o f the Fifth 
Circuit s approach to judicial factfinding under Rules 50 and 56. 
In Ray v. Tandem Computers, Inc., 63 F.3d 429, 434-35 (5th 
Cir. 1995), the court affirmed the grant o f  summary judgment 
to the defendant, holding that the plaintiffs supervisor’s 
remark, four years prior to her discharge, that he was going to 
get rid of the “cunt in the office,” his scheduling o f a lunch 
meeting at Hooter’s, and a remark by another supervisor that 
the plaintiff was not the “best man for the job,” did not combine 
to support an inference o f sex discrimination.15 The panel did 
not pause to explain why a jury should be barred from inferring 
that the “leopard had not changed its spots,” or that the fact that 
it took him four years to make good on his promise did not 
disprove his declared motivation. Instead, Ray raised the 
evidentiary bar by holding that such remarks must be made

repeatedly before they can be considered probative. Id. at 434.

Second, the lower court held that no reasonable jury

15 Sreeram v. Louisiana State Univ. Med,cal Center- Shreveport, 
188 F.3d 314, 321 (5th Cir. 1999), suggested that any evidence less than 
that in Ray v. Tandem Computers would automatically be insufficient to 
show discrimination or to prevent the entry of summan- judgment for the 
defendant.



21

could find Chesnut’s remarks probative because there was no 
proof o f discriminatory remarks by all others involved in the 
decision. This raising o f the evidentiary bar would have 
prevented Ann Hopkins from proceeding with her case if this 
Court had followed such a standard in Price Waterhouse v. 
Hopkins. The plurality did not find that all partners had 
engaged in stereotyping, but only that “a number of the part­
ners’ comments showed sex stereotyping at work,” and that the 
defendant, like the respondent here, had taken no steps to 
prevent reliance on sex-linked evaluations. 490 U.S. at 251 
Justice O’Connor concurred, stating that such evidence must be 
adequate to shift the burden of persuasion to the defendant, if 
Title VII s promise of nondiscrimination is to be enforced. Id
at 272-73. Junes should be free to reason as this Court did in
Hopkins.

Third, the lower court held that no reasonable jury could 
find Chesnut ’ s remarks probative because some of the decision­
makers were in their 50's or 60's. This raising of the evidentiary 
bar would have prevented Rodrigo Partida from proceeding 
with his habeas corpus petition challenging jury discrimination 
if this Court had followed such a standard in Castaneda v. 
Portida, 430 U.S. 482, 499-501 (1977). Instead, this Court 
rejected the argument “that human beings would not discrimi­
nate against their own kind.” Id  at 500. Juries should be free 
to reason as this Court did in Castaneda.

Fourth, the lower court effectively held that no reason­
able jury could find Chesnut’s remarks probative because there 
was a conclusive presumption that the defendant’s officials told



22

the truth in saying that the younger Oswalt would have been 
treated as harshly as the plaintiff if he had still been employed.

V . The COUrt was t0 indulge the presumption even though
it itself stated that Oswalt had been treated more favorably than 
the plaintiff the last time there had been problems in the Hinge 
Room. This raising of the evidentiary bar placed an insuperable 
obstacle in the plaintiffs path. No plaintiff could prevail in any 
civil rights case if the court is willing to indulge such presump­
tions in favor of the defendant. Particularly where there is 
evidence o f prior disparate treatment, and even more so where 
the court concedes that a jury could reasonably find the defen­
dant’s reasons bogus, a jury should be free to determine for 
itself the credibility of exculpatory testimony.

The lower court simply ignored the evidence that the 
plaintiff was treated less favorably than a comparable younger 
employee. If  this Court had followed a similar approach in 
M cDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273 
282-83 (1976), L.N. McDonald’s claim would have been 
blocked. So, too, for Percy Green’s claim in M cDonnell 
Douglas itself Junes should be free to use the same reasoning 
this Court used in McDonald and in McDonnell Douglas.

Other Circuits have similarly invaded the province o f the 
jury’, to the significant detriment of justice. Space permits a 
single detailed example here.16 Indurante v. Local 705,

]6S ee gen era lly , Seymour & Brown, Chapter 17 (Direct Proof and 
Stray Remarks) in the Summer 1996, Spring 1998. and Spring 1999 
editions; I Lindemann & Grossman at 28-29.



