Free Supplement - District Court of Arizona - Arizona

1 John Gabroy, S.B. #004794 _
GABROY, RoLLMAN & BossE, P.C.
2 3507 N. Campbell Avenue, Ste. 111
Tucson, Arizona 85719
3 520/320-1300
4 Garry B. Bryant, S.B. #004773
LAw OFFICES or GARRY B. BRYANT
5 3507 N. Campbell Avenue, Ste. 101
Tucson, Arizona 85719
6 520/322-9000
Attorneys for Plaintiff
7
8 IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA .
. 9
L) •- . .
- : JOHN KILLINGSW RTH, d ,
.“t A 10 O ° mm man N0. civ-03-1950-Piix-Nvw
Lt! 3 A _ Plaintiff,
, 8 g§ 11 SUPPLEMENTAL CITATION or
3 2 § ; ,3, ,2 VS" Aurnomrv IN SUPPORT or
5 z I 3 Z STATE FARM MUTUAL AUTOMOBILE OPPOSITION TO MOTION FOR
E g Q E § 13 INSURANCE COMPANY, etal., SUMMARY JUDGMENT
..I EL- , 3
E E' § @2 14 Defendants.
- E v
Q :3 E 15 Plaintiff hereby submit the following supplemental citation of authority in support of
m P-
E 8 16 his Opposition to Defendants’ Motion for Summary Judgment. This Supplemental Citation
17 of Authority is submitted in response to the Court’s comments regarding mixed-motive
18 discrimination claims after passage of the 1991 amendment to Title VII.
19 In Costa v. Desert Palace, Inc., 299 F.3d 838 (9th Cir. 2002) (en banc), czj]”’d, 539
20 U.S. 90 (2003), the Ninth Circuit reiterated a number of legal principles applicable to mixed
21
motive discrimination claims after passage of the 1991 amendments to Title VII, more than
22
23 a decade after passage of the 1991 amendments to Title VII:
• "The 1991 Act added § 2000e-2(m), which provides that ‘an unlawful employment
24 practice is estab1ished’ when a protected characteristic is ‘a motivating factor’ in an
25 employment action" (Id., 299 F.3d at 847 (quoting Civil Rights Act of 1965, Title
VII, § 701, 42 U.S.C. § 2000e-2(m) (as amended by Civil Rights Act of 1991, Pub.
26 L. No. 102-166, § 107(a), 105 Stat. 1071 (1991));
a§e¢2%08—°e0·‘=*@¤#@=5`0·¤N#¢W2 Document 277 Filed O9/19/2005 Page 1 of 4

1 • "The 1991 Act also provided an affirmative defense that limits the remedies if an
2 employer demonstrates that it would have nonetheless made the ‘same decision"’
(Id. (quoting 42 U.S.C. § 2000e-5(g)(2)(B));
3 • Thus, even after passage of the 1991 amendment to Title VII, an employee makes
4 out a Title VII violation anytime he or she shows that "a protected characteristic was
‘a motivating factor’ in an employment action, even if there were other motives" (Id.
5 at 848; see also id. ("ln such a case—sometimes labeled with the ‘mixed-motive’
6 moniker—if the employee succeeds in proving only that a protected characteristic
was one of several factors motivating the employment action, an employer cannot
7 avoid liability altogether, but instead may assert an affirmative defense to bar certain
8 types of relief by showing the absence of ‘but for’ causation"));
9 • No special evidentiary burden is placed on the plaintiff in a "mixed-motive" case (Id.
Q ; ("The amendments to the statute have done nothing to change the plaintiffs long-
_°Z Q 10 standing burden”); see also id. ("Nor can we discover anything in this statute that
5 § g H warrants imposing a special evidentiary rule on or hurdle for victims of
tg 2 Q O discrimination to prove their case"); see also id. ("The inquiry is simply that of any
S .¤ E g g 12 civil case: whether the plaintiff" s evidence is sufficient for a rational factfrnder to
1;: E ji Q gl conclude by a preponderance of the evidence that the employer violated the statute-
*5 E E Zig 13 that ‘race, color, religion, sex, or national origin was a motivating factor for any
g gl 5 é 5 14 employment practice );
ai E 5 15 • "The legislative history [of the 1991 amendment] evinces a clear intent to ovenule
g ff Price Waterhouse” (Id. at 850; see also id. ("Congress quickly responded to
gd 16 · Waterhouse and a handiiil of other Supreme Court employment discrimination
decisions with the introduction of the Civil Rights Act of 1990, which targeted ‘the
17 Supreme Court’s recent decisions by restoring the civil rights protections that were
18 dramatically limited by those decisions"’ (quoting H.R. Conf. Rep. N0. 101-586, at 1
(1990));
19 -
• "To the extent that there was confusion after Price Waterhouse—semantic or
20 otherwise—with respect to burden shifting, the [1991] amendment clarified (1) that a
21 Title VII violation is established through proof that a protected characteristic was ‘a
motivating factor’ in the employment action and (2) that the employer’s ‘same
22 decision’ evidence serves as an affirmative defense with respect to the scope of
23 remedies, not as a defense to liability (ld.);
• "[B]ased on the language of the statute—which requires proof of only ‘a motivating
24 factor’ and does not set out any special proof burdens—we conclude that Congress
25 did not impose a special or heightened evidentiary burden on the plaintiff in a Title
VII case in which discriminatory animus may have constituted one of two or more
26 reasons for the employer’s challenged actions" (Id. at 851 (citing 42 U.S.C. § 2000e-
aseL2%03#eu·*J@4f@5*®»¤N¤1¢W2 Document 277 2 Filed O9/19/2005 Page 2 of 4

