QUESTIONS PRESENTED (1) To establish a prima facie case of discriminatory termination, is a plaintiff required to show that he was replaced by someone outside his or her protected group?* (2) Under Title VII of the Civil Rights Act of 1964, a plaintiff prior to:bringing a civil action must first file a charge with the EEOC, usually within 300 days of the action complained of. The Question Presented is: Where a claimant files a timely Title VII charge asserting that employer conduct was the result of a particular unlawful motive, may the claimant after the end of the charge-filing period amend that charge, or bring a civil action, asserting that the conduct was also the result of a second unlawful motive

DeLaune, Justin M.

Schnapper, Eric

Smith, III, J. Arthur

English

UW Law Digital Commons (University of Washington)

University of Washington School of LawUW Law Digital CommonsCourt Briefs Faculty Publications11-23-2016Reply Brief. Lavigne v. Cajun Deep Foundations,L.L.C., 137 S.Ct. 1328 (2017) (No. 16-464), 2016WL 9443770Eric SchnapperUniversity of Washington School of Law, schnapp@uw.eduJ. Arthur Smith, IIIJustin M. DeLauneFollow this and additional works at: https://digitalcommons.law.uw.edu/faculty-court-briefsPart of the Civil Rights and Discrimination Commons, and the Labor and Employment LawCommonsThis Court Brief is brought to you for free and open access by the Faculty Publications at UW Law Digital Commons. It has been accepted for inclusionin Court Briefs by an authorized administrator of UW Law Digital Commons. For more information, please contact cnyberg@uw.edu.Recommended CitationEric Schnapper; J. Arthur Smith, III; and Justin M. DeLaune, Reply Brief. Lavigne v. Cajun Deep Foundations, L.L.C., 137 S.Ct. 1328(2017) (No. 16-464), 2016 WL 9443770 (2016) https://digitalcommons.law.uw.edu/faculty-court-briefs/41No. 16-464FILEDNOV 23 2016IN THE~ul~rem~ ~ourt af toe/~tnitel~ ~,tate~TERRANCE J. LAVIGNE,Petitioner,V.CAJUN DEEP FOUNDATIONS, L.L.C.,Respondent.On Petition for a Writ of Certiorari tothe United States Court of Appealsfor the Fifth CircuitREPLY BRIEFERIC SCHNAPPERCounsel of RecordUNIVERSITY OF WASHINGTONSCHOOL OF LAWP.O. BOX 353020Seattle, WA 98195(206) 616-3167schnapp@u.washington.eduJ. ARTHUR SMITH, IIIJUSTIN M. DELAUNESMITH LAW FIRM830 North StreetBaton Rouge, LA 70802(225) 383-7716Counsel for PetitioneriTABLE OF CONTENTSPageCertiorari Should Be Granted To DecideWhether A Plaintiff Claiming DiscriminatoryTermination Must Prove That He Or She WasReplaced By A Person Outside His Or HerProtected Group ...........................II. Certiorari Should Be Granted To DecideWhether A Title VII Charge Must Identify AllOf An Employer’s Unlawful Motives ..........6Conclusion ................................... 9TABLE OF AUTHORITIESPageCASES:Hague v. University of Texas Health Science Centerat San Antonio, 560 Fed.Appx. 328 (5th Cir.2014) .................................... 4McCoy v. City of Shreveport, 492 F.3d 551 (Sth Cir.2007) .................................... 2St. Mary’s Honor Center v. Hicks, 509 U.S. 502(1993) ................................... 3U.S. Postal Serv. Bd. of Governors v. Aikens, 460U.S. 711 (1983) ............................ 4BRIEFS:Petition for Writ of Certiorari, Paske v. Fitzgerald,No. 15-162, 2015 WL 4651685 ............... 4STATUTES:Title VII, Civil Rights Act of 1964 .......... 1, 6, 8, 9Respondent expressly concedes that there is acircuit conflict regarding the first question presented,and does not dispute the existence of such a conflictregarding the second question. The brief in oppositionargues that, even if this Court were to conclude that theFifth Circuit erred on both issues, respondent wouldultimately prevail on other grounds not yet decided bythe court of appeals.~ But the other grounds raised byrespondent are matters that would be addressed in thefirst instance by the court of appeals on remand, andare no bar to review by this Court of the issues thatwere decided by the Fifth Circuit below.2I. CERTIORARI SHOULD BE GRANTED TODECIDE WHETHER A PLAINTIFFCLAIMING DISCRIMINATORYTERMINATION MUST PROVE THAT HE ORSHE WAS REPLACED BY A PERSONOUTSIDE HIS OR HER PROTECTED GROUPRespondent candidly concedes that "there is a splitamong the circuits relating to the elements of aprimafacie case applied to Title VII wrongful terminationcases .... " Br.Opp. 15. The brief in oppositiondescribes the same circuit court alignment set out inthe petition. Compare Br.Opp. 15 with Pet. 9-17.Respondent contends that "the test applied by the1 Br.Opp. 23 ("The granting of the petition for certiorari willnot change the outcome of this case.")