mcandrew v. lockheed - eeac · lockheed conducted an internal investigation into the sale of the...

No. 97-8483 _______________________________________

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ______________________________________________

ROBERT E. McANDREW,

Plaintiff-Appellant,

v.

LOCKHEED MARTIN CORPORATION, et al. Defendant-Appellee.

_____________________________________

On Appeal from the United States District Court for the Northern District of Georgia,

No. 1:96-CV1584-JOF ______________________________________

EN BANC BRIEF AMICI CURIAE OF THE EQUAL EMPLOYMENT ADVISORY COUNCIL

AND THE CHAMBER OF COMMERCE OF THE UNITED STATES IN SUPPORT OF DEFENDANT-APPELLEE

AND IN SUPPORT OF AFFIRMANCE ______________________________________

Stephen A. Bokat Robin S. Conrad Sussan Mahallati Kysela NATIONAL CHAMBER LITIGATION CENTER, INC. 1615 H Street, N.W. Washington, D.C. 20062 (202) 463-5337 Attorneys for Amicus Curiae The Chamber of Commerce of the United States September 28, 1999

Ann Elizabeth Reesman* Corbett L. Anderson MCGUINESS NORRIS & WILLIAMS, L.L.P. Suite1200 1015 Fifteenth St., N.W. Washington, D.C. 20005 (202) 789-8650

Attorneys for Amicus Curiae Equal Employment Advisory Council

*Counsel of Record

No. 97-8483 _______________________________________



ROBERT E. McANDREW,


v.


_____________________________________


No. 1:96-CV1584-JOF ______________________________________

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT OF AMICI CURIAE

THE EQUAL EMPLOYMENT ADVISORY COUNCIL AND THE CHAMBER OF COMMERCE OF THE UNITED STATES

______________________________________

Pursuant to Fed. R. App. P. 26.1 and 29(c), and 11th Cir. R. 26.1-1, Amici

Curiae Equal Employment Advisory Council and the Chamber of Commerce of the

United States disclose the following:

1) The Equal Employment Advisory Council and the Chamber of Commerce of

the United States have no parent corporations, or affiliates.

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2) No publicly held company owns 10% or more stock in the Equal Employment

Advisory Council or the Chamber of Commerce of the United States.

3) The following persons or entities have an interest in the outcome of this case (in

addition to those persons or entities named in the Appellees’ Certificate of

Interested Persons):

a. The Equal Employment Advisory Council, as amicus curiae.

b. Ann Elizabeth Reesman of McGuiness Norris & Williams, LLP, attorneys

for amicus curiae Equal Employment Advisory Council.

c. Corbett Anderson of McGuiness Norris & Williams, L.L.P., attorneys for

Equal Employment Advisory Council, amicus curiae.

d. The Chamber of Commerce of the United States, as amicus curiae.

e. Stephen A. Bokat of the National Chamber Litigation Center, for the

Chamber of Commerce of the United States, amicus curiae.

f. Robin S. Conrad of the National Chamber Litigation Center, for the


C2 of 3

g. Sussan Mahallati Kysela of the National Chamber Litigation Center, for the


_____________________________ Ann Elizabeth Reesman MCGUINESS NORRIS & WILLIAMS, L.L.P. Suite 1200 1015 15th Street, N.W. Washington, D.C. 20005 (202) 789-8600

C3 of 3

TABLE OF CONTENTS

TABLE OF CITATIONS.......................................................................................iii INTEREST OF THE AMICI CURIAE...................................................................2 STATEMENT OF THE ISSUE ..............................................................................4 STATEMENT OF THE CASE ...............................................................................4 SUMMARY OF THE ARGUMENT......................................................................5 ARGUMENT AND CITATIONS OF AUTHORITY .............................................6 I. AGENTS OF A SINGLE CORPORATION ACTING ON BEHALF OF

THE CORPORATION AND IN THE SCOPE OF THEIR EMPLOYMENT

CANNOT VIOLATE SECTION 1985(2). ......................................................6

A. Action by Corporate Agents Does Not Satisfy the “Two or More

Persons” Element of Section 1985(2). ...................................................6

