Robert P. Burch v. The Coca-Cola Company 95-10990 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________________________ No. 95-10990 _____________________________________ ROBERT P. BURCH, Plaintiff-Appellee/Cross-Appellant, v. THE COCA-COLA COMPANY, Defendant-Appellant/Cross-Appellee. _______________________________________________________ On Appeal from the United States District Court for the Northern District of Texas, Dallas Division Hon. Jeff Kaplan, Presiding _______________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE _______________________________________________________ C. GREGORY STEWART General Counsel GWENDOLYN YOUNG REAMS Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel GAIL S. COLEMAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7012 Washington, D.C. 20507 (202) 663-4055 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ii STATEMENT OF INTEREST 1 STATEMENT OF THE ISSUE 2 STATEMENT OF THE CASE 2 A. Course of Proceedings 2 B. Statement of Facts 2 C. District Court Decision 2 SUMMARY OF ARGUMENT 3 ARGUMENT 4 A. Standard of Review 4 B. The District Court Erred By Holding That Burch Could Not Establish a Prima Facie Case Without Showing That He Had Been Replaced By a Non-Alcoholic 4 CONCLUSION 12 CERTIFICATE OF SERVICETABLE OF AUTHORITIES Page Cases Buford v. Howe, 10 F.3d 1184 (5th Cir. 1994) 4 Byrd v. Roadway Express, Inc., 687 F.2d 85 (5th Cir. 1982) 7, 8, 10 Carson v. Bethlehem Steel Corp., 82 F.3d 157 (7th Cir. 1996) (per curiam) 7, 10 Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29 (2d Cir. 1994) 8 Cumpiano v. Banco Santander Puerto Rico, 902 F.2d 148 (1st Cir. 1990) 10 Daigle v. Liberty Life Ins. Co., 70 F.3d 394 (5th Cir. 1995) 1, 8 Davenport v. Riverview Gardens Sch. Dist., 30 F.3d 940 (8th Cir. 1994) 10 Edwards v. Wallace Community College, 49 F.3d 1517 (11th Cir. 1995) 10 EEOC v. Brown & Root, Inc., 688 F.2d 338 (5th Cir. 1982) 6, 9 EEOC v. Metal Serv. Co., 892 F.2d 341 (3d Cir. 1990) 8 Ennis v. National Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55 (4th Cir. 1995) 8, 10 Fink v. Kitzman, 881 F. Supp. 1347 (N.D. Iowa 1995) 10 Frazier v. Garrison I.S.D., 980 F.2d 1514 (5th Cir. 1993) 9 Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978) 6, 7 Hornsby v. Conoco, Inc., 777 F.2d 243 (5th Cir. 1985) 9 Jackson v. Richards Medical Co., 961 F.2d 575 (6th Cir. 1992) 10 Page Jones v. Western Geophysical Co. of Am., 669 F.2d 280 (5th Cir. 1982) 10 Mayberry v. Vought Aircraft Co., 55 F.3d 1086 (5th Cir. 1995) 9 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) 7, 8 Mills v. Ford Motor Co., 800 F.2d 635 (6th Cir. 1986) 9 Nichols v. Loral Vought Sys. Corp., 81 F.3d 38 (5th Cir. 1996) 7 O'Connor v. Consolidated Coin Caterers Corp., 115 S. Ct. 1307 (1996) 7, 10 Portis v. First Nat'l Bank of New Albany, MS, 34 F.3d 325 (5th Cir. 1994) (as amended) 5, 7 Price v. S-B Power Tool, 75 F.3d 362 (8th Cir.), petition for cert. filed, 64 U.S.L.W. 3765 (U.S. Apr. 29, 1996) (No. 95-1782) 7 St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993) 6 Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981) 6, 7 Thornbrough v. Columbus & Greenville R.R., 760 F.2d 633 (5th Cir. 1985) 6-8 Vaughn v. Edel, 918 F.2d 517 (5th Cir. 1990) 7, 9 Welch v. University of Texas, 659 F.2d 531 (5th Cir. Unit A Oct. 1981) 10 World Mart Inc. v. Ditsch, 855 P.2d 1228, 2 A.D. Cases (BNA) 1091 (Wyo. 1993) 10 Statute Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (1994) 1 § 12112(a) 5 Page § 12114(c)(4) 5 Other Authorities EEOC Technical Assistance on Title I of ADA § 8.7, 8 Fair Empl. Prac. Man. (BNA) 405:7053 (1992) 5 Fed. R. Civ. P. 50(a)(1) 4 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________________________ No. 95-10990 _____________________________________ ROBERT P. BURCH, Plaintiff-Appellee/Cross-Appellant, v. THE COCA-COLA COMPANY, Defendant-Appellant/Cross-Appellee. _______________________________________________________ On Appeal from the United States District Court for the Northern District of Texas, Dallas Division Hon. Jeff Kaplan, Presiding _______________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE _______________________________________________________ STATEMENT OF INTEREST The Equal Employment Opportunity Commission ("EEOC") is charged by Congress with interpreting, administering, and enforcing Title I of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. (1994). This