No. 99-536: Reeves v. Sanderson Plumbing Products, Inc.



No. 99-536


In the Supreme Court of the United States

ROGER REEVES, PETITIONER
v.
SANDERSON PLUMBING PRODUCTS, INC.

ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES AND
THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
AS AMICI CURIAE SUPPORTING PETITIONER


SETH P. WAXMAN
Solicitor General
Counsel of Record
BARBARA D. UNDERWOOD
Deputy Solicitor General
MATTHEW D. ROBERTS
Assistant to the Solicitor
General
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217


C. GREGORY STEWART
General Counsel
PHILLIP B. SKLOVER
Associate General Counsel
VINCENT BLACKWOOD
Assistant General Counsel
DORI K. BERNSTEIN
Attorney
Equal Employment
Opportunity Commission
Washington, D.C. 20507



QUESTIONS PRESENTED

1. Whether prima facie proof of age discrimination, coupled with evidencesufficient to support a finding that the employer has not offered its truereason for an adverse employment action, is sufficient to sustain a juryverdict of intentional discrimination in violation of the Age Discriminationin Employment Act.

2. Whether, in passing on a motion for judgment as a matter of law underFederal Rule of Civil Procedure 50, a court considers all of the evidenceor only the evidence favorable to the party against whom judgment is sought.

3. Whether the standard for granting judgment as a matter of law under Rule50 is the same as the standard for granting summary judgment under FederalRule of Civil Procedure 56.


In the Supreme Court of the United States

No. 99-536

ROGER REEVES, PETITIONER
v.
SANDERSON PLUMBING PRODUCTS, INC.

ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES AND
THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
AS AMICI CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES AND THE EQUAL EMPLOYMENT OPPORTUNITY COMMISION

This case concerns the amount and nature of proof required to sustain ajury's finding of age discrimination in violation of the Age Discriminationin Employment Act of 1967 (ADEA), 29 U.S.C. 621 et seq. The Equal EmploymentOpportunity Commission (EEOC) has responsibility for interpreting and enforcingthe ADEA, which prohibits discrimination in employment on the basis of age.The courts have applied the same standards of proof under the ADEA as underTitle VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. O'Connorv. Consolidated Coin Caterers Corp., 517 U.S. 308, 310-311 (1996). The AttorneyGeneral and the EEOC share responsibility for enforcing Title VII, whichprohibits employment discrimination on the basis of race, sex, religion,or national origin. The resolution of this case will affect the dischargeby the Attorney General and the EEOC of their responsibilities under thosestatutes.

STATEMENT

1. Petitioner Roger Reeves worked for respondent Sanderson Plumbing Products,a manufacturer of toilet seats and covers, for 40 years. Pet. App. 2a. InOctober 1995, respondent fired petitioner from his job as a supervisor inthe Hinge Room. Petitioner was 57 years old. On three successive occasionsover the next two years, respondent filled petitioner's former positionwith men in their thirties. Id. at 2a-3a.

The Hinge Room included a "regular line," supervised by petitioner,and a "special line," supervised by Joe Oswalt, a man in his thirties.Russell Caldwell, age 45, was manager of the Hinge Room and supervised bothpetitioner and Oswalt. As part of his duties, petitioner was required tokeep daily attendance and tardiness records for the workers he supervised.Pet. App. 2a.

In late 1993, respondent's Department of Quality Control, under the directionof Powe Chesnut, conducted an efficiency study of Hinge Room operations.Pet. App. 2a. Chesnut had married company president Sandra Sanderson in1988. Id. at 3a n.1. According to Oswalt, Chesnut was "in absolutepower" at the plant for "as long as [he] could remember."3 R. 80. Chesnut's efficiency study identified "productivity problems"on the regular line "stemming from a lax assembly line operation."Pet. App. 2a-3a. Consequently, at Chesnut's recommendation, petitioner wasplaced on a 90-day probation for unsatisfactory performance. Ibid.1

Company records showed that, during 1993, petitioner's productivity wascomparable to that of Oswalt, the younger supervisor of the special line.See 3 R. 163-167; 4 R. 226. Yet only the regular line, supervised by petitioner,was subjected to an efficiency study, and only petitioner was placed onprobation. 3 R. 166-167; 4 R. 228-229. After the probationary period, petitioner'sproductivity increased, and he was awarded a merit pay raise. 3 R. 103,113.

By 1995, Chesnut had been promoted to Director of Manufacturing. Pet. App.3a. Hinge Room manager Caldwell told Chesnut that the department was havingtrouble meeting production requirements due to "pervasive absenteeismand tardiness." Ibid. In the fall of 1995, Chesnut ordered an auditof the time records of Hinge Room employees for the months of July, August,and September. 4 R. 204-205. According to respondent, the audit disclosed"numerous timekeeping errors and misrepresentations" by Caldwell,Oswalt, and petitioner. Pet. App. 3a. Based on the audit results, Chesnut,Dana Jester, Vice President of Human Resources, and Tom Whitaker, Vice Presidentof Operations, recommended that Caldwell and petitioner be discharged. CompanyPresident Sanderson followed the recommendation and fired both petitionerand Caldwell in October 1995. Ibid. Oswalt had left his job voluntarilyon August 1, before the audit was conducted. 3 R. 79. Chesnut testifiedthat, had Oswalt still been with the company, he would also have been discharged.Pet. App. 3a n.3.

Petitioner sued respondent in 1996, claiming that he was discharged becauseof age in violation of the ADEA. Petitioner testified at trial that, onthe day he was fired, Chesnut told him that he was being dismissed becauseof a timekeeping error involving a single employee, Genie Mae Coley, whowas paid for two days in September 1995 when she was absent from work. 3R. 23. Petitioner demonstrated at trial, however, that he was in the hospitalon the two days for which Coley was allegedly overpaid and that Caldwellwas responsible for any error in Coley's time sheets. Id. at 17.