B. Exceptions to the Intracorporate Conspiracy Doctrine are Adequate to

Prevent Abuse of the Doctrine...............................................................8

II. THE INTRACORPORATE CONSPIRACY DOCTRINE PROMOTES

FAIR, INFORMED, AND LAWFUL HUMAN RESOURCE DECISIONS....10

A. Common Personnel Decisions Frequently Require Input From More

Than One Knowledgeable Individual.....................................................11

B. Thorough Internal Investigations, and Actions Upon Their Results,

Frequently Require The Involvement of More Than One Person............14

CONCLUSION.........................................................................................................17

ii

TABLE OF CITATIONS

FEDERAL CASES

Burlington Indus., Inc. v. Ellerth, 118 S. Ct. 2257 (1998) ...........................15

Buschi v. Kirven, 775 F.2d 1240 (4th 1985) .................................................9

Chambliss v. Foote, 421 F. Supp. 12 (E.D. La. 1976), aff'd, 562 F.2d 1015 (5th Cir. 1977).........................................................8

Dombrowski v. Dowling, 459 F.2d 190 (7th Cir. 1972) ................................9

Farragher v. City of Boca Raton, 118 S. Ct. 2275 (1998)............................15

Great Am. Sav. & Loan Ass'n v. Novotny, 442 U.S. 366 (1979)...................3

Kolstad v. American Dental Ass'n, 119 S. Ct. 2118 (1999).........................14

McAndrew v. Lockheed Martin Corp., 177 F.3d 1310 (11th Cir. 1999), vacated,183 F.3d 1290 (11th Cir. 1999) ...................................................7

Nelson Radio & Supply Co. v. Motorola, Inc., 200 F.2d 911 (5th Cir. 1952)....................................................................8

Travis v. Gary Community Mental Health Ctr., Inc., 921 F.2d 108 (7th Cir. 1990)....................................................................9

FEDERAL STATUTES

The Americans with Disabilities Act, 42 U.S.C. §§12111-12117......................................................................12

The Civil Rights Act of 1871, 42 U.S.C. § 1985(2) ........................................................................passim 42 U.S.C. § 1985(3) .................................................................................7

iii

MISCELLANEOUS

Douglas Smith, The Intracorporate Conspiracy Doctrine and 42 U.S.C. § 1985(3): The Original Intent, 90 Nw. U. L. Rev. 1125 (1996) ..............7

Ethan Lipsig, Downsizing (1996) ...............................................................14

1 HR Series, Policies and Practices (Warren, Gorham & Lamont 1997)...................................................13-14 Joseph T. McLaughlin & Kevin McKarthy, Corporate Internal

Investigations—Legal Privileges and Ethical Issues in the Employment Law Context, SD06 ALI-ABA (1999) ..............................................14-15 2 William Blackstone, Commentaries (Tucker ed. 1803) .......................... 7-8

iv

No. 97-8483 _______________________________________



ROBERT E. McANDREW,


v.


_____________________________________


No. 1:96-CV1584-JOF ______________________________________

EN BANC BRIEF AMICI CURIAE OF THE EQUAL EMPLOYMENT ADVISORY COUNCIL

AND THE CHAMBER OF COMMERCE OF THE UNITED STATES IN SUPPORT OF DEFENDANT-APPELLEE

AND IN SUPPORT OF AFFIRMANCE ______________________________________

The Equal Employment Advisory Council and the Chamber of Commerce of

the United States respectfully submit this en banc brief amici curiae pursuant to

Fed. R. App. P. 29, and 11th Cir. R. 29-2, with the consent of both parties. The

brief urges this Court to affirm the judgment below, and thus supports the position

of the Defendant-Appellee Lockheed Martin Corporation before this Court.

2

INTEREST OF THE AMICI CURIAE

The Equal Employment Advisory Council (EEAC or Council) is a

nationwide association of employers organized in 1976 to promote sound

approaches to the elimination of employment discrimination. Its membership

includes over 315 of the nation’s largest private sector employers. EEAC’s

directors and officers include many of industry’s leading experts in the field of

equal employment opportunity. Their combined experience gives the Council a

unique depth of understanding of the practical, as well as legal, considerations

relevant to the proper interpretation and application of equal employment policies

and requirements. EEAC’s members are firmly committed to the principles of

nondiscrimination and equal employment opportunity.

