RECORD NOS. 15-1331(l); 15-1399 XAP

In the

United States Court of Appeals

For the Fourth Circuit

CARLA CALOBRISI,

Plaintiff-Appellant/Cross-Appellee,

v.

BOOZ ALLEN HAMILTON, INC.,

Defendant-Appellee/Cross-Appellant

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA AT ALEXANDRIA

BRIEF OF AMICUS CURIAE AARP

IN SUPPORT OF PLAINTIFF-APPELLANT/CROSS-APPELLEE

Daniel B. Kohrman*

Laurie A. McCann

Dara S. Smith

AARP Foundation Litigation

601 E St., NW

Washington, DC 20049

(202) 434-2064

Counsel for Amicus Curiae AARP

*Counsel of record

i

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER INTERESTS

Disclosures must be filed on behalf of all parties to a civil, agency, bankruptcy or

mandamus case, except that a disclosure statement is not required from the United

States, from an indigent party, or from a state or local government in a pro se case.

In mandamus cases arising from a civil or bankruptcy action, all parties to the

action in the district court are considered parties to the mandamus case.

Corporate defendants in a criminal or post-conviction case and corporate amici

curiae are required to file disclosure statements.

If counsel is not a registered ECF filer and does not intend to file documents other

than the required disclosure statement, counsel may file the disclosure statement in

paper rather than electronic form. Counsel has a continuing duty to update this

information.

No. 15-1331 Caption: Carla Calobrisi v. Booz Allen Hamilton, Inc.

Pursuant to FRAP 26.1 and Local Rule 26.1, AARP who is Amicus Curiae, makes

the following disclosure:

1. Is party/amicus a publicly held corporation or other publicly held entity?

NO

2. Does party/amicus have any parent corporations? NO

If yes, identify all parent corporations, including grandparent and great-

grandparent corporations: 3. Is 10% or more of the stock of a party/amicus owned by a publicly held

corporation or other publicly held entity? NO

If yes, identify all such owners: 4. Is there any other publicly held corporation or other publicly held entity that

has a direct financial interest in the outcome of the litigation (Local Rule

26.1(b))? NO

If yes, identify entity and nature of interest:

ii

5. Is party a trade association? (amici curiae do not complete this question)

NO

If yes, identify any publicly held member whose stock or equity value could

be affected substantially by the outcome of the proceeding or whose claims

the trade association is pursuing in a representative capacity, or state that

there is no such member: 6. Does this case arise out of a bankruptcy proceeding? NO

If yes, identify any trustee and the members of any creditors’ committee: Signature: /s/Daniel B. Kohrman Date: June 3, 2015

Counsel for: Amicus Curiae AARP

CERTIFICATE OF SERVICE **************************

I certify that on June 3, 2015 the foregoing document was served on all parties or

their counsel of record through the CM/ECF system if they are registered users

or, if they are not, by serving a true and correct copy at the addresses listed

below:

Signature: /s/Daniel B. Kohrman Date: June 3, 2015

iii

TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT ........................................................i

TABLE OF AUTHORITIES ................................................................................... v

STATEMENT OF INTEREST OF AMICUS CURIAE AARP ............................. 1

SUMMARY OF ARGUMENT ............................................................................... 2

ARGUMENT ........................................................................................................... 5

1. THE DISTRICT COURT MISCONSTRUED AND

MISAPPLIED THE SUPREME COURT’S DECISION IN

SPRINT V. MENDELSOHN .......................................................................... 5

A. Mendelsohn Explained that Federal Rules of Evidence

401 and 403 Demand a “Context-Specific Inquiry”

Regarding the Value of Other Employee Evidence of

Workplace Discrimination, Including Consideration of

How Such Evidence Fits a Plaintiff’s “Theory of the

Case.”................................................................................................... 7

B. The District Court Improperly Dismissed Calobrisi’s

Other Employee Evidence by Applying Rigid,

Categorical Rules of Relevance, Instead of Conducting a

“Context-Specific Inquiry” Taking Into Account

Plaintiff’s “Theory of the Case,” as Required by

Meldelsohn ........................................................................................ 12

1. Mendelsohn Provided a Roadmap the District Court

Ignored ......................................................................................... 12

2. A Key Fact Issue: Who Determined Personnel

Outcomes? .................................................................................... 20

iv

II. THE DISTRICT COURT IMPROPERLY DISCOUNTED

CALOBRISI’S OTHER EMPLOYEE EVIDENCE BASED

ON HER USE OF IT TO SHOW A PATTERN OR

PRACTICE OF DISCRIMINATION AGAINST OLDER

WOMEN ...................................................................................................... 22

A. The District Court Erred by Evaluating Calobrisi’s Other

Employee Evidence In Light of Legal Standards

Applicable to Pattern or Practice Claims, But Not to

Pattern or Practice Evidence in An Individual

Discrimination Case .......................................................................... 22

B. The District Court Improperly Discounted Calobrisi’s

Other Employee Evidence Based on An Unfounded

Conclusion that She Intends to – Or Is Required to –

“Establish Class-Wide Discrimination through . . . Prima

Facie Cases of Discrimination on Behalf of the

Testifying Former Employees” of Booz Hamilton ........................... 26

CONCLUSION ...................................................................................................... 29

CERTIFICATE OF COMPLIANCE .........................................................................

CERTIFICATE OF SERVICE AND FILING ..........................................................

v

TABLE OF AUTHORITIES

Cases

Artis v. Finishing Brands Holdings, No. 13-1090,

2015 U.S. Dist. LEXIS 34202 (W.D. Tenn. Mar. 19, 2015) ......................10, 15

Buckley v. Mukasey, 538 F.3d 306 (4th Cir. 2008) ................................................ 10

EEOC v. Burlington Med. Supplies, Inc.,

536 F. Supp. 2d 647 (E.D. Va. 2008) ............................................................... 26

Franks v. Bowman, 424 U.S. 747 (1976) ............................................................... 26

Gilyard v. Northlake Foods, Inc., 367 F. Supp. 2d 1008 (E.D. Va. 2005) ............ 23

Goldsmith v. Bagby Elevator Co., 513 F.3d 1261 (11th Cir. 2008) ...................... 10

Griffin v. Finkbeiner, 689 F.3d 584 (6th Cir. 2012) ............................. 4-5, 9-10, 29

Int’l Bd. of Teamsters v. United States, 431 U.S. 324 (1977) ......................... 24, 25

King v. McMillan, No. 7:05CV00521, 2008 U.S. Dist. LEXIS 28642 (E.D. Va.

