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 evidence
sufficient to support a finding that the employer has not offered its true
reason for an adverse employment action, is sufficient to sustain a jury
verdict of intentional discrimination in violation of the Age Discrimination
in Employment Act.
2. Whether, in passing on a motion for judgment as a matter of law under
Federal Rule of Civil Procedure 50, a court considers all of the evidence
or 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 Rule
50 is the same as the standard for granting summary judgment under Federal
Rule 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 a
jury's finding of age discrimination in violation of the Age Discrimination
in Employment Act of 1967 (ADEA), 29 U.S.C. 621 et seq. The Equal Employment
Opportunity Commission (EEOC) has responsibility for interpreting and enforcing
the ADEA, which prohibits discrimination in employment on the basis of age.
The courts have applied the same standards of proof under the ADEA as under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. O'Connor
v. Consolidated Coin Caterers Corp., 517 U.S. 308, 310-311 (1996). The Attorney
General and the EEOC share responsibility for enforcing Title VII, which
prohibits employment discrimination on the basis of race, sex, religion,
or national origin. The resolution of this case will affect the discharge
by the Attorney General and the EEOC of their responsibilities under those
statutes.
STATEMENT
1. Petitioner Roger Reeves worked for respondent Sanderson Plumbing Products,
a manufacturer of toilet seats and covers, for 40 years. Pet. App. 2a. In
October 1995, respondent fired petitioner from his job as a supervisor in
the Hinge Room. Petitioner was 57 years old. On three successive occasions
over the next two years, respondent filled petitioner's former position
with 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 both
petitioner and Oswalt. As part of his duties, petitioner was required to
keep daily attendance and tardiness records for the workers he supervised.
Pet. App. 2a.
In late 1993, respondent's Department of Quality Control, under the direction
of Powe Chesnut, conducted an efficiency study of Hinge Room operations.
Pet. App. 2a. Chesnut had married company president Sandra Sanderson in
1988. Id. at 3a n.1. According to Oswalt, Chesnut was "in absolute
power" 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 was
placed on a 90-day probation for unsatisfactory performance. Ibid.1
Company records showed that, during 1993, petitioner's productivity was
comparable 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 on
probation. 3 R. 166-167; 4 R. 228-229. After the probationary period, petitioner's
productivity 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 having
trouble meeting production requirements due to "pervasive absenteeism
and tardiness." Ibid. In the fall of 1995, Chesnut ordered an audit
of 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 President
of Operations, recommended that Caldwell and petitioner be discharged. Company
President Sanderson followed the recommendation and fired both petitioner
and Caldwell in October 1995. Ibid. Oswalt had left his job voluntarily
on August 1, before the audit was conducted. 3 R. 79. Chesnut testified
that, 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 because
of age in violation of the ADEA. Petitioner testified at trial that, on
the day he was fired, Chesnut told him that he was being dismissed because
of a timekeeping error involving a single employee, Genie Mae Coley, who
was paid for two days in September 1995 when she was absent from work. 3
R. 23. Petitioner demonstrated at trial, however, that he was in the hospital
on the two days for which Coley was allegedly overpaid and that Caldwell
was responsible for any error in Coley's time sheets. Id. at 17.
At trial, respondent asserted that petitioner was fired because of his "shoddy
record keeping" in documenting the attendance and hours of employees
under his supervision. Pet. App. 7a. According to respondent, petitioner's
errors resulted in payments to employees for time they had not worked and
failure to discipline employees who were absent or tardy. Ibid. Respondent
maintained that the alleged errors in petitioner's record keeping exposed
the company to the risk of union grievances or charges of unfair labor practices
for inconsistent disciplinary actions. 3 R. 154. Chesnut acknowledged, however,
that the company had never received a single union grievance or employee
complaint arising from petitioner's timekeeping practices. 4 R. 267. Nor
did respondent ever calculate the amount of any overpayment to employees
resulting from alleged errors in petitioner's record keeping. Id. at 301.
Petitioner challenged the veracity of respondent's assertion that his record
keeping was inaccurate. Pet. App. 8a. The vast majority of the errors attributed
to petitioner arose from his failure to record as "late" employees
who, 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 who
clocked in at 7 a.m. could not be at their work stations as required for
the start of the 7 a.m. shift, and therefore they should have been coded
as "late" on the weekly timesheet. 3 R. 119-120.