The Chamber of Commerce of the United States (the Chamber) is the largest

federation of business companies and associations in the world. The Chamber

represents an underlying membership of more than three million businesses and

organizations of every size, in every sector and region. An important function of

the Chamber is to represent the interests of its members in court on employment

law issues of national concern to the business community.

All of the members of EEAC, and many of the Chamber’s members, are

employers subject to the various civil rights statutes, federal orders, and regulations

governing the employer-employee relationship. Collectively, the member

3

companies of EEAC and the Chamber make and implement millions of

employment decisions each year, including hires, promotions, transfers, internal

investigations, terminations, and other employment actions. Indeed, large

employers such as those in EEAC’s and the Chamber’s memberships are likely to

have in place sophisticated, multi-person procedures for making such personnel

decisions, and therefore are potential targets for the type of conspiracy claim at

issue here.

Because of their interest in the application of the nation’s employment laws,

EEAC has filed over 450 amicus curiae briefs and the Chamber has filed over 500

amicus curiae briefs with the United States Supreme Court, the United States

Courts of Appeals, and various state supreme courts.1 In this case, the brief of

EEAC and the Chamber argues for affirmance of the decision of the U.S. District

Court for the Northern District of Georgia, that the intracorporate conspiracy

doctrine — which holds that internal decisionmaking of a corporation by its agents

cannot give rise to a conspiracy — applies under 42 U.S.C. § 1985(2), where, as in

this case, the alleged co-conspirators are agents of the corporation acting in the

scope of their employment and for the benefit of the corporation.

1 EEAC participated as amicus curiae in Great Am. Sav. & Loan Ass’n v. Novotny, 442 U.S. 366 (1979), though the Supreme Court declined to address the precise issue presented here. Id. at 371 n.11.

4

Accordingly, EEAC and the Chamber have an interest in, and a familiarity

with, the issues and policy concerns presented to the Court in this case. Indeed,

because of their significant experience in these issues, EEAC and the Chamber are

well situated to brief this Court on the importance of the issues beyond the

immediate concerns of the parties to the case.

STATEMENT OF THE ISSUE

Whether the intracorporate conspiracy doctrine applies under 42 U.S.C.

§1985(2), where the alleged co-conspirators were agents of the corporation acting

in the scope of their employment and for the benefit of the corporation.

STATEMENT OF THE CASE

The facts of the case are fully set forth in Defendant-Appellee Lockheed

Martin Corporation’s (Lockheed) brief. The facts pertinent to this brief are set

forth below.

Plaintiff Robert McAndrew (McAndrew) was Lockheed’s Director of

International Marketing. In that capacity, McAndrew was responsible for

negotiating the sale of Lockheed planes to foreign countries. (R1-1-5, ¶ 13).

McAndrew alleges that the government subpoenaed McAndrew and thirty or so

other Lockheed employees in the fall of 1993 to testify before a grand jury

proceeding (R1-1-5, ¶ 15) arising out of the sale of three C-130 aircraft to the

United Arab Republic of Egypt. (R1-1, at 1-2, 5, ¶¶ 1, 14).

5

Lockheed conducted an internal investigation into the sale of the aircraft

and, based upon its results, terminated McAndrew because of his involvement.

McAndrew thereafter filed a complaint alleging that Lockheed and five of its

officials conspired to terminate his employment because of his testimony before

the grand jury. McAndrew alleged, among other things, a violation of the Civil

Rights Act of 1871, 42 U.S.C. §1985(2), which prohibits two or more persons from

conspiring to deter someone from, or retaliate against them for, testifying in federal

court. Despite alleging a conspiracy, McAndrew admitted in his complaint that at

all times the five Lockheed officials acted in the scope of their employment and for

the benefit of Lockheed. (R1-1, ¶¶ 9, 34).

The trial court ruled that McAndrew’s claim was barred by the

“intracorporate conspiracy doctrine.” On appeal, a panel of this Court rejected the

intracorporate conspiracy doctrine as inapplicable in a case under 42 U.S.C.