At trial, respondent asserted that petitioner was fired because of his "shoddyrecord keeping" in documenting the attendance and hours of employeesunder his supervision. Pet. App. 7a. According to respondent, petitioner'serrors resulted in payments to employees for time they had not worked andfailure to discipline employees who were absent or tardy. Ibid. Respondentmaintained that the alleged errors in petitioner's record keeping exposedthe company to the risk of union grievances or charges of unfair labor practicesfor inconsistent disciplinary actions. 3 R. 154. Chesnut acknowledged, however,that the company had never received a single union grievance or employeecomplaint arising from petitioner's timekeeping practices. 4 R. 267. Nordid respondent ever calculate the amount of any overpayment to employeesresulting from alleged errors in petitioner's record keeping. Id. at 301.

Petitioner challenged the veracity of respondent's assertion that his recordkeeping was inaccurate. Pet. App. 8a. The vast majority of the errors attributedto petitioner arose from his failure to record as "late" employeeswho, according to the daily timesheet, had arrived at 7 a.m. for a 7 a.m.shift. 3 R. 118-123; 4 R. 241-245. Sanderson maintained that employees whoclocked in at 7 a.m. could not be at their work stations as required forthe start of the 7 a.m. shift, and therefore they should have been codedas "late" on the weekly timesheet. 3 R. 119-120.

Both petitioner and Oswalt testified, however, that respondent's automatedtime clock often failed to scan the "bar codes" on employees'time cards, in which case the initial daily timesheet would not reflectan arrival time. 3 R. 18-20, 84-85; 4 R. 335. Each supervisor was thereforerequired to record attendance manually by visually checking whether eachemployee was at his or her work station at the start of the 7 a.m. shift.4 R. 335. When the daily time sheet failed to show that an employee hadclocked in, but the supervisor had manually recorded that the employee wasat his or her work station at the start of the shift, the supervisor wouldreconcile the records by writing in a 7 a.m. arrival time for the employeeon the time sheet. 3 R. 18-20, 84-85; 4 R. 335. In those circumstances,even when an employee had actually arrived at work before 7 a.m., his timeof arrival was recorded on the timesheet as 7 a.m. Ibid.

Chesnut confirmed that "there were times the bar code" on employees'time cards "wouldn't work," and, on those occasions, if "peoplewere there at their work station[s]" at the start of the shift, thesupervisors "would write in seven o'clock," and "[t]hat wouldshow in the time card." 4 R. 243-244. Both Chesnut and Sanderson alsoacknowledged that employees who clocked in before 7 a.m. were treated asarriving at 7 a.m. for purposes of computing their pay. 3 R. 124-125; 4R. 263.

Petitioner testified that he checked whether his employees arrived on timeand assigned extra work to any employee who was paid for arriving earlyor staying late. See Pet. App. 8a. According to petitioner, any record keepingerrors that may have occurred resulted from "Caldwell's inattentivenessand not his own." Ibid. Sanderson agreed with petitioner that Caldwell,not petitioner, was responsible for preparing disciplinary write-ups forexcessive tardiness or absenteeism. 3 R. 138.

Petitioner further testified that Chesnut regularly subjected him to verbalabuse on the job. 3 R. 26. In particular, petitioner recalled that, approximatelytwo months before his termination, Chesnut approached him while he was tryingto get a machine running and told him he was "too damn old to do [his]job." Ibid. On an earlier occasion, Chesnut commented that petitionerwas "so old [he] must have come over on the Mayflower." Ibid.Oswalt corroborated the "obvious difference" in Chesnut's treatmentof petitioner. Id. at 82. Oswalt recalled that, although he and Chesnut"had [their] differences," Chesnut's behavior toward him "wasnothing compared to the way he treated [petitioner]." Ibid. Oswalttestified that Chesnut treated petitioner "as you would * * * treat* * * a child [with whom] you're angry." Id. at 83. According to Oswalt,Chesnut subjected petitioner to increased scrutiny, and "didn't treat[him] very well." Ibid.

At the close of the evidence, the district court denied respondent's motionfor judgment as a matter of law and sent the case to the jury. 4 R. 354.The jury was instructed that, "[i]f the plaintiff fails to prove agewas a determinative or motivating factor in the discharge of plaintiff,then you shall find for the defendant." Id. at 368. The jury foundrespondent liable for willful discrimination based on age. The districtcourt denied respondent's post-trial motion for judgment as a matter oflaw or for a new trial, and respondent appealed. Pet. App. 4a.

2. The court of appeals reversed and rendered judgment for respondent. Pet.App. 1a-10a. On appeal, respondent did not dispute that petitioner had establisheda prima facie case of age discrimination, id. at 6a, and the court of appealsacknowledged that, based on the evidence at trial, "a reasonable jurycould have found that [respondent's] explanation for its employment decisionswas pretextual." Id. at 8a. The court ruled, however, that "whether[respondent] was forthright in its explanation for firing [petitioner] isnot dispositive of a finding of liability under the ADEA" and wenton to consider "as an essential final step * * * whether [petitioner]presented sufficient evidence that his age motivated [respondent's] employmentdecision." Ibid.

In that inquiry, the court discounted the probative value of petitioner'sevidence of respondent's discriminatory motivation, and concluded, in lightof evidence favorable to respondent, that petitioner "did not introducesufficient evidence of age discrimination to support the jury's findingof liability under the ADEA." Pet. App. 9a-10a. Although it acknowledged"the potentially damning nature of Chesnut's age-related comments,"the court gave several reasons why it believed that those remarks were insufficientto show discriminatory motive in petitioner's discharge: The "commentswere not made in the direct context of [petitioner's] termination,"Chesnut was "just one of three individuals who recommended to Ms. Sandersonthat [petitioner] be terminated," and petitioner produced no evidencethat "any of the other decision makers were motivated by age."Id. at 9a. The court noted that two of the decision makers were over age50, and "20 of the company's management positions were filled by peopleover the age of 50, including several employees in their late 60s."Id. at 9a-10a. Finally, the court remarked that all three Hinge Room supervisors-Caldwelland Oswalt as well as petitioner-were accused of inaccurate record keeping.Based on its review of the record, the court set aside the jury's verdictand rendered judgment for respondent. Id. at 10a.