case raises an important issue regarding the elements of a prima facie case under the ADA. Although this Court has already stated in dicta that an ADA plaintiff need not show that he was replaced by a non-disabled employee, Daigle v. Liberty Life Ins. Co., 70 F.3d 394, 396 (5th Cir. 1995), it has never elaborated on this principle. A clear holding that the ADA contemplates flexible requirements for establishing a prima facie case would significantly advance the EEOC's enforcement efforts. The EEOC therefore offers its views to the Court. STATEMENT OF THE ISSUE<1> Did the district court err in dismissing Burch's intentional discrimination claim under the ADA for failure to state a prima facie case where Burch did not show that he was replaced by a non-alcoholic but where he did introduce other evidence from which the jury could have inferred that he would not have been fired if he had not been an alcoholic? STATEMENT OF THE CASE A. Course of Proceedings The EEOC adopts the statement regarding the course of proceedings in Burch's opening brief. Burch Br. at 2-3. B. Statement of Facts The EEOC adopts the statement of facts in Burch's opening brief. Id. at 4-16. C. District Court Decision The EEOC is submitting this amicus brief based on the district court's decision to grant Coca-Cola judgment as a matter of law on Burch's intentional discrimination claim. This decision came at the close of Burch's case in chief, in response to Coca-Cola's motion. Coca-Cola argued in part that Burch had not established a prima facie case of discrimination because he had not shown either that he was replaced by a person outside the protected class or that he was treated less favorably than non-disabled employees. (Tr. at 1239.) The district court focused exclusively on whether a plaintiff must demonstrate that he has been replaced by someone outside the protected class. (Tr. at 1247-49.) Evidently concluding that he must, the district court dismissed Burch's intentional discrimination claim. (Tr. at 1249.) SUMMARY OF ARGUMENT The district court erred in requiring Burch to show that he was replaced by a non-alcoholic in order to establish a prima facie case of intentional discrimination. The central question in an ADA intentional discrimination case is whether a disabled employee was treated less favorably than other employees because of his disability. If Coca-Cola would have fired a non-alcoholic for engaging in the same conduct that Burch engaged in, then its decision to fire Burch would be non-discriminatory. If, however, Coca-Cola would have retained a non-alcoholic who engaged in the same conduct, then its termination of Burch was illegal discrimination. By dismissing the intentional discrimination claim for failure to show replacement by a non-alcoholic, the district court erroneously prevented Burch from demonstrating that Coca-Cola subjected him to disparate discipline on the basis of his disability. Neither the Supreme Court nor this Court requires that result. To the contrary, both courts have stated that the elements of a prima facie case should be applied flexibly. Even if Coca-Cola had replaced Burch with another alcoholic, the law of this circuit should not have foreclosed him from proceeding with his intentional discrimination claim. To establish a prima facie case, Burch simply needed to introduce evidence from which the factfinder could reasonably infer discrimination. During his case in chief, Burch introduced evidence that his conduct at the company dinner was not bad enough to warrant discharge; that Coca-Cola had failed to follow its own disciplinary procedures in firing him; and that Coca-Cola had not fired non-alcoholics who engaged in similar conduct. This evidence was sufficient to raise an inference of discrimination. The district court therefore should have sent Burch's intentional discrimination claim to the jury. ARGUMENT A. Standard of Review A district court may grant judgment as a matter of law only if "there is no legally sufficient evidentiary basis for a reasonable jury to find for [the non-moving] party on that issue." Fed. R. Civ. P. 50(a)(1). When a district court grants judgment as a matter of law, this Court reviews that ruling de novo, viewing all of the evidence in the light most favorable to the non-moving party and drawing all reasonable inferences in that