Both petitioner and Oswalt testified, however, that respondent's automated
time clock often failed to scan the "bar codes" on employees'
time cards, in which case the initial daily timesheet would not reflect
an arrival time. 3 R. 18-20, 84-85; 4 R. 335. Each supervisor was therefore
required to record attendance manually by visually checking whether each
employee 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 had
clocked in, but the supervisor had manually recorded that the employee was
at his or her work station at the start of the shift, the supervisor would
reconcile the records by writing in a 7 a.m. arrival time for the employee
on 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 time
of 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 "people
were there at their work station[s]" at the start of the shift, the
supervisors "would write in seven o'clock," and "[t]hat would
show in the time card." 4 R. 243-244. Both Chesnut and Sanderson also
acknowledged that employees who clocked in before 7 a.m. were treated as
arriving at 7 a.m. for purposes of computing their pay. 3 R. 124-125; 4
R. 263.
Petitioner testified that he checked whether his employees arrived on time
and assigned extra work to any employee who was paid for arriving early
or staying late. See Pet. App. 8a. According to petitioner, any record keeping
errors that may have occurred resulted from "Caldwell's inattentiveness
and not his own." Ibid. Sanderson agreed with petitioner that Caldwell,
not petitioner, was responsible for preparing disciplinary write-ups for
excessive tardiness or absenteeism. 3 R. 138.
Petitioner further testified that Chesnut regularly subjected him to verbal
abuse on the job. 3 R. 26. In particular, petitioner recalled that, approximately
two months before his termination, Chesnut approached him while he was trying
to get a machine running and told him he was "too damn old to do [his]
job." Ibid. On an earlier occasion, Chesnut commented that petitioner
was "so old [he] must have come over on the Mayflower." Ibid.
Oswalt corroborated the "obvious difference" in Chesnut's treatment
of petitioner. Id. at 82. Oswalt recalled that, although he and Chesnut
"had [their] differences," Chesnut's behavior toward him "was
nothing compared to the way he treated [petitioner]." Ibid. Oswalt
testified 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 motion
for 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 age
was a determinative or motivating factor in the discharge of plaintiff,
then you shall find for the defendant." Id. at 368. The jury found
respondent liable for willful discrimination based on age. The district
court denied respondent's post-trial motion for judgment as a matter of
law 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 established
a prima facie case of age discrimination, id. at 6a, and the court of appeals
acknowledged that, based on the evidence at trial, "a reasonable jury
could have found that [respondent's] explanation for its employment decisions
was pretextual." Id. at 8a. The court ruled, however, that "whether
[respondent] was forthright in its explanation for firing [petitioner] is
not dispositive of a finding of liability under the ADEA" and went
on to consider "as an essential final step * * * whether [petitioner]
presented sufficient evidence that his age motivated [respondent's] employment
decision." Ibid.
In that inquiry, the court discounted the probative value of petitioner's
evidence of respondent's discriminatory motivation, and concluded, in light
of evidence favorable to respondent, that petitioner "did not introduce
sufficient evidence of age discrimination to support the jury's finding
of 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 insufficient
to show discriminatory motive in petitioner's discharge: The "comments
were not made in the direct context of [petitioner's] termination,"
Chesnut was "just one of three individuals who recommended to Ms. Sanderson
that [petitioner] be terminated," and petitioner produced no evidence
that "any of the other decision makers were motivated by age."
Id. at 9a. The court noted that two of the decision makers were over age
50, and "20 of the company's management positions were filled by people
over 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-Caldwell
and 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 verdict
and rendered judgment for respondent. Id. at 10a.
SUMMARY OF ARGUMENT
Recognizing the difficult and sensitive nature of the question facing fact
finders in cases of intentional employment discrimination, this Court has
developed an evidentiary framework that enables employees to prove their
cases through circumstantial evidence. See McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Under that framework, an employee makes out a prima
facie case of discrimination by presenting proof of actions by the employer
that, if unexplained, more likely than not are based on factors prohibited
by law. The prima facie case not only is sufficient to permit a trier of
fact to find discrimination, but also gives rise to a mandatory presumption,
which, if unrebutted, requires judgment for the employee. The employer can
rebut the presumption by introducing evidence that, if believed, shows that
the employer acted for a legitimate nondiscriminatory reason. The employee
then has the opportunity to disprove the proffered explanation and demonstrate
that it is a pretext for discrimination.
In St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511 (1993), this Court
held that proof that the employer's asserted reasons for its actions were
not the true reasons does not compel judgment as a matter of law for the
employee, because the fact finder still must determine that the true reason
was discrimination. The court of appeals in this case held that such proof
not only does not compel judgment for the employee, but does not permit
judgment for the employee without additional evidence of discriminatory
intent.
