181171 Comcast Corporation versus National Association of africanamerican owned media. To mister chief justice may have please the court what is held in this case the plaintiff makes a claim merely by showing that race was a factor considered in the defendants decisionmaking even though the decision would have made and was made for the tightly appropriate business reason having nothing to do with race perk on this basis the ninth circuit for dismissal we submit this is wrong for the reasons that first it is contrary to the courts decision that but for causation is the rule that congress would have to have adopted and then adopted in 1866 are amended in 1991. Second in 1991 and then for the motivating factor and then in other respects at the same time so this shows as this was concluded with respect to the ada and third if he vastly easier to put that and or damages to apply cause of action because it actually enacted by congress and then to mean that in 1981 word completely display the carefully tailored White Congress has devised to influence the discrimination case. Nobody would ever assume title vii. Council, what if your distinction you are fighting his academic. Contract negotiation process for example there are several steps along the way. And along those steps there is clear racial animus and evidence that the process continues on at the end of the day. And but for causation on the other hand it is hard to ignore the part that was clearly evident racial animus. And it may be a reasonable argument for the allegation that animus continues through only manifested at one stage in the process. Mister chief justice i dont rule out the possibility that a complaint may have such an expression it could apply the animus continued until the end such that as the complaint does alleged but for causation. And that they are alleging the motivating factor. And they were not prepared to prove but for causation. Now we dont think this is under any standard as we made clear about first it is also the case in which it is evident for the record that the factor was made in employment and at the end had to be constructed if that was a determinative factor in decisionmaking. And all of these cases the court has determined the factfinder has to make the decision whether that not only played a role but a determinative effect of the decisionmaking. You said the respondents continue to say they dont have to prove but for causation. I am a little confused about that point. And mrs. For both sides to think about that in your reply brief you say on page 47 or 49 and it says the opposite and seems to suggest that by quoting that in fact they will have to prove but for causation at the end. The question here is what they have to allege now. The chairman can say what he wants to say about that but they will have to prove but for causation at the end is the ultimate standard in the case. But this is a complaint its pre discovery the plaintiff will not know what the defendant was thinking about whatever decisions the defendant was making so what do you think the plaintiff has allegedly quick. First this had nothing to say about the difference with the merits in fact what was needed to prevail on the merits for the complaint. I take that point and i would say if my assumption holds that the respondent does have to prove this at the end then you have to say the ninth circuit is wrong but you would still have the question of the complaint is sufficient. Yes. The second point is the burden shifting put on by the respondent but i understand what they are trying to say that but for a prize in the sense the burden to show but for causation defends what is actually happening and they are arguing the framework. They could say that. But that this is essentially an attempt to shift the burden of but for causation on to you. They could say no. We really do believe in the end we will have but for causation because you dont want people throwing around baseless allegations with their complaint it should be found sufficient even if it does not allege but for causation to say they made a racist remark and they gave contracts to lots of white firms that were not as good as our firm and that is enough. Now the answer to the bottom line although in theory is that the answer to your question is it is actually very clear with the discrimination case where Justice Souter said we do not want people to open the doors of discovery based on that allegation with the elements. In our view that is what we have in this case so you can say that with a clause of discrimination but thats always in the possession. That mister estrada. Im sorry. Isnt it perfectly common when you allege a mental state of the party with discovery that the belief of a mental state isnt that a simple solution cracks to mckesson no Justice Gorsuch you can allege that as you also allege. Right. But with Justice Kagans fax there is a statement and you have factual circumstances to lead to that then you would please that. If you plead those circumstances that give rise to the inference then you have a case that possibly complies. Bet you said that and it seems quite right but we had this case before which is in the title vii context i dont know how to pronounce it. Which said we are thinking about that case and it is still good law. The wet that case said with the shifting case and said you dont actually have to in your pleading to show the case that we understand the pleadings in this field are different and then we say that still good law. I dont think that is entirely accurate or how people distinguish it. What was happening in that case that the Second Circuit had ruled they were deficient because the plaintiff had failed to allege the framework in the complaint but now the court will say that framework is to make you sad a trial not the pleading framework later that was reaffirmed and to basically say you could choose to prove your case in a particular way but you are not required so Mcdonald Douglas if you have evidence of discrimination it is our way circumstantial. So does that make sense to put the burden of that in a pleading. If the