Apr. 8, 2008), aff’d, 594 F.3d 301 (4th Cir. 2010) ....................................... 8, 14

Kozlowski v. Hampton Sch. Bd.,

77 Fed. Appx. 133 (4th Cir. 2003) ....................................................4, 27, 28, 29

Lowery v. Circuit City Stores, Inc., 158 F.3d 742 (4th Cir. 1998),

vacated on other grounds, 529 U.S. 1031 (1999) .................................. 4, 23, 24

Mendelsohn v. Sprint/United Management Co.,

587 F. Supp. 2d 1201 (D. Kan. 2010) .............................................................. 14

Mendelsohn v. Sprint/United Management Co.,

402 Fed. Appx. 337 (10th Cir. 2010) ................................................................ 15

Merritt v. Old Dominion Freight Lines, Inc.,

601 F.3d 289 (4th Cir. 2010) ...................................................................... 23, 25

Nuskey v. Hochberg, 723 F. Supp. 2d 229 (D.D.C. 2010) ....................... 10, 15, 18

vi

Robinson v. Runyon, 149 F.3d 507 (6th Cir.1998) ................................................ 25

Schrack v. R+L Carriers, Inc., 565 Fed. Appx. 441 (6th Cir. 2014) .................... 10

Sprint/United Management Co. v. Mendelsohn, 552 U.S. 379 (2008) .......... passim

Spulak v. K Mart Corp., 894 F.2d 1150 (10th Cir. 1990) ...................................... 16

Statutes, Rules and Regulations

Age Discrimination in Employment Act of 1967 (ADEA)

29 U.S.C. §§ 621-34 ................................................................................. passim

Fed. R. App. P. 29(c)(5) ........................................................................................... 1

Fed. R. Evid.

401 ......................................................................................................... 2, 7-9, 27

403 ......................................................................................................... 2, 7-9, 27

404 ................................................................................................................. 9, 27

404(b) ........................................................................................................ 2, 9, 10

Title VII of the Civil Rights Act of 1964 ..................................................... 9, 10, 15

Leglislative History

Advisory Committee’s Notes on Fed. Rule Evid. 401, 28 U.S.C. App. ................. 7

Miscellaneous

LaPenotiere, Angela, and Brown, Marcus D., “Admissibility of ‘Me Too’

Evidence in the Post-Mendelsohn Era,” 20 No. 1 Prac. Litigator 57

(Jan. 2009) ............................................................................................... 9, 12-13

Party Briefs in the District Court

Calobrisi v. Booz Allen Hamilton, Inc., No. 1:14-cv-00996-AJT-MSN (Doc.

261) (Feb. 9, 2015) (Plaintiff’s Memorandum in Opposition to

Defendant’s Motion for Summary Judgment”) ............................................ 6, 23

vii

Calobrisi v. Booz Allen Hamilton, Inc., No. 1:14-cv-00996-AJT-MSN (Doc.

276) (Mar. 4, 2015) (Plaintiff’s Supplemental Brief Concerning

Defendant’s Attachment 1) ...............................................................6, 10, 11, 23

Calobrisi v. Booz Allen Hamilton, Inc., No. 1:14-cv-00996-AJT-MSN (Doc.

281) (Mar. 20, 2015) (Defendant’s Memorandum in Support of Its

Motion In Limine) .............................................................................................. 6

1

STATEMENT OF INTEREST OF AMICUS CURIAE AARP1

AARP is a nonpartisan, nonprofit organization with a membership that helps

people turn their dreams into real possibilities, strengthens communities and fights

for issues that matter most to families, such as employment, healthcare, income

security, retirement planning, affordable utilities and protection from financial

abuse. AARP is dedicated to addressing the needs and interests of older workers,

and strives through legal and legislative advocacy to preserve the means to enforce

their rights. About one third of AARP members work or are seeking work, and

thus, are protected by the Age Discrimination in Employment Act, 29 U.S.C. §§

621-34 (ADEA). Hence, AARP is committed to vigorous enforcement of the

ADEA.

AARP is concerned by the district court’s serious misapplication of

Sprint/United Management Co. v. Mendelsohn, 552 U.S. 379 (2008), an ADEA

decision in which AARP also participated as an amicus curiae. In Mendelsohn, the

Court preserved an individual worker’s opportunity to offer evidence of their

employer’s discrimination against other employees in order to support their own

claims of workplace age bias, and to have such evidence considered if it satisfies

1 In accordance with Fed. R. App. P. 29(c)(5), AARP hereby states that no party’s

counsel authored this brief either in whole or in part, and further, that no party or

party’s counsel, or any person or entity other than AARP, its members and

counsel, contributed money intended to fund preparing or submitting this brief.

2

the demands of the Federal Rules of Evidence. The district court’s decision, if

affirmed, would significantly undermine Mendelsohn, to the detriment of older

workers with ADEA and other workplace bias claims.

SUMMARY OF ARGUMENT

In Sprint/United Management Co. v. Mendelsohn, 552 U.S. 379 (2008), the

U.S. Supreme Court identified standards and procedures for federal courts to

consider evidence of an employer’s intent to discriminate against an individual

plaintiff-employee, like Appellant Calobrisi, in the form of testimony from “other

employees” who allege that they also encountered intentional discrimination at the

hands of the same employer. The Court recognized that trial judges have

discretion whether and how much to credit such evidence, but it also set forth

guidelines within which such discretion must be applied. The Court rejected “per

se rules” of exclusion, like a bar on testimony from other employees with different

supervisors. The Court also held that in reviewing such evidence for relevance and

undue prejudice per Fed. R. Evid. 401 and 403, trial courts must conduct a case-

by-case, “fact-intensive, context-specific inquiry,” taking into account “many

factors, including how closely related the evidence is to the plaintiff’s

circumstances and theory of the case.” Courts have since extended this doctrine to

such evidence proffered as proof of “other acts,” pursuant to Fed. R. Evid. 404(b).

3

In this case, the district court neither acknowledged nor followed the rules

established in Mendelsohn and subsequent decisions regarding other employee

testimony in employment discrimination cases.

First, in particular, the district court failed to consider the relevance of the

testimony of each “other employee” witness proffered by Calobrisi in its full

context, and in light of plaintiff’s theory of the case, as other district courts have

done, including on remand in Mendelsohn itself.

Instead, the district court reviewed proffered witness’ facts in a disjointed

fashion, sometimes weighing all the proffered testimony together, as a single unit,

sometimes examining various proffered witnesses in groups, and in other instances

judging the value of such evidence in terms of categories of differences – never

similarities – with the facts related by Calobrisi. The district court’s categorical

dismissal of Calobrisi’s other employee testimony as “not the kind of” evidence “to

warrant an inference of discrimination” violated Mendelsohn’s guidance as to

proper examination of such evidence. Also seriously flawed was the district court

declaring “immaterial” Calobrisi’s contention that her other employee testimony

showed considerable overlap between Booz Allen supervisors and decisionmakers

responsible for discriminatory actions against them and also for Calobrisi’s

demotion and constructive discharge. Given the importance of this evidence to

Calobrisi’s case, which alleged a “corporate culture” of discriminatory animus

4

against older female professionals, the district court’s grant of summary judgment

to Booz Allen was reversible error.

