No. 95-27 In the Supreme Court of the United States OCTOBER TERM, 1995 MARK H. MERRILL, ET AL., PETITIONERS v. MARTIN W. BARBOUR ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING RESPONDENT DREW S. DAYS, III Solicitor General DEVAL L. PATRICK Assistant Attorney General PAUL BENDER Deputy Solicitor General BETH S. BRINKMANN Assistant to the Solicitor General DENNIS J. DIMSEY REBECCA K. TROTH Attorneys Department of Justice Washington, D.C. 20530 (202)514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTIONS PRESENTED 1. Whether St. Mary's Honor Ctr. v. Hicks, 113 S. Ct. 2742 (1993), permits a finding of intentional discrimination to be made from a prima facie case coupled with disbelief of the employer's asserted reasons for the challenged employment decision. 2. Whether Smith v. Wade, 461 U.S. 30 (1983), permits an award of punitive damages under 42 U.S.C. 1981 where there is a finding of intentional racial discrimination. (I) ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Page Statement . . . . 1 Discussion . . . . 10 Conclusion . . . . 21 TABLE OF AUTHORITIES Cases: Anderson v. Baxter Healthcare Corp., 13 F.3d 1120 (7th Cir. 1994) . . . . 13 Theodore Barbour v. Dynamics Research Corp., 63 F.3d 32 (lst Cir. 1995), petition for cert. pending, No. 95-589 . . . . 17 Binder v. .Long Island Lighting Co., 57 F.3d 193 (2d Cir. 1995) . . . . 16 DeMarco v. Holy Cross High Sch., 4 F.3d 166 (2d Cir. 1993) . . . . 16 EEOC v. Ethan Allen, Inc., 44 F.3d 116 (2d Cir. 1994) . . . . 16 Fisher v. Vassar College, 66 F.3d 379 (2d Cir. 1995) . . . . 16 Gaworski v. ITT Commercial Fin. Corp., 17 F.3d 1104 (8th Cir.), cert. denied, 115 S. Ct. 355 (1994) . . . . 14 Hairston v. Gainesville Sun Publishing Co., 9 F.3d 913 (llth Cir. 1993) . . . . 14 Hernandez-Tirado v. Artau, 874 F.2d 866 (lst Cir. 1989) . . . . 19 Ingels v. Thiokol Corp., 42 F.3d 616 (lOth Cir. 1994) . . . . 14 International Bhd. of Teamsters v. United States, 431 U.S. 324 (1977) . . . . 10, 13 Ivey v. Wilson, 832 F.2d 950 (6th Cir. 1987) . . . . 19-20 Jiminez v. Mary Washington College, 57 F.3d 369 (4th Cir.), cert. denied, 116 S. Ct. 380 (1995) . . . . 15 (III) ---------------------------------------- Page Break ---------------------------------------- IV Cases-Continued: Page Lavicky v. Burnett, 758 F.2d 468 (10th Cir. 1985), cert. denied, 474 U.S. 1101 (1986) . . . . 20 Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078 (6th Cir. 1994) . . . . 15, 16 McDonnell Douglas Corp. v. Green, 411 US. 792 (1973) . . . . 7, 10-11, 12, 13 McKenna v. Pacific Rail Serv., 32 F.3d 820 (3d Cir. 1994) . . . . 13 Mitchell v. Data General Corp. , 12 F.3d 1310 (4th Cir. 1993) . . . . 17, 18 O'Connor v. Consolidated Coins Caterers Corp., cert. granted, No. 95-354 (Nov. 13, 1995) . . . . 13 Patterson v. McLean Credit Union, 491 U.S. 164 (1989) . . . . 6 Randle v. City of Aurora, 69 F.3d 441 (lOth Cir. 1995) . . . . 14, 18 Rhodes v. Guiberson Oil Tools, 39 F.3d 537 (5th Cir. 1994), reh'g granted, 49 F.3d 127 (5th Cir. 1995) . . . . 14, 18 Seman v. Coplay Cement Co., 26 F.3d 428 (3d Cir. 1994) . . . . 13 Smith v. Stratus Computer, Inc., 40 F.3d 11 (1st Cir. 1994), cert. denied, 115 S. Ct. 1995 (1995) . . . . 17 Smith v. Wade, 461 U.S. 30 (1983) . . . . 8, 9, 18, 19 St. Mary's Honor Ctr. v. Hicks, 113 S. Ct.. 2742 (1993) . . . . 8, 10, 11, 12, 13, 14, 15, 16, 17, 18 Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981) . . . . 6-7, 11 Theard v. Glaxo, Inc., 47 F.3d 676 (4th Cir. 1995) . . . . 15 United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711 (1982) . . . . 10, 11 Walters v. City of Atlanta, 803 F.2d 1135 (11th Cir. 1986) . . . . 20 Washington v. Garrett, 10 F.3d 1421 (9th Cir. 1993) . . . . 13 ---------------------------------------- Page Break ---------------------------------------- V Cases-Continued: Page Waldron v. SL Industries, Inc., 56 F.3d 491 (3d Cir. 1995) . . . . 13 Woodman v. Haemonetics Corp., 51 F.3d 1087 (lst Cir. 1995) . . . . 12 Woods v. Friction Materials, Inc., 30 F.3d 255 (lst Cir. 1994) . . . . 16, 17, 18 Statutes and rules: Age Discrimination in Employment Act, 29 U.S.C. 621 et seq . . . . 13, 17 Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e et seq . . . . 13 Employee Retirement Income Security Act of 1974, $510,29 U.S.C. 1140 . . . . 17 42 U.S.C. 1981 . . . . 1, 3, 4, 6, 10, 13 42 U.S.C. 1983 . . . . 19 42 U.S.C. 1985(3) . . . . 3, 6, 9 Fed. R. Civ. P. 50 . . . . 4, 16, 18 Fifth Cir. R. 35.6 Internal Oper. P . . . . 14-15 ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1995 No. 95-27 MARK H. MERRILL, ET AL., PETITIONERS v. MARTIN W. BARBOUR ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING RESPONDENT This brief is filed in response to the Court's order inviting the Solicitor General to express the views of the United States. STATEMENT Respondent sued petitioner Medlantic Management Corporation and petitioner Mark Merrill, its Vice Presi- dent for Support Services, alleging that they had discrimi- nated against him on the basis of race in a hiring deter- mination, in violation of 42 U.S. C. 1981. Following a jury verdict in respondent's favor, petitioners moved for judg- ment as a matter of law or, in the alternative, for a new trial. The district court denied the motion, Pet. App. 19a- 25a, and the court of appeals affirmed, id. at 7a-10a. (1) ---------------------------------------- Page Break ---------------------------------------- 2 1. Petitioner Medlantic Management Corporation pro- vides centralized