plaintiff has a choice down the road, that is not a requirement. But if i go back to the chief justice initial point which is if i come forward to show race was a motivating factor, until they defended and discovery is held, then that becomes an issue whether or not with the but for cause if you have enough in your complaint to show animus with a reasonable to show the plaintiff is done more than enough what you seem to be suggesting they are required to anticipate independently recent he may have had. I said nothing to do that to the effect the plaintiff is required to allege facts not the elements of the offense. But the ninth circuit or government said it did not look at this complaint through the lens that would be provided with the butt for causation. If you find that under the requirements. Not us but the ninth circuit. Somebody it would be permissible it was a discrimination case thinking it would be informative for the lower courts. With all due respect as many efforts have been made in this case for the identification of the court because there is any number of allegations in the complaint. But if the respondents now agree that in the end the substantive standard is but for causation is there a dispute before us or is the disputes that there was enough fax which is what this seems to have devolved into and not the big issue that has been portrayed. What they do have to agree what they do mean is the but for causation. So that disagreement is then which way does i go. No. What i think they mean to say with the standard the but for causation they accept that opinion but they dont want to call it that. What what happened otherwise . The burden of persuasion because of Price Waterhouse. But it is but for, for the preponderance. Of the respondents are really arguing Price Waterhouse they are not actually slighting that but somebody may have the but for causation burden of persuasion. That is also equally wrong for any number of reasons. If you look at the recitation of facts of the brief is a be insufficient to satisfy the pleading standard with the but for causation . And then to support or so forth. And then to support or so forth. That is enough and we have a number of reasons for that what they say is not in the complain complaint. Some of what they say the demand for their services is something they are able to allege in the last complaint the notion of how many customers they reach is driven entirely but they are currently carried by at t and directv. So to be perfectly clear to everybody in this courtroom the allegation that they could only make the third complaint in this case it was not in the first or second complaint and the reason is they were suing at t and directv as they were suing us. Think counsel. Mister chief justice may it please the court the court of appeals found a plaintiff can prevail under section 1981 if race played any role in the decision not to contract even if not the but for causation wi the growth nobody defends that test is the ultimate standard for causation under section 1981 instead to Justice Kagans lying question shifts the burden shifting to that is a motivating factor of races enough. That might have been true under Price Waterhouse but they no longer control so for the first time responders turn to Mcdonald Douglas instead even if it applies in the sconce on context shifts only the burden of production at trials like cannot affect the elements that a plaintiff needs to plead and then Justice Kagan pointed to it underscores that that there is no different analysis that was under the standard for these types of antidiscrimination cases. Lets go back to the basic structure. He can speak to himself of the burdens but im looking at the statute and i dont see any of the but for causation language that we have interpreted in any other statute. What i see is a statute that says all citizens must have the same right. If you talk about in the making of the contract or the performance or the execution when the civil rights law was designed to eliminate all risk of discrimination im not sure how we square those two things with the butt for clause one but for causation if you are treated differently because of your race in the formation of the contract but you are denied the contract for another reason then other people may have denied that you were treated differently more burdens were put on you more expenses, and in with the business because and it is true nobody with your Business Plan has been accepted before you run around the circles why is that not actionable . Justice to the mayor the first to make a contract for somebody who has never been granted the contract regardless of her race if they were denied to make a contract. But the dictionary says that dictionary of making is the process of being made. It isnt just the entry into the contract there are different words in the statute. Im happy to address the making point. I want to go back to the broader point that is how can you say how do you have the same rate with all vestiges of discrimination . If we are not using motivation but the but for causation . To the extent you do think there is some ambiguity the next place to look is a very important contextual clue so the way that congress originally enacted the provision with the general declaration of rights that has now become section 1981 and congress had the important mechanism with that but for causation language that is a good indication. True enough 100 years later i dont think that can change the substantive scope. And fortunately im stuck with the chief justice question and what he was elaborating on that my question anyway is whats the difference . They had evidence in that to use race and who cares if they say its a motivating factor or the but for causation i understand later with the burden of proof because at that point because maybe you should have the whole burden to prove. Baby you split that. But we are just arguing about the complaint. And motivating factor then you say motivating factor can you give me a case . So later down the line. Let me give you a hypothetical instead of thinking of the but