23

International Brotherhood o f Teamsters, 160F.3d 364 3 6 6 ^ 7  
(7th Qr. 1998), affirmed the grant of summary judgment to the
e endant in a Title VII national origin case notwithstanding 

statements by decisionmakers that “all the Italians were going 
to be fired,” that “all the Italians were nothing but mobsters and 
gangsters, that “the plans were ‘to get rid of all the Italians 
and that “the days of the goombahs are over,” because the 
statements were made from sixteen months before the plaintiff 
was fired to five months thereafter, and did not specifically refer 
to the plaintiffs termination or, in the “goombah” incident to 
employment. But see the dissent by Judge Rovner, id  at 369:

I he fact is, some plans take a good while to cany out.” The 
court described a series of distinctions it had previously 
adopted, allowing it to ignore express manifestations o f bias by 
decisionmakers (“comments about discrimination in hiring may 
not suffice if the case involves a ,” at 367 (empha­
sis in original); comments may have to refer to the plaintiff 
specifically, ,d.).The court stated that the plaintiff had not

adequately raised the argument that these statements constituted
direct evidence, but held that they were not substantial enough 
evidence of pretext to require a trial. Id

D- Setting the Evidentiary Bar Too High Frustrates the
Purposes of the Fair-Employment Laws

It is obvious that the intent of Congress in enacting the 
civi rights laws can be frustrated by setting the evidentiary bar 
too high for persons with meritorious claims. Victims cannot 
receive make-whole relief, discriminators cannot be deterred, 
and discrimination will continue, if court-imposed limitations on



24

proof bar substantia] numbers of victims from establishing the 
meat of their claims. In deciding on the approach to be 
followed in the future, we urge the Court to consider an 
intensely practical problem that affects many persons with 
meritorious claims: unequal ability to gather the relevant facts.

In most employment discrimination cases, the plaintiffs 
cannot file suit already in possession of the facts with which 
they can prove the merit of their claims. Usually, only the 
employer knows the true basis for its actions. Because of the 
press of numerous charges of discrimination and inadequate 
Ending, the investigation of such charges by government 
agencies is often superficial, leaving the charging party with few 
additional facts.17 In addition, pre-Complaint investigations by 
counsel are often necessarily incomplete, because State ethics 
mles frequently bar plaintiffs’ counsel from interviewing the 
decisionmakers. Thus, plaintiffs are ordinarily dependent on 
discovery to learn the defendant’s reasons for the challenged 
action, to discover whether there are reasonably comparable 
employees of a different race or gender or age who were treated 
more favorably, to determine whether there are factors that 
affect their comparability or explain the differences in treatment, 
to explore the bases of each nondiscriminatory reason the 
defendant will proffer, and to look for evidence to rebut those

17 See, for example, the findings in New York State National 
Organization for Women v. Pataki, 189 F.R.D. 286, 305-11 (S.D. N.Y. 
1999) (holding that the defendant officials violated the Due Process Clause 
of the Fourteenth Amendment by the New York State Human Rights 

ivision s problematic intake and processing of complaints).



25

reasons.

t is very difficult to accomplish these tasks, mountin 
an effect,ve case under the traditional M cDonnell 

model, let alone meet the demands of heightened evidentiar 
hurdles Idee those .mposed below. Accomplishing these task
IS "  harder tha" 11 miSht seem because, even if the additions 
evi ence demanded by the heightened evidentiary hurdle, 
actually exists, the plaintiff may not be able to lean, of sucl 
evidence because of the increasingly restrictive presumptivt 
units on discovery " A much earlier Fifth Circuit highlightec 

the problems limitations on discover cause to employment- 
discrimination plaintiffs in Bumsv. Chen,,cal Corn.

1 «h'2d 30<!’ 30M 7 <F°nner 5'h Cir' 1973) Disc“ssing thj 
ngthy exculpatory testunony of Charles Babcock, the com­

pany s Personnel Manager, the court stated:

On cross-examination ofBabcock, Bums’ counsel was 
obviously unable to ask intelligent, informed questions 
relating to any specifics. Perhaps the information 
sought by their interrogatories would have served to 
bolster Babcock’s exculpatory testimony inbehalfofthe 
Company. Then again, it might have allowed plaintiffs

,46 F.R.D. am L T ?  ^  ,W3 Amendments ,o the Discovery Rules

S v? ppi)m 't ° '“ di±c]=S£=s==asss=
persuasion. ' “ d 'm ° n  the a lta lio "  >he burden of



26

counsel to pin the witness down to some unexplainable 
particulars. We do not know. The point is that open 
disclosure o f all potentially relevant information is the 
keynote o f  the Federal Discovery Rules. In this case, 
that focal point has been ignored.