management services for hospitals in the Washington, D.C. area. Pet. App. 2a. In early 1989, petitioner Mark Merrill, Medlantic's Vice President for Support Services, began a search for a new Director of Corporate Materials Management. Ibid, Petitioner Merrill circulated a job announcement that Medlantic was seeking someone with "multi-corporate" experience, a "minimum often years progressive responsibility in large scale operations," and either an MBA or a BA with five years of experience. Ibid. Respondent Martin Barbour, a black man, applied for the advertised position. Pet. App. 2a. Respondent has an MBA degree and, at the time of his application, he was the Director of Materials Management for the Columbia Hos- pital for Women, one of the four hospitals in the Medlantic system. Respondent also was a member of a Medlantic committee that coordinated the hospitals' acquisition and use of resources. Id. at 2a-3a. Before joining Columbia Hospital for Women two years earlier, respondent had spent 25 years as an army officer, gaining extensive experience as a supply coordinator and materials manager in multi-hospital and other large health services organi- zations. Id. at 3a. Sixty to seventy people applied for the position and Merrill initially interviewed six applicants, including re- spondent. Pet. App. 3a. Respondent was one of four people who advanced to a second interview with a panel of Medlantic employees. Ibid. In May 1989, Medlantic offer ed the job to Craig Shoup, one of the outside applicants interviewed, described by Merrill as a "superstar" and "by far the most qualified candidate." Ibid. Shoup, a white man, did not have a BA degree, but he did have extensive multi-hospital management experience. Ibid. Shoup dec- lined the position. Ibid. ---------------------------------------- Page Break ---------------------------------------- 3 Medlantic did not offer the position to any of the other applicants but, instead, hired Gregory Walling, head of an executive search firm, to conduct a new search. Pet. App. 3a. Respondent asked Merrill why Medlantic had not offered him the position after Shoup turned it down, and "Merrill explained that he did not find Barbour qualified and that Medlantic was seeking someone, like Shoup, with significant experience in a multi-hospital setting in the private sector." Ibid. Respondent expressed doubt that private sector experience was in fact a requirement for the job inasmuch as it had not kept respondent from advancing to the final round of interviews in the first search. Ibid. Merrill later asked Walling to consider respondent's application in the second search and Walling interviewed respondent. Walling's written evaluation stated that respondent "has the functional knowledge and capabilities to undertake this position. However, he does not have the multi-system private sector experience that we are ideally seeking." Id. at 4a. Walling also reported that respondent "has a lot of potential and is grossly underpaid at $40 K," id. at 23a, and recommended that a final decision concerning respondent be delayed until more candidates were considered. Ibid. Walling ultimately did not recommend respondent. After interviewing three of the candidates Walling recommenced, Merrill hired Terry Rich, a white man. Id. at 4a. 2. After learning that Medlantic had hired Rich, re- spondent filed this action alleging that Medlantic and Merrill discriminated against him on the basis of race in violation of 42 U.S.C. 1981. He later amended his com- plaint to add Walling as a defendant and a claim under 42 U.S.C. 1985(3) that Walling conspired with Medlantic and Merrill to violate respondent's civil rights. Pet. App. 4a. The district court granted Walling's motion for summary judgment on the Section 1985(3) claim, but denied peti- ---------------------------------------- Page Break ---------------------------------------- 4 tioners' motion for summary judgment on the Section 1981 claim. See Pet. App. 39a-47a. The case proceeded to trial. Petitioners contended that respondent was not qualified, that there were more quali- fied candidates, that respondent failed to demonstrate an understanding of opportunities for economy within the Medlantic system, that Merrill believed that respondent did not have sufficient leadership skills, and that respond- ent was not among the top candidates recommended by the executive search firm. Pet. App. 22a. Respondent intro- duced evidence that the job qualifications contained in petitioners' job announcement were ambiguous, that mili- tary and private sector experience are similar, that peti- tioners waived certain announced job qualifications regarding educational background when they offered the position to Shoup, and that petitioners continued to pro- vide interviews to respondent even after they were aware that respondent had only a few years of private sector experience. Ibid. Respondent also introduced evidence of "numerous laudatory evaluations" of his past work and of his past awards and accomplishments. Id. at 23a. The jury found that petitioners unlawfully discrimi- nated against respondent and awarded respondent $2500 in compensation for his emotional suffering and humiliation, and $25,000 in punitive damages. Pet. App. 4a. Petitioners renewed their earlier motion for judgment as a matter of law under Fed. R. Civ. P. 50, or, in the alternative, for a new trial, arguing that the jury's verdict was unsupported by the evidence. Pet. App. 