party's favor. Buford v. Howe, 10 F.3d 1184, 1187 (5th Cir. 1994). B. The District Court Erred By Holding That Burch Could Not Establish a Prima Facie Case Without Showing That He Had Been Replaced By a Non-Alcoholic. The district court erred in requiring Burch to show that he was replaced by a non-alcoholic in order to establish a prima facie case of intentionally discriminatory discharge. The central question in an ADA intentional discrimination case is whether a disabled employee was treated less favorably than other employees because of his disability. See 42 U.S.C. § 12112(a). If Coca-Cola would have fired a non-alcoholic for engaging in the same conduct that Burch engaged in, then its decision to fire Burch would be non-discriminatory. If, however, Coca-Cola would have retained a non-alcoholic who engaged in the same conduct, then its termination of Burch was illegal discrimination.<2> See 42 U.S.C. § 12114(c)(4) (an employer "may hold an employee . . . who is an alcoholic to the same . . . job performance and behavior that such entity holds other employees") (emphasis added); EEOC Technical Assistance on Title I of ADA § 8.7, 8 Fair Empl. Prac. Man. (BNA) 405:7053 (1992) ("If an employee is often late or does not show up for work because of alcoholism, an employer can take direct action based on the conduct. However, an employer would violate the ADA if it imposed greater sanctions on such an alcoholic employee than it did on other employees for the same misconduct."); see also Portis v. First Nat'l Bank of New Albany, MS, 34 F.3d 325, 330 (5th Cir. 1994) (as amended) (observing in Title VII case that, "[a]lthough an employer may penalize employee misconduct, it must apply the penalties equally"); EEOC v. Brown & Root, Inc., 688 F.2d 338, 340 (5th Cir. 1982) ("Punitive action against employees for violating work rules must not differentiate on the basis of sex or any of the other criteria reprobated by Title VII."). By dismissing the intentional discrimination claim for failure to show replacement by a non-alcoholic, the district court erroneously prevented Burch from demonstrating that Coca-Cola subjected him to disparate discipline on the basis of his alcoholism. Neither the Supreme Court nor this Court requires that result. The sole purpose of a prima facie case is to rule out the most common explanations for an adverse employment action -- in a discharge case, that the position was eliminated or that the employee was not meeting his employer's legitimate expectations -- thereby raising an inference that the action, if unexplained, must have been based on an illegitimate motive. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253-54 (1981); Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978); Thornbrough v. Columbus & Greenville R.R., 760 F.2d 633, 640 (5th Cir. 1985). A prima facie case shifts the burden of production to the employer to articulate a legitimate, non-discriminatory reason for its conduct. By doing so, the employer dispels the inference of discrimination arising from the prima facie case. The plaintiff may then show that the employer's stated reason for its conduct is merely a pretext for discrimination. The burden of proof remains at all times with the plaintiff. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-08, 510-11 (1993); Burdine, 450 U.S. at 253-55; McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). The law is clear that a plaintiff seeking to establish a prima facie case of disparate treatment has a burden that is "not onerous." Burdine, 450 U.S. at 253; see also Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41 (5th Cir. 1996) (prima facie case requires "'only . . . a very minimal showing'") (citation omitted). Although the Supreme Court articulated a four-part test in McDonnell Douglas for proving a prima facie case, the Court warned that "[t]he facts necessarily will vary in [employment discrimination] cases, and the specification above of the prima facie proof required from respondent is not necessarily applicable in every respect to differing factual situations." McDonnell Douglas, 411 U.S. at 802 n.13. Both the Supreme Court and this Court have repeatedly echoed this sentiment. Burdine, 450 U.S. at 253 n.6; Furnco Constr. Corp., 438 U.S. at 577; Portis, 34 F.3d at 328 n.6; Vaughn v. Edel, 918 F.2d 517, 521 n.4 (5th Cir. 1990); Thornbrough, 760 