EEOC v. Trans State Airlines, Inc. (8th Cir.) Brief as appellant June 20, 2005 IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT ______________________________ Nos. 05-2009, 05-2010, 05-2046 ______________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff–Appellant/Cross–Appellee, and MOHAMMED SHANIF HUSSEIN, Plaintiff–Intervenor–Appellant/Cross–Appellee, v. TRANS STATES AIRLINES, INC., Defendant–Appellee/Cross–Appellant. ____________________________________________________ On Appeal from the United States District Court for the Eastern District of Missouri __________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT ___________________________________________________ ERIC S. DREIBAND EQUAL EMPLOYMENT OPPORTUNITY General Counsel COMMISSION Office of General Counsel VINCENT BLACKWOOD 1801 L Street, N.W., Room 7032 Acting Associate General Counsel Washington, D.C. 20507 (202) 663-4718 JULIE L. GANTZ Attorney SUMMARY OF CASE AND REQUEST FOR ORAL ARGUMENT The EEOC alleges in this action that Trans States Airlines ("TSA") violated Title VII of the Civil Rights Act of 1964 when it fired Mohammed Hussein, a Muslim probationary pilot who appears to be of Middle Eastern descent, a week after the September 11 terrorist attacks because of his religion, national origin and race. The defendant asserts that it fired Hussein because it received an anonymous phone call reporting that Hussein was in a bar in uniform in violation of a company rule. In granting summary judgment, the district court stated that the only evidence supporting the allegation of discrimination was Hussein's name and the fact that he was terminated shortly after September 11. The court noted repeatedly that there was no evidence of statements or actions by persons involved in the defendant's decision-making process reflecting hostility toward Muslims or persons of Middle Eastern descent. We argue in this appeal that a reasonable jury could infer from the evidence that, if Hussein were not Muslim and perceived to be Middle Eastern, the defendant would not have terminated him based on an anonymous phone call without taking reasonable steps to verify the truth of the accusation against him. This appeal presents factual issues that turn on a careful review and explication of the record. The EEOC submits that oral argument of twenty minutes per side would assist this Court in resolving these issues. TABLE OF CONTENTS SUMMARY OF THE CASE AND REQUEST FOR ORAL ARGUMENT. . . . . . . .i TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . ii TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . iv STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE ISSUES AND APPOSITE CASES . . . . . . . . . . .1 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . .2 A. PROCEEDINGS BELOW. . . . . . . . . . . . . . . . . . .2 B. STATEMENT OF THE FACTS . . . . . . . . . . . . . . . .3 C. THE DISTRICT COURT DECISION. . . . . . . . . . . . . 24 STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . 29 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . 30 ARGUMENT THERE IS SUFFICIENT EVIDENCE TO SUPPORT A FINDING THAT THE DEFENDANT'S ASSERTION THAT IT FIRED HUSSEIN BECAUSE IT RECEIVED AN ANONYMOUS REPORT THAT HE WAS IN A BAR IN UNIFORM IS A PRETEXT FOR DISCRIMINATION . . . 35 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 58 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE ADDENDUM EEOC v. Trans States Airlines, Inc., February 9, 2005, Order Awarding Summary Judgment to TSA and Denying TSA's Request for Attorney's Fees TABLE OF AUTHORITIES CASES Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) . . . . . 29 Bassett v. City of Minneapolis, 211 F.3d 1097 (8th Cir. 2000). 30 Buettner v. Arch Coal Sales Co., Inc., 216 F.3d 707 (8th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . 57 Cherry v. Ritenour Sch. District, 361 F.3d 474 (8th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . 46, 53 Crawford v. Runyon, 37 F.3d 1338 (8th Cir. 1994) . . . . . . . 30 Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003) . . . . . . . 53 Dominguez v. Cruz v. Suttle Caribe, Inc., 202 F.3d 424 (1st Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . 39 EEOC v. Ethan Allen, Inc., 44 F.3d 116 (2d Cir. 1994). . . . . 38 EEOC v. Sears Roebuck & Co., 243 F.3d 846 (4th Cir. 2001). . . 42 Griffith v. City of Des Moines, 387 F.3d 733 (8th Cir. 2004) . 53 Hernandez v. State of Texas, 347 U.S. 475 (1954) . . . . . . . 56 Keathley v. Ameritech Corp., 187 F.3d 915 (8th Cir. 1999). . . 29 Kempcke v. Monsanto Co., 132 F.3d 442 (8th Cir. 1998). . . . . 41 Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) . . . . . . . . . . . . . . . . . . . . . 29 Morgan v. Hilti, Inc., 108 F.3d 1319 (10th Cir. 1997). . . . . 35 Reeves v. Sanderson Plumbing, 530 U.S. 133 (2000).. . . . . . . . . . . . . . . . . . . . . 39, 47, 48, 52 Rosen v. Thornburgh, 928 F.2d 528 (2d Cir. 1991) . . . . . . . 