That holding is inconsistent with the clear statement in Hicks that "rejection
of the defendant's proffered reasons is enough at law to sustain a finding
of discrimination." 509 U.S. at 511 n.4. It is also inconsistent with
the meaning of a prima facie case, the reasonable inferences that arise
when an employer offers a discredited explanation for an action that has
been challenged as discriminatory, and general evidentiary principles concerning
the effect of presumptions and the inferences that fact finders are permitted
to make.
In order to have his case presented to the jury, an employee ordinarily
need not produce more than prima facie proof of discrimination plus evidence
sufficient to support rejection of the explanation offered by the employer.
If an employee has introduced such evidence, a court may not render judgment
as a matter of law for the employer, except in the unusual circumstance
in which the evidence otherwise conclusively establishes that the employer
acted for a nondiscriminatory reason different from the one that the employer
proffered.
In this case, petitioner presented prima facie proof of age discrimination
and evidence that respondent offered a pretextual reason for his discharge.
There was no evidence that would have precluded a reasonable jury from inferring
from petitioner's proof that respondent fired petitioner because of his
age. The evidence was therefore sufficient to sustain the jury's verdict
that respondent violated the ADEA. In setting aside the verdict, the court
of appeals improperly usurped the jury's function of weighing the evidence,
drawing reasonable inferences, and making the ultimate factual finding whether
petitioner's discharge was unlawfully motivated by age.
ARGUMENT
THE COURT OF APPEALS ERRED IN AWARDING JUDGMENT AS A MATTER OF LAW TO RESPONDENT
BECAUSE THE EVIDENCE WAS SUFFICIENT TO SUSTAIN THE JURY'S VERDICT THAT RESPONDENT
FIRED PETITIONER IN VIOLATION OF THE ADEA
The Age Discrimination in Employment Act (ADEA or Act), makes it "unlawful
for an employer * * * to fail or refuse to hire or to discharge any individual
or otherwise discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual's
age." 29 U.S.C. 623(a)(1). The Act protects only workers who are "at
least 40 years of age." 29 U.S.C. 631(a). The ADEA was enacted "as
part of an ongoing congressional effort to eradicate discrimination in the
workplace," and it is one component in "a wider statutory scheme
to protect employees in the workplace nationwide." McKennon v. Nashville
Banner Publ'g Co., 513 U.S. 352, 357 (1995) (citing Title VII of the Civil
Rights Act of 1964, 42 U.S.C. 2000e et seq. (race, color, sex, national
origin, 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 employment
continues to be a significant problem. See Marc Bendick, Jr. et al., No
Foot in the Door: An Experimental Study of Employment Discrimination Against
Older Workers, 10(4) J. Aging & Soc. Pol'y 5 (1999).
In a case alleging unlawful disparate treatment in employment, "liability
depends on whether the protected trait (under the ADEA, age) actually motivated
the employer's decision." Hazen Paper Co. v. Biggins, 507 U.S. 604,
610 (1993). To prevail, the employee must show that his "protected
trait actually played a role" in the employer's decisionmaking process
"and had a determinative influence on the outcome." Ibid. This
case concerns how much and what kind of evidence is sufficient for an employee
to make that showing.
A. Prima Facie Proof Of Discrimination, Together With Evidence That The
Employer 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 fact
in discrimination cases is both sensitive and difficult," because "[t]here
will 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 in
the fair employment laws is achieved, Aikens, 460 U.S. at 716, the Court
crafted, in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801 (1973),
"a sensible, orderly way to evaluate the evidence in light of common
experience as it bears on the critical question of discrimination."
Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978). That evidentiary
framework helps the factfinder to decide the "elusive factual question
of intentional discrimination" when an employee uses circumstantial
evidence to establish disparate treatment. Texas Dep't of Community Affairs
v. 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 a
prima facie case," 411 U.S. at 802, by producing "evidence adequate
to 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 case
with proof that he was: (1) 57 years old (and thus within the statutorily
protected age group); (2) qualified for his position as Hinge Room supervisor;
(3) discharged; and (4) replaced, on three successive occasions over the
next two years, by men in their thirties. See Pet. App. 5a-6a & n.11.