21a. Peti- tioners argued that respondent had not established a prima facie case because he had not established that he was qualified for the job and that respondent failed to con- tradict the legitimate, nondiscriminatory reasons peti- tioners gave for refusing to hire him. Ibid. Petitioners ---------------------------------------- Page Break ---------------------------------------- 5 also contended that the evidence did not support the award of punitive damages. Ibid. The district court denied petitioners' motion. It found that respondent had presented sufficient evidence, includ- ing his "laudatory evaluations" and awards as a materials manager in the military, from which a jury could find that he was as qualified for the position as the two people to whom Medlantic offered the job. It also found that knowl- edge of certain matters was not a necessary job qualifi- cation as petitioners claimed, Pet. App. 23a. Respondent also had presented sufficient evidence from which a jury could find that "none of [the reasons defendants gave] was the defendants' true motivation for not offering the position to [Barbour]." Id. at 22a. Thus, the court found that respondent "introduced sufficient evidence that he was not offered the position because of intentional discrimination." Id. at 23a-24a. The district court refused to overturn the jury's award of punitive damages, given that finding and "given that punitive damages may be awarded for `reckless or callous indifference to the feder- ally protected rights of others,' Smith v. Wade, 461 U.S. 30, 56 (1983)." Pet. App. 24a. The court denied the alternative motion for a new trial in light of its ruling that "there was sufficient evidence to allow a reasonable jury to find discrimination," its earlier rejection of petitioners' evidentiary and instructional claims, and its finding that petitioners failed to demonstrate that a new trial was required to prevent an injustice. Ibid. Pursuant to the unopposed motion by respondent, the court, rather than the jury, considered respondent's claims for wage-related damages. Pet. App. 20a n.2. The district court awarded respondent backpay of approxi- mately $84,000, but denied prejudgment interest and front- pay. See Id. at 26a-35a. ---------------------------------------- Page Break ---------------------------------------- 6 Petitioners appealed the district court's denial of their post-trial motion for judgment as a matter of law and the award of punitive damages. Respondent cross-appealed the denial of frontpay and prejudgment interest, the calu - lation of the backpay, and the dismissal of his 42 U.S.C. 1985(3) claim against Walling. Pet. App. 2a. 3. The court of appeals affirmed the district court in all respects except for the denial of prejudgment interest and frontpay, which it remanded for reconsideration. Pet. App. 18a. In rejecting petitioners' appeal of the denial of their motion for judgment as a matter of law, the court of appeals focused on "whether the evidence was sufficient for a reasonable jury to have reached the challenged verdict." Pet. App. 7a. The court noted that a plaintiff may establish a violation of 42 U.S.C. 1981 using the framework established in Title VII cases to prove racial discrimination in employment. Pet. App. 7a, citing Patter- son v. McLean Credit Union, 491 U.S. 164, 186 (1989). The court stated that under that framework, a plaintiff may establish a prima facie case of racial discrimination by showing that he or she belongs to a racial minority, that he or she applied for a position for which he or she was qualified but was rejected, and that the employer thereafter continued to try to hire someone for the position. Pet. App. 7a. The court of appeals further noted that such a prima facie case raises an inference of unlawful discrimination, which the employer may rebut with evidence of a legitimate, nondiscriminatory reason for the employment decision. Ibid. The court held that "[t]he plaintiff then bears the ultimate burden of persuad- ing the jury of intentional discrimination, and may do so by proving that the defendant's proffered reasons were a pretext for unlawful discrimination." Ibid., citing Patter- son, 491 U.S. at 186-187 Texas Dep't of Community ---------------------------------------- Page Break ---------------------------------------- 7 Affairs v. Burdine, 450 U.S. 248, 252-253 & n.6 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792,802-805 (1973). Applying this framework to the evidence before the jury, the court of appeals rejected petitioners' claim that respondent failed to establish a prima facie case of discrimination because he did not establish that he was qualified for the position. Pet. App. 8a. The court held that the jury could have determined, from the trial evi- dence, that private sector experience was not a prerequi- site for the job and that respondent was qualified for the position in light of the original job description and the fact that respondent progressed to the final round of inter- views. Ibid. The court of appeals also rejected petitioners' argument that, regardless of any prima facie case, the evidence of legitimate nondiscriminatory reasons for not hiring respondent was overwhelming. Ibid. The court found that the jury could reasonably have rejected peti- tioners' proffered nondiscriminatory reasons in light of the evidence of respondent's background and experience, Merrill's own assessments of respondent's abilities, and petitioners' decision to hire