§1985(2). This Court subsequently vacated the panel’s decision and granted

Lockheed’s petition for rehearing en banc.

SUMMARY OF THE ARGUMENT

Section 1985(2) is a conspiracy statute that prohibits two or more persons

from agreeing to deter someone from, or retaliate against them for, testifying in

federal court. 42 U.S.C. §1985(2). “Intracorporate conspiracy” is an oxymoron,

because agents properly working for a corporation are considered one with the

6

corporation. Accordingly, the intracorporate conspiracy doctrine holds that the

internal decisionmaking of a corporation by its agents cannot constitute a

conspiracy. Well-established exceptions are available to protect against abuse of

the intracorporate conspiracy doctrine. The doctrine thus is consistent with sound

corporate principles and should be adopted by this Court.

The intracorporate conspiracy doctrine also reflects the current reality of

human resource decisionmaking. Typically, corporations involve a variety of

knowledgeable people where appropriate in making important decisions about who

to hire, who to promote, and who to discharge. Far from being a “conspiracy,”

such responsible behavior is good practice and should be encouraged. This Court

therefore should embrace the intracorporate conspiracy doctrine — with

appropriate safeguards — as promoting fair, informed, and lawful human resource

decisions.

ARGUMENT AND CITATIONS OF AUTHORITY

I. AGENTS OF A SINGLE CORPORATION ACTING ON BEHALF OF THE CORPORATION AND IN THE SCOPE OF THEIR EMPLOYMENT CANNOT VIOLATE SECTION 1985(2).

A. Action by Corporate Agents Does Not Satisfy the “Two or More

Persons” Element of Section 1985(2).

Section 1985(2) of the Civil Rights Act of 1871, 42 U.S.C. §1985(2), is a

conspiracy statute and thus only is triggered if “two or more persons” agree to

7

deter someone from testifying in federal court or retaliate against someone for so

testifying. Section 1985(2), in relevant part, applies when

. . . two or more persons in any State or Territory conspire to deter, by force, intimidation or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified . . .

42 U.S.C. § 1985(2) (emphasis added). Section 1985(3) houses the remedy

provision for Section 1985(2), and allows anyone injured or deprived of property

by the conspiracy to recover damages. 42 U.S.C. § 1985(3).

The intracorporate conspiracy doctrine says that a corporation and its agents

cannot conspire with one another because acts of the agent are considered acts of

the corporation itself. See generally, Douglas Smith, The Intracorporate

Conspiracy Doctrine and 42 U.S.C. § 1985(3): The Original Intent, 90 Nw. U. L.

Rev. 1125, 1126 (1996). As the panel correctly observed, a majority of the courts

that have answered the question of whether the intracorporate conspiracy doctrine

applies to Section 1985 cases have held that it does. See McAndrew v. Lockheed

Martin Corp., 177 F.3d 1310 (11th Cir. 1999) (listing cases), vacated, 183 F.3d

1290 (11th Cir. 1999).

However, the panel’s decision that the intracorporate conspiracy doctrine

does not apply to cases under 42 U.S.C. § 1985(2) flouted a fundamental principle

of corporate law: that when several individuals are “consolidated and united into a

8

corporation, they and their successors are then considered as one person in law....”

2 William Blackstone, Commentaries 468 (Tucker ed. 1803). Thus, in 1952 this

Court’s predecessor stated:

It is basic in the law of conspiracy that you must have two persons or entities to have a conspiracy. A corporation cannot conspire with itself any more than a private individual can, and it is the general rule that the acts of the agent are the acts of the corporation.

Nelson Radio & Supply Co., v. Motorola, Inc., 200 F.2d 911, 914 (5th Cir. 1952).

These principles also are reflected in Chambliss v. Foote, in which the Fifth Circuit

affirmed the dismissal of a Section 1985 conspiracy action against a university and

its officials because the court considered them “as constituting a single legal entity

which [could not] conspire with itself.” Chambliss v. Foote, 421 F. Supp. 12, 15

(E.D. La. 1976), aff’d, 562 F.2d 1015 (5th Cir. 1977).