F.2d at 641-42. A plaintiff may establish a prima facie case, both the Supreme Court and this Court have said, by introducing evidence creating an inference of unlawful discrimination. See O'Connor v. Consolidated Coin Caterers Corp., 115 S. Ct. 1307, 1310 (1996); Burdine, 450 U.S. at 253; Thornbrough, 760 F.2d at 641-45; Byrd v. Roadway Express, Inc., 687 F.2d 85, 86 (5th Cir. 1982); see also Carson v. Bethlehem Steel Corp., 82 F.3d 157, 159 (7th Cir. 1996) (per curiam); Price v. S-B Power Tool, 75 F.3d 362, 365 (8th Cir.), petition for cert. filed, 64 U.S.L.W. 3765 (U.S. Apr. 29, 1996) (No. 95-1782); Ennis v. National Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 58 (4th Cir. 1995); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994); EEOC v. Metal Serv. Co., 892 F.2d 341, 348 (3d Cir. 1990). That evidence can be anything demonstrating differential treatment between those inside and outside the protected group. See Thornbrough, 760 F.2d at 645 (if a younger employee was promoted but an older employee in a similar position was not, or if a younger employee was hired in preference to an older one, this creates a presumption of discrimination); Byrd, 687 F.2d at 87 (evidence that black drivers were assigned heavier and more difficult work than white drivers and that black driver received unwarranted disciplinary warnings when he insisted on equal treatment raises inference of discrimination). This Court has already stated in dicta that an ADA plaintiff may establish a prima facie case of intentional discrimination in a termination case without showing that he was replaced by a non-disabled employee. In Daigle v. Liberty Life Ins. Co., 70 F.3d 394, 396 (5th Cir. 1995), the court listed the following elements for stating a prima facie case under the ADA: (1) the plaintiff is disabled; (2) he is qualified for the job in question; (3) he was subject to an adverse employment action; and (4) he was replaced by a non-disabled person or was treated less favorably than non-disabled employees. This articulation of the fourth element is consistent with the flexible nature of proof that the Supreme Court envisioned in McDonnell Douglas. See 411 U.S. at 802 n.13. Given this Court's recognition that an ADA plaintiff may state a prima facie case as long as he can show that he was treated less favorably than non-disabled employees, the district court should have allowed Burch to show that Coca-Cola subjected him to disparate discipline. See Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir. 1995) (in a case alleging a work-rule violation, a plaintiff may establish a prima facie case by showing either that he did not violate the rule or that, if he did, employees outside the protected class who engaged in similar acts were not punished similarly) (citation omitted); Vaughn, 918 F.2d at 522 (when plaintiff alleges discriminatory treatment leading up to termination, court should not focus exclusively on the termination); Mills v. Ford Motor Co., 800 F.2d 635, 638-39 (6th Cir. 1986) (same). Whether Coca-Cola replaced Burch after his termination should have been irrelevant to this analysis. Indeed, Burch should have been able to state a prima facie case of intentional discrimination even if Coca-Cola had replaced him with another alcoholic. This Court's law is clear that a plaintiff may establish a prima facie case of employment discrimination even if he was replaced by someone within his protected class.<3> See Hornsby v. Conoco, Inc., 777 F.2d 243, 246-47 (5th Cir. 1985) (Title VII); Brown & Root, 688 F.2d at 340 (Title VII); Byrd, 687 F.2d at 86 (§ 1981); Jones v. Western Geophysical Co. of Am., 669 F.2d 280, 284 (5th Cir. 1982) (Title VII); Welch v. University of Texas, 659 F.2d 531, 533 n.3 (5th Cir. Unit A Oct. 1981) (Title VII). Other courts agree with this analysis. See O'Connor, 115 S. Ct. at 1310 (ADEA); Carson, 82 F.3d at 158-59 (Title VII); Ennis, 53 F.3d at 58-59 (ADA); Edwards v. Wallace Community College, 49 F.3d 1517, 1521 (11th Cir. 1995) (Title VII); Davenport v. Riverview Gardens Sch. Dist., 30 F.3d 940, 944-45 (8th Cir. 1994) (Title VII); Jackson v. Richards Medical Co., 961 F.2d 575, 587 n.12 (6th Cir. 1992) (Title VII); Cumpiano v. Banco Santander Puerto Rico, 902 F.2d 148, 154-55 (1st Cir. 1990) (Title VII). Such flexibility with respect to the elements of a prima facie case is especially