SUMMARY OF ARGUMENT

Recognizing the difficult and sensitive nature of the question facing factfinders in cases of intentional employment discrimination, this Court hasdeveloped an evidentiary framework that enables employees to prove theircases through circumstantial evidence. See McDonnell Douglas Corp. v. Green,411 U.S. 792 (1973). Under that framework, an employee makes out a primafacie case of discrimination by presenting proof of actions by the employerthat, if unexplained, more likely than not are based on factors prohibitedby law. The prima facie case not only is sufficient to permit a trier offact to find discrimination, but also gives rise to a mandatory presumption,which, if unrebutted, requires judgment for the employee. The employer canrebut the presumption by introducing evidence that, if believed, shows thatthe employer acted for a legitimate nondiscriminatory reason. The employeethen has the opportunity to disprove the proffered explanation and demonstratethat it is a pretext for discrimination.

In St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511 (1993), this Courtheld that proof that the employer's asserted reasons for its actions werenot the true reasons does not compel judgment as a matter of law for theemployee, because the fact finder still must determine that the true reasonwas discrimination. The court of appeals in this case held that such proofnot only does not compel judgment for the employee, but does not permitjudgment for the employee without additional evidence of discriminatoryintent.

That holding is inconsistent with the clear statement in Hicks that "rejectionof the defendant's proffered reasons is enough at law to sustain a findingof discrimination." 509 U.S. at 511 n.4. It is also inconsistent withthe meaning of a prima facie case, the reasonable inferences that arisewhen an employer offers a discredited explanation for an action that hasbeen challenged as discriminatory, and general evidentiary principles concerningthe effect of presumptions and the inferences that fact finders are permittedto make.

In order to have his case presented to the jury, an employee ordinarilyneed not produce more than prima facie proof of discrimination plus evidencesufficient to support rejection of the explanation offered by the employer.If an employee has introduced such evidence, a court may not render judgmentas a matter of law for the employer, except in the unusual circumstancein which the evidence otherwise conclusively establishes that the employeracted for a nondiscriminatory reason different from the one that the employerproffered.

In this case, petitioner presented prima facie proof of age discriminationand evidence that respondent offered a pretextual reason for his discharge.There was no evidence that would have precluded a reasonable jury from inferringfrom petitioner's proof that respondent fired petitioner because of hisage. The evidence was therefore sufficient to sustain the jury's verdictthat respondent violated the ADEA. In setting aside the verdict, the courtof appeals improperly usurped the jury's function of weighing the evidence,drawing reasonable inferences, and making the ultimate factual finding whetherpetitioner's discharge was unlawfully motivated by age.

ARGUMENT

THE COURT OF APPEALS ERRED IN AWARDING JUDGMENT AS A MATTER OF LAW TO RESPONDENTBECAUSE THE EVIDENCE WAS SUFFICIENT TO SUSTAIN THE JURY'S VERDICT THAT RESPONDENTFIRED PETITIONER IN VIOLATION OF THE ADEA

The Age Discrimination in Employment Act (ADEA or Act), makes it "unlawfulfor an employer * * * to fail or refuse to hire or to discharge any individualor otherwise discriminate against any individual with respect to his compensation,terms, conditions, or privileges of employment, because of such individual'sage." 29 U.S.C. 623(a)(1). The Act protects only workers who are "atleast 40 years of age." 29 U.S.C. 631(a). The ADEA was enacted "aspart of an ongoing congressional effort to eradicate discrimination in theworkplace," and it is one component in "a wider statutory schemeto protect employees in the workplace nationwide." McKennon v. NashvilleBanner Publ'g Co., 513 U.S. 352, 357 (1995) (citing Title VII of the CivilRights Act of 1964, 42 U.S.C. 2000e et seq. (race, color, sex, nationalorigin, and religion); the Americans with Disabilities Act of 1990, 42 U.S.C.12101 et seq. (disability); the National Labor Relations Act, 29 U.S.C.158(a) (union activities); and the Equal Pay Act of 1963, 29 U.S.C. 206(d)(sex)). Recent research indicates that age discrimination in employmentcontinues to be a significant problem. See Marc Bendick, Jr. et al., NoFoot in the Door: An Experimental Study of Employment Discrimination AgainstOlder Workers, 10(4) J. Aging & Soc. Pol'y 5 (1999).

In a case alleging unlawful disparate treatment in employment, "liabilitydepends on whether the protected trait (under the ADEA, age) actually motivatedthe employer's decision." Hazen Paper Co. v. Biggins, 507 U.S. 604,610 (1993). To prevail, the employee must show that his "protectedtrait actually played a role" in the employer's decisionmaking process"and had a determinative influence on the outcome." Ibid. Thiscase concerns how much and what kind of evidence is sufficient for an employeeto make that showing.

A. Prima Facie Proof Of Discrimination, Together With Evidence That TheEmployer Has Not Offered Its True Reason For An Adverse Employment Action,Is Usually Sufficient To Support A Jury Finding Of Discrimination

1. This Court has recognized that "the question facing triers of factin discrimination cases is both sensitive and difficult," because "[t]herewill seldom be 'eyewitness' testimony as to the employer's mental processes."United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716(1983). To overcome the scarcity of direct proof of discriminatory motive,and to ensure that the "important national policy" embodied inthe fair employment laws is achieved, Aikens, 460 U.S. at 716, the Courtcrafted, in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801 (1973),"a sensible, orderly way to evaluate the evidence in light of commonexperience as it bears on the critical question of discrimination."Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978). That evidentiaryframework helps the factfinder to decide the "elusive factual questionof intentional discrimination" when an employee uses circumstantialevidence to establish disparate treatment. Texas Dep't of Community Affairsv. Burdine, 450 U.S. 248, 255 n.8 (1981).2

To prove unlawful discrimination under the McDonnell Douglas framework,the employee "must carry the initial burden * * * of establishing aprima facie case," 411 U.S. at 802, by producing "evidence adequateto create an inference that an employment decision was based on a[n] [illegal]discriminatory criterion," Teamsters v. United States, 431 U.S. 324,358 (1977). For example, here petitioner established a prima facie casewith proof that he was: (1) 57 years old (and thus within the statutorilyprotected age group); (2) qualified for his position as Hinge Room supervisor;(3) discharged; and (4) replaced, on three successive occasions over thenext two years, by men in their thirties. See Pet. App. 5a-6a & n.11.