B. Exceptions to the Intracorporate Conspiracy Doctrine are Adequate to Prevent Abuse of the Doctrine.

The panel was concerned that recognition of the intracorporate conspiracy

doctrine would allow organizations such as the Ku Klux Klan to circumvent

Section 1985 by incorporating. The Southern Poverty Law Center, as amicus

curiae, also has expressed this concern. See Southern Poverty Law Center Br. at 3-

4. These concerns are misplaced, however, because two recognized exceptions to

the intracorporate conspiracy doctrine protect against its abuse.

9

The first exception applies where the corporation exists to do harm. For

example, in Dombrowski v. Dowling, 459 F.2d 190, 196 (7th Cir. 1972), the

Seventh Circuit endorsed the intracorporate conspiracy doctrine under Section

1985, holding that Section 1985’s “two or more persons” requirement “is not

satisfied by proof that a discriminatory business decision reflects the collective

judgment of two or more executives of the same firm.” Id. But the court

recognized an exception to the intracorporate conspiracy doctrine where a

corporation is a mere instrumentality formed for the purpose of achieving a

forbidden result:

We do not suggest that an agent’s action within the scope of his authority will always avoid a conspiracy finding. Agents of the Klan certainly could not carry out acts of violence with impunity simply because they were acting under orders from the Grand Dragon.

Id. See also Travis v. Gary Community Mental Health Ctr., Inc., 921 F.2d 108,

110 (7th Cir. 1990). Thus, where the purpose of the corporation is to do harm, the

doctrine does not apply.

The second recognized exception to the intracorporate conspiracy doctrine is

where the alleged conspirators have a personal stake in the decision. The Fourth

Circuit recognized this exception in Buschi v. Kirven, 775 F.2d 1240, 1252 (4th

1985), holding that the intracorporate conspiracy doctrine is inapplicable where the

corporate agents are driven by personal, rather than corporate, interests or where

the person exceeds his or her authority. Id.

10

Thus, the Court can recognize the intracorporate conspiracy doctrine and

still make room for the situations where justice demands that the corporate veil

essentially be “pierced.” At the same time, this case does not present one of those

situations. Here, the alleged co-conspirators are agents of the corporation who

acted in the scope of their employment and for the benefit of the corporation.

Accordingly, this Court should hold that the intracorporate conspiracy doctrine

precludes Section 1985 liability against Lockheed and its agents.

II. THE INTRACORPORATE CONSPIRACY DOCTRINE PROMOTES FAIR, INFORMED, AND LAWFUL HUMAN RESOURCE DECISIONS.

Companies that want to attract, hire, retain, and promote the best employees

have an incentive to make careful decisions about their human resources.

Operating within the bounds of the law also requires care. For these reasons,

employers such as EEAC’s and the Chamber’s members involve multiple people in

human resource decisions when appropriate. Moreover, internal company

investigations, and actions taken upon the results of such investigations, frequently

require input from a variety of individuals. Wholesale refusal to apply the

intracorporate conspiracy doctrine to such common practices is likely to

discourage companies from using these important resources to arrive at well-

researched and well-reasoned decisions.

11

A. Common Personnel Decisions Frequently Require Input From More Than One Knowledgeable Individual.

Corporations function through the actions of individual employees, from the

chief executive officer to the worker on the production line. The process of hiring,

placing and retaining the best individuals to do the corporation’s work is one of the

most important functions leading to the success of the business.

For this reason, many companies seek to make informed decisions on the

recruitment and placement of personnel by obtaining input from each individual

who has knowledge that will aid the decisionmaking process. In a large company,

recruiters go into the field, to colleges and universities, to job fairs, to

organizations that aid in placement of individuals with disabilities and veterans, to

headhunters, and to other resources in an effort to find and attract highly qualified

candidates to fill available positions. During the hiring process, several

individuals, including operations managers and human resources professionals, are

likely to review resumes, interview applicants, and contribute to the decision of

which candidates to select.

Similarly, more than one decisionmaker may be involved in promotion

decisions, in which current employees become internal candidates for

advancement. The candidates’ current supervisors, the supervisor over the new

position, and human resources professionals all will have important information to

contribute to the process of selecting the best candidate to fill the job.