(capitalization omitted).2 Respondent asserts that if this Court were to grant certiorarito decide the questions presented, it "would be forced" to address(and resolve in its favor) these other contentions. Br.Opp. 12. Itis not this Court’s practice to address issues that were not decidedby the court below.2Fifth, Fourth, Sixth, Ninth, and Eleventh circuits [is]correct .... " Br.Opp. 15. Respondent agrees that thestandard applied by the Fifth Circuit in this case wasestablished by long-standing Fifth Circuit precedent.Br.Opp. 10, 16.Respondent acknowledges that in this case thecourt of appeals rejected Lavigne’s discrimination claimbecause it "determin[ed] that [Lavigne] failed toestablish a prima facie case of discrimination intermination[ ]." Br.Opp. i. The Fifth Circuit decisionin this case rested solely on its conclusion that Lavignehad failed to establish a prima facie case because hecould not prove that he had been "replaced by someoneoutside his protected group." Pet.App. 15a (quotingMcCoy v. City of Shreveport, 492 F.3d 551,556 (5th Cir.2007)). 3 Under the decision below, applying decades ofFifth Circuit precedent, replacement by an individualoutside the protected group is one of the four essentialelements that "a plaintiff must show" in order toestablish a prima facie case of discrimination. Pet.App.15a. Respondent itself insists that whether a plaintiffwas replaced by someone outside of his protected group3 Respondent "suggests" that the district court applied, not theFifth Circuit standard, but the very different standard adopted bya majority of the other circuits. Br.Opp. 17-18. But the court ofappeals in this case clearly applied the Fifth Circuit’s ownstandard. Pet.App. 15a-16a. Respondent urges the Court toresolve the question presented in "a case that only applied the testof which Petitioner complains." Br.Opp. 18. But in this case theFifth Circuit "only applied" the replacement test, and it is thestandard applied by the court of appeals that matters.3"goes to the heart of the claim[ ]." Br.Opp. 16.4 Indeed,respondent contends that the Fifth Circuit was requiredby this Court’s decisions to impose that veryreplacement requirement. Br.Opp. 14-15.5Respondent contends that, even if this Court wereto reject the Fifth Circuit replacement requirement andhold that Lavigne had established a prima facie case,plaintifi’s claim would still fail because he hasinsufficient evidence of intentional discrimination.Br.Opp. 13, 23-24.6 But the court of appeals belownever reached that issue, and instead rejected Lavigne’sclaim solely because it concluded that he had notestablished a prima facie case. Respondent does notdeny that the Fifth Circuit decision rested solely on theasserted lack of a prima facie case; respondent merely4 In one passage respondent characterizes this factor as merely"relevant" to whether there is a prima facie case. Br.Opp. 16. Butin the instant case, and in all of the 34 Fifth Circuit decisionsquoted in the petition, Pet. App. 66a-72a, that factor is clearly adistinct and necessary element of a prima facie case, in the absenceof which a claim will fail regardless of any other evidence.~ Respondent asserts that in St. Mary’s Honor Center v. Hicks, 509U.S. 502, 506 (1993), this Court held that a prima facie case ofdiscriminatory termination requires proof that the plaintiff’sposition "was ultimately filled by someone outside his protectedclass." Br.Opp. 14-15.~ In a number of passages, the brief in opposition suggests thatLavigne’s discriminatory termination claim was actually tried.Br.Opp. 10, 12. But, as respondent elsewhere makes clear, thatclaim was actually dismissed at summary judgment on the groundthat the plaintiff had not established a prima facie case.4contends that at some point in the future it would beentitled to prevail on this other ground. Respondent’salternative argument was never addressed by the courtof appeals, and can be raised on remand. This Courtroutinely grants review of cases in this posture.7The brief in opposition points to evidence whichrespondent claims supports its contention thatLavigne’s dismissal was not the result of intentionaldiscrimination. Br.Opp. 2-6, 11-12. But those veryarguments highlight the importance of the questionpresented,s Under the Fifth Circuit standard, a courtdismisses a case for want of a prima facie case withouthaving