The district court also went astray in addressing at length a marginal claim

by Calobrisi, not even addressed in her appellate brief, that her evidence of a

“pattern or practice” of age- and sex-based discrimination was so strong that it not

only warranted denial of summary judgment, but also justified a rebuttable

presumption that Calobrisi suffered illegal discrimination. Rather than focusing on

the limited legal support for this contention, see Lowery v. Circuit City Stores, Inc.,

158 F.3d 742 (4th Cir. 1998), vacated on other grounds, 529 U.S. 1031 (1999) (the

district court expended unnecessary energy criticizing Calobrisi’s pattern or

practice evidence – perfectly appropriate in an individual case, according to

Lowery – for falling short of standards required to prove a pattern or practice

claim.

Finally, the district court misconstrued Kozlowski v. Hampton Sch. Bd., 77

Fed. Appx. 133 (4th Cir. 2003), as supporting its giving short shrift to Calobrisi’s

other employee evidence. On the contrary, Kozlowski endorsed presenting such

evidence to a jury, because “if credited, [it would be] highly probative as to [the

defendant employer’s] intent.” The same decision, this Court also rejected the

notion that such evidence inevitably creates logistical difficulties – i.e., a need for

“mini-trials.” As another court said in Griffin v. Finkbeiner, 689 F.3d 584 (6th Cir.

5

2012), such a broad rationale “would tend to exclude any” other employee

evidence, “regardless of how closely related it is to the plaintiff’s circumstances.”

Indeed, in Kozlowski this Court identified means at a district court’s disposal to

limit parties’ back and forth regarding anecdotes related by other employees,

without excluding such evidence altogether. Thus, the district court in this case

erred in treating potential logistical challenges raised by other employee evidence

at the trial stage as a basis to dismiss Calobrisi’s evidence as a means to oppose

summary judgment.

AARP takes no position regarding the propriety of the district court’s other

findings as to the sufficiency of Appellant Calobrisi’s evidence offered to defeat

summary judgment. However, to the extent the court neglected to consider

Calobrisi’s “other employee” evidence together with the rest of her proof of

alleged intentional age and sex bias, the analysis was inconsistent with Mendelsohn

and calls for this Court to reverse the summary judgment for Appellee Booz Allen.

ARGUMENT

I. THE DISTRICT COURT MISCONSTRUED AND MISAPPLIED THE

SUPREME COURT’S DECISION IN SPRINT V. MENDELSOHN.

A critical component of the district court’s summary judgment for Booz

Allen was the conclusion that key testimony of seven “other employees” alleged

by Calobrisi also to have suffered disparate treatment on grounds of age and sex,

similar to that which she endured “is not the kind of anecdotal evidence that

6

establishes a sufficient connection to a particular plaintiff to warrant an inference

of discrimination as to that particular plaintiff.” Joint Appendix (J.A.) 1860.2 In so

ruling, the district court resolved issues governed by Sprint/United Management

Co. v. Mendelsohn, 552 U.S. 379 (2008). Yet the court never acknowledged legal

standards embraced in Mendelsohn that are germane to this case. Indeed, the

court’s only cite to Mendelsohn was a “but see” reference, documenting the district

court’s discretion to exclude “me-too” evidence, but not addressing how, under

Mendelsohn, it should assess admissible “testimony by nonparties alleging

discrimination at the hands of supervisors of the defendant company.” J.A. 1858

(quoting Mendelsohn, 552 U.S. at 380).3

2 The seven witnesses also identified “management decisions [that] eight other

former . . . employees experienced while at Booz Allen, including demotions,

terminations and lack of promotions which [likewise, allegedly] evidenced

discrimination on the basis of sex or age.” J.A. 1856.

3 Oddly, the district court repeatedly referred to this evidence as “Plaintiff’s” (or

“what she refers to as”) “me-too evidence.” J.A. 1860; id. 1852, 1855. However,

only Booz Allen, and not Calobrisi, uses this terminology. Compare, e.g.,

Calobrisi v. Booz Allen Hamilton, Inc., No. 1:14-cv-00996-AJT-MSN (Doc. 281)

(Mar. 20, 2015) (Defendant’s Memorandum in Support of Its Motion In Limine), 5

(“C. Plaintiff Cannot Proffer “Me Too” Witnesses at Trial Under Sprint v.

Mendelsohn Who Have No Nexus to Her Claims.”) with id., (Doc. 261) (Feb. 9,

2015) (Plaintiff’s Memorandum in Opposition to Defendant’s Motion for

Summary Judgment”), 21 (“E. The Evidence of Booz Allen’s Discriminatory

Corporate Culture Toward Older Women Demonstrates Pretext”). Amicus curiae

AARP generally refers to this evidence as “other employee” testimony.

7

Hence, it is unsurprising that the district court’s discussion of other

employee evidence was seriously flawed. Because of the importance of this

evidence to Calobrisi’s “theory of the case,” id. at 388, amicus curiae AARP

submits that the district court’s decision must be vacated and this case remanded

for reconsideration of the summary judgment record “under the applicable Rules.”

Id. Any other result would strip Mendelsohn of its meaning, and undermine

protection for individual older workers such as Calobrisi, whose age (and sex, and

other interrelated) bias claims are premised on anecdotal, other employee

testimony, rather than complex and expensive statistical and other expert analyses.

A. Mendelsohn Explained that Federal Rules of Evidence 401 and

403 Demand a “Context-Specific Inquiry” Regarding the Value of

Other Employee Evidence of Workplace Discrimination,

Including Consideration of How Such Evidence Fits A Plaintiff’s

“Theory of the Case.”

Mendelsohn provides important guidance as to the proper assessment of other

employee evidence in discrimination cases. In particular, Mendelsohn addresses

how courts should determine, first, whether such evidence is relevant, under

Federal Rule of Evidence 401, and if so, whether nonetheless, such evidence is

unduly prejudicial, under Rule 403. The Court declared:

Relevance and prejudice under Rules 401 and 403 are determined in the

context of the facts and arguments in a particular case, and thus are generally

not amenable to broad per se rules. See Advisory Committee’s Notes on Fed.

Rule Evid. 401, 28 U.S.C. App., p. 864 (“Relevancy is not an inherent

characteristic of any item of evidence but exists only as a relation between an

item of evidence and a matter properly provable in the case.”).