Shoup even though he lacked the educational prerequisites initially listed for the job. Ibid. The court of appeals also addressed petitioners' argu- ment that, even if respondent established a prima facie case and there was sufficient evidence from which the jury could have found that the proffered reasons were not the true reasons for the rejection, the jury also had to have reasonably concluded that the proffered reasons were a pretext for discrimination against petitioner. Pet. App. 8a, The court agreed with that contention and found that the jury could have reasonably concluded that respondent had proven unlawful discrimination because he had introduced sufficient evidence to establish a prima facie case and to ---------------------------------------- Page Break ---------------------------------------- 8 prove that petitioners' proffered reasons were pretextual, noting that, "[w]hile we need not speculate about the jury's reasoning, * * * it could have inferred that Medlantic changed its criteria for the second search to disadvantage or even to exclude Barbour, and, in light of Barbour's prima facie case, that Medlantic did so because of Barbour's race." Id. at 9a. The court noted that petitioners misconstrued the im- pact of St. Mary's Honor Ctr. v. Hicks, 113 S. Ct. 2742 (1993), by arguing that respondent "failed to introduce even a shred of evidence that even remotely suggests that race played a role" in his rejection. Pet. App. 8a-9a. The court ruled that, under Hicks, "a factfinder's rejection of the employer's nondiscriminatory reasons, while not sufficient to compel a finding of discrimination, none- theless suffices to permit such a finding." Pet. App. 9a, citing 113 S. Ct. at 2749. The jury may infer discrimi- nation from a prima facie case and the discrediting of the defendant's proffered reasons. Pet. App. 9a. The court found that the jury instructions at respondent's trial "accorded entirely with the principles set forth in [Hicks]." Ibid. Thus, the court affirmed the denial of peti- tioners' motion for judgment as a matter of law, the jury's finding of discrimination under Section 1981, and the award of compensatory damages. Pet. App. 9a. The court of appeals affirmed the punitive damages award as well. The court held that Smith v. Wade, 461 U.S. 30, 56 (1983), allows an award of punitive damages on a showing of "evil motive or intent, or * * * reckless or callous indifference to the federally protected rights of others." Pet. App. 10a, citing Smith, 461 U.S. at 56. The court also noted that "[a]n employee's right to employment free from racial discrimination is one of the most widely recognized and protected civil rights," and that this Court has explained that "evidence that suffices to establish an ---------------------------------------- Page Break ---------------------------------------- 9 intentional violation of protected civil rights also may suffice to permit the jury to award punitive damages, provided the jury, in its 'discretionary moral judgment,' * * * finds that the conduct merits a punitive award." Pet. App. 10a, quoting in part Smith v. Wade, 461 U.S. at 52. The court noted that petitioners conceded that the jury was properly instructed on the matter, and thus denied petitioners' motion for judgment as a matter of law on this issue. Pet. App. 10a. l. The court of appeals panel denied a petition for rehearing, Pet. App. 52a, and the full court of appeals con- sidered and denied a suggestion for rehearing en bane. Id. at 49a-50a. Judge Williams issued a statement concurring in the denial of rehearing en bane, joined by Judges Silber- man and Ginsburg. Judge Williams viewed the "evidence supporting an inference of discrimination" as "thin to the point of virtual invisibility," but emphasized that "such an intensely fact-bound issue is unsuitable for en bane review." Id. at 51a. Judge Williams also indicated his view that the panel opinion interpreted Hicks, not to mean "that the factfinder is free to find discrimination in every case where the plaintiff has established a prima facie case and offered evidence sufficient to disprove the defendant's attempted rebuttal," but rather to mean that "in some ___________________(footnotes) 1 The court of appeals rejected respondent's procedural challenges to petitioners' appeal. Pet. App. 5a-7a. The court also denied respondent's cross-appeal challenging the calculation of backpay, Id. at lla-12a, but agreed with some of respondent's contentions regarding prejudgment interest on the backpay award, id. at 12a-14a, and entitlement to frontpay, id. at 15a-17a, and remanded those claims for reconsideration, id. at 16a-17a, 18a. The court affirmed the summary judgment dismissal of the Section 1985(3) conspiracy claim against Walling, finding that nothing in the record indicated that Walling participated in a conspiracy. Pet. App. 18a. Respondent does not raise any of these issues in his opposition to the petition. ---------------------------------------- Page Break ---------------------------------------- 10 cases the combination will be adequate to sustain a finding of discrimination, in others not, to be determined by the factfinder initially, and the appellate court on review, according to the usual principles." Ibid. DISCUSSION Petitioners are incorrect in claiming that the court of appeal's opinion is inconsistent with this Court's decision in St. Mary's Honor Ctr. v. Hicks, 113 S. Ct. 2742 (1993). The court of appeals correctly applied