56 Russell v. TG Missouri Corp., 340 F.3d 735 (8th Cir. 2003) . . 43 Sarmiento v. Queens Coll. CUNY, No. 01-CV-5266, 2005 WL 396385 (E.D.N.Y. Feb. 11, 2005) . . . . . . . . . . . . . . . 55 Smith v. Chrysler Corp., 155 F.3d 799 (6th Cir. 1998). . . . . 42 Stern v. Trs. of Columbia Univ., 131 F.3d 305 (2d Cir. 1997) . 49 U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711 (1983). . . . . . . . . . . . . . . . . . . . . . 53 Webb v. Garelick Mfg. Co., 94 F.3d 484 (8th Cir. 1996). . . . 29 Yates v. Rexton, 267 F.3d 793 (8th Cir. 2001). . . . . . . . . 47 Young v. Warner-Jenkinson Co., 152 F.3d 1018 (8th Cir. 1998). . . . . . . . . . . . . . . . . . . . . . 37, 48 STATUTES 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. § 1337 . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. § 1343 . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. § 1345 . . . . . . . . . . . . . . . . . . . . . . . .1 Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq . . . . . . . . . . . . . . . . . . . . . . 1, 2 Missouri Human Rights Act, Mo. Rev. Stat. § 213.010 et seq.. . .2 STATEMENT OF JURISDICTION This is an enforcement action brought by the Equal Employment Opportunity Commission pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The district court had jurisdiction under 28 U.S.C. §§ 1331, 1337, 1343, and 1345. Final judgment was entered on February 9, 2005. Volume I Plaintiffs' Appendix ("P.A.") 19. Hussein filed a timely notice of appeal on April 6, 2005. R.117.<1> The EEOC filed a timely notice of appeal on April 7, 2005. R.118. TSA filed a cross–appeal on April 12, 2005. R.121. This Court has jurisdiction under 28 U.S.C. § 1291. STATEMENT OF THE ISSUE AND APPOSITE CASES Whether there is sufficient evidence to support a finding that the defendant's assertion that it fired Mohammed Hussein because of an anonymous report that he was in a bar in uniform is a pretext for race, religion, and national origin discrimination. Reeves v. Sanderson Plumbing, 530 U.S. 133 (2000) Young v. Warner-Jenkinson Co., 152 F.3d 1018 (8th Cir. 1998) Kempcke v. Monsanto Co., 132 F.3d 442 (8th Cir. 1998) STATEMENT OF THE CASE A. Proceedings Below These are appeals from a final order of the United States District Court for the Eastern District of Missouri dismissing this enforcement action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and denying the defendant's request for attorney's fees. The complaint alleges that the defendant violated Title VII by terminating the employment of pilot Mohammed Hussein because of his race, religion, and national origin. I-P.A.20. Hussein intervened as a plaintiff on August 5, 2003. R.5. Hussein's complaint seeks relief under the Missouri Human Rights Act, Mo. Rev. Stat. § 213.010 et seq., as well as under Title VII. I-P.A.29. On February 9, 2005, the district court granted the defendant's motion for summary judgment. Addendum at 29; R.111. In the same order, the district court denied the defendant's request for attorney's fees. Addendum at 30. The court entered judgment the same day. I-P.A.19. Hussein filed a notice of appeal on April 6, 2005 (R.117); the EEOC filed a notice of appeal on April 7, 2005 (R.118); and the defendant filed a cross–appeal on April 12, 2005, appealing the district court's denial of its request for attorney's fees. R.121. B. Statement of Facts Mohammed Shanif Hussein is a Muslim who was born and raised in Fiji. II-P.A.227, 236 (Hussein Dep. 8, 43). Although he is of Indian descent, he stated that he appears Arabic and many people mistakenly think he is of Arabic descent. II-P.A.309 (Hussein Decl. ¶ 2). On February 26, 2001, Hussein was hired as a pilot by Trans State Airlines ("TSA"), which operates commercial flights for American Airlines, United Airlines, and U.S. Airways. II-P.A.230 (Hussein Dep. 19). Newly hired TSA pilots serve a one-year probationary period. I-P.A.37B (Collective Bargaining Agreement § 22F). At the time of his discharge on September 18, 2001, Hussein had been with TSA nearly seven months and had successfully completed his training. II-P.A.23-35 (Hussein Dep. 36-38); I-P.A.97 (June 15, 2001 Statement of Training Completed). He had no performance or disciplinary problems prior to the events leading to his termination. II-P.A.310 (Hussein Decl. ¶ 6). On September 13, 2001, Hussein returned a TSA plane to St. Louis following the September 11 terrorist attacks and the grounding of commercial aircraft. II-P.A.241 (Hussein Dep. 62-63). That evening, he ate dinner at Skooner's, a restaurant and bar at the Howard Johnson's hotel near the airport where he was staying. Hussein sat at the bar portion of the restaurant. II-P.A.247- 48, 250-51, 253 (Hussein Dep. 88-89, 97-101, 109). Hussein testified that he wore nothing that signified he was a pilot. II-P.A.248, 253; see also FBI Report at 2-3.