8

552 U.S. at 387-88. Based on this general presumption against “broad per se

rules” concerning evidentiary relevance or prejudice, the Court rejected such rules

in regard to “evidence of discrimination by other supervisors.” Id. at 388. 4

The issue before this Court is whether the district court’s categorical

dismissal of Calobrisi’s other employee testimony as “not the kind of” evidence “to

warrant an inference of discrimination” violated Mendelsohn’s ban on per se

evidentiary rules or its related guidance as to proper examination of such evidence.

Amicus curiae AARP submits that it did.

The Mendelsohn Court elaborated on its per-se-rule ban by outlining a

flexible approach to evaluating other employee evidence. It said:

whether [such] evidence . . . is relevant in an individual ADEA case is fact

based and depends on many factors, including how closely related the

evidence is to the plaintiff’s circumstances and theory of the case. Applying

Rule 403 to determine if evidence is prejudicial also requires a fact-intensive,

context-specific inquiry.

Id. at 388. One touchstone of this method is an analysis that is “context-specific.”

Id. In other words, it must be conducted in light of the totality of the facts

presented in a specific case. See, e.g., King v. McMillan, No. 7:05CV00521, 2008

U.S. Dist. LEXIS 28642, at *4 (E.D. Va. Apr. 8, 2008), aff’d, 594 F.3d 301 (4th

4 The precise holding of Mendelsohn was that “Rules 401 and 403 do not make

such evidence per se admissible or per se inadmissible.” 552 U.S. at 388. The

district court assumed, and thus did not rule on, the admissibility of Calobrisi’s

other employee evidence. Booz Allen sought to exclude it by filing a motion in

limine, see above n.3, left pending when the trial court granted summary judgment.

9

Cir. 2010) (noting, in a Title VII case citing Mendelsohn, that “[t]he court is

satisfied that the evidence offered by the other women was highly probative of the

totality of circumstances of [plaintiff’s] work.”).

A second, related imperative is a review conducted in light of a plaintiff’s

“theory of the case.” Mendelsohn, 552 U.S. at 388. Relevance, that is, must be

considered in regard to factual and legal propositions that the plaintiff asserts, and

that the court determines are “matter[s] properly provable in the case.” Id. at 387-

88 (quoting Advisory Committee’s Notes). In an employment discrimination case,

[other employee] evidence is relevant if it has a tendency to make it more or

less likely that the employer acted with discriminatory intent—that is,

because discrimination occurred against other employees, it is more likely

than not that it happened to this plaintiff.

LaPenotiere, Angela, and Brown, Marcus D., “Admissibility of ‘Me Too’ Evidence

in the Post-Mendelsohn Era,” 20 No. 1 Prac. Litigator 57, 58-59 ((Jan. 2009)

(hereinafter LaPenotiere and Brown, “Post-Mendelsohn Era”) (emphasis supplied).

Since Mendelsohn, several lower federal courts have recognized that Federal

Rule of Evidence 404(b) – which permits introduction of proof of “other acts” to

show, inter alia, “motive” or “intent” (but not “character”) – is yet another basis for

considering other employee testimony in employment discrimination cases. In

such instances, Mendelsohn’s principles apply. “Although Sprint [v. Mendelsohn]

addressed only Rules 401 and 403, the Court’s admonition against per se rules in

this context logically extends to Rule 404.” Griffin v. Finkbeiner, 689 F.3d 584,

10

600 (6th Cir. 2012) (also noting “other courts have held that ‘other acts’ evidence

in employment-discrimination cases goes to the employer’s motive or intent to

discriminate, which is a permissible use of such evidence under Rule 404(b).”)

(citing Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1286 (11th Cir. 2008)

(decided six weeks before Mendelsohn), and Nuskey v. Hochberg, 723 F. Supp. 2d

229, 233 n.2 (D.D.C. 2010)). See also Schrack v. R+L Carriers, Inc., 565 Fed.

Appx. 441, 444-45 (6th Cir. 2014) (following Griffin); Artis v. Finishing Brands

Holdings, No. 13-1090, 2015 U.S. Dist. LEXIS 34202, at *37-38 (W.D. Tenn.

Mar. 19, 2015) (“[e]xpanding on the Supreme Court’s holding in . . . Mendelsohn”

by reviewing “‘other acts’ evidence . . . of discrimination by [a defendant]

employer against non-party employees” in a Title VII race case). See also Buckley

v. Mukasey, 538 F.3d 306, 319 (4th Cir. 2008).

In the district court, Calobrisi relied on Rule 404(b)’s “other acts” rationale

for offering her other employee evidence. Calobrisi v. Booz Allen Hamilton, Inc.,

No. 1:14-cv-00996-AJT-MSN (Doc. 276) (Mar. 4, 2015) (Plaintiff’s Supplemental

Brief Concerning Defendant’s Attachment 1), 3-5. But the court ignored this

argument in granting summary judgment, as well as Calobrisi’s detailed fact

presentation setting forth how “the same decision makers were ultimately

responsible for the corporate culture and discrimination to which all the women

11

were subjected.” Id. at 2; see also id. at 6-10 (reviewing testimony of the seven

witnesses).

To be sure, Mendelsohn recognizes that “courts of appeals afford broad

discretion to a district court’s evidentiary rulings,” 552 U.S. at 384, but this

principle only applies within limits. For instance, the Mendelsohn Court took

pains to scour a prior district court ruling to assure that the trial judge had not

adopted Sprint’s arguments in favor of a per se rule (i.e., that other employee

testimony regarding alleged age bias against other employees “would be relevant

only if it came from employees who were ‘similarly situated’ to Mendelsohn in that

they had the same supervisors”). Id. at 382 (emphasis supplied). The Court

decided that “the Court of Appeals erred in concluding that the District Court

applied a per se rule.” Id. at 383. Rather, the Mendelsohn Court said, the district

court rejected Sprint’s narrow view of “similarly situated.” Id. at 382-83.

Moreover, the trial judge specifically stated that it was open to considering other

employee testimony supporting Mendelsohn’s theory of the case (i.e., that Sprint’s

“stated nondiscriminatory reason” for terminating Mendelsohn – a reduction in

force – was “a pretext for age discrimination”), although it ultimately found none

met that standard. Id. The same careful scrutiny of the district court’s reasoning is

called for here. Because the district court largely ignored both context and

12

Calobrisi’s theory of the case in assessing her other employee evidence, such

scrutiny should lead this Court to reverse the district court’s decision.

B. The District Court Improperly Dismissed Calobrisi’s Other

Employee Evidence by Applying Rigid, Categorical Rules of

Relevance, Instead of Conducting A “Context-Specific Inquiry”

Taking Into Account Plaintiff’s “Theory of the Case,” as

Required by Mendelsohn.