The prima facie case "creates a presumption that the employer unlawfullydiscriminated against the employee," and, if unrebutted, requires "judgmentfor the plaintiff because no issue of fact remains in the case." Burdine,450 U.S. at 254. To rebut the presumption of discrimination and raise "agenuine issue of fact as to whether it discriminated" against the employee,the employer "must clearly set forth, through the introduction of admissibleevidence, the reasons" for the challenged action. Id. at 254-255. Forexample, here respondent introduced evidence that it fired petitioner becauseof alleged errors in recording the absences and tardiness of employees underhis supervision. See Pet. App. 7a-8a.

Once the employer has produced evidence of a legitimate, nondiscriminatoryexplanation for its decision, the employee has the opportunity to show thatthe "proffered reasons for [the employer's] decision were not its truereasons," Patterson v. McLean Credit Union, 491 U.S. 164, 187 (1989),but "were in fact a coverup for a * * * discriminatory decision,"McDonnell Douglas, 411 U.S. at 805. The employee's proof "may takea variety of forms," and the employee is "not limited to presentingevidence of a certain type." Patterson, 491 U.S. at 187.

Evidence that the rule or criterion cited by the employer to explain itsdecision was applied in a discriminatory manner is especially relevant.McDonnell Douglas, 411 U.S. at 804. "Other evidence that may be relevantto any showing of pretext includes facts as to the [employer's] treatmentof [the employee] during his * * * term of employment," ibid., includingdiscriminatory remarks or instances of harassment or abuse by individualsresponsible for the challenged employment decision. See Patterson, 491 U.S.at 188; Aikens, 460 U.S. at 713-714 n.2. Proof of the employer's "generalpolicy and practice" with respect to employment of older individuals(in an ADEA case), including statistical evidence, "may be helpful"in demonstrating pretext, but statistics "may not be in and of themselvescontrolling as to an individualized [employment] decision." McDonnellDouglas, 411 U.S. at 804-805 & n.19; see also Furnco, 438 U.S. at 579-580.Evidence challenging the factual accuracy of the proffered explanation isalso probative of whether the explanation is a pretext for discrimination.Burdine, 450 U.S. at 259. Finally, the evidence supporting the employee'sprima facie case "and inferences properly drawn therefrom may be consideredby the trier of fact on the issue of whether the defendant's explanationis pretextual." Id. at 255 n.10.

2. In St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511 (1993), this Courtheld that proof that the employer's asserted reasons for its actions werenot the true reasons does not compel judgment as a matter of law for theemployee. The employee always retains the burden of persuasion on the ultimatefact of discrimination. Ibid. By proving that the employer did not act forthe reasons proffered, the employee has not ruled out the possibility thatthe employer acted for another nondiscriminatory reason. See id. at 514-515,523-524. The Court therefore held that the employee is not entitled to judgmentin his favor unless the fact finder actually determines that the employer'strue reason was discrimination. Id. at 514. At the same time, however, theCourt observed that the fact finder may determine that the employer's truemotive was discrimination based on the employee's prima facie case and hisproof that the employer did not offer the true reasons for its action, withoutadditional evidence of discriminatory intent.

Although the Court held that "there must be a finding of discrimination"for an employer to be held liable, the Court made clear that "rejectionof the defendant's proffered reasons is enough at law to sustain a findingof discrimination." 509 U.S. at 511 n.4. Put another way, "rejectionof the defendant's proffered reasons will permit the trier of fact to inferthe ultimate fact of intentional discrimination, and * * * '[n]o additionalproof of discrimination is required.'" Id. at 511. That the Court meantwhat it said in Hicks is confirmed by its decision to remand the case, id.at 525, which would have been pointless unless the employee could stillprevail, although he had only made out a prima facie case and showed thatthe reasons proffered by the employer were unworthy of credence.

The reasoning behind the Court's holding in Hicks supports that conclusion.As we explained at page 14, supra, the Court held that the fact finder'srejection of the employer's proffered explanation for its action could notcompel judgment for the employee because there remained a possibility thatthe employer acted for an unstated but nondiscriminatory reason. The existenceof that possibility prevents judgment as a matter of law for the employeebecause a reasonable jury might still find for the employer if it concludesthat the employer in fact acted for a nondiscriminatory reason. But theexistence of that possibility cannot compel judgment as a matter of lawfor the employer because a reasonable jury need not reach that conclusion.

a. The principle that an employee may prevail based on only the prima faciecase and evidence supporting rejection of the employer's proffered reasonfollows from the quantum of evidence necessary to establish a prima faciecase. As we have explained, to make out a prima facie case, an employeemust present evidence that is itself sufficient to support an inferenceof discrimination. See p. 12, supra; e.g., O'Connor, 517 U.S. at 312 ("theprima facie case requires 'evidence adequate to create an inference thatan employment decision was based on a[n] [illegal] discriminatory criterion'")(quoting Teamsters, 431 U.S. at 358); Burdine, 450 U.S. at 253 (employeemust prove "circumstances which give rise to an inference of unlawfuldiscrimination"); Furnco, 438 U.S. at 579-580 (prima facie case is"proof of actions taken by the employer from which we infer discriminatoryanimus because experience has proved that in the absence of any other explanationit is more likely than not that those actions were bottomed on impermissibleconsiderations").

The prima facie case "eliminates the most common nondiscriminatoryreasons" for the employer's action and raises an inference that discriminationis more likely than not the reason. Burdine, 450 U.S. at 254. That is because

we know from our experience that more often than not people do not act ina totally arbitrary manner, without any underlying reasons, especially ina business setting. Thus, when all legitimate reasons for rejecting an applicanthave been eliminated as possible reasons for the employer's actions, itis more likely than not the employer, who we generally assume acts onlywith some reason, based his decision on an impermissible consideration suchas [age].

Furnco, 438 U.S. at 577.