important in the context of the ADA. As the Fourth Circuit has explained, a plaintiff alleging disability discrimination will often be unable to determine whether his replacement is disabled. Ennis, 53 F.3d at 58. Moreover, an employer may decide to discriminate against a person with one type of disability in favor of someone else with another type of disability. See Fink v. Kitzman, 881 F. Supp. 1347, 1375-76 (N.D. Iowa 1995) (employer violates ADA by firing one disabled person in favor of another disabled person where replacement's disability is "more cheaply or easily accommodated"); World Mart Inc. v. Ditsch, 855 P.2d 1228, 1231, 2 A.D. Cases (BNA) 1091, 1094-95 (Wyo. 1993) (employer denied promotion to quadriplegic wheelchair user and gave it to alcoholic). In those circumstances, what matters is not the disability status of the plaintiff's replacement, but only whether the plaintiff can show some evidence from which a factfinder could reasonably infer discrimination. Such evidence exists in this case. Burch introduced evidence that his conduct at the company dinner was not bad enough to warrant discharge, Burch. Br. at 8 (citing Tr. at 913), 12-13 (citing Tr. at 508, 594-95, 635-36, 735-36, 841-42, 913, 1362); that Coca-Cola had failed to follow its own disciplinary procedures in firing him, id. at 5 (citing Tr. at 163, 177-78, 191-92, 765-66, 775, 803, 1353); and that Coca-Cola had not fired non-alcoholics who engaged in similar conduct, id. at 9 (citing Tr. at 300-01), 13 (citing Tr. at 308-09). This evidence was sufficient to raise an inference of discrimination. The district court therefore should have sent Burch's intentional discrimination claim to the jury. CONCLUSION If this Court affirms judgment for Burch on all grounds, the district court's dismissal of Burch's intentional discrimination claim will constitute harmless error. However, if this Court reverses on any other issue, then it should also reverse the dismissal of Burch's intentional discrimination claim and remand for further proceedings. Respectfully submitted, C. GREGORY STEWART General Counsel GWENDOLYN YOUNG REAMS Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel _________________________________ GAIL S. COLEMAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7012 Washington, D.C. 20507 July 10, 1996 (202) 663-4055 CERTIFICATE OF SERVICE I, Gail S. Coleman, hereby certify that I served two copies of the foregoing brief this 10th day of July, 1996, by first-class mail, postage pre-paid, to the following counsel of record: Vella M. Fink J. Stuart Tonkinson Pittman & Fink, P.C. Carrington, Coleman, Sloman 1502 West Sixth Street & Blumenthal, L.L.P. Austin, TX 78703 200 Crescent Court, Suite 1500 Dallas, TX 75201 Jennifer Judin Downs, Judin & Stanford Stephen A. Bokat 501 Elm Place, Suite 200 National Chamber Litigation Dallas, TX 75202 Center 1615 H Street, NW W. Joseph Thesing, Jr. Washington, DC 20062 The Coca-Cola Co. P.O. Drawer 1734 Robert E. Williams Atlanta, GA 30301 Ann Elizabeth Reesman Ellen Duffy McKay Nancy L. Abell McGuiness & Williams Paul W. Cane, Jr. 1015 Fifteenth Street, NW Cheryl L. Kopitzke Suite 1200 Paul, Hastings, Janofsky & Walker Washington, DC 20005 1299 Ocean Avenue, Fifth Floor Santa Monica, CA 90401 _________________________________ GAIL S. COLEMAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7012 Washington, D.C. 20507 (202) 663-4055 1 The EEOC takes no position on any other issue raised in this case. 2 Neither Coca-Cola nor its amicus, the Equal Employment Advisory Council, disputes this proposition. See Coca-Cola Br. at 13; EEAC Br. at 6-10. Instead, both of them simply assume that Coca-Cola would have fired a non-alcoholic under the same circumstances in which it fired Burch. See Coca-Cola Br. at 17-19 (arguing that Burch sought a "second chance"); EEAC Br. at 10 (arguing based on Coca-Cola's brief that Burch introduced no evidence of disparate discipline). Burch's intentional discrimination claim was a direct challenge to that assumption. 3 Occasional Fifth Circuit cases do state that a plaintiff must show replacement by someone outside his protected class. See, e.g., Frazier v. Garrison I.S.D., 980 F.2d 1514, 1526 (5th Cir. 1993) (Title VII). However, the EEOC is unaware of any Fifth Circuit case that has dismissed an employment discrimination claim for failure to comply with this stated rule.