Hicks when it af- firmed the district court finding that respondent's prima facie case and evidence that petitioners' asserted non- discriminatory reasons were untrue constituted sufficient evidence from which a jury could infer that respondent was not hired because of unlawful employment discrim- ination. Petitioners' contention that there is a conflict among the courts of appeals regarding the correct inter- pretation of Hicks overstates the scope of that disagree- ment and fails to acknowledge the fact that the disagree- ment appears to be lessening, rather than increasing. The court of appeals also correctly held that punitive damages are available for intentional discrimination under 42 U.S.C. 1981. Contrary to petitioners' claim, there is no conflict with respect to this issue. Accordingly, the Court should deny the petition for a writ of certiorari. 1. a. In employment discrimination cases, "the ques- tion facing triers of fact * * * 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). Because an employer will rarely admit to bias, a plaintiff alleging intentional employment discrimi- nation need not produce direct evidence of discrimination to prevail. International Bhd. of Teamsters v. United States, 431 U.S. 324, 358 n.44 (1977); McDonnell Douglas ---------------------------------------- Page Break ---------------------------------------- 11 Corp. v. Green, 411 U.S. 792, 802 (1973). Rather, proof of intentional discrimination may be inferred from the cir- cumstances surrounding the adverse employment action. In McDonnell Douglas, the Court "set forth the basic allocation of burdens and order of presentation of proof in a * * * case alleging discriminatory treatment" in which there is not direct evidence of discrimination. Texas Dep`t of Community Affairs v. Burdine, 450 U.S. 248, 252 (1981). Under that framework, a plaintiff establishes a prima facie case of racial discrimination by showing (1) that he belongs to a racial minority group, (2) that he was qualified and applied for a job for which the employer was seeking applicants, (3) that he was rejected for the position, and (4) that the position remained open after the rejection and the employer continued to try to fill the position. McDonnell Douglas, 411 U.S. at 802. If a plaintiff establishes a prima facie case, the burden of production shifts to the employer to produce evidence of a legitimate, nondiscriminatory reason for the decision. Ibid. If the employer articulates a legitimate reason for its action, the presumption of discriminatory intent created by the prima facie case is rebutted and the presumption "drops out of the picture." Hicks, 113 S. Ct. at 2749; United Slates Postal Serv. Bd. of Governors v. Aikens, 460 U.S. at 714- 716. The plaintiff always bears the burden of persuasion on the ultimate question of whether there was, in fact, unlawful discrimination. McDonnell Douglas, 411 U.S. at 804; Hicks, 113 S. Ct. at 2749 n.4. In Hicks, the Court held that establishment of a prima facie case and proof that an employer's proffered reasons for the adverse employment action were not the true reasons for the decision do not compel judgment for the plaintiff. Hicks, 113 S. Ct. at 2756. At the same time, however, the Court confirmed that disbelief of the employ- er's proffered reasons may, in some circumstances, sup- ---------------------------------------- Page Break ---------------------------------------- 12 port judgment for the plaintiff. Id. at 2749 n.4. "The factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination." Id. at 2749. b. The court of appeals correctly applied Hicks in holding that that evidence establishing respondent's prima facie case, combined with evidence that petitioners' rea- sons for the failure to hire respondent were not credible, was sufficient to support the jury's ultimate finding of discrimination. Pet. App. 9a. Petitioners concede that "[t]o be sure, a plaintiff may satisfy his ultimate burden with circumstantial, rather than direct evidence. And the plaintiff `may rely upon the same evidence to establish both pretext and discrimination, provided it is adequate to enable a rational factfinder reasonably to infer that intentional . . . . discrimination was a determinative factor in the adverse employment action.'" Pet. 13-14, quoting in part Woodman v. Haemonetics Corp., 51 F.3d 1092, 1092 (1st Cir. 1995). Petitioners nonetheless contend that, under Hicks, evidence sufficient to establish prima facie case and to rebut successfully an employer's stated reasons for the challenged employment decision is not sufficient to meet a plaintiff's burden of proving intentional dis- crimination. Pet. 13-14. Hicks explicitly rejected that proposition. Under Hicks, the combination of the prima facie case and the evidence of pretext is sufficient to sustain the judgment for respondent-''[n]o additional proof of dis- crimination is required." 113 S. Ct. at 2749. To hold otherwise would undermine McDonnell Douglas and sub- sequent cases that established that a plaintiff need not introduce direct evidence of his or her employer's state of ---------------------------------------- Page Break ---------------------------------------- 13 mind to prove intentional discrimination. Rather, the factfinder may infer discrimination from the prima facie case and the evidence that the employer's stated rea- sons did not actually motivate the decision. McDonnell Douglas, 411 U.S. at 804; International Bhd. of Teamsters, 431 U.S. at 358 n.44; Aikens, 460 U.S. at 717 Hicks, 113 S. Ct. at 2749. The vast majority of the courts of appeals correctly interpret Hicks, as did the court below. Petitioners overstate the apparent disagreement among some of the courts of appeals regarding this issue. 