Thus, by proving a prima facie case, an employee has provided evidence that,if unexplained, is sufficient for a jury to find discrimination. If theemployer then comes forward with a nondiscriminatory explanation, but theemployee produces evidence sufficient for a jury to reject that explanation,the persuasive force of the evidence supporting the prima facie case remainssufficiently strong to support a finding of discrimination.

That is true even though the mandatory presumption that this Court accordedthe prima facie case in McDonnell Douglas "drops from the case"when the employer satisfies its burden to produce an explanation that, ifbelieved, would allow a verdict in its favor. Burdine, 450 U.S. at 255 &n.10; Hicks, 509 U.S. at 510-511. As this Court has explained, the persuasiveforce of the evidence underlying the prima facie case is independent ofits impact as a procedural device. See Burdine, 450 U.S. at 255 n.10. Thus,although "[a] satisfactory explanation by the defendant destroys thelegally mandatory inference of discrimination arising from the plaintiff'sinitial evidence, * * * this evidence and inferences properly drawn therefrommay be considered by the trier of fact on the issue of whether the defendant'sexplanation is pretextual." Ibid.

That approach accords with the general treatment of presumptions under FederalRule of Evidence 301, which informs the operation of the McDonnell Douglaspresumptions. See Burdine, 450 U.S. 255 n.8; Hicks, 509 U.S. at 507, 511."Under Rule 301, the effect of rebutting evidence does not completelydissipate the presumption. Unless no reasonable jury could disbelieve therebuttal, the presumption still suffices to carry the issue to the jury.However, the jury is no longer instructed that it may presume the existenceof the presumed fact, but only that it may infer it." 21 Charles A.Wright et al., Federal Practice and Procedure § 5122, at 572 (1977);see H.R. Conf. Rep. No. 1597, 93d Cong., 2d Sess. 5-6 (1974) ("If theadverse party does offer evidence contradicting the presumed fact, the courtcannot instruct the jury that it may presume the existence of the presumedfact from proof of the basic facts. The court may, however, instruct thejury that it may infer the existence of the presumed fact from proof ofthe basic facts.").3

b. When an employee provides sufficient evidence for the jury to rejectthe nondiscriminatory explanation offered by the employer, not only maythe jury continue to infer discrimination from the prima facie proof, butit now has additional evidence from which it may reasonably infer discrimination."As a matter of both common sense and federal law, an employer's submissionof a discredited explanation for firing a member of a protected class isitself evidence which may persuade the finder of fact that such unlawfuldiscrimination actually occurred." MacDissi v. Valmont Indus., Inc.,856 F.2d 1054, 1059 (8th Cir. 1988). It is reasonable to conclude that anemployer who gives a false explanation for conduct that has been challengedas discriminatory is dissembling to cover up the discrimination. See Hicks,509 U.S. at 511, 517; 5 Leonard B. Sand et al., Modern Federal Jury Instructions¶ 87.01, at 87-86 (1999) (Instruction 87-27).

That reasoning accords with the more general principle that a fact findermay infer consciousness of guilt when a party acts dishonestly about factsmaterial to litigation. For example, a jury may (although it is not compelledto) infer that a criminal defendant who makes a false exculpatory statementbelieves he is guilty and thus probably is guilty. See Wright v. West, 505U.S. 277, 296 (1992); 1 Edward J. Devitt et al., Federal Jury Practice andInstructions § 14.06, at 423-424 (1992); 1 Sand, supra, ¶ 6.05,at 6-37 (Instruction 6-11).4 A similar inference is permitted in civil cases.See 2 John H. Wigmore, Evidence in Trials at Common Law § 278(2), at133 (Chadbourn rev. 1979) ("a party's falsehood * * * in the preparationand presentation of his cause * * * is receivable against him as an indicationof his consciousness that his case is a weak or unfounded one"). Anda jury may infer that testimony or evidence is unfavorable if the partywho has the power to produce it fails to do so. See id. § 291, at 228;Graves v. United States, 150 U.S. 118, 121 (1893).

Even if the jury does not believe that the employer is deliberately dissembling,the jury's rejection of the proffered reason will often reasonably strengthenthe jury's belief that discrimination was the true motivation. As we haveexplained, the prima facie proof makes discrimination a likely explanationfor the employer's action. See pp. 12, 15-16, supra. And the employer, inputting forth its defense, is likely to proffer as an alternative the nondiscriminatoryexplanation that best accords with the facts. As a result, the profferedexplanation and discrimination will usually be the most plausible of thecompeting explanations for the employer's action. When the jury eliminatesthe proffered explanation as a possibility, discrimination will thereforenormally be the most likely remaining potential explanation.

Thus, in order to have his case presented to the jury, an employee neednot ordinarily produce more than prima facie proof of discrimination plusevidence sufficient to support rejection of the explanation offered by theemployer. A contrary rule would effectively require the employee to produceeither direct proof of discriminatory intent or a greater amount of circumstantialproof than is ordinarily required in civil litigation. And this Court hascounseled that neither of those requirements would be appropriate. See Teamsters,431 U.S. at 358 n.44; Aikens, 460 U.S. at 714 n.3, 717; Price Waterhousev. Hopkins, 490 U.S. 228, 253 (1989) (plurality opinion).

3. We do not suggest, however, that there can never be a case in which anemployer will be entitled to judgment as a matter of law even though theemployee has made out a prima facie case and produced sufficient evidencefor a jury to reject the nondiscriminatory explanation offered by the employer.As the Court explained in Hicks, "the ultimate question [remains] discriminationvel non." 509 U.S. at 518. Thus, if the evidence conclusively establishesthat the employer acted for an unstated, nondiscriminatory reason, thenthere is no question for the jury to resolve-even if the employer offereda different (and false) explanation for its action, and the employee presentedprima facie proof of discrimination.

