Court Correspondences; Defendants' Response to Pugh Plaintiffs' Application for Hearing for Preliminary Injunction and Other Equitable Relief; Amended Revised Primary Election Timetable; Resolution Before the North Carolina State Board of Elections

    No. 94-7509

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT

BARBARA R. SHERIDAN,

Plaintiff-Appellant,

v.

E.I. duPONT de NEMOURS AND COMPANY, et al.,

Defendants-Appellees.

On Appeal from the 
United States District Court 
for the District of Delaware

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE AND BRIEF 
AMICUS CURIAE OF THE NAACP LEGAL DEFENSE AND 

EDUCATIONAL FUND, INC.

Elaine R. Jones 
Director-Counsel

Theodore M. Shaw 
Charles Stephen Ralston 
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson Street 
Suite 1600
New York, New York 10013 
(212) 219-1900

Attorneys for Amicus Curiae 
NAACP Legal Defense and 
Educational Fund, Inc.



TABLE OF CONTENTS

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE .................................. 1

BRIEF AMICUS CURIAE OF THE NAACP LEGAL DEFENSE AND
EDUCATIONAL FUND, INC.................................................................................. 1

I. IN TR O D U C TIO N ....................................................................................................  1

II. THE SUPREME COURT REJECTED "PRETEXT PLUS" IN H IC K S .......... 3

CONCLUSION ...................................................................................................................  b

CERTIFICATE OF S E R V IC E ...........................................................................................  7

TABLE OF AUTHORITIES

Cases: Pages:

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975)..........................................................2

Franks v. Bowman Transportation Co., 424 U.S. 747 (1976)..............................................2

Furnco Construction Co. v. Waters, 438 U.S. 567 (1978)...................................................... 2

Griggs v. Duke Power Co., 401 U.S. 424 (1971) .................................................................. 2

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) ................................................2

Sheridan v. E.I. duPont de Nemours and Co., 74 F.3d 1439 (3rd Cir. 1996) .................2

St. Mary’s Honor Center v. Hicks,___U .S .___ , 125 L.Ed.2d 407 (1993) ............  2, 1-5

Texas Dept, of Community Affairs v. Burdine, 450 U.S. 248 (1981) ............................... 4

United States Postal Service Board of Governors v. Aikens, 460 U.S. 711 (1983) . . . .  2

Other authorities: Pages:

Catherine Lanctot, The Defendant Lies and the Plaintiff Loses: The Fallacy of the ‘Pretext- 
Plus' Rule in Employment Discrimination Cases, 43 HASTINGS L.J. 57 (1991) . . .  1

l



No. 94-7509

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT

BARBARA R. SHERIDAN,

Plaintiff-Appellant,

v.

E.I. duPONT de NEMOURS AND COMPANY, et a!.,

Defendants-Appellees.

On Appeal from the 
United States District Court 
for the District of Delaware

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

The NAACP Legal Defense and Educational Fund, Inc., by its undersigned counsel, 

moves for leave to file the attached brief amicus curiae in the above-captioned case, in 

support of the Plaintiff-Appellant. In support of this motion amicus curiae would show the 

following.

1. On February 28, 1996, this Court ordered rehearing in banc in this case. On 

March 21, 1996, this Court entered an order providing that amici curiae could move for 

leave to file briefs no later than April 30, 1996. This motion is filed pursuant to that order.

2. The NAACP Legal Defense and Educational Fund, Inc., is a non-profit 

corporation organized under the laws of the State of New York. It was formed to assist 

African-American citizens to secure their rights under the Constitution and laws of the



United States. For many years, Legal Defense Fund attorneys have represented parties in 

litigation before the Supreme Court of the United States and other federal and state courts 

in cases involving a variety of discrimination issues, including many cases involving Title VII 

of the Civil Rights Act of 1964. E.g., Griggs v. Duke Power Co., 401 U.S. 424 (1971); 

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975); Franks v. Bowman Transportation Co., 

424 U.S. 747 (1976).

3. In particular, the Legal Defense Fund has been counsel in a number of the cases

that have established the principles for deciding individual cases of disparate treatment 

under Title VII, including McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Fumco 

Construction Co. v. Waters, 438 U.S. 567 (1978); United States Postal Service Board of 

Governors v. Aikens, 460 U.S. 711 (1983); and, most recently, St. Mary’s Honor Center v. 