2. As petitioners point out (Pet. 20-21), the Third, Seventh, and Ninth Circuits have adopted an approach similar to that of the D.C. Circuit below and have held that a prima facie case combined with evidence sufficient to establish that the employer's proffered reason is pretextual does not automatically compel judgment for the plaintiff, but may support an inference of the ultimate fact of intentional discrimination. Waldron v. SL Industries, Inc., 56 F.3d 491,495 & n.5 (3d Cir. 1995); Seman v. Coplay Cement Co., 26 F.3d 428, 433 (3d Cir. 1994); Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1122-1124 (7th Cir. 1994); Washington v. Garrett, 10 F.3d 1421, 1433 (9th Cir. 1993). ___________________(footnotes) 2 Petitioners and respondent rely on employment discrimination cases arising under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., and the Age Discrimination in Employment Act, 29 U.S.C. 621 et seq. (ADEA). As the court of appeals correctly held, the McDonnell Douglas and Hicks framework was established in Title VII cases but is applicable in Section 1981 employment cases as well. That framework is also applicable in cases arising under the ADEA. See, e.g., McKenna v. Pacific Rail Serv., 32 F.3d 820, 825-826 & n.3 (3d Cir. 1994); see also Gov't Br. in O'Connor v. Consolidated Coins Caterers Corp., cert. granted, No. 95-354 (Nov. 13, 1995) at 13 n.3. Therefore, like the parties, we discuss cases arising under both statutory schemes in our analysis of the scope of disagreement among the circuits. ---------------------------------------- Page Break ---------------------------------------- 14 The Eighth and Tenth Circuits also have rejected peti- tioners' argument and agree with the D.C. Circuit. Gaworski v. ITT Commercial Fin. `Corp., 17 F.3d 1104, 1108-1110 (8th Cir.), cert. denied, 115 S. Ct. 355 (1994); Randle v. City Of Aurora, 69 F.3d 441, 451-453 (l0th Cir. 1995) 3. Ingels v. Thiokol Corp., 42 F.3d 616, 622 n.3 (l0th Cir. 1994); see also Hairston v. Gainesville Sun Publish- ing Co., 9 F.3d 913, 919-921 (llth Cir. 1993) (reversing grant of summary judgment to employer because plaintiff established prima facie case and evidence was sufficient to permit reasonable factfinder to find that employer's stated reasons were pretextual). The first case which petitioners cite (Pet. 15-16) to illustrate the purported circuit conflict is a case from the Fifth Circuit in which that court of appeals has granted en banc review, i.e. Rhodes v. Guiberson Oil Tools, 39 F.3d 537 (1994), reh'g granted, 49 F.3d 127 (5th Cir. 1995). The Rhodes panel discounted as dictum the passage in Hicks that stated that the facffinder's disbelief of the employer's reason, together with the prima facie case, may "suffice to show intentional discrimination." 113 S. Ct. at 2749. The panel therefore reversed the jury's finding of liability, holding that, because there was no direct evidence of discriminatory animus, there was insufficient evidence upon which the jury could have concluded that the plaintiff was terminated because of his age. 39 F.3d at 545. The Fifth Circuit order granting rehearing en bane vacated the panel opinion and judgment in Rhodes, see Fifth Cir. ___________________(footnotes) 3 To the extent any earlier opinions of the Tenth Circuit (such as those cited by petitioners, see Pet. 19) were inconsistent with the rule announced in Randle, they were overruled by the en bane Tenth Circuit through its unanimous adoption of the Randle panel holding. 69 F.3d at 452 n.17. That ruling came after the petition and the opposition to the petition were filed in this case. ---------------------------------------- Page Break ---------------------------------------- 15 R. 35.6 Internal Oper. P. para. 12, and the matter is pend- ing before the en bane court. Petitioners' contention that the Fourth Circuit (see Pet. 18-19) and Sixth Circuit (Pet. 16-18) agree with peti- tioners' interpretation of Hicks is based on a mischarac- terization of rulings by those circuits. In Jiminez v. Mary Washington College, 57 F.3d 369, cert. denied, 116 S. Ct. 380 (1995), the Fourth Circuit merely held, upon review of the entire record after trial, that the district court's factual findings were clearly erroneous with re- gard to whether plaintiff had proved that the college's reasons for his termination were pretextual and unworthy of belief. Id. at 378-384. The court expressly acknowl- edged that, under Hicks, a factfinder's rejection of an employer's proffered reason for its action, combined with a prima face case, "may permit the fact-finder to infer the ultimate fact of invidious discrimination with no additional proof of discrimination; however, the plaintiff is not automatically entitled to judgment because the fact-finder may determine that the defendant's challenged conduct is pretextual, but does not constitute invidious discrim- ination." 