That situation could arise if the employer's true nondiscriminatory motivationwere revealed by the employee's efforts to disprove the employer's profferedexplanation. See EEOC: Enforcement Guidance on St. Mary's Honor Center v.Hicks, 8 Fair Empl. Prac. Man. (BNA) 405:7175, 405:7179 (Apr. 12, 1994)("Even before Hicks, if evidence relevant to a charge clearly showedthat the respondent's articulated reasons for its action were untrue, butthat a nondiscriminatory reason not articulated by the respondent was thetrue motive for the action, 'no cause' would be found.").

Assume, for example, that a 42 year-old employee who worked for an investmentcompany alleges that the company fired him because of his age. The employeepresents prima facie proof that he was qualified to do his job and that,after his discharge, his position was filled by someone who was 30 yearsold, but he produces no other evidence of age discrimination. The companyresponds that the employee was fired for insubordination after he refusedto complete a work assignment. In his effort to show that he properly refusedto complete the assignment, the employee shows that he had discovered thatthe project violated Securities and Exchange Commission (SEC) regulations,called that fact to the attention of the company, and threatened to alertthe SEC, whereupon he was fired and instructed to keep his mouth shut ifhe ever wanted to work in the securities business again. Cf. Rothmeier v.Investment Advisers, Inc., 85 F.3d 1328 (8th Cir. 1996). Based on that evidence,a court could properly render judgment as a matter of law for the employeron the age discrimination claim.5

Such situations will be rare, however, because a court cannot conclude,as a matter of law, that the evidence establishes that the employer actedfor an unstated, nondiscriminatory reason unless no reasonable jury couldfind otherwise. See Fed. R. Civ. P. 50; Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 250 (1986) (citing Brady v. Southern Ry., 320 U.S. 476, 479-480(1943)). In reaching that conclusion, the court must consider the evidencein the light most favorable to the employee (as the non-moving party), andthe court must give the employee the benefit of all justifiable inferencesthat may be drawn from the evidence. Lytle v. Household Mfg., Inc., 494U.S. 545, 554 (1990); Liberty Lobby, 477 U.S. at 255; Continental Ore Co.v. Union Carbide & Carbon Corp., 370 U.S. 690, 696 (1962). The courtgenerally may not make credibility determinations or weigh the evidence.Liberty Lobby, 477 U.S. at 254; Webb v. Illinois Cent. R.R., 352 U.S. 512,515 (1957); Brady, 320 U.S. at 479.

Therefore, although the court must review all the evidence, it must disregardany evidence unfavorable to the employee's claim of discrimination if areasonable jury could disbelieve that evidence. 9A Wright, supra, §2529, at 299. For example, if there is conflicting testimony, the courtgenerally must disregard the testimony favoring the employer. See Wilkersonv. McCarthy, 336 U.S. 53, 57-60 (1949). And, if evidence is susceptibleto two interpretations, the court must reject the interpretation favorableto the employer and instead accept the interpretation that supports theemployee. See Continental Ore Co., 370 U.S. at 701.6

Judgment as a matter of law is not appropriate if "reasonable mindscould differ as to the import of the evidence." Liberty Lobby, 477U.S. at 250. "The fundamental principle is that there must be a minimumof judicial interference with the jury." 9A Wright, supra, § 2524,at 261; Edward H. Cooper, Directions for Directed Verdicts: A Compass forFederal Courts, 55 Minn. L. Rev. 903, 921 (1971) (cited in Fed. R. Civ.P. 50, Advisory Committee's Note (1991 Amendment)).

B. Petitioner's Prima Facie Case, Coupled With His Evidence That RespondentDid Not Offer The True Reason For Firing Him, Was Sufficient To SupportThe Jury's Verdict, Despite The Contrary Evidence On Which The Court OfAppeals Relied

In this case, the court of appeals improperly departed from the "fundamentalprinciple" of minimal judicial interference with the jury. 9A Wright,supra, § 2524, at 261. Although petitioner presented prima facie proofof age discrimination and evidence sufficient for a reasonable jury to rejectrespondent's assertion that it fired petitioner because of poor record keeping,the court of appeals concluded that there was insufficient evidence fora reasonable jury to find, as the jury did here, that respondent fired petitionerbecause of his age. In so concluding, the court of appeals erroneously failedto consider much of petitioner's evidence, failed to view the evidence inthe light most favorable to petitioner and to draw all reasonable inferencesin his favor, and substituted its view of the weight of the evidence forthe jury's reasonable view.

1. There is no dispute that petitioner presented prima facie proof of agediscrimination by establishing that he was 57 years old, qualified for hisposition as Hinge Room supervisor, discharged, and replaced, on three successiveoccasions over the next two years, by men in their thirties. Pet. App. 5a-6a& n.11. That evidence was "proof of actions taken by [respondent]from which [the jury could] infer discriminatory animus because experiencehas proved that in the absence of any other explanation it is more likelythan not that those actions were bottomed on impermissible considerations."Furnco, 438 U.S. at 579-580.

Respondent attempted to counter the inference of discrimination by introducingevidence that it fired petitioner because of errors in recording absencesand tardiness of employees under his supervision, errors which respondentclaimed cost the company money and exposed it to union grievances. Pet.App. 7a-8a. Petitioner, in turn, introduced a variety of evidence to discreditthat explanation. Through cross-examination, he established that the companycould not document the amount of any overpaid wages allegedly attributableto his purported errors, see id. at 8a; 4 R. 301, and had not received agrievance or complaint arising from them, 4 R. 267. Petitioner testifiedthat he properly recorded the timely arrival of his employees and assignedextra work to any employee who was paid for arriving early or staying late.Pet. App. 8a. He showed that another supervisor, not he, was responsiblefor the only overpayment that was identified on the day that he was fired.3 R. 17. And Sanderson agreed with petitioner that he was not responsiblefor preparing disciplinary write-ups for excessive tardiness or absenteeism.3 R. 138.