to consider whether the evidence in the case7 Respondent suggests that the Court "wait" for a case in whicha defendant asserted the plaintiff lacked a prima facie case, but didnot contend (as does respondent) that the plaintifflacked sufficientevidence of unlawful motive to survive summary judgment.Br.Opp. 12. There are no such cases; in practice, defendants whichchallenge the existence of a prima facie case always argue as wellthat the plaintiffs lack such evidence. No sensible defendant wouldconcede that a reasonable jury could find unlawful discrimination,and argue only that there was no prima facie case.s Respondent suggests that whether a plaintiff established aprima facie case should be irrelevant once, as occurred here, adefendant articulates a nondiscriminatory reason for the disputedaction. Br. Opp. 13 (citing U.S. Postal Serv. Bd. of Governors v.Aikens, 460 U.S. 711, 715 (1983)). But the Fifth Circuit doesrequire a plaintiff to establish a prima facie case in thosecircumstances. Pet.App. 15a, 66a-72a; see Hague v. University ofTexas Health Science Center at San Antonio, 560 Fed.Appx. 328,334-35 (5th Cir. 2014); Petition for Writ of Certiorari, Paske v.Fitzgerald, No. 15-162, 2015 WL 4651685.would support or even compel a finding of invidiousdiscrimination. Thus in the instant case, the court ofappeals never addressed the conflicting evidence offeredby the parties. Respondent insists it fired Lavigne inpart because he "concealed" his driving record (Br.Opp.4); Lavigne, on the other hand, swore that he haddisclosed the relevant information to his supervisors.Pet. 3. Lavigne asserts that his supervisors had madea number of discriminatory remarks, and that hereported this to management (id.); respondent insiststhat it has no written record of such an internalcomplaint. Br.Opp. 5. The court of appeals neverdiscussed those conflicting accounts, because under thecontrolling Fifth Circuit standard, in the absence of aprima facie case, it is irrelevant whether respondent’sjustification for the dismissal was a palpable fabrication.As the circumstances of this case make clear, theFifth Circuit replacement requirement is not merely aprocedural detail; that requirement effectively defines,and sharply narrows, the protections of Title VII. Anemployer which fires a worker on the basis of race,national origin, gender or religion can immunize itselffrom liability simply by hiring a replacement of the"right" race, national origin, gender or religion. Anyemployer of ordinary ingenuity could resort to thattactic if it suspected that a dismissed employee wasgoing to file a discrimination suit. And that is preciselythe posture of this case. Respondent knew that in thepast Lavigne had complained to his supervisors aboutdiscrimination (Pet. 3), and it hired a black replacementfor Lavigne shortly after Lavigne first contacted EEOC.6II. CERTIORARI SHOULD BE GRANTED TODECIDE WHETHER A TITLE VI~ CHARGEMUST IDENTIFY ALL OF AN EMPLOYER’SUNLAWFUL MOTIVESRespondent does not actually dispute the existenceof a circuit conflict regarding whether a Title VII chargemust identify all of an employer’s unlawful motives.The brief in opposition describes the same Fifth,Seventh and Tenth Circuit decisions imposing thatrequirement that are set out in the petition. CompareBr.Opp. 18-19 with Pet. 22-24. Respondent does notdeny that the contrary rule is applied in the First,Third, Eighth and Eleventh Circuits. Pet. 25-28. Andrespondent does not disagree that in the Third, Fourthand Ninth Circuits, a lawsuit may include any type ofviolation that was actually investigated by the EEOC,even if it had never been raised in the original or anyamended administrative charge. Pet. 27-30.9 The briefin opposition, having described the rule in the Fifth,Seventh and Tenth Circuits, simply fails to address thestandard in the remaining circuits.Respondent does not deny that the court of appealsin this case dismissed Lavigne’s retaliation claim on theground that retaliation and discrimination are different9 In the court below, respondents conceded that the EEOC’sHouston office had investigated Lavigne’s termination andretaliation claims. Pet.App. 24a. The brief in opposition objectsthat there was no EEOC investigation of these claims. Br.Opp. 7.But this assertion concerns the inaction of the EEOC New Orleansoffice which, as we explained, did not conduct any investigation atall. Pet. 4."legal theor[ies]." Pet. App. 17a. To the contrary, thebrief in opposition describes the same