The prima facie case "creates a presumption that the employer unlawfully
discriminated against the employee," and, if unrebutted, requires "judgment
for 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 "a
genuine issue of fact as to whether it discriminated" against the employee,
the employer "must clearly set forth, through the introduction of admissible
evidence, the reasons" for the challenged action. Id. at 254-255. For
example, here respondent introduced evidence that it fired petitioner because
of alleged errors in recording the absences and tardiness of employees under
his supervision. See Pet. App. 7a-8a.
Once the employer has produced evidence of a legitimate, nondiscriminatory
explanation for its decision, the employee has the opportunity to show that
the "proffered reasons for [the employer's] decision were not its true
reasons," 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 take
a variety of forms," and the employee is "not limited to presenting
evidence of a certain type." Patterson, 491 U.S. at 187.
Evidence that the rule or criterion cited by the employer to explain its
decision was applied in a discriminatory manner is especially relevant.
McDonnell Douglas, 411 U.S. at 804. "Other evidence that may be relevant
to any showing of pretext includes facts as to the [employer's] treatment
of [the employee] during his * * * term of employment," ibid., including
discriminatory remarks or instances of harassment or abuse by individuals
responsible 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 "general
policy 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 themselves
controlling as to an individualized [employment] decision." McDonnell
Douglas, 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 is
also probative of whether the explanation is a pretext for discrimination.
Burdine, 450 U.S. at 259. Finally, the evidence supporting the employee's
prima facie case "and inferences properly drawn therefrom may be considered
by the trier of fact on the issue of whether the defendant's explanation
is pretextual." Id. at 255 n.10.
2. In St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511 (1993), this Court
held that proof that the employer's asserted reasons for its actions were
not the true reasons does not compel judgment as a matter of law for the
employee. The employee always retains the burden of persuasion on the ultimate
fact of discrimination. Ibid. By proving that the employer did not act for
the reasons proffered, the employee has not ruled out the possibility that
the employer acted for another nondiscriminatory reason. See id. at 514-515,
523-524. The Court therefore held that the employee is not entitled to judgment
in his favor unless the fact finder actually determines that the employer's
true reason was discrimination. Id. at 514. At the same time, however, the
Court observed that the fact finder may determine that the employer's true
motive was discrimination based on the employee's prima facie case and his
proof that the employer did not offer the true reasons for its action, without
additional 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 "rejection
of the defendant's proffered reasons is enough at law to sustain a finding
of discrimination." 509 U.S. at 511 n.4. Put another way, "rejection
of the defendant's proffered reasons will permit the trier of fact to infer
the ultimate fact of intentional discrimination, and * * * '[n]o additional
proof of discrimination is required.'" Id. at 511. That the Court meant
what 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 still
prevail, although he had only made out a prima facie case and showed that
the 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's
rejection of the employer's proffered explanation for its action could not
compel judgment for the employee because there remained a possibility that
the employer acted for an unstated but nondiscriminatory reason. The existence
of that possibility prevents judgment as a matter of law for the employee
because a reasonable jury might still find for the employer if it concludes
that the employer in fact acted for a nondiscriminatory reason. But the
existence of that possibility cannot compel judgment as a matter of law
for the employer because a reasonable jury need not reach that conclusion.
a. The principle that an employee may prevail based on only the prima facie
case and evidence supporting rejection of the employer's proffered reason
follows from the quantum of evidence necessary to establish a prima facie
case. As we have explained, to make out a prima facie case, an employee
must present evidence that is itself sufficient to support an inference
of discrimination. See p. 12, supra; e.g., O'Connor, 517 U.S. at 312 ("the
prima facie case requires 'evidence adequate to create an inference that
an employment decision was based on a[n] [illegal] discriminatory criterion'")
(quoting Teamsters, 431 U.S. at 358); Burdine, 450 U.S. at 253 (employee
must prove "circumstances which give rise to an inference of unlawful
discrimination"); Furnco, 438 U.S. at 579-580 (prima facie case is
"proof of actions taken by the employer from which we infer discriminatory
animus because experience has proved that in the absence of any other explanation
it is more likely than not that those actions were bottomed on impermissible
considerations").
The prima facie case "eliminates the most common nondiscriminatory
reasons" for the employer's action and raises an inference that discrimination
is 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 in
a totally arbitrary manner, without any underlying reasons, especially in
a business setting. Thus, when all legitimate reasons for rejecting an applicant
have been eliminated as possible reasons for the employer's actions, it
is more likely than not the employer, who we generally assume acts only
with some reason, based his decision on an impermissible consideration such
as [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 the
employer then comes forward with a nondiscriminatory explanation, but the
employee produces evidence sufficient for a jury to reject that explanation,
the persuasive force of the evidence supporting the prima facie case remains
sufficiently strong to support a finding of discrimination.