for causation think of it as if somebody applies to be an associate at a law firm they get a letter back with some racial language it also says we are not hiring because you didnt go to law school if they file about the racial complaint they wouldnt say that there was no possible way that person was going to be hired at the Law Firm Associate regardless of their race because they were not a lawyer to start with. A motivating factor. And it wasnt the but for causation. Here we are. You can see that in the court of appeals decision the idea that race couldnt have been some sort of consideration that has no ultimate effect. Its true it wouldnt be a consideration if the applicant was not a white person if the applicant is a black person it could be. So this says that you should treat a white person and a black person alike. If it really does make a difference that im stuck on both of those points. If it really does then you have the but for causation. Even though a black person and a white person would not be treated that way. On that separate question the statute does not say everybody has to be treated alike for all purposes. It says everybody regardless of race has the same right to enter a contract. We certainly agree any consideration of race has no role in private conduct this is made clear with. Dominos pizza. Where the complaint goes out of the way to refute itself we dont know if this is one of them where the rubber meets the road to be a Summary Judgment. Do you agree in this case that we should vacate and not resolve the issue here . We dont have a position of this particular complaint we dont think the courts ordinary practice is that unusual with paragraph after paragraph of allegation at the 12 b6 stage . And want to get into the particulars of this complaint. Often times. In general what would be say a complaint needs to survive the 12 b6 motion in this area . Under the age act, aga, act, aga, retaliation claims, claims, just to say that race made a difference of the judge looks at that validation to believe it did then that would be enough. What about Mcdonald Douglas burden shifting, not burden shifting but the burden remains with the plaintiff. The court said in patterson Mcdonnell Douglas applies in the employment context it would apply beyond the employment context. It just doesnt matter under the courts decision. We did grant what the standard was. Mcdonnell douglas shifts only the order of introducing but not the ultimate standard. Good morning mister chief justice may please the court. The federal civil rights statutes use the word, to law it never has a requirement for that but for causation since 1981 there is no such word. And a motion to dismiss all the ninth circuit held that race was the motivating factor on page two a of the supplement of the petition there is a good deal of confusion in this case between the motivating factor and burden shifting the court has adopted the standard with the burden shifting framework and those like Mcdonnell Douglas and then what the court has adopted the but for causation and before this case looking at the plain language of 1980 wine of Congress Broad purpose that all person should have the same rights as individuals and the colorblind with content. Phrase is useds a motivating factor denying content and also in line to the statue it is important to hear section two of the Civil Rights Act that has a criminal consequence of violation does use causal language to be subjected section one does not use such language. At the end of the day what is the burden of persuasion . The court has never reached that question. Ultimately the question would be does the burden of persuasion shift but we think implicitly adopting Mcdonnell Douglas framework is the shifting of the burden of persuasion. What is your view with the last analysis ultimately the but for causation does that have to be shown . In the and i think of the Mcdonald Douglas burden does indicate the burden of persuasion rest with the plaintiff. In terms of showing the contract would not have been issued the but for causation. So this is just a pleading case it is just the issue whether a 12 b6 pleading case. Exactly right. Thats why i have in my introduction that they have to say that race was a motivating factor. You are not agreeing with the ninth circuit . In this case thats all the ninth circuit should focus on so i do think there is an issue down the road who has the burden of persuasion. I thought you said the plaintiff would have the burden of persuasion to have the but for causation this court adopts the Mcdonnell Douglas burden shifting that shifts burden of production but not the burden of persuasion with patterson versus mclean to answer the question. Are we still arguing so if you plead the motivating factor thats enough to survive at the pleading stage. As a matter of burden at trial for Summary Judgment you do have to prove the but for causation. What do you do with the extreme example we dont hire nonlawyers and you are black but you dont allege in the complaint you are a lawyer or you graduated from law school. Then what happens . There isnt sufficient allegations. But let me give a different example imagine somebody files a complaint that says i went to a hotel to rent a room and i was told i could not get a room because none were available and also they dont rent to black. Is that sufficient to survive a motion to dismiss . It is a motivating factor. It doesnt allege the but for causation and that shows why it is inappropriate and the impossible standard. And with a hypothetical why is it that fails under your view at the pleading stage with that indication that is the motivating factor. And even if as a hypothetical and not a lawyer if an element of the cause of action then its not plausible that is the question. And that would be absent is it in a hypothetical that is given. I was just going to say even though a white person has been denied if they are not treated the same which is your theory without racial discriminatory conduct. As the hypothetical i would say of the complaint as possible that race was a motivating factor