<2> He stated that he did not want to be seen in his pilot's uniform following the September 11 attacks because he looked Arabic and "the media had made a big deal about uniforms being stolen." II-P.A.248. Angelina Lodatto, a former bartender at Skooner's, testified that she never saw a pilot in uniform seated at the bar at Skooner's, and that the presence of a pilot in uniform would be so unusual she would remember it. II-P.A.320; see also II-P.A.336 (Lodatto Decl. ¶¶ 7, 9). Because pilots and other airline employees were frequent visitors at Skooner's, Skooner's employees were aware of the rules prohibiting a pilot from drinking within 12 hours of flight duty or being in a bar in uniform. II-P.A.336 (Lodatto Decl. ¶ 6). Lodatto testified that she was told that pilots in uniform were not to be seated at or served at the bar. II-P.A.319. On the night of September 13, Lodatto was working at the Kung Jeon Lounge, which is located upstairs from Skooner's. She stated that Hussein came into the lounge that night wearing a white button down shirt and dark pants; he was not wearing any part of his pilot's uniform. II- P.A.337. TSA's General Operations Manual ("GOM") sets forth standards for pilot conduct. II-P.A.477 (Swoboda Dep. 71). The GOM's alcohol and drug policy prohibits pilots from drinking alcohol within twelve hours of reporting for duty and forbids pilots from drinking in public while in uniform at any time. I-P.A.92 (GOM Part 10 ¶ B(1), (3), (4)). The GOM also provides: "To eliminate the possibility of any Trans States Airlines crewmember employee in uniform being associated with the use of alcoholic beverages, crewmembers in complete or partial uniform . . . are prohibited from visiting any establishment or portion thereof the primary purpose of which is to serve alcoholic beverages." I-P.A.92 (GOM Part 10 ¶ B (5)). According to one of TSA's flight managers, a pilot is considered to be at least in partial uniform if he is wearing any of the following items: his epaulets, tie, jacket, hat, or identification badge. II-P.A.473 (Swoboda Dep. 57). Two TSA supervisors testified that a pilot dressed in a pilot's dark pants and white shirt without the epaulet shoulder boards attached would not be in uniform. II-P.A.464 (Swoboda Dep. 19); II-P.A.493 (White Dep. 30-31). Two other supervisors disagreed—one testified that, because the pilot shirt has flaps for epaulets, wearing it would be considered being in uniform. I-P.A.142 (Aman Dep. 38). Another stated, "I would not show up in a bar with black pants and my white uniform shirt on with or without epaulets or with or without a tie." II-P.A.453 (Scott Dep. 30). Emmet Conrecode, a pilot for TWA and a major in the Marine Corps Reserve, was grounded in St. Louis between September 11 and September 16 and staying at the Howard Johnson's. I-P.A.174 (Conrecode Dep. 11). On the night of September 13, he went to Skooner's and sat at the bar eating dinner and drinking a beer. I-P.A.174 (Conrecode Dep. 12-13). He testified that a man he subsequently learned was Hussein was acting in an "unusual" manner. I-P.A.175. According to Conrecode's deposition testimony, this man was wearing a pilot's shirt, dark pants, and epaulets and drinking a beer, which Conrecode knew pilots were not permitted to do. I-P.A.175-76. Moreover, according to Conrecode, Hussein was "happily raising his beer watching the coverage of the airplanes hitting the towers and bouncing around the bar attempting to engage people in conversation, debate." I-P.A.181. Conrecode asserted that Hussein watched the television coverage of the 9/11 attacks, smiling, and when the aircraft hit one of the towers, "he raised his beer as in a salute and took a swig." I-P.A.177. Conrecode described Hussein's demeanor as "celebratory." I-P.A.178. According to Conrecode, Hussein left Skooner's after another pilot asked him to leave, but returned after a brief time without his epaulets and continued watching the television coverage and trying to engage other patrons in conversation. I-P.A.178. Conrecode testified that he asked the bartender why Hussein was acting strangely and she told him that he was in favor of the terrorist attacks and had been engaged in debates with patrons. I-P.A.180. Conrecode did not personally hear Hussein say anything in support of the 9/11 attacks. I-P.A.180; see also I-P.A.187. Conrecode testified that he heard Hussein say, "I get to fly tomorrow," and interpreted this to mean that Hussein was about to "betray" the United States. I-P.A.184, 194. Conrecode testified that the notion that Hussein was going to fly a plane into a building "was my greatest fear." I-P.A.204. Conrecode testified that after he left Skooner's he learned Hussein's name and the fact that he was a pilot for TSA from the hotel's desk clerk and then went to his room but was unable to sleep. I-P.A.182, 185. He testified that he thinks he called the FBI and