Petitioner also testified that Powe Chesnut, who was married to the companypresident and was described by another witness as the "absolute powerin" the company, 3 R. 80, subjected him to verbal abuse and made remarksindicative of age bias, including that petitioner was "too damn oldto do [his] job," 3 R. 26. That treatment was corroborated by the independenttestimony of Joe Oswalt. 3 R. 82-83. Oswalt also testified that Chesnutsubjected petitioner to heightened scrutiny and inferior treatment. 3. R.83. Oswalt's testimony was confirmed by evidence concerning the 1993 efficiencystudy and consequent discipline of petitioner. Although petitioner and Oswalthad virtually identical productivity rates during that year, see 3 R. 163-167;4 R. 226, Chesnut directed an efficiency study of only the line supervisedby petitioner and recommended only petitioner for probation. Oswalt, whowas in his early thirties, was neither studied nor disciplined. 3 R. 166-167;4 R. 228-229. The court of appeals concluded that, "[b]ased on thisevidence, * * * a reasonable jury could have found that [respondent's] explanationfor its employment decisions was pretextual." Pet. App. 8a.

That finding, coupled with petitioner's prima facie proof, was also sufficientfor the jury "to infer the ultimate fact of intentional discrimination."Hicks, 509 U.S. at 511; see also pp. 11-20, supra. Indeed, after being properlyinstructed to find for respondent if petitioner "fail[ed] to proveage was a determinative or motivating factor in [his] discharge," 4R. 368, the jury returned a verdict for petitioner. Pet App. 4a. The districtcourt denied respondent's motions for judgment as a matter of law. The courtof appeals nonetheless held that petitioner "did not introduce sufficientevidence of age discrimination to support the jury's finding of liability."Id. at 10a.

2. In rejecting the jury's verdict, the court of appeals improperly invadedthe province of the jury. The court did not give sufficient weight to petitioner'sprima facie proof and evidence of pretext, and it failed to draw all reasonableinferences in petitioner's favor. Moreover, the countervailing evidenceon which the court relied would not have precluded a reasonable jury frominferring discrimination from petitioner's evidence.

In considering whether there was sufficient evidence of discrimination tosupport the verdict, the court of appeals erroneously failed to take intoaccount petitioner's prima facie proof, as well as his evidence of pretext,other than Powe Chesnut's age-related comments and the evidence that petitionerwas treated less favorably than younger employees. See Pet. App. 8a-10a.As we have explained, the jury was entitled to consider all of that evidencein deciding whether to draw the ultimate inference of discrimination. Seepp. 16-20, supra.

Moreover, in evaluating the evidence that it did consider, the court ofappeals impermissibly substituted its view of the weight of the evidencefor the jury's view and failed to draw all reasonable inferences in petitioner'sfavor. In apparent response to petitioner's evidence that he was singledout for harsher treatment than younger supervisors, the court noted thatall of the Hinge Room supervisors-including Oswalt, who was in his thirties-wereaccused of inaccurate record keeping. See Pet. App. 9a. That fact, however,would not preclude a reasonable jury from inferring age-based animus basedon the other evidence of differential treatment. That is particularly sobecause Oswalt had left his job voluntarily before the audit that revealedthe alleged inaccuracies was even conducted, and the jury could have disbelievedChesnut's testimony that he would have been fired if he had not left voluntarily.

The court of appeals' treatment of Chesnut's age-related comments was particularlyimproper. The court acknowledged the "potentially damning nature"of the comments, but discounted them because they "were not made inthe direct context of [petitioner's] termination" and Chesnut was "justone of three individuals who recommended to Ms. Sanderson that [petitioner]be terminated." Pet. App. 9a. A reasonable jury, however, could haveviewed those remarks as a strong indication that petitioner's terminationwas based on age discrimination. The comments were directed specificallyto petitioner and singled him out based on his age. 3 R. 26. At least oneof them was targeted at his job performance and was made just two monthsbefore his termination. Ibid. And the person who made the comments was saidto be "in absolute power" at the company, 3 R. 80, had previouslyrecommended disciplinary action against petitioner, 4 R. 237, ordered theaudit that led to petitioner's discharge, Pet. App. 3a, and was marriedto the person with the ultimate authority to fire petitioner, id. at 3an.1.

Finally, the court of appeals erred in relying on the fact that two of thepeople who were involved in the decision to fire petitioner and severalother of respondent's managers were over the age of 50. See Pet. App. 9a-10a.To the extent that evidence was contradicted by petitioner, see 4 R. 333,the court should have disregarded it. Even if the court properly consideredthe evidence, the court erred in drawing an inference unfavorable to petitionerfrom it, because a reasonable jury was not compelled to do so. For example,the jury reasonably could have determined that Chesnut's influence at thecompany was so strong that the other "decision makers" simplyratified his age-based decision to fire petitioner. Cf. Anderson v. BessemerCity, 470 U.S. 564, 579-580 (1985) (upholding finding of discriminationbased on evidence that two of five members of selection committee had discriminatoryanimus).

Even if a reasonable jury necessarily would have concluded that the ageof the other managers made it somewhat less likely that respondent discriminatedagainst petitioner, a reasonable jury would not necessarily have found thatconclusion sufficient to overcome the evidence pointing to discrimination.The fact that "at least two of the decision makers were themselvesover the age of 50" (Pet. App. 9a) does not conclusively establishthat they did not discriminate against petitioner based on his age. "Becauseof the many facets of human motivation, it would be unwise to presume asa matter of law that human beings of one definable group will not discriminateagainst other members of their group." Castaneda v. Partida, 430 U.S.482, 499 (1977); see also Oncale v. Sundowner Offshore Servs., Inc., 523U.S. 75, 79 (1998) ("[N]othing in Title VII necessarily bars a claimof discrimination 'because of . . . sex' merely because the plaintiff andthe defendant (or the person charged with acting on behalf of the defendant)are of the same sex."). Similarly, although proof that respondent retainedother employees in their 50s and 60s in management positions, see Pet. App.10a, "is not wholly irrelevant on the issue of intent, * * * such proofneither was nor could have been sufficient to conclusively demonstrate that[respondent's] actions were not discriminatorily motivated." Furnco,483 U.S. at 580. Because the evidence did not conclusively establish thatrespondent fired petitioner for a nondiscriminatory reason, respondent wasnot entitled to judgment as a matter of law.