That is true even though the mandatory presumption that this Court accorded
the prima facie case in McDonnell Douglas "drops from the case"
when the employer satisfies its burden to produce an explanation that, if
believed, 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 persuasive
force of the evidence underlying the prima facie case is independent of
its impact as a procedural device. See Burdine, 450 U.S. at 255 n.10. Thus,
although "[a] satisfactory explanation by the defendant destroys the
legally mandatory inference of discrimination arising from the plaintiff's
initial evidence, * * * this evidence and inferences properly drawn therefrom
may be considered by the trier of fact on the issue of whether the defendant's
explanation is pretextual." Ibid.
That approach accords with the general treatment of presumptions under Federal
Rule of Evidence 301, which informs the operation of the McDonnell Douglas
presumptions. 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 completely
dissipate the presumption. Unless no reasonable jury could disbelieve the
rebuttal, the presumption still suffices to carry the issue to the jury.
However, the jury is no longer instructed that it may presume the existence
of 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 the
adverse party does offer evidence contradicting the presumed fact, the court
cannot instruct the jury that it may presume the existence of the presumed
fact from proof of the basic facts. The court may, however, instruct the
jury that it may infer the existence of the presumed fact from proof of
the basic facts.").3
b. When an employee provides sufficient evidence for the jury to reject
the nondiscriminatory explanation offered by the employer, not only may
the jury continue to infer discrimination from the prima facie proof, but
it now has additional evidence from which it may reasonably infer discrimination.
"As a matter of both common sense and federal law, an employer's submission
of a discredited explanation for firing a member of a protected class is
itself evidence which may persuade the finder of fact that such unlawful
discrimination actually occurred." MacDissi v. Valmont Indus., Inc.,
856 F.2d 1054, 1059 (8th Cir. 1988). It is reasonable to conclude that an
employer who gives a false explanation for conduct that has been challenged
as 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 finder
may infer consciousness of guilt when a party acts dishonestly about facts
material to litigation. For example, a jury may (although it is not compelled
to) infer that a criminal defendant who makes a false exculpatory statement
believes he is guilty and thus probably is guilty. See Wright v. West, 505
U.S. 277, 296 (1992); 1 Edward J. Devitt et al., Federal Jury Practice and
Instructions § 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), at
133 (Chadbourn rev. 1979) ("a party's falsehood * * * in the preparation
and presentation of his cause * * * is receivable against him as an indication
of his consciousness that his case is a weak or unfounded one"). And
a jury may infer that testimony or evidence is unfavorable if the party
who 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 strengthen
the jury's belief that discrimination was the true motivation. As we have
explained, the prima facie proof makes discrimination a likely explanation
for the employer's action. See pp. 12, 15-16, supra. And the employer, in
putting forth its defense, is likely to proffer as an alternative the nondiscriminatory
explanation that best accords with the facts. As a result, the proffered
explanation and discrimination will usually be the most plausible of the
competing explanations for the employer's action. When the jury eliminates
the proffered explanation as a possibility, discrimination will therefore
normally be the most likely remaining potential explanation.
Thus, in order to have his case presented to the jury, an employee need
not ordinarily produce more than prima facie proof of discrimination plus
evidence sufficient to support rejection of the explanation offered by the
employer. A contrary rule would effectively require the employee to produce
either direct proof of discriminatory intent or a greater amount of circumstantial
proof than is ordinarily required in civil litigation. And this Court has
counseled 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 Waterhouse
v. Hopkins, 490 U.S. 228, 253 (1989) (plurality opinion).
3. We do not suggest, however, that there can never be a case in which an
employer will be entitled to judgment as a matter of law even though the
employee has made out a prima facie case and produced sufficient evidence
for a jury to reject the nondiscriminatory explanation offered by the employer.
As the Court explained in Hicks, "the ultimate question [remains] discrimination
vel non." 509 U.S. at 518. Thus, if the evidence conclusively establishes
that the employer acted for an unstated, nondiscriminatory reason, then
there is no question for the jury to resolve-even if the employer offered
a different (and false) explanation for its action, and the employee presented
prima facie proof of discrimination.
That situation could arise if the employer's true nondiscriminatory motivation
were revealed by the employee's efforts to disprove the employer's proffered
explanation. 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 showed
that the respondent's articulated reasons for its action were untrue, but
that a nondiscriminatory reason not articulated by the respondent was the
true motive for the action, 'no cause' would be found.").