that should be enough to withstand the motion to dismiss. But the but for causation test. If not black we would give it to him. On the same facts can you put your bottom line and therefore the but for causation racial discrimination. What is the difference . The motivating factor of the but for causation. There is an enormous difference. Let me go back to the hypothetical hotel say we are not renting a room to you because we have rooms and because you are black. That doesnt allege rice on race wasnt the but for causation. But in that case the two hunters that would have been sufficient and no professor said that doesnt meet the butt for causation test and it would happen anyway. So it seems to be yeah there is that possible exception. But the court so frequently draws the distinction it is so much harder than race to be a motivating factor and that is why at the pleading stage. But with justice buyers question what that same hypothetical you gave us satisfy the but for causation test. No. Thats good. Thats a start. [laughter] but the issue the opposing counsel has taken the plaintiff has to deny all. No. Thats not the position is just that it has to be plausible that it caused the injury and with a hypothetical that you have given us there are two contributing causes with the but for causation why wouldnt that be the case that survived the 12 b6 motion quick. I hope it would. And those to explain that opinion. Do you expect the plaintiff to know everything in the defendants mind . How could you pick all he has to do is allege that he thinks this was motivating call that motivating or about four and then with the burden shifting. So the answer is as the complaint goes forward either way i would accept that answer. [laughter] you just want to win. [laughter] i want the law to be clear the motivating factor is sufficient. Wouldnt it be unusual for us to say that a test for the pleading stage is a motivating factor but the test at the trial or Summary Judgment is but for causation . Know your honor. Because this court ultimately said the but for causation. You said with Price Waterhouse the motivating factor throughout there isnt a special exception for pleading stage. What you rely on earth are one earlier is the but for causation test that is a prima facia case of the but for causation or a motivating factor depending on the circumstances. And to specifically say they do not need to plead a prima facie case. We can disagree but wouldnt it be a little unusual to apply different legal standards at different places of the same case . No take constitutional cases all that is required at the pleading stage of a motivating factor is the but for causation this is true under Mcdonnell Douglas what is required at the pleading stage is different. What if the complaint alleges this is not the but for causation of the adverse action against me that a motivating factor is that sufficient to go forward. All that should be required. Even if the plaintiff concedes that it wasnt the but for causation. And the standard at the end of the day it should be permitted for the inevitable doom . And the burden shifting framework is to establish what was the actual cause its not realistic to say this is the butt for cause too look at all others. That seems very different. You cant expect them to negate everything else. That as long as the plaintiff comes forward that this defendant made a racist remark that were not as qualified as our network. Those are the kinds of facts at this stage allows the complaint to go forward but im saying those allegations but the pages three through five with that Second Amended opinion. To make dont you think the ninth circuit has to be reversed . Able to redo a sentence which seems to Say Something very different. Even if we show one from racial animus was not the butt for cause the plaintiff can still prevail if she demonstrates the discriminatory intent was a factor in that decision so that seems wrong. But that wasnt the issue before the ninth circuit the issue before the ninth circuit was solely about the pleading. Dont you agree the ninth circuit was wrong . What i was saying in terms of the statement that isnt the issue. I understand that. We agreed that the ninth circuit was wrong. But im saying the initial question with the burden shifting of Mcdonnell Douglas. I got it. If we write an opinion that says 1981 case has the ultimate burden of persuasion approve that race was the but for causation of the decision we vacated re manned for the ninth circuit what is wrong . Because not the issue before this court. But what what Justice Kagan red that informs how the ninth circuit sets the complaint. If we articulate the right standard and then vacate to analyze the complaint under the right standard wouldnt that be the better way to go . The right standard is to say race was a motivating factor. Whatever of the conclusion of the burden of persuasion and then to go back. And we wouldnt be saying anything under the pleading stage under that hypothetical opinion that i just articulated it would just say the ultimate burden of persuasion in the 1981 case is contrary to the ninth circuit with the recitation. I think the court wanted to said Donald Douglas applies it shifts the burden of production but not persuasion. Now at least in my head dont go further if i dont have a right. But this man was in a contract with me. I know him. The most bigoted person in his state and as normal he said all kinds of racist things and jumped up and down. By the way hes my fifth cousin and he hates me for five never met anybody who hated me so much and i think for both reasons he would have never entered into this contract. There we have two causes so do you win under this statute or not . Because with that pleading stage because if you dont win. Because the court said if that is the actual cause. Today leave here or not . To say they never would have gotten the contract anyway that the standard under patterson that doesnt tell us if it is a prima facie case. But it seems you are focused on the burden shifting mechanis mechanism. Civic thats correct the only reason with