The court observed that, without the relevant background 
information in a racial discrimination case, justice “could not —
as she must -  be color blind.” Id. at 307 (emphasis in origi­
nal).

We urge that the evidentiary bar be set no higher than 
ordinary victims can reasonably be expected to reach, in light of 
their original lack o f access to the facts and constraints on their 
ability to obtain evidence from their adversaries. Setting an 
accessible standard was the intent o f this Court in handing down 
McDonnell Douglas and its progeny, and the lower courts 
should be directed to return to that functional standard.

E. In the Absence of Compelling Circumstances, the 
Jury Should Be Allowed to Draw an Inference of 
Discrimination or Retaliation from Evidence that 
the Proffered Nondiscriminatory Reason Was Not 
the True Reason for the Challenged Action

There is an undeniable tension between safeguarding the 
proper role of the jury under the Seventh Amendment to the 
Constitution and safeguarding litigants from arbitrary decisions 
by particular juries. It is essential that there be some review of 
the jury’s decision to draw — or not to draw — the inference 
of discrimination from evidence that the employer’s proffered



27

reason is not the real reason for the challenged action. Hicks

509 U S^r « i thT  ™ Uld be reVieW ° f the decision.
“ad ’ 2 T u  M  ‘he Same t,n,e’ '* is equa]|y dear tha‘ the
adequacy o f the evtdence” standard has too often led to judges

substituting their own weighing o f the evidence for that o f the
lury, while indulging eveiy possible inference in favor o f  the

e endant. The heightened review o f jury findings and infer-
ences drawn by juries in employment discrimination cases
without givtng weight to all permissible inferences in favor of

e verdtc,-wtnner, needs to be scaled back to the traditional
.'bu t constitutionally permissible review o f such findings

an inferences m other cases, as exemplified by Tennant v
Peer,a & Peki„ Union R y Co.. 321 U.S. 29 (.944) and 
comparable cases.

In balancing these competing concerns, it is important 
o bear ,n mind that the constitutional role o f the jury reinforces 
e decision o f Congress that junes, not judges, should perform 
e primary tasks o f determining credibility and weighing the 

evidence. 29 U.S.C. § 626(c)(2) (ADEA); 42 U S C 
§ 198 la(c) (Title VII and certain claims under the ADA and the 
Rehab,1,tat,on Ac, o f 1973,29 U.S.C. § 794a, where common- 
law damages are sough,) There are sound policy reasons for 
Congress s allocation o f roles. Juries are immersed in the 
workaday world; they know how offices and factories operate 
^ d  bring to their evaluations o f the evidence a common sense 
rooted in the experience of their everyday lives.

Judges are far better equipped than juries to declare and 
apply the law, but it is no d.srespect to the judiciary to draw the



2 8

conclusion that they may be less well-equipped than juries to 
understand the real dynamics of a workplace. See Gallagher v 

V . Delaney, 139 F.3d 338, 342 (2d Cir. 1998) (“Whatever the
early life o f a federal judge, she or he usually lives in a narrow 
segment o f the enormously broad American socio-economic 
spectrum, generally lacking the current real-life experience 
required in interpreting subtle sexual dynamics of the workplace 
based on nuances, perceptions, and implicit communications”). 
These considerations are not consistent with the “plenary- 
review” in which the lower court indulged.

We suggest the following workable test for review of 
the jury’s determination whether to draw the inference o f 
discrimination. Where there is enough evidence to justify a jury 
in discrediting the defendant’s proffered nondiscnminatory 
reasons for the employment action in question, the jury should 
be free to decide whether to draw the further inference o f 
discrimination. Its decision should be overturned only in rare 
cases, for compelling reasons not involving a re-weighing of 
evidence or a presumption as to the credibility of any witness. 
For example, an inference of discrimination could justly be 
overturned where the plaintiff discredited the defendant’s 
proffered reason by showing the defendant’s true reason, which 
was also nondiscriminatory, e.g., Newton v. CadwellLaborato­
ries, 156 F.3d 880, 882 (8th Cir. 1998) (the court found there 
was no pretext where the plaintiff admitted in her deposition 
that the defendant’s employment decisions were motivated not 
by gender, “but by whether a prospective employee could sell 
Cadwell’s products effectively”), or that the defendant took



29

“ e T ,0  We"-inf0™ ed based i,s decision on 
good-fanh but mistaken view o f the facts, e.g„ Stalter v.

f “ '  S'° res- ,nc-FJd 285, 289 (7th Cir 1999)
Robensv. Separators, Inc., I72F.3d448, 452 (7thCir 1999)’
or that the defendant has shown that reasonably comparable 

T  ° y^ S 0 lhe allegedly Favored group were treated identi- 
ug ^ the 50 ,hat < tee  was no disparate treatment to

e ̂  ’  Cowanv Glen Security Services, Inc.
-3 F.3d 438, 446 (7th Cir, 1997). This test is consistent with 
nttant and the Seventh Amendment jurisprudence o f this 

Court and would curb the he.ghtened review ofju ty  findings 
and inferences ,n which some Circuits have engaged.