12

Decisions about what reasonable accommodations to make to enable a

qualified individual with a disability to perform the essential functions of a job, as

required by Title I of the Americans with Disabilities Act, 42 U.S.C. §§12111-

12117, also tend to involve participation by a number of knowledgeable people.

The employee in question will have valuable input into the process. Supervisory

employees will contribute their knowledge and experience concerning the essential

functions of the job and potential methods of modifying the way the job is done.

Human resources professionals can provide information about possible

accommodations, and can access internal and external resources for obtaining

additional information. Medical professionals often supply further information

about potential risks, and ways in which the individual can perform the job safely.

Indeed, some companies have put in place reasonable accommodation teams or

committees who pool their collective knowledge to arrive at an appropriate,

effective accommodation.

Finally, few employment actions involve more difficult and emotional

decisions than those involving discharge of an employee. Employers discharge

employees for reasons specific to the employee, such as poor performance or

misconduct. In addition, companies sometimes find it necessary to lay off

employees due to corporate restructuring or economic belt-tightening. Moreover,

because employees’ reactions to such decisions often are intense and emotional,

13

and because these decisions tend to have substantial financial consequences for the

affected employee, decisions to discharge or lay off employees are frequent targets

for legal attack.

For these reasons, companies often make these difficult decisions only after

careful review and consideration by several individuals, often at succeeding levels

of authority. For example, in an individual discharge for misconduct, not only the

employee’s supervisor, but also the supervisor’s supervisor will be involved in the

decision, as well as a human resources professional. In flatter corporate

hierarchies, where employees often report to multiple supervisors, a decision to

discharge such an employee would require input from all of the supervisors

involved. Moreover, in situations in which the discharge may raise questions

about possible discrimination, the decision also may involve seeking advice from

human resources professionals with specialized knowledge in this area, from the

law department, or both.

Indeed, employers are well advised to involve more than one decisionmaker

in such decisions. As one leading human resource treatise recommends,

“Company policy should require supervisors to seek formal approval from HR or

senior management before firing an employee. This practice prevents rash actions

and ensures that sound reasons exist for the supervisor’s action.” 1 HR Series,

Policies and Practices 115:1102 (Warren, Gorham & Lamont 1997). See also

14

Ethan Lipsig, Downsizing 64 (1996) (Layoff decisions should be made by a layoff

committee because it helps avoid discrimination and wrongful discharge actions

and “injects more balance and equity into the layoff selection process”).

A failure to recognize the intracorporate conspiracy doctrine under Section

1985 would contradict the way corporations work. This Court should not reject a

doctrine that fosters careful consideration and review of sensitive or complex

decisions designed to comply with the law. Cf. Kolstad v. American Dental Ass’n,

119 S. Ct. 2118 (1999) (holding that “in the punitive damages context, an

employer may not be vicariously liable for the discriminatory employment

decisions of managerial agents where these decisions are contrary to the

employer’s ‘good-faith efforts to comply with Title VII [of the Civil Rights Act of

1964, 42 U.S.C. §2000e et seq.]’”).

A. Thorough Internal Investigations, and Actions Upon Their Results, Frequently Require The Involvement of More Than One Person.

It is good practice for companies to launch internal investigations — often

conducted by and for more than one person in the company — in response to

allegations or suspicions of misconduct. “Now more than ever before, internal

investigations are an integral aspect of corporate governance and an important

management tool. In the area of employment law, they are absolutely necessary.”

Joseph T. McLaughlin & Kevin McKarthy, Corporate Internal Investigations—

15

Legal Privileges and Ethical Issues in the Employment Law Context, SD06 ALI-

ABA 991, 993 (1999). The panel’s rejection of the intracorporate conspiracy

doctrine ignores this reality.

Recent developments in sexual harassment law illustrate the importance of

effective internal investigations. The Supreme Court has held that an employer is

vicariously liable to a victimized employee for sexual harassment by the

employee’s supervisor. See Burlington Indus., Inc. v. Ellerth, 118 S. Ct. 2257,

2270 (1998); Farragher v. City of Boca Raton, 118 S. Ct. 2275, 2292-93 (1998). If

the harassment does not result in a tangible employment action, however, the

employer can defend itself, in part, by proving “that the employer exercised

reasonable care to prevent and correct promptly any sexually harassing behavior.”