1 2(m))); see also id. ("[W]e believe that we are well advised to follow the statute
2 instead of engaging in judicial invention");
3 • "We believe that the best way out of this morass is a return to the language of the
statute, which imposes no special requirement and does not reference ‘direct
4 evidence? To the extent that courts are using ‘direct evidence’ as a veiled excuse to
substitute their own judgment for that of the jury, we reject that approach" (Id.
5 at 853);
6 • "Put simply, the plaintiff in any Title VH case may establish a violation through a
7 preponderance of evidence (whether direct or circumstantial) that a protected
characteristic played ‘a motivating factor’” (Id. at 854);
8
• "The general rule bears repeating: in proving a case, circumstantial evidence ‘is
6 _ 9 weighed on the same scale and laid before the jury in the same manner as direct
¤: 5 10 evidence." In other words, ‘circumstantial evidence is not inherently less probative
g G, that direct evidence"’ (Id. n. 4 (quoting United States v. King, 552 F.2d 833, 845 (9th
L Q Q 11 Cir. 1976); United States v. Cruz, 536 F.2d 1264, 1266 (9m Cir. 1976));
0 m D °°
gg ·¤ lj] § § 12 • "This legal proof structure [Le., the McDonnell Douglas burden—shifting framework]
E E E Q 13 is- atool to assist plaintiffs at the summary judgment stage so that they may reach
¤ E E 15 1Tl&l” (Id. at 855);
; .1 2 §
j 3 g 93 14 • A plaintiff "may succeed either directly by persuading the court that a
E: g [2 15 discriminatory reason more likely motivated the employer or indirectly by showing ·
Q ; that the employer’s proffered explanation is unworthy of credence" (Id.);
< '° 16 .
G M · • "Once at the trial stage, the plaintiff is required to put forward evidence of
17 discrimination ‘because of’ a protected characteristic. After hearing both parties’ -
18 evidence, the district court must decide what legal conclusions the evidence could
reasonably support and instruct the jury accordingly" (Id. at 856);
19 . . . . . .
• A discrimination claim "need not be characterized or labeled at the outset [as a
20 single-motive or mixed—motive claim]. Rather the shape will often emerge after
21 discovery or even at trial" (Id. n. 7);
• "In [single-motive] cases, the issue is whether either illegal or legal motives, but not
22 both, were the ‘true motives behind the decision? ln mixed-motive cases, however,
23 there is no one ‘true’ motive behind the decision. Instead, the decision is a result of
multiple factors, at least one of which is legitimate" (Id. (quoting Price Waterhouse
24 v. Hopkins, 490 U.S. 228, 260 (1989) (White, J., concur1ing));
25 • "Following the 1991 amendments, characterizing the evidence as mixed-motive
26 instead of _single-motive results only in the availability of a different defense which
derives directly from statutory text, not from judicially created proof structures"
(Id.);
aseL2203r~ev¤©=t¤&50»i¤rVW2 Document 277 3 Filed O9/19/2005 Page 3 of 4

1 • "[W]e emphasize that there are not two kinds of fundamentally different types of p
2 Title VII cases. In some cases, the employer may be entitled to the ‘same decision’
affirmative defense instruction. In others, it may not. The employee’s ultimate
3 burden of proof in all cases remains the same: to show by a preponderance of the
4 evidence that the challenged employment decision was ‘because of` discrimination"
(Id. at 857); and
5 • "'1"o summarize: McDonnell Douglas and ‘mixed-motive’ are not two opposing
6 types of cases. Rather, they are separate inquiries that occur at separate stages of the
litigation. Nor are ‘single-motive’ and mixed-motive’ cases fundamentally different
7 categories of cases. Both require the employee to prove discrimination; they simply
8 reflect the type of evidence offered. Where the employer asserts that, even if the
factfinder determines that a discriminatory motive exists, the employer would in any
Q _ 9 event have take the adverse employment action for other reasons, it may take
¤; E 10 advantage of the ‘same decision’ affirmative defense. The remedies will differ if the
g Q employer prevails on that defense" (Id.)
'·° °l F 11 . . A1C
B 2 g $ D RESPECTFULLY submitted this day of September 2005.
W d tu ( *3 '
§ Z 3 gi é , GABROY, ROLLMAN & Bossa, P.C.
tg; g gg 13 A
...1 ¤- , N
§ g if 15 John Gabroy
Q § 16 LAW Orrices or GARRY B. BRYANT
:,9 "' . ‘ .
18 Garry B. Bryant
19 _ Attorneys for Plaintiff
20 - . .
COPY t e foregoing faxed and mailed
21 this _ f ay of September 2005, to:
22 Charles L. Chester
Matthew T. Clarke
23 Mariette S. Spence
RYLEY CARLOCK & Arrrevvnira, P.A.
24 One North Central Avenue, Suite 1200
Phoenix, Arizona 85004-4417
25 Attomeys f • i Defendants
26 -4 )-·
Byr ming,
.5fV -· Q in
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