Hicks,__ U .S .___ , 125 L.Ed.2d 407 (1993).

4. The central issue to be decided by this Court in this case will be the proper 

interpretation and application of the Supreme Court's decision in St. Mary’s Honor Center 

v. Hicks. The Legal Defense Fund believes that its views, as counsel for the respondent in 

Hicks, will be of assistance to this Court in deciding this issue.

2



Wherefore it is prayed that the attached brief amicus curiae be permitted to be filed

Respectfully submitted,

Elaine R. Jones 
Director-Counsel

Theodore M. Shaw 
Charles Stephen Ralston 
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson Street 
Suite 1600
New York, New York 10013 
(212) 219-1900

Attorneys for Amicus Curiae 
NAACP Legal Defense and 
Educational Fund, Inc.

3



No. 94-7509

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT

BARBARA R. SHERIDAN,

Plaintiff-Appellant,

v.

E.I. duPONT de NEMOURS AND COMPANY, et al., 

Defendants-Appellees.

On Appeal from the 
United States District Court 
for the District of Delaware

BRIEF AMICUS CURIAE OF THE NAACP LEGAL DEFENSE AND
EDUCATIONAL FUND, INC.

I .

INTRODUCTION

Since the decision of the United States Supreme Court in St Mary’s Honor Center

v. Hicks, ___ U.S. ___, 125 L.Ed.2d 407 (1993), most of the Courts of Appeals have

interpreted the decision as rejecting the so-called "pretext plus" rule that had been 

developed by a number of circuits.1 "Pretext plus" holds that the plaintiff in an individual, 

disparate treatment, discrimination case not only must prove that the reasons advanced by

lSee, Catherine Lanctot, The Defendant Lies and the Plaintiff Loses: The Fallacy of the 
‘Pretext-Plus’ Rule in Employment Discrimination Cases, 43 HASTINGS L.J. 57 (1991).



the employer are pretextual, in the sense that they are false, but must introduce additional 

evidence beyond the prima facie case that the actual reason for the challenged action was 

intentional discrimination. Put another way, the plaintiff was required to show not only 

that the reasons were false, but to prove that they were pretexts for discrimination by proof 

that went beyond simply demonstrating their falsity. Amicus urges that the decisions, 

including those of this Court, that reject this view are correct and that the decisions that 

have sought to re-impose "pretext plus" after Hicks2 have misread that decision.

This conclusion is compelled by the simple fact that the Court was squarely 

presented with the issue of whether it should adopt the "pretext plus" rule, and rejected the 

rule. Indeed, three positions were advanced to the Court in Hicks:

First, respondent Hicks, represented by the undersigned counsel, argued that proof 

that the reasons advanced were pretextual and, therefore, false, compelled a 

judgement for the plaintiff;

Second, it was argued that proof that the reasons were pretextual, that is false, 

permitted judgement for the plaintiffs;

Third, the petitioner, St. Mary’s Honor Center, argued that proof that the reasons 

advanced were false, standing alone, was insufficient to prove a violation and, 

therefore, did not permit a judgement for the plaintiff, i.e., it was necessary to prove 

"pretext plus."

2See the cases cited in the panel decision herein, Sheridan v. E.I. duPont de Nemours 
and Co., 74 F.3d 1439, 1448 (3rd Cir. 1996).

2



As we will now demonstrate, the Supreme Court expressly rejected positions one and 

three, that is, the positions advanced by the parties, and adopted the second position, that 

proof of pretext, together with the already established elements of the prima facie case, 

permitted the fact-finder to find discrimination and that no other additional evidence was 

required to support a judgment against the employer.

II.
THE SUPREME COURT REJECTED "PRETEXT PLUS11 IN HICKS

As noted above, in Hicks the employer and its amici argued that it was insufficient,

as a matter of law, for a finding of discrimination to rest on a determination that the

reasons proffered by the employer (after a prima facie case had been established) were not

the true reasons. The Supreme Court squarely rejected this argument:

The 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 of the prima facie case, suffice to show intentional 
discrimination. Thus, rejection of the defendant’s proffered reasons, will 
permit the trier of fact to infer the ultimate fact of intentional discrimination, 
and the Court of Appeals was correct when it noted that, upon such rejection 
"[n]o additional proof of discrimination is required," . . . .