1. Mendelsohn Provided a Roadmap the District Court Ignored.

In Mendelsohn the Supreme Court sketched out a process for considering

other employee evidence of the sort offered by Calobrisi. In short,

Both plaintiffs and defendants will need to carefully articulate a step-by-step

analysis for the Court, presenting facts showing why the evidence is or is

not relevant to the issue of the employer’s discriminatory intent in the

present case, and then weighing the potential relevance against the risk of

undue prejudice.

LaPenotiere and Brown, “Post-Mendelsohn Era,” 20 No. 1 Prac. Litigator at 59

(emphasis supplied). Regrettably, this reflects neither the focus nor the format of

the district court’s analysis of such evidence.

Rather, most of the district court’s analysis is contained in a single paragraph

that primarily referenced the proffered witnesses as a group, or in sub-groups, not

as individuals. See J.A. 1859-60. Only obliquely, in footnotes, did the court refer

13

to them as persons with distinct stories and identities, and even then only by initials

the court used to mask their names. See id. 1856-57 n.15, 1861 n.20.5

While the district court alluded vaguely to whether the proffered testimony

“warrant[s] an inference of discrimination,” the court did not squarely frame the

issue of discriminatory intent that is the purpose for which Calobrisi relies on her

other employee witnesses. Only elsewhere – in a tangentially related discussion

whether such testimony, by itself (i.e., not in full context), constitutes “direct

evidence” of discrimination – did the district court address whether such

statements are “sufficiently probative of discriminatory animus to allow a jury to

infer pretext.” J.A. 1861 n.20.

And nowhere did the district court conduct a “step-by-step analysis,”

balancing the relevance and possible prejudice of each proposed witness’

testimony, as Mendelsohn requires.

The result of the district court’s disjointed approach is the complete absence

of the “context-specific inquiry” taking into account the plaintiff’s “theory of the

case” mandated by Mendelsohn. For example, the court never integrated its

multiple, partial enumerations of facts and assertions presented by Calobrisi’s other

5 The reason for this is unclear, as Appellant refers to them by name. See, e.g., Br.

of Appellant/Cross-Appellee at 35-48.

14

employee witnesses into full, coherent accounts of their proposed testimony.6

Hence, the court made the very error resisted in King v. McMillan, 2008 U.S. Dist.

LEXIS 28642, at *5-6, in which the district court chided an employer opposing the

presentation of other employee testimony for “seek[ing] to disaggregate the

experience of employees so completely that virtually no [Title VII] hostile work

environment claim . . . could succeed.”

In many cases, including Mendelsohn itself, courts have readily adopted a

dramatically different approach. On remand in Mendelsohn, Judge Vratil

carefully, separately, and at some length, examined the facts associated with and

assertions made by each proposed other employee witness. See Mendelsohn v.

Sprint/United Management Co., 587 F. Supp. 2d 1201, 1211-15 (D. Kan. 2010)

(extended passages discussing Bonnie Hoopes, Yvonne Wood, Sharon Miller, John

Borel and John Hoopes). This enabled the Tenth Circuit to recount specifically

6 Thus, for example, the court’s “me-too” testimony summary for “M.F.,” J.A.

1856 n.15 merely reports her own statements that “older women on an upward

trajectory [at Booz Allen] ‘are in trouble’ and are targets for being forced out.”

The reader is forced to compare this passage with a later footnote, see id. 1861

n.20, devoted exclusively to “proffered direct evidence of discriminatory animus,”

to learn that M.F.’s testimony referred to earlier is based on admissions by Booz

Allen’s CEO (Shrader) and General Counsel (Appleby) highly suggestive of age-

and sex-based discriminatory intent in regard to older female professionals at the

firm, like Calobrisi: “(7) M.F. heard Shrader say multiple times that ‘there are no

women qualified to be on the leadership team.’; (8) Appleby told M.F. to assure

Shrader that she intended to continue working when she became the primary

caretaker for her children; (9) Appleby told M.F. that ‘You are the top woman at

Booz Allen now, and that puts you in a very tricky and difficult position.’”

15

how “[t]he district court analyzed the facts and the relationship between the

evidence and Ms. Mendelsohn’s circumstances and theory of the case.”

Mendelsohn v. Sprint/United Management Co., 402 Fed. Appx. 337, 341 (10th Cir.

2010).

Similarly, in Nuskey v. Hochberg, the district court conducted in-depth,

witness-by-witness evaluations of so-called “me-too” evidence proffered by a

plaintiff-employee with Title VII claims, in order to comply with Mendelsohn.

723 F. Supp. 2d at 232-35 (discussing proposed trial testimony of each of five live

witnesses and one deceased deponent; the court permitted the latter’s deposition to

be admitted and one of the former to testify). Accord Artis v. Finishing Brands

Holdings, 2015 U.S. Dist. LEXIS 34202, at *37-54 (conducting individual

analyses, in a Title VII race case, of proposed testimony by two other employees,

of EEOC charges by four others, and of evidence about an internal bias complaint

by yet another). Such efforts should have been easy enough for the district court to

emulate. This Court should require as much on remand.

Instead of an individualized, “context-specific inquiry” regarding similarities

and differences between Calobrisi and her proposed other employee witnesses, the

district court focused almost exclusively on categorical differences between the

plaintiff’s circumstances and those of groups of her proposed witnesses. The

district court began by noting the witnesses’ “vari[ous]” jobs, managers and

16

placements in “the Booz Allen organization,” J.A. 1859, only to indicate a few

lines later that just four of seven hailed from “different divisions [than Calobrisi]

. . . with differing titles [and] supervisors.” Id. 1860. We are left to ponder the

extent and significance of these differences, and of Calobrisi’s similarities with at

least the three who had the same supervisor (General Counsel Appleby). The court

ignored such questions, but emphasized as to the latter, “only two had a position

arguably comparable to Plaintiff in the Law Department.” Id. (emphasis supplied).

Likewise, the court observed, without explaining how and why it matters, that none

of the seven “were supervised by Osborne, Meyers and Manya,” id., who made up

a mere sub-set of the all-male management group alleged to have played a role in

adverse actions affecting all seven as well as Calobrisi. See J.A. 1861 n.20.

Finally, as if Mendelsohn had never been decided, the district court closed

its single-paragraph analysis by citing two decisions more than a decade older than

Mendelsohn, from outside this Circuit, purporting to show that other employee

evidence is “sufficient . . . to warrant an inference of discrimination” only if the

“witnesses worked in the same positions and departments or . . . could testify

directly to the discriminatory behaviors of the plaintiff’s supervisors.” Id. 1860.7

This is plainly not the law and warrants correction.