This Court has repeatedly counseled that neither "trial courts [nor]reviewing courts should treat discrimination differently from other ultimatequestions of fact." Aikens, 460 U.S. at 716; Hicks, 509 U.S. at 524."Conventional rules of civil litigation generally apply in [discrimination]cases." Price Waterhouse, 490 U.S. at 253 (plurality opinion). "[O]neof these rules is that parties to civil litigation need only prove theircase by a preponderance of the evidence." Ibid. Another is that "[c]redibilitydeterminations, the weighing of the evidence, and the drawing of legitimateinferences from the facts are jury functions, not those of a judge."Liberty Lobby, 477 U.S. at 255. "If reasonable minds could differ asto the import of the evidence," the jury, not the court, must renderjudgment. Id. at 250. The court of appeals disregarded those principlesand usurped the jury's role by rendering judgment for respondent in thiscase.

CONCLUSION

The judgment of the court of appeals should be reversed, and the jury verdictfor petitioner should be reinstated.

Respectfully submitted.


SETH P. WAXMAN
Solicitor General
BARBARA D. UNDERWOOD
Deputy Solicitor General
MATTHEW D. ROBERTS
Assistant to the Solicitor
General

C. GREGORY STEWART
General Counsel
PHILLIP B. SKLOVER
Associate General Counsel
VINCENT BLACKWOOD
Assistant General Counsel
DORI K. BERNSTEIN
Attorney
Equal Employment
Opportunity Commission



JANUARY 2000

1 At trial, Chesnut initially testified that he "made no instructions,no recommendation" that petitioner be placed on probation followingthe 1993 efficiency study. 4 R. 199. When confronted with his signed affidaviton cross-examination, however, Chesnut acknowledged that he had in factrecommended petitioner for probation in 1993. Id. at 237.

2 Every court of appeals "has applied some variant of the basic evidentiaryframework set forth in McDonnell Douglas" to ADEA claims. O'Connorv. Consolidated Coin Caterers Corp., 517 U.S. 308, 311 & n.2 (1996).Although this Court has "never had occasion to decide whether thatapplication of the Title VII rule to the ADEA context is correct,"id., the substantive "prohibitions of the ADEA were derived in haecverba from Title VII." Lorillard v. Pons, 434 U.S. 575, 584 (1978).Moreover, the two statutes share a common purpose. McKennon, 513 U.S. at358. The rationale of McDonnell Douglas is thus equally applicable to claimsunder either statute. See Hazen Paper, 507 U.S. at 612 (suggesting thatthe McDonnell Douglas "proof framework [is] applicable to ADEA").Moreover, as in O'Connor, the parties in this case agree that the McDonnellDouglas framework applies. See 517 U.S. at 311.

3 Not all courts and commentators agree with the view expressed in 21 Wright,supra, § 5122, at 572, that "rebutting evidence does not completelydissipate the presumption." Some contend that Rule 301 codifies the"bursting bubble" approach to presumptions, one of several competingapproaches at common law. See 1 Christopher B. Mueller & Laird C. Kirkpatrick,Federal Evidence § 71, at 335 (2d ed. 1994). Under that approach, thepresumption completely disappears once the opposing party introduces evidencethat, if believed, disproves the presumed fact. Nonetheless, if "thenatural probative force of the basic facts is sufficient to support a findingof the presumed fact," the trier of fact may still be instructed thatit may infer the presumed fact. Ibid. See also Gregory P. Joseph et al.,Evidence in America: The Federal Rules in the States ch. 8, at 5 (1987)("Even if the presumption does disappear following rebuttal, nothingin Article III [of the Federal Rules of Evidence] precludes the trier offact from drawing logical inferences from the evidence.").

4 Fact finders are likewise permitted to infer consciousness of guilt fromflight from the scene of a crime, 1 Devitt, supra, § 14.08, at 433;1 Sand, supra, ¶ 6.05, at 6-29 (Instruction 6-9), use of a false name,id. at 6-35 (Instruction 6-10), and fabrication of an alibi, id. at 6-42(Instruction 6-12).

5 The true nondiscriminatory motive need not be an illegal one. An employermight withhold its true motive not because it is unlawful but because itis embarrassing, such as nepotism or personal animosity, or in order tospare the employee's feelings.

6 In Wilkerson, the Court stated that it "need look only to the evidenceand reasonable inferences which tend to support" the non-moving party.336 U.S. at 57. Some courts have understood that language to mean that acourt must always disregard the moving party's evidence. 9A Wright, supra,§ 2529, at 297-299. Read in context, however, the language in Wilkersonmeans only that a court should not give weight to evidence that is contradictedeither directly or inferentially by the non-moving party's evidence. Id.at 300-301; Edward H. Cooper, Directions for Directed Verdicts: A Compassfor Federal Courts, 55 Minn. L. Rev. 903, 949 (1971) (cited in Fed. R. Civ.P. 50, Advisory Committee's Note (1991 Amendment)). Courts review all ofthe evidence in passing on a motion for summary judgment under Federal Ruleof Civil Procedure 56, see, e.g., Matsushita Elec. Indus. Co., Ltd. v. ZenithRadio Corp., 475 U.S. 574, 587 (1986); Adickes v. S.H. Kress & Co.,398 U.S. 144, 157-159 (1970); and the standard for granting summary judgment"mirrors" the standard for judgment as a matter of law under Rule50, Liberty Lobby, 477 U.S. at 250. Courts likewise review all of the evidencein passing on motions for judgments of acquittal under Federal Rule of CriminalProcedure 29, Lockhart v. Nelson, 488 U.S. 33, 41-42 (1988); sufficiency-of-the-evidencechallenges on direct and collateral review, Jackson v. Virginia, 443 U.S.307, 319 (1979); and review of fact-finding by a district court under FederalRule of Civil Procedure 52(a), Anderson v. Bessemer City, 470 U.S. 564,573 (1985). For those reasons, and the reasons stated in the text precedingthis note, the answer to the second question presented is that, in passingon a motion under Rule 50, a court must review all of the evidence in thelight most favorable to the party against whom judgment is sought; and theanswer to the third question presented is that the standard for grantingjudgment as a matter of law under Rule 50 is generally the same as the standardfor granting summary judgment under Rule 56.

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