57 F.3d at 378. In Theard v. Glaxo, Inc., 47 F.3d 676 (4th Cir. 1995), the court affirmed the grant of sum- mary judgment to an employer because the plaintiff had offered insufficient evidence to dispute the employer's legitimate reasons for denying her the promotion. Id. at 680. Neither case suggests that discrimination may not be inferred from a prima facie case and evidence sufficient to establish pretext. In Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078 (1994), the Sixth Circuit affirmed the district court's order granting the employer's motion for directed verdict because there was insufficient evidence from which the jury could reasonably reject the employer's explanation. Id. at 1083, 1085. The Manzer court correctly characterized Hicks as having rejected the ---------------------------------------- Page Break ---------------------------------------- 16 "pretext plus" standard urged by petitioners, 29 F.3d at 1083, and stated that "Hicks clarified that the only effect of the employer's nondiscriminatory explanation is to con- vert the inference of discrimination based upon the plaintiff's prima facie ease horn a mandatory one which the jury must draw, to a permissive one the jury may draw, provided that the jury finds the employer's explanation `unworthy' of belie f." Ibid. Petitioners acknowledge (Pet. 19-20) that the Second Circuit, in Binder v. Long Island Lighting Co., 57 F.3d 193 (1995), agreed with the D.C. Circuit's interpretation of Hicks. That ruling is consistent with earlier opinions of the Second Circuit. See, e.g., EEOC v. Ethan Allen, Inc., 44 F.3d 116, 120 (2d Cir. 1994); DeMarco v. Holy Cross High Sch., 4 F.3d 166, 170 (2d Cir. 1993). Recently, in Fisher v. Vassar College, 66 F.3d 379 (1995), a case decided after the petition and opposition were filed in the instant case, the Second Circuit indicated that in cases "where the finding of pretext is weak, affirmative proof of dis- crimination on an impermissible ground is required." Id. at 396. The Fisher panel did not, however, adopt the interpretation of Hicks urged by petitioners (Pet. 9-14) that would require granting an employer's motion for judgment as a matter of law under Fed. R. Civ. P. 50 where the plaintiff has established only that there is a prima facie case and has presented evidence sufficient to discredit the employer's asserted reasons. It is not clear whether Fisher will be extended by the Second Circuit beyond the particular facts of that case. Any inconsistency between Fisher and the opinion below does not warrant review by this Court at this time in light of the line of Second Circuit cases that agree with the D.C. Circuit. Only the First Circuit currently applies a standard that is inconsistent with Hicks and the opinion below. In Woods v. Friction Materials, Inc., 30 F.3d 255 (1994), the ---------------------------------------- Page Break ---------------------------------------- 17 First Circuit affirmed the grant of summary judgment to an employer based on its determination that the plaintiff had "failed to present sufficient evidence to permit a reasonable factfinder to infer that [the employer's] articu- lated reason was a pretext for unlawful * * * discrimination." Id. at 262. The First Circuit indicated that, even where pretext is shown in such cases, some cases may not survive summary judgment because an inference of discrimination is not always permissible; "[Everything depends on the individual facts," specifically "[t]he strength of the prima facie case and the significance of the disbelieved pretext." Id. at 260-261 n.3. In Smith v. Stratus Computer, Inc., 40 F.3d 11 (lst Cir. 1994), cert. denied, 115 S. Ct. 1958 (1995), in an opinion written by the author of Woods, the court followed Woods, holding that a prima face case and proof of pretext were insufficient in that case to support an inference of discrimination. 40 F.3d at 15. 4. ___________________(footnotes) 4 The same judge also wrote the opinion in a case arising under Section 510 of the Employee Retirement Income Security Act, 29 U.S.C. 1140, in which the First Circuit affirmed a grant of summary judgment and held that its earlier Woods decision foreclosed the plaintiffs argument that, under Hicks, the factfinder may, but is not compelled to, infer discrimination where the plaintiff has established a prima facie case and has shown that the employer's reasons are not worthy of credence. Theodore Barbour v. Dynamics Research Corp., 63 F.3d 32,39 (lst Cir. 1995), petition for cert. pending, No. 95-589. In the pending petition in that case, the petitioner asserts that the Fourth and Fifth Circuits interpret Hicks in the same manner as the First Circuit. As explained above, the Fifth Circuit is reconsidering en banc its earlier rulings. In the Fourth Circuit case cited by that petitioner, Mitchell v. Data General Corp., 12 F.3d 1310 (1993) (see 95-589 Pet. 6), the court applied established summary judgment principles. The court concluded that the plaintiff in that ADEA case had offered no evidence to discredit the employer's proffered nondiscriminatory reasons for the challenged employment decision. The court granted the employer ---------------------------------------- Page Break ---------------------------------------- 18 The Woods/Smith reasoning conflicts with the Court's analysis in Hicks, and is incorrect in holding that employ- ment discrimination cases may not survive summary judgment despite the fact that the plaintiff has established a prima facie case and has proven that the employer's stated reasons are pretextual. 