7 Calobrisi also disputes the court’s characterization of one of these decisions,

Spulak v. K Mart Corp., 894 F.2d 1150 (10th Cir. 1990), arguing that it is closely

analogous to this case factually. See Br. of Appellant/Cross-Appellee at 50-52.

17

In a similar vein, the district court pointed out still other supposed holes in

Calobrisi’s other employee evidence without providing grounds to believe such

imperfections clash with or undermine her theory of this case: i.e., that Booz Allen

had a “corporate culture” of “discrimination against older women” attributable to

an “all-male management team in Booz Allen’s McLean [VA] office” that imposed

a “glass ceiling” restricting opportunities for high-achieving senior female

professionals and leading to their being “demoted, fired or otherwise marginalized

because of their age and gender.” See Br. of Appellant/Cross-Appellee at 34, 49,

53. For example, the district court noted that “none” of Calobrisi’s other employee

witnesses “were affected by anything pertaining to the [2011 Booz Allen]

restructuring [in which Calobrisi was demoted] or any decisions made with respect

to that restructuring, including any decision pertaining to the plaintiff.” J.A.1859-

60. However, Calobrisi’s case is not solely premised on a claim that Booz Allen’s

“restructuring” was itself discriminatory. Rather, Calobrisi also argues that her

treatment in the “restructuring” reflected a “corporate culture” of bias against older

women professionals.

Similarly, the district court highlighted its conclusion that four of seven

proffered witnesses had “limited, if any, direct knowledge of the alleged

discriminatory actions at issue in this case.” Id. 1860. Once again, the court

ignored the implicit inference that three of seven did have such “direct

18

knowledge,” and thus, a specific “connection to [this] particular plaintiff.” Id.

Moreover, the record does not indicate that Calobrisi’s “glass ceiling” theory of

discrimination rests on her witnesses’ knowledge of how she allegedly came up

against such a barrier. Rather, such testimony is offered to show that the barrier

exists, and is infected with intentional age and sex bias, and that therefore,

Calobrisi’s demotion likely reflected the same bias.

The district court’s analysis was driven by categories – i.e., different

supervisor; different job; different department; etc. – not context. It also stressed

rules of thumb – e.g., no “direct knowledge” – not the nature and extent of links to

plaintiff’s theory of the case. And even when this cramped approach produced

indicia of similarity – i.e., same supervisor; same department; same negative

treatment; etc. – the court focused on differences, not weighing them against

similarities, or assessing them in their full context, in terms of their importance to

legal theories and associated proof of discriminatory intent. Compare Nuskey v.

Hochberg, 723 F. Supp. 2d at 233-34 (discussing “ascertainable similarities to the

[plaintiff’s] situation” and addressing if they were “enough to overcome” factors

such as temporal differences and different decisionmakers).

Reviewing just the limited portions of Calobrisi’s other employee testimony

summarized by the district court reveals clear signs of potentially important

evidence supporting plaintiff’s “theory of the case.” For example, the court notes

19

that “J.H.” alleged that she – much like Calobrisi – “was ‘abruptly demoted’” in

her 50s for reasons that seem possibly pretextual, because they are less than

compelling and only marginally related to substantive performance (she was told

“several people who were working for her reported that they did not like [doing

so]”). J.A. 1856 n.15. Moreover, J.H. “also testified about several other older

wom[e]n who, like her . . . were demoted . . . after achieving a certain level of

success.” Id. Yet the district court said nothing about this evidence plainly

relating to Calobrisi’s core complaint that her demotion lacked a “logical

explanation.” Id. 1852. Further, “C.N.,” a “partner,” reported having “work . . .

unexpectedly taken away from her” and being “asked to leave in 2012” (one year

after Calobrisi) “after nine years with the company (one less than Calobrisi). Id.

1856 n.15. And “R.S.,” like Calobrisi a senior female attorney “in the LD,”

decided to leave after 12 years at the firm “when her management responsibilities

were taken away.” Id. 1857 n.15. Again, the court did nothing to explore obvious

parallels between these witnesses and Calobrisi, who “abruptly” lost all her

commercial and international legal work and responsibilities for maintaining these

practice areas in Booz Allen’s “restructuring.” Id.8

8 See also J.A. 1820:l.25-1821:l.6 (Mar. 6, 2015 Tr., 37-38) (counsel for Calobrisi:

“That pattern is the abrupt taking away of responsibilities. That's Ms. Calobrisi.

That's Ms. Shaffert. That's Ms. Nelson, Ms. Finn, Ms. Hyde. They're all just being

-- and Ms. Merolla. That's all of them abruptly told, We're doing something

different, or were given some other reason that they don't think is appropriate.”).

20

The district court’s decision may not have reflected its application of per se

rules discredited by Mendelsohn, but its came very close to that, and the impact of

the district court’s analysis on Calobrisi’s case was the same.

2. A Key Fact Issue: Who Determined Personnel Outcomes?

Another flaw in the district court’s decision is its handling of a critical fact

issue: the identity of those who decided on Caliobrisi’s demotion, non-promotion

and alleged constructive discharge; and the scope of their involvement in personnel

actions affecting her other employee witnesses. The district court opined that

General Counsel Appleby was the sole decisionmaker in regard to restructuring the

Legal Department, assigning Calobrisi to “serve as team leader for only Global

Real Estate” (i.e., her non-promotion) and presumably, the related decision to

demote Calobrisi from a Principal to a Senior Associate, which allegedly caused

her “forced” departure. J.A. 1843 n.3. But the court assumed, for purposes of

summary judgment, “that there exists a genuine issue of fact concerning who were

the relevant decision makers.” Id.

While the court called “that dispute immaterial to [its] analysis and

decision,” id., it sabotaged that thesis in a later passage recognizing that the dispute

is fundamental to Calobrisi’s theory of the case, that Booz Allen maintains a

“corporate culture” of bias against older women professionals. Consistent with

that theory, Calobrisi “contends that ‘[a]ll of the women who testified in this case

21

were subject to and dealt with the same decision makers at Booz Allen who had

input into the actions affecting [her] employment.” Id. 1860 n.17. The court may

be right that even if correct, “this characterization . . . of the record. . . does not

establish that the testifying women [had] the same supervisor or supervisors as

Plaintiff or that the employment decisions that affected them were made by the

same persons as Plaintiff’s.” Id. But after Mendelsohn, same supervisors or

persons responsible for adverse personnel actions are not required to demonstrate

the relevance of other employee testimony as to the presence or absence of

unlawful bias at the same firm. And Calobrisi’s “characterization of the record,” if

correct, is powerful support for her “corporate culture” of bias theory of this case.