Fifth Circuitprecedent establishing that rule that is summarized inthe Petition. Compare Br.Opp. 18-19 with Pet. 22-23.The primary argument advanced by respondent isthat the courts below should never have consideredLavigne’s termination claim at all, because thattermination claim--specifically asserted in the amendedcharge--was not related to the particular discriminatoryacts set out in the original charge. Br. Opp. 21-23. Butthe district court expressly rejected that objection toconsideration of the Lavigne’s termination claim. Pet.App. 37a-38a.1° The court of appeals did not disturb10 The district court concluded that the termination claim wasrelated to the original administrative charge because respondenthad justified dismissing Lavigne on the ground that he was onprobation at the time that the company discovered his allegedconcealment of his driving record, and the original charge hadasserted that the probation itself was the result of discrimination.Pet.App. 38a. The trial court also reasoned that the inclusion inthe original charge of a general allegation of discrimination wassufficient to encompass the termination claim. Id.At page 22 of the brief in opposition, respondent insists thatLavigne’s termination claim was not "relate[d] in any way" to thespecific events referenced in the original charge. See id.(termination claim is "unrelated to the prior events"). But at pp.4-5 of the brief in opposition, respondent justified the dismissal ofLavigne on the ground that he was on probation when the drivingrecord issue arose, the very disputed probation complained aboutin the original charge. And at p. 1, the brief in opposition describesthe claims that were actually tried--the accident-discipline-probation and wage claims that were set out in the originalthat portion of the district court opinion, andrespondent has not sought review of that action by theappellate court.    At most this is an issue thatrespondent might11 be able to raise on remand if thisCourt were to reject the Fifth Circuit rule.The merits arguments advanced in the brief inopposition highlight the importance of this question tothe administration of Title VII and other statutes bythe EEOC. Respondent objects to the wording of theamendment (Br.Opp. 21), and to the seven month delaybetween the original and amended charge (Br.Opp. 7);but it was the EEOC which drafted that amendment,and it was the failure of the EEOC’s New Orleans officeto act on the original charge that resulted in the delay.Pet. 4. These arguments would penalize a chargingparty for the manner in which the Commission handledhis or her charge. Respondent argues that the absencein a charge of a check mark on any box (indicating aparticular type of unlawful motive) should be deemed adenial by the charging party that that type of unlawfulmotive was present. Br. Opp. 7; see Br.Opp. 8 (claim ofretaliation "contradicted" by failure to check retaliationbox in original charge). But it is the EEOC itself thatcharge~as "include[ing] facts relating to [Lavigne’s] previouslydismissed.., termination and retaliation claims."11 Respondent could not pursue this issue on remand if thisCourt were to adopt the standard in the Third, Fourth and NinthCircuits, which permit a plaintiff to file suit about any claim thatwas in fact investigated by the EEOC. Pet. 28-30. Respondentconceded below that in this case the EEOC did investigateLavigne’s retaliatory termination claim. Pet.App. 24a.fills out these forms (Pet. 4), and interpreting in thisway the absence of a checked box could force the EEOCto rewrite its forms. The EEOC understandably objectsthat the "new legal theory" rule seriously interfereswith the Commission’s ability to administer Title VIIand other statutes. Pet. 33-34.CONCLUSIONFor the above reasons, a writ of certiorari shouldissue to review the judgment and opinion of the Courtof Appeals for the Fifth Circuit.Respectfully submitted,ERIC SCHNAPPERCounsel of RecordUNIVERSITY OF WASHINGTONSCHOOL OF LAWP.O. BOX 353020Seattle, WA 98195(206) 616-3167schnapp@u.washington.eduJ. ARTHUR SMITH, IIIJUSTIN M. DELAUNESMITH LAW FIRM830 North StreetBaton Rouge, LA 70802(225) 383-7716Counsel for Petitioner

Reply Brief. Lavigne v. Cajun Deep Foundations, L.L.C., 137 S.Ct. 1328 (2017) (No. 16-464), 2016 WL 9443770

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Reply Brief. Lavigne v. Cajun Deep Foundations, L.L.C., 137 S.Ct. 1328 (2017) (No. 16-464), 2016 WL 9443770

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