Ellerth, 118 S. Ct. at 2270; Farragher, 118 S. Ct. at 2293. “Reasonable care” often

mandates a prompt and thorough internal investigation of harassment complaints

and prompt action on the results of the investigation.

Internal investigations may be conducted by human resources professionals,

by in-house counsel, or by outside professionals. It is not unusual for more than

one person to be involved in conducting an investigation. For example, some

investigators work in pairs when conducting witness interviews, with one asking

questions while the other takes notes. Some companies routinely will team a

female investigator with a male investigator. When the investigation is concluded,

16

these investigators will report their findings to others in the corporation who have

the responsibility of taking appropriate action on the results. These individuals

will make the decision on what type of disciplinary action to take where

harassment is found, or what action to take if it is not.

Accordingly, prompt and appropriate action in response to a sexual

harassment complaint, at least in a large or medium-sized company, typically

involves input from a number of individuals acting on behalf of the corporation.

To allow such efforts to be attacked as a Section 1985 “conspiracy” would be both

ironic and wrong.

17

CONCLUSION

For the foregoing reasons, the amici curiae urge this Court to affirm the

decision of the district court.

Respectfully submitted,

________________________

Stephen A. Bokat Robin S. Conrad Sussan Mahallati Kysela NATIONAL CHAMBER LITIGATION CENTER, INC. 1615 H Street, N.W. Washington, D.C. 20062 (202) 463-5337 Attorneys for Amicus Curiae The Chamber of Commerce of the United States September 28, 1999

Ann Elizabeth Reesman* Corbett L. Anderson MCGUINESS NORRIS & WILLIAMS, L.L.P. Suite1200 1015 Fifteenth St., N.W. Washington, D.C. 20005 (202) 789-8650

Attorneys for Amicus Curiae Equal Employment Advisory Council

*Counsel of Record

CERTIFICATE OF COMPLIANCE

I hereby certify that the En Banc Brief Amici Curiae of the Equal

Employment Advisory Council and The Chamber of Commerce of the United

States In Support of Defendant-Appellee and In Support of Affirmance complies

with Fed. R. App. P. 32(a)(7)(B). The brief has 3,226 words, from the Interest of

the Amici Curiae through the Conclusion, according to the word processing

program Microsoft Word 8.0.

______________________ Ann Elizabeth Reesman MCGUINESS NORRIS & WILLIAMS, LLP 1015 15th Street, N.W. Washington, D.C. 20005 (202) 789-8600

CERTIFICATE OF SERVICE

I hereby certify that two (2) copies of the En Banc Brief Amici Curiae of the

Equal Employment Advisory Council and The Chamber of Commerce of the

United States In Support of Defendant-Appellee and In Support of Affirmance

were sent by Federal Express, standard overnight, on this day to each of the

following:

William H. Boice, Esq. Edmund M. Kneisel, Esq. KILPATRICK STOCKTON, LLP 1100 Peachtree Street, N.E. Suite 2800 Atlanta, GA 30309-4530 404-815-6500

H. Lane Dennard, Esq. Michael E. Ross, Esq. Scott G. Blews, Esq. KING & SPALDING 191 Peachtree Street Atlanta, GA 30303-1763 404-572-6400

Richard W. Hendrix, Esq. FINCH, MCCRANIE, BROWN, HENDRIX & SULLIVAN 225 Peachtree Street, N.E. Atlanta, GA 30303 404-658-9070

James Lee Ford, Sr., Esq. Christopher G. Moorman, Esq. THE FORD LAW FIRM 3379 Peachtree Road, N.E. Suite 255 Atlanta, GA 30325 404-237-2155

September 28, 1999 ____________________ Ann Elizabeth Reesman* MCGUINESS NORRIS & WILLIAMS, L.L.P. 1015 Fifteenth Street, N.W. Washington, D.C. 20005 *Counsel of Record

mcandrew v. lockheed - eeac · lockheed conducted an internal investigation into the sale of the...

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