This is especially so to the extent that there was substantial overlap in supervisors

or responsibility for personnel decisions at Booz Allen, as the hotly disputed record

in this case suggests.9 It follows that in this respect, the district court erred: the

alleged identity of Booz Allen supervisors and decisionmakers manifestly is a

genuine issue of material fact for trial.

This aspect of Calobrisi’s case distinguishes it from Mendelsohn, in which it

was undisputed that “[n]one of the five witnesses [whose testimony was at issue]

worked in the [same part of the firm] with [the plaintiff].” 552 U.S. at 382. Here,

9 See Br. of Appellant/Cross-Appellee at 35-48 (identifying record support for

various links between management personnel involved in adverse actions

complained of by Calobrisi and by her other employee witnesses).

22

three of seven did. “[N]or had any of th[e] [challenged Mendelsohn witnesses]

worked under [any of] the supervisors in her chain of command.” Id. (emphasis

supplied). Here, the contention is that all seven other employee witnesses and the

plaintiff “were subject to and dealt with the same decision makers at Booz Allen.”

J.A. 1860 n.17.

The district court’s determination that this factual dispute was immaterial

was clear error and is ample justification for its decision on so-called “me-too”

evidence to be vacated and remanded with instructions to apply the legal guidance

afforded by Mendelsohn.

II. THE DISTRICT COURT IMPROPERLY DISCOUNTED

CALOBRISI’S OTHER EMPLOYEE EVIDENCE BASED ON HER

USE OF IT TO SHOW A PATTERN OR PRACTICE OF

DISCRIMINATION AGAINST OLDER WOMEN.

A. The District Court Erred by Evaluating Calobrisi’s Other

Employee Evidence In Light of Legal Standards Applicable to

Pattern or Practice Claims, But Not to Pattern or Practice

Evidence in An Individual Discrimination Case.

In her summary judgment briefing, Calobrisi stated that her evidence,

including her other employee testimony, demonstrated intentional age and sex bias

on the part of Booz Allen arising out of a “corporate culture” of “discriminatory

23

animus” as well as “a pattern and practice and a generalized atmosphere of

discrimination.”10

The authorities on which Calobrisi relied permit

[employment discrimination] plaintiffs [to] use evidence of a pattern or

practice of discrimination to help prove claims of individual discrimination

within the McDonnell Douglas framework, [because such evidence] may

very well be useful and relevant to prove . . . that the individual’s adverse

employment action occurred under circumstances giving rise to an inference

of unlawful discrimination or that the employer’s articulated reasons for the

adverse action was merely pretext . . . .

Gilyard v. Northlake Foods, Inc., 367 F. Supp. 2d 1008, 1016 (E.D. Va. 2005)

(quoting Lowery v. Circuit City Stores, Inc., 158 F.3d 742, 758-59 (4th Cir. 1998),

vacated on other grounds, 527 U.S. 1031 (1999)). See J.A. 1858 (citing Gilyard

and Lowery). Likewise, in Merritt v. Old Dominion Freight Lines, Inc., 601 F.3d

289, 299, 301 (4th Cir. 2010), this Court ruled that evidence of “sentiments about

women at the [employer’s] company generally,” including evidence that various

personnel at the firm “harbored discriminatory animus against women,” was

relevant and a reason to deny summary judgment in an individual sex bias case

focused on the misconduct of a particular manager, because such evidence “may

well be believed and may well yield . . . an inference” that the employer

“unlawfully discriminated against [the female plaintiff].” The district court cited

and seemed to accept these precedents.

10

Calobrisi v. Booz Allen Hamilton, Inc., No. 1:14-cv-00996-AJT-MSN (Doc.

261) (Feb. 9, 2015) (Plaintiff’s Memorandum in Opposition to Defendant’s Motion

for Summary Judgment”), 21; see id. (Doc. 276) (Mar. 4, 2015) (Plaintiff’s

Supplemental Brief Concerning Defendant’s Attachment 1), 2-5.

24

Yet the district court appears to have been gravely concerned by a brief

exchange at oral argument suggesting that Calobrisi was entitled to establish a

“rebuttable presumption” of discrimination by showing a pattern or practice of age

and/or sex discrimination, J.A. 1857, as in Int’l Bd. of Teamsters v. United States,

431 U.S. 324 (1977), see J.A. 1859 (citing Teamsters). As a result, the court spent

more than five pages of its 26-page opinion, including most of its analysis of

Calobrisi’s other employee testimony, addressing this issue. See J.A. 1856-59,

1860-1862. It need not have bothered, as in Lowery, this Court also held that “in a

private, non-class action,” although individual plaintiffs “may use evidence of a

pattern or practice of discrimination to help prove claims of individual

discrimination within the McDonnell Douglas framework,[they] are not entitled to

the benefit of the Teamsters method of proof.” Lowery, 158 F.3d at 760-61.

Nevertheless, the court worried that Calobrisi somehow wished to establish a

“classwide” pattern and practice of discrimination in an individual case. J.A. 1857.

The court faulted Calobrisi for focusing on “[a]necdotal evidence” of a biased

corporate culture, whereas “[t]ypically, pattern and practice evidence consists of

statistical proof . . . often accompanied by direct evidence of discriminatory animus

on a class basis . . .” Id. 1858. The court further observed that such statistical

evidence often was offered to prove “disparate impact within the work force,” a

claim Calobrisi never advanced in this case. Id. And once again treating this

25

individual case like a class action, the court criticized Calobrisi’s failure to present

direct evidence of bias in the form of “statements by supervisors or decision-

makers sufficient to raise an inference of discriminatory animus directed against a

class based on age or gender.” Id. 1861. (emphasis supplied).

Over and over, the district court found Calobrisi’s proof wanting for not

meeting requirements wholly inapplicable in this case. With respect to statements

constituting direct evidence of bias, the district court held up as the standard sexist

comments like “We don’t have no females”, and even more egregious racial

invective employing the “n-word.” J.A. 1861-62 (discussing Merrit, 601 F.3d at

301, and Robinson v. Runyon, 149 F.3d 507, 512 (6th Cir.1998)). Elsewhere the

court concluded: “Plaintiff has not proffered any of the kinds of statistical proof of

disparate impact or direct evidence of discriminatory animus necessary to raise the

inferences and rebuttable presumptions that Plaintiff relied on.” J.A. 1859.

It seems very likely that the district court’s determination to deny Calobrisi

any basis for claiming a rebuttable presumption of age or sex bias – unnecessary it

turns out, in light of the clear teaching of Lowery – distracted the court from

following Mendelsohn’s requirements, which – unlike those set out in Teamsters –

are indisputably applicable in this case. This matter should be remanded for

correction of this error.