Assume, for example, that a 42 year-old employee who worked for an investment
company alleges that the company fired him because of his age. The employee
presents 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 years
old, but he produces no other evidence of age discrimination. The company
responds that the employee was fired for insubordination after he refused
to complete a work assignment. In his effort to show that he properly refused
to complete the assignment, the employee shows that he had discovered that
the project violated Securities and Exchange Commission (SEC) regulations,
called that fact to the attention of the company, and threatened to alert
the SEC, whereupon he was fired and instructed to keep his mouth shut if
he 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 employer
on 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 acted
for an unstated, nondiscriminatory reason unless no reasonable jury could
find 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 evidence
in the light most favorable to the employee (as the non-moving party), and
the court must give the employee the benefit of all justifiable inferences
that may be drawn from the evidence. Lytle v. Household Mfg., Inc., 494
U.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 court
generally 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 disregard
any evidence unfavorable to the employee's claim of discrimination if a
reasonable jury could disbelieve that evidence. 9A Wright, supra, §
2529, at 299. For example, if there is conflicting testimony, the court
generally must disregard the testimony favoring the employer. See Wilkerson
v. McCarthy, 336 U.S. 53, 57-60 (1949). And, if evidence is susceptible
to two interpretations, the court must reject the interpretation favorable
to the employer and instead accept the interpretation that supports the
employee. See Continental Ore Co., 370 U.S. at 701.6
Judgment as a matter of law is not appropriate if "reasonable minds
could differ as to the import of the evidence." Liberty Lobby, 477
U.S. at 250. "The fundamental principle is that there must be a minimum
of judicial interference with the jury." 9A Wright, supra, § 2524,
at 261; Edward H. Cooper, Directions for Directed Verdicts: A Compass for
Federal 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 Respondent
Did Not Offer The True Reason For Firing Him, Was Sufficient To Support
The Jury's Verdict, Despite The Contrary Evidence On Which The Court Of
Appeals Relied
In this case, the court of appeals improperly departed from the "fundamental
principle" of minimal judicial interference with the jury. 9A Wright,
supra, § 2524, at 261. Although petitioner presented prima facie proof
of age discrimination and evidence sufficient for a reasonable jury to reject
respondent's assertion that it fired petitioner because of poor record keeping,
the court of appeals concluded that there was insufficient evidence for
a reasonable jury to find, as the jury did here, that respondent fired petitioner
because of his age. In so concluding, the court of appeals erroneously failed
to consider much of petitioner's evidence, failed to view the evidence in
the light most favorable to petitioner and to draw all reasonable inferences
in his favor, and substituted its view of the weight of the evidence for
the jury's reasonable view.
1. There is no dispute that petitioner presented prima facie proof of age
discrimination by establishing that he was 57 years old, qualified for his
position as Hinge Room supervisor, discharged, and replaced, on three successive
occasions 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 experience
has proved that in the absence of any other explanation it is more likely
than 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 introducing
evidence that it fired petitioner because of errors in recording absences
and tardiness of employees under his supervision, errors which respondent
claimed cost the company money and exposed it to union grievances. Pet.
App. 7a-8a. Petitioner, in turn, introduced a variety of evidence to discredit
that explanation. Through cross-examination, he established that the company
could not document the amount of any overpaid wages allegedly attributable
to his purported errors, see id. at 8a; 4 R. 301, and had not received a
grievance or complaint arising from them, 4 R. 267. Petitioner testified
that he properly recorded the timely arrival of his employees and assigned
extra work to any employee who was paid for arriving early or staying late.
Pet. App. 8a. He showed that another supervisor, not he, was responsible
for 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 responsible
for preparing disciplinary write-ups for excessive tardiness or absenteeism.
3 R. 138.
Petitioner also testified that Powe Chesnut, who was married to the company
president and was described by another witness as the "absolute power
in" the company, 3 R. 80, subjected him to verbal abuse and made remarks
indicative of age bias, including that petitioner was "too damn old
to do [his] job," 3 R. 26. That treatment was corroborated by the independent
testimony of Joe Oswalt. 3 R. 82-83. Oswalt also testified that Chesnut
subjected petitioner to heightened scrutiny and inferior treatment. 3. R.