burden shifting and that with the questions put to me today. And with that standard on the basis of Mcdonnell Douglas Price Waterhouse which trial burdens or Summary Judgment from the allegations its a reasonable conclusion is the reason for the denial of contract. Exactly. Thats all you need to say your honor. [laughter] and in most circumstances it is a motivating factor that is enough. That is of my colleagues are saying. [laughter] you are right. We have done a lot worse. [laughter] but if it is the reasonable conclusion why you so strenuously resist at the but for causation. We live in multiple causes we believe thats all the same language is that race is a motivating factor. We do allege that but for causation in the complaint for glycan direct you that one out of three that on account of race. And we need that with about four causation. Looking at the statutory language it did not even pose a requirement pleading the prima facie case. It is just confusing to throw in a different causal standard as opposed to the ultimate stage as opposed to saying we understand that not everybody will know everything so we will not acquire too much in the way of proof. You are suggesting the but for causation is the sole cause. Never has been the sole cause if you take away each of these three things the outcome would have been different but the motivating factor is something different. You can take it out and the outcome is the same and it just seems confusing to me to put in something that is not the same question rather than to understand the pleadings are before discovery and nobody could be expected what the defendant is going to say. I disagree. The court has repeatedly adopted a standard even though it is the but for causation standard. If you look at the constitutional cases all that is required of the pleading stage it is true with regard to title vii at the pleading stage and to have the unsurmountable burden. These cases as you know are not usually thrown out and usually you have the ultimate legal test in mind and those that alleged in the complaint as Justice Sotomayor said if there is a way from those facts you could test for 1981 or for discrimination. Isnt that how it usually works . Yes. Yes. [laughter] in other words i guess im picking up on Justice Kagan heres the test at 1981 go look at the facts. Just to see it is pretty rare at this stage. Bad is exactly right and thats what the ninth circuit did. It says the only question before us is the pleading the standard motivating factor. The problem is the wrong test in mind they still may go forward with that was the question presented. All this court needs to say is the ninth circuit is to say the pleading stage and perhaps you want to re manned that so thats exactly what they did that race was a motivating factor. But you told me we dont even have to do that because you didnt plead the about four causation. Yes we did but we believe that pleading stage is a motivating factor. That they are not arguing that the but for causation is required but we are supposed to forget about that and address slippery question that isnt even presented under your argument today. I agree with that the only question it is quite notable there was a second question that the court did not grant whether or not the plaintiff has the burden at the pleading stage. All before the court that the pleading stage. I know you didnt draft the complaint but it goes on and on with a lot of facts including the allegation with a racist conspiracy and that had any effect of what under 12 b6 . Its not in the Second Amended complaint the only one with the District Court is the Second Amended complaint that alleges that race was a motivating factor to say to do those and is told of the bandwidth but all the channels carried by the other Cable Companies are by content except by mister allens channel that race is a motivating factor. But also enough to allege the naacp the urban league and others were in on the conspirac conspiracy . That is not on the amended complaint the only thing is the Second Amended complaint not properly before the District Court. In conclusion ultimately it is two different perceptions now review it is enough that race is a motivating factor the other it is the but for causation. If you think of congress in 1866 that congress wanted to open the door to race discrimination not to close the door. Thank you. You have 20 minutes remaining mister estrada. I will start that i would refer the court and in paragraph 59 that the current complaint continues to allege working hand in glove with the federal government with a racist conspiracy and further referrer the court to 64 and 165 as following that the current complaint is under allege we paid off the signatories. Doesnt name them by name and obviously the signatories with the urban league and how al shot al sharpton and those to give us cover for race discrimination. And then to say we have a minority for those that are some kind of artists and that the africanamerican entertainers were to be signed up with comcast for go now the period covered by the complaint is 2005 through 2015. In a nutshell that you have the races block with the Obama Administration the oldest civil rights organizations in the country. That on any planet to satisfy i dont know how many paragraphs it could have 100 but on any planet that satisfies then the system has real problems. If we go back to the question that Justice Alito asked earlier with the allegations one thing to make clear with respect to be covered by the complaint which is 2008 that by at t and directv which are the largest in the country by 25 million or so those are the events in the complaint so with respect that they can be sure by references one as a settlement so we say they were all pending and then have some bearing like we just fell off the turnip truck with the notion to dismiss. Thank you council the case is submitted. Ladies and gentlemen the recipient of the National Medal of arts Alison Krauss Sharon Rockefeller and musicians of the United States military, john voigt
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