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
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