5. We do not believe, how- ever, that review by the Court is warranted at this time. The vast majority of the circuits correctly interpret Hicks. Moreover, as shown above, disagreement among the circuits appears to be decreasing, rather than increas- ing. The Tenth Circuit, through the unanimous en banc adoption of the panel holding in Randle, recently recon- ciled inconsistent passages in various earlier opinions and affirmed that it interprets Hicks correctly, in a manner consistent with the court below. The Fifth Circuit has granted rehearing en bane in Rhodes to reconsider earlier rulings that were inconsistent with the court below. In ___________________(footnotes) summary judgment because the plaintiff failed to create a genuine issue of material fact in connection with the employer's nondiscrim- inatory explanation. Id. at 1318. 5 We agree that Hicks does not require the case to go to the jury in every case in which a prima facie case has been established and there is evidence that the employer's reason was not the actual reason for the adverse action. The cases in which granting a motion for judgment as a matter of law under Fed. R. Civ. F'. 50 is appropriate, however, are limited to those in which the undisputed evidence establishes that the employer's actual reason was a nondiscriminatory reason. The First Circuit in Woods v. Friction Materials, inc., 30 F.3d at 260 n.3, for example, posited a case in which the employee established a prima facie case of discrimination and the employer responded that the plaintiff was fired because he was unqualified. but other evidence established that the employee was fired to conceal the employer's embezzlement. There, although the unrefuted evidence showed that the employer's response was not true, it also showed that the employer was not motivated by unlawful discrimination. See also Randle v. City of Aurora. 69 F.3d at 451 n.14. ---------------------------------------- Page Break ---------------------------------------- 19 these circumstances, permitting further development of the issue in the courts of appeals is appropriate. The Court would benefit from such further development, even if some disagreement persists and review becomes necessary at a later date. 2. The court of appeals correctly ruled, consistent with this Court's decision in Smith v. Wade, 461 U.S. 30 (1983), that the jury award of punitive damages should not be overturned in light of the fact that there was sufficient evidence upon which the jury could base a finding that petitioners had intentionally discriminated against re- spondent. In Smith v. Wade, the Court held that punitive damages are available under 42 U.S.C. 1983 "when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others ." 461 U.S. at 56. In this case, petitioners concede that the jury was properly instructed on the issue of punitive damages in accord with that ruling. Pet. App. lOa. Once the jury drew the inference of intentional discrimination from all of the evidence, it properly exercised its discre- tion in deciding to award punitive damages. Petitioners are incorrect in their contention that there is a conflict among the courts of appeals concerning the issue of punitive damages. None of the court of appeals' decisions cited by petitioners (Pet. 26-28) held that puni- tive damages may not be awarded against an individual who engaged in intentional discrimination. In Herrnandez- Tirado v. Artau, 874 F.2d 866 (lst Cir. 1989), the court was not presented with a race discrimination case. There, the demotion of a public employee was found to be based on political reasons and the court merely held that such a case did not warrant punitive damages because the act occurred in the "context of conduct that is not, on its face, obviously wrongful." Id. at 870. The Sixth Circuit in Ivey ---------------------------------------- Page Break ---------------------------------------- 20 v. Wilson, 832 F.2d 950, 958 (1987), reversed entry of punitive damages against prison officials who violated due process by placing an inmate in segregation without a hearing. The court found that the procedural irregular- ities did not prove that the officials had acted with evil motive or callous or reckless indifference to the inmate's rights. Similarly, in Lavicky v. Burnett, 758 F.2d 468, 477 (l0th Cir. 1985), cert. denied, 474 U.S. 1101 (1986), the court of appeals confirmed the district court's finding that, although county officials should have realized that the warrantless search and seizure of plaintiffs truck was unconstitutional, "no evidence of malice, wantonness or oppressiveness" justified punitive damages. Finally, the court of appeals reversed an award of punitive damages against three of the defendants in Walters v. City of Atlanta, 803 F.2d 1135, 1147 (llth Cir. 1986), because there was insufficient evidence in that employment discrimi- nation case that those three particular defendants acted with ill will or in disregard of the plaintiff's rights. Punitive damages were upheld, however, against the individual who was directly responsible for the failure to hire the plaintiff. Id. at 1146-1148. The court of appeals' decision regarding punitive dam- ages is correct, does not conflict with the cases cited by petitioners, and does not merit further review. ---------------------------------------- Page Break ---------------------------------------- 21 CONCLUSION For the foregoing reasons, the petition for a writ of certiorari should be denied. Respectfully submitted. DREW S. DAYS, III Solicitor General DEVAL L. PATRICK Assistant Attorney General PAUL BENDER Deputy Solicitor General BETH S. BRINKMANN Assistant to the Solicitor General DENNIS J. DIMSEY REBECCA K. TROTH Attorneys JANUARY 1996