26

B. The District Court Improperly Discounted Calobrisi’s’s Other

Employee Evidence Based on An Unfounded Conclusion that She

Intends to – Or Is Required to – “Establish Class-Wide

Discrimination through . . . Prima Facie Cases of Discrimination

on Behalf of the Testifying Former Employees” of Booz Hamilton.

Related to the district court’s excessive concern about Calobrisi’s supposed

determination “to establish class-wide discrimination in a non-class action case,”

J.A. 1862, is the court’s suggestion – in this instance wholly unsupported by any

cite to the record – that Calobrisi “proposes to establish [such] class-wide

discrimination through McDonnell-Douglas prima facie cases of discrimination on

behalf of the testifying former employees.” Id. Amicus curiae AARP will let

Calobrisi speak for herself whether this is indeed her desire (despite there being no

evidence of such in the record). However, AARP is concerned lest this Court

infer, as the district court evidently did, that such a proof method, and such a proof

burden, is inherent in an age (or sex) discrimination plaintiff’s proposal to offer

pattern or practice evidence in the form of other employee testimony. It is not.

In Griffin v. Finkbeiner, the Sixth Circuit reversed a district court’s refusal

to hear from three other e11

mployee witnesses, whose testimony the plaintiff

offered to support his own discrimination claim, on grounds that this evidence

11

Even where class action plaintiffs seek to establish a rebuttable presumption of

bias, “each plaintiff need not individually prove all elements of disparate treatment

in order to establish an overall pattern or practice of discrimination . . . [b]ecause a

pattern or practice case focuses on the employer’s policy as it affects the total

working environment.” EEOC v. Burlington Med. Supplies, Inc., 536 F. Supp. 2d

647, 660 (E.D. Va. 2008) (citing Franks v. Bowman, 424 U.S. 747, 772 (1976)).

27

might require “mini-trials” to assess the merits of each witness’ charges of bias.

689 F.3d at 591, 600. The Court of Appeals said that the district court’s broad

rationale “would tend to exclude any ‘other acts’ evidence, regardless of how

closely related it is to the plaintiff’s circumstances.” Id. at 600. In other words,

“[b]ecause ‘other acts’ evidence can be admissible, this concern cannot, by itself,

serve as blanket grounds for exclusion.”). Id. On this precise issue, the circuit

court declared: “[a]lthough Sprint addressed only Rules 401 and 403, the Court’s

admonition against per se rules in this context logically extends to Rule 404 as

well.” Id.

By contrast, in Kozlowski v. Hampton Sch. Bd., 77 Fed. Appx. 133 (4th Cir.

2003), on which the district court relies, the plaintiff himself proposed not only

affirmative other employee testimony supporting his ADEA claim, “but also

evidence allegedly disproving the reasons that Pearson [who replaced the plaintiff

as football coach and the other employee witnesses as well] would have given for

th[e] nonrenewals.” Id. at 149. That is, the plaintiff explicitly envisioned a series

of mini-trials. This Court affirmed the district court’s refusal to approve them.

Yet in doing so, this Court did not exclude “other acts”/other employee

testimony altogether. On the contrary, the Court simply affirmed the exclusion of

Kozlawski’s “reply” testimony. Thus,

In contrast with [plaintiff’s] proffer of evidence attempting to disprove [the

decisionmaker] Pearson’s reasons for his nonrenewal of the three coaches in

28

1994, Kozlowski’s evidence of Pearson’s past age-related comments [in

these three instances] would have been relatively simple to present and

rebut, and, if credited, highly probative as to Pearson’s intent. [His] rebuttal

evidence would have consisted simply of testimony by Pearson denying

making those statements. The jury would then have been left to make

credibility determinations about this testimony, just as it was required to [do]

regarding Kozlowski’s and Pearson’s conflicting testimony about their

[later] conversation about Kozlowski’s non-renewal.

77 Fed. Appx. at 149. Hence, if this Court concurs with the district court that

Calobrisi’s case “closely resembles the situation faced in Kozlowski,” J.A. 1862, it

should rule, as did the Kozlowski Court, that the presentation of the proffered

“other acts” evidence “would not have required extended ‘mini-trials,’” and that

the [district] court abused its discretion in refusing to [consider such] evidence . . .

of discriminatory intent.” Id.

The Kozlowski Court’s decision to balance judicial economy with access to

probative evidence illustrates that the district court erred in concluding that letting

this case proceed would make “seven to 15 [possible] mini-trials” inevitable. J.A.

1862. The court misleads by suggesting it has no ability to craft a trial plan to

avoid waste of time, e.g., by limiting duplicative testimony or by excluding

marginally probative evidence, such as “reply” evidence offered by the plaintiff.

It was at best a non sequitur, and at worst unprincipled, for the district court

to declare Calobrisi’s “other acts” evidence not “sufficient to establish pretext,” id.

1863, simply because the court was inclined to exclude it on logistical (“mini-

trials”) grounds, regardless of its value, despite having at hand the tools to relieve

29

logistical difficulty. The courts in Kozlowski and Griffin, as in Mendelsohn,

understood that the probative value of other employee evidence should drive

courts’ review of it. The specter of “mini-trials” did not justify the summary

judgment in this case.

CONCLUSION

For the reasons set forth above, amicus curiae AARP urges the Court to

vacate the summary judgment for Appellee Booz Allen Hamilton, Inc., and remand

this case to the district court with directions to reconsider its application of

Sprint/United Management Co. v. Mendelsohn, 552 U.S. 379 (2008), as well as

subsequent authorities implementing Mendelsohn, and to reassess Appellant

Calobrisi’s evidence of age and sex discrimination against other Booz Allen

employees in light of such authorities.

/s/Daniel B. Kohrman

Daniel B. Kohrman*

Laurie A. McCann

Dara S. Smith

AARP Foundation Litigation

601 E St., NW

Washington, DC 20049

(202) 434-2064

*Counsel of record

Counsel for Amicus Curiae AARP

CERTIFICATE OF COMPLIANCE

1. This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because it contains 6,985 words, excluding the parts of the brief

exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements in Fed. R. App. P.

32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because it uses

a proportionally spaced typeface using Microsoft Word in Times New Roman, 14-

point font for text and footnotes.

Dated: June 3, 2015 /s/Daniel B. Kohrman

Daniel B. Kohrman

CERTIFICATE OF FILING AND SERVICE

I hereby certify that on this 3rd day of June, 2015, I caused this Brief

of Amicus Curiae AARP in Support of Plaintiff-Appellant/Cross-Appellee to be

filed electronically with the clerk of the court using the CM/ECF System. I certify

that all participants in the case are registered CM/ECF users and that service will

be accomplished by the appellate CM/ECF system.

Dated June 3, 2015 /s/Daniel B. Kohrman

Daniel B. Kohrman