83. Oswalt's testimony was confirmed by evidence concerning the 1993 efficiency
study and consequent discipline of petitioner. Although petitioner and Oswalt
had virtually identical productivity rates during that year, see 3 R. 163-167;
4 R. 226, Chesnut directed an efficiency study of only the line supervised
by petitioner and recommended only petitioner for probation. Oswalt, who
was 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 this
evidence, * * * a reasonable jury could have found that [respondent's] explanation
for its employment decisions was pretextual." Pet. App. 8a.
That finding, coupled with petitioner's prima facie proof, was also sufficient
for 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 properly
instructed to find for respondent if petitioner "fail[ed] to prove
age was a determinative or motivating factor in [his] discharge," 4
R. 368, the jury returned a verdict for petitioner. Pet App. 4a. The district
court denied respondent's motions for judgment as a matter of law. The court
of appeals nonetheless held that petitioner "did not introduce sufficient
evidence 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 invaded
the province of the jury. The court did not give sufficient weight to petitioner's
prima facie proof and evidence of pretext, and it failed to draw all reasonable
inferences in petitioner's favor. Moreover, the countervailing evidence
on which the court relied would not have precluded a reasonable jury from
inferring discrimination from petitioner's evidence.
In considering whether there was sufficient evidence of discrimination to
support the verdict, the court of appeals erroneously failed to take into
account petitioner's prima facie proof, as well as his evidence of pretext,
other than Powe Chesnut's age-related comments and the evidence that petitioner
was treated less favorably than younger employees. See Pet. App. 8a-10a.
As we have explained, the jury was entitled to consider all of that evidence
in deciding whether to draw the ultimate inference of discrimination. See
pp. 16-20, supra.
Moreover, in evaluating the evidence that it did consider, the court of
appeals impermissibly substituted its view of the weight of the evidence
for the jury's view and failed to draw all reasonable inferences in petitioner's
favor. In apparent response to petitioner's evidence that he was singled
out for harsher treatment than younger supervisors, the court noted that
all of the Hinge Room supervisors-including Oswalt, who was in his thirties-were
accused of inaccurate record keeping. See Pet. App. 9a. That fact, however,
would not preclude a reasonable jury from inferring age-based animus based
on the other evidence of differential treatment. That is particularly so
because Oswalt had left his job voluntarily before the audit that revealed
the alleged inaccuracies was even conducted, and the jury could have disbelieved
Chesnut'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 particularly
improper. The court acknowledged the "potentially damning nature"
of the comments, but discounted them because they "were not made in
the direct context of [petitioner's] termination" and Chesnut was "just
one of three individuals who recommended to Ms. Sanderson that [petitioner]
be terminated." Pet. App. 9a. A reasonable jury, however, could have
viewed those remarks as a strong indication that petitioner's termination
was based on age discrimination. The comments were directed specifically
to petitioner and singled him out based on his age. 3 R. 26. At least one
of them was targeted at his job performance and was made just two months
before his termination. Ibid. And the person who made the comments was said
to be "in absolute power" at the company, 3 R. 80, had previously
recommended disciplinary action against petitioner, 4 R. 237, ordered the
audit that led to petitioner's discharge, Pet. App. 3a, and was married
to the person with the ultimate authority to fire petitioner, id. at 3a
n.1.
Finally, the court of appeals erred in relying on the fact that two of the
people who were involved in the decision to fire petitioner and several
other 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 considered
the evidence, the court erred in drawing an inference unfavorable to petitioner
from it, because a reasonable jury was not compelled to do so. For example,
the jury reasonably could have determined that Chesnut's influence at the
company was so strong that the other "decision makers" simply
ratified his age-based decision to fire petitioner. Cf. Anderson v. Bessemer
City, 470 U.S. 564, 579-580 (1985) (upholding finding of discrimination
based on evidence that two of five members of selection committee had discriminatory
animus).
Even if a reasonable jury necessarily would have concluded that the age
of the other managers made it somewhat less likely that respondent discriminated
against petitioner, a reasonable jury would not necessarily have found that
conclusion sufficient to overcome the evidence pointing to discrimination.
The fact that "at least two of the decision makers were themselves
over the age of 50" (Pet. App. 9a) does not conclusively establish
that they did not discriminate against petitioner based on his age. "Because
of the many facets of human motivation, it would be unwise to presume as
a matter of law that human beings of one definable group will not discriminate
against other members of their group." Castaneda v. Partida, 430 U.S.