125 L.Ed.2d at 418-19 (emphasis in the original). The Court also rejected, in the same

passage, the argument made by the employee:

But the Court of Appeals’ holding that rejection of the defendant’s proffered 
reasons compels judgment for the plaintiff disregards the fundamental 
principle of Rule 301 that a presumption does not shift the burden of proof, 
and ignores our repeated admonition that the Title VII plaintiff at all times 
bears the "ultimate burden of persuasion."

125 L.Ed.2d at 419 (emphasis in the original).

Later on the decision, the Court states that it is not enough just to disbelieve the

3



employer, and that the employee must show "both that the reason was false and thaf 

discrimination was the real reason." Id. at 422. However, as the Court itself noted (id. at 

418-19, n. 4), there is no inconsistency in the Court’s position.

Of course, if the only evidence before the fact-finder is that the proffered reason is 

false, then there is no basis to conclude that there was unlawful discrimination. But there 

will always be more evidence than that, i.e., the evidence that established the elements of 

the prima facie case. In other words, just because the bubble created by the Rule 501 

presumption through the prima facie case has burst, does not mean that the facts upon 

which the prima facie case rests have vanished. To the contrary, just as when any bubble 

bursts, a residue is left, consisting of the evidence that created the presumption.

Thus, the Court was consistent in Hicks when it said, on the one hand, that "the 

factfinder’s disbelief of the reasons ... may, together with the elements of the prima facie 

case, suffice to show intentional discrimination," and when it said, on the other, that "it is 

not enough . . .  to disbelieve the employer." Once again, the operative phrase is "may .

. . suffice," i.e., the jury is permitted to find for the plaintiff.3 Since the evidence 

establishing the prima facie case plus proof of the falsity of the proffered reason is 

sufficient to permit the jury to find for the plaintiff, it would be improper to grant either

JSee also, Texas Dept, of Community’ Affairs v. Burdine, 450 U.S. 248, 259 (1981):

The fact that a court may think that the employer misjudged 
the qualifications of the applicants does not in itself expose him 
to Title VII liability, although this may be probative of whether 
the employer's reasons are pretexts for discrimination.

In other words, the factfinder may disbelieve that an honest mistake was made and 
interpret an error by the employer as evidence of discriminatory intent.

4



summary judgment or a judgment n.o.v. for the employer.

Thus, the fulfillment of the employer’s burden of articulating a legitimate, 

nondiscriminatory reason for the challenged action dissipates the McDonnell Douglas 

presumption insofar as a judgment for the employee is mandated. And Hicks holds thai 

even proof that the employer was untruthful when it advanced the reason does not 

resurrect the presumption; i.e., a judgment for the employee is not mandated even if the 

jury believes that a deliberate lie was told. The evidence that gave rise to the presumption 

remains in the record and is itself not destroyed or dissipated by the employer’s meeting 

its burden of articulating a reason for the action. A disbelief in the reason together with 

the evidence introduced to establish the prima facie case is enough to support a judgment 

in favor of the plaintiff if, in the words of Hicks, "there [is] a finding of discrimination." This 

is because "rejection of the defendant’s proffered reasons is enough at law to sustain a 

finding of discrimination." 125 L.Ed.2d at 418-19, n. 4 (emphasis in the original).

The jury in this case rejected the employer’s proffered reasons, and its decision must 

be sustained as a matter of law under the holding of St. Mary’s Honor Society v. Hicks.

5



CONCLUSION

For the foregoing reasons, the decision of the district court entering judgment in 

favor of duPont and granting duPont’s motion for a new trial should be reversed.

Theodore M. Shaw 
Charles Stephen Ralston 
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson Street 
Suite 1600
New York, New York 10013 
(212) 219-1900

Attorneys for Amicus Curiae 
NAACP Legal Defense and 
Educational Fund, Inc.

6



CERTIFICATE OF SERVICE

I hereby certify that the undersigned is a member of the bar of this Court and that

copies of the foregoing MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

AND BRIEF AMICUS CURIAE OF THE NAACP LEGAL DEFENSE AND

EDUCATIONAL FUND, INC., have been served by depositing same in the United States

mail, first class postage prepaid, on this 29th of April, 1996, addressed to the following:

Thomas S. Neuberger, Esq.
Suite 702 Ninth Street Plaza 
200 W. Ninth Street 
Wilmington, DE 19801

Raymond M. Ripple, Esq.
Legal Department 
E.I. du Pont de Nemours & Co 
1007 Market Street 
Wilmington, DE 19898

CHARLES STEPHEN RALSTON