Absent such extraordinary circumstances, the defen­
dant s proffer o f an incorrect explanation should justify a ju iy’s 
inference o f discrimination. We submi, that it would do no 
good to clarify the proper role o f a court under Rule 50 if the 
case will never reach the jury because the same errors will be 
committed under Rule 56 to an even greater extent than they 
now are committed To safeguard the ability o f a jury to 
exercise its discretion whether to draw the further inference o f 
discrimination, we urge that the opinion ofthis Couit emphasize 
that summaryjudgment should be denied wherever the evidence 
ts sufficient to justify a jury inference that the defendant has 
presented a “nondiscriminatoty reason” for the challenged 
action that ,s not the defendant’s actual reason

Finally, we urge the Court to provide guidance to the 
ower courts, to ensure that they give due regard to the Seventh 

• endmem and not “search the record for conflicting circum-



30

V

stantial evidence in order to take the case away from the jury,” 
a practice this Court forbade in Tennant v. Peoria & Pekin 
UnionRy. Co., 321 U.S. at 35, but which has too often become 
the norm. Eric Schnapper, Judges Against Juries — Appellate 
Review o f Federal Civil Jury’ Verdicts, 1989 Wis. L. Rev. 237 
(1989). Such guidance will do much to assuage the fears o f 
many attorneys that “disfavored plaintiffs are apt to be hustled 

out of the courthouse,” and that “this is often the fate o f 
employment discrimination plaintiffs.” Hon. Patricia M. Wald, 
Summary Judgment at Sixty, 76 Tex. L. Rev. 1897, 1938-39 
(1998) (citing the findings of three Circuits’ task forces on 
perceptions of race and gender bias in the courts). She, too, 
urged that a reassessment o f summary-judgment practice was in 
order, “lest it develop too casually into a stealth weapon for 
clearing calendars.” Id. at 1898.

CONCLUSION

Amici pray that the decision below be reversed, that the 
Court provide further guidance as suggested herein, and that the 
Congressionally-ordained role for civil rights juries be restored.

Respectfully submitted,

Daniel F. Kolb 
Charles T. Lester, Jr.

Co-Chairs 
Norman Redlich, 

Trustee
Barbara R Amwine 
Thomas J. Henderson

Richard T. Seymour*
Teresa A. Ferrante 
Lawyers’ Committee for Civil 
Rights Under Law 
1401 New York Ave. NW

* Counsel of Record.



Suite 400

Washington, DC 20005 
Telephone: 202-662-8600

Elaine R. Jones 

Director-Counsel 
Theodore M. Shaw 
Norman J. Chachldn 
Charles Stephen Ralston 
NAACP Legal Defense and 
Educational Fund, Inc.

99 Hudson Street, 16th Floor 
New York, NY 10013 
Telephone: 212-219-1900

Dennis C. Hayes,
General Counsel 

National Association for the 
Advancement o f Colored 
People

4805 Mt. Hope Drive 
Fifth Floor
Baltimore, Maryland 21215 
Telephone: 410-486-9191

Antonia Hernandez, President 
Theresa Fay-Bustillos 
MALDEF
634 South Spring Street

Eleventh Floor 
Los Angeles, CA 90014 
Telephone: 213-629-2516

Judith L. Lichtman 
Donna R  Lenhoff 
National Partnership for 

Women & Families 
1875 Connecticut Ave. NW 
Suite 710
Washington, DC 20009 
Telephone: 202-986-2600

Marcia D. Greenberger 
Judith C. Appelbaum 
National Women’s Law 

Center
11 Dupont Circle N.W.
Suite 800
Washington, D C. 20036 
Telephone: 202-588-5180

Martha F. Davis 
NOW Legal Defense and 
Education Fund 

395 Hudson Street, 5th Floor 
New York, NY 10014 
Telephone: 212-925-6635



Sara L. Mandelbaum 
Steven R. Shapiro 
American Civil Liberties 

Union
125 Broad Street 
New York, N Y . 10004 
Telephone: 212-549-2611

Attorneys fo r  Amici Curiae

January 7, 2000