482, 499 (1977); see also Oncale v. Sundowner Offshore Servs., Inc., 523
U.S. 75, 79 (1998) ("[N]othing in Title VII necessarily bars a claim
of discrimination 'because of . . . sex' merely because the plaintiff and
the defendant (or the person charged with acting on behalf of the defendant)
are of the same sex."). Similarly, although proof that respondent retained
other employees in their 50s and 60s in management positions, see Pet. App.
10a, "is not wholly irrelevant on the issue of intent, * * * such proof
neither 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 that
respondent fired petitioner for a nondiscriminatory reason, respondent was
not 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 ultimate
questions 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]ne
of these rules is that parties to civil litigation need only prove their
case by a preponderance of the evidence." Ibid. Another is that "[c]redibility
determinations, the weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a judge."
Liberty Lobby, 477 U.S. at 255. "If reasonable minds could differ as
to the import of the evidence," the jury, not the court, must render
judgment. Id. at 250. The court of appeals disregarded those principles
and usurped the jury's role by rendering judgment for respondent in this
case.
CONCLUSION
The judgment of the court of appeals should be reversed, and the jury verdict
for 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 following
the 1993 efficiency study. 4 R. 199. When confronted with his signed affidavit
on cross-examination, however, Chesnut acknowledged that he had in fact
recommended petitioner for probation in 1993. Id. at 237.
2 Every court of appeals "has applied some variant of the basic evidentiary
framework set forth in McDonnell Douglas" to ADEA claims. O'Connor
v. Consolidated Coin Caterers Corp., 517 U.S. 308, 311 & n.2 (1996).
Although this Court has "never had occasion to decide whether that
application of the Title VII rule to the ADEA context is correct,"
id., the substantive "prohibitions of the ADEA were derived in haec
verba from Title VII." Lorillard v. Pons, 434 U.S. 575, 584 (1978).
Moreover, the two statutes share a common purpose. McKennon, 513 U.S. at
358. The rationale of McDonnell Douglas is thus equally applicable to claims
under either statute. See Hazen Paper, 507 U.S. at 612 (suggesting that
the McDonnell Douglas "proof framework [is] applicable to ADEA").
Moreover, as in O'Connor, the parties in this case agree that the McDonnell
Douglas 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 completely
dissipate the presumption." Some contend that Rule 301 codifies the
"bursting bubble" approach to presumptions, one of several competing
approaches at common law. See 1 Christopher B. Mueller & Laird C. Kirkpatrick,
Federal Evidence § 71, at 335 (2d ed. 1994). Under that approach, the
presumption completely disappears once the opposing party introduces evidence
that, if believed, disproves the presumed fact. Nonetheless, if "the
natural probative force of the basic facts is sufficient to support a finding
of the presumed fact," the trier of fact may still be instructed that
it 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, nothing
in Article III [of the Federal Rules of Evidence] precludes the trier of
fact from drawing logical inferences from the evidence.").
4 Fact finders are likewise permitted to infer consciousness of guilt from
flight 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 employer
might withhold its true motive not because it is unlawful but because it
is embarrassing, such as nepotism or personal animosity, or in order to
spare the employee's feelings.
6 In Wilkerson, the Court stated that it "need look only to the evidence
and reasonable inferences which tend to support" the non-moving party.
336 U.S. at 57. Some courts have understood that language to mean that a
court must always disregard the moving party's evidence. 9A Wright, supra,
§ 2529, at 297-299. Read in context, however, the language in Wilkerson
means only that a court should not give weight to evidence that is contradicted
either directly or inferentially by the non-moving party's evidence. Id.
at 300-301; Edward H. Cooper, Directions for Directed Verdicts: A Compass
for 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 of
the evidence in passing on a motion for summary judgment under Federal Rule
of Civil Procedure 56, see, e.g., Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio 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 Rule
50, Liberty Lobby, 477 U.S. at 250. Courts likewise review all of the evidence
in passing on motions for judgments of acquittal under Federal Rule of Criminal
Procedure 29, Lockhart v. Nelson, 488 U.S. 33, 41-42 (1988); sufficiency-of-the-evidence
challenges on direct and collateral review, Jackson v. Virginia, 443 U.S.
307, 319 (1979); and review of fact-finding by a district court under Federal
Rule 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 preceding
this note, the answer to the second question presented is that, in passing
on a motion under Rule 50, a court must review all of the evidence in the
light most favorable to the party against whom judgment is sought; and the
answer to the third question presented is that the standard for granting
judgment as a matter of law under Rule 50 is generally the same as the standard
for granting summary judgment under Rule 56.