left a message giving "a general description of a pilot drinking in uniform ecstatic about 9/11" and naming Hussein. I-P.A.185. He stated that he subsequently called the St. Louis Airport police at approximately 3 a.m. I-P.A.185, 186. Conrecode recalled telling the police that "I observed a pilot that I had identified as being a Trans States pilot in a bar in uniform drinking, celebrating the 9/11 attacks, and proclaiming that he was going to be flying tomorrow—or this morning." I-P.A.186. He recalled that he gave Hussein's name but did not recall if he said Hussein was Middle Eastern although, "based on his name," he believed he was of Middle Eastern descent. I-P.A.186, 191. Conrecode testified that FBI agents came to his room at about 9 a.m. on the morning of September 14 and he gave them a statement. I-P.A.189. Conrecode could not name anyone else who witnessed Hussein's behavior at Skooner's. He testified that he recognized several pilots who were present that night but did not give their names to the FBI or the police. I-P.A.190. The FBI report concerning the incident gives no indication that Conrecode ever spoke with the FBI, either by phone or in person. Rather, the report indicates that Conrecode's story was communicated to the FBI by the St. Louis Airport Police Department at 6:45 a.m. on the morning of September 14. See Information Control Form.<3> According to the FBI report, Conrecode told the airport police that "[w]hile sitting at the hotel bar[, he] heard an individual of Mid-East decent [sic] saying that he supported the attacks." Id. The FBI report states that Conrecode reported that the individual was in "civilian clothes," but wearing a "pilot's t-shirt and may have shown a pilot's ID for Trans-States Airlines." Id. An FBI agent awoke Hussein in his hotel room the morning of September 14 and forced his way into the room. II-P.A.252 (Hussein Dep. 107). Detective James Moore of the St. Louis Airport Police Department accompanied the agent. FBI Report at 1. The FBI agent asked for Hussein's identification and flight credentials, and questioned him about his background and his behavior on the night of September 13. II-P.A.252-53 (Hussein Dep. 108-09). Hussein was asked if he had any weapons and who the pilot uniform on the chair in his room belonged to. II-P.A.252 (Hussein Dep. 108). Hussein denied that he was acting in any way that could be reported as supportive of the terrorist attacks. FBI Report at 2. When the FBI agent told Hussein he had been reported smiling in Skooner's while watching the coverage of the 9/11 attacks, Hussein replied that he had learned that his wife was pregnant that day. II-P.A.253 (Hussein Dep. 112); FBI Report at 2. According to the FBI report, Hussein stated that he was not wearing any insignia that would indicate he was a pilot, but "acknowledged his epauletted white shirt and dark pants were indicative of a member of a flight crew." FBI Report at 2-3. The FBI took no further action. Later on September 14, Hussein told flight manager Rodney Aman about the FBI interview that had occurred that morning. II-P.A.257 (Hussein Dep. 126). Aman testified that, "as a guess," the incident had something to do with 9/11. I-P.A.162. Hussein stated, "As soon as I told Rodney, it seemed like everyone else knew." II-P.A.257. Conrecode testified that after calling the FBI and airport police on the morning of September 14, he went back to sleep and later that day or the next day he called TSA's Vice President of Flight Operations, Daniel Reed.<4> I-P.A.195. Conrecode testified that, when he called the FBI, he was acting as a military officer defending the country, but when he called TSA, he "was acting as an airline captain trying to save the career of a misguided young man," and he was "hoping to defend the profession from bad press coverage." I-P.A.196, 204. He testified that he identified himself to Reed as a pilot, but he was not sure whether he gave his name and, if he gave it, whether Reed caught his name, as he had disturbed him in the middle of a meeting. I-P.A.196, 197-98. He stated that he gave Reed "a watered down version of what I told the FBI"— that Hussein had been drinking in uniform and seemed to be intimidating stranded passengers. I-P.A.195. He stated in a declaration that he told Reed that he witnessed Hussein in Skooner's in his pilot's uniform, drinking alcohol, and had "received reports that he was speaking out in favor of the terrorist attacks." I-P.A.208-09 (Conrecode Decl. ¶ 11). Conrecode testified that he "may have" told Reed that Hussein was making comments in support of the 9/11 attacks and that the FBI would likely be contacting TSA because he had reported Hussein's behavior to the FBI. I-P.A.196. According to Reed, he received the call about Hussein on his cell phone while he was in a staff meeting in TSA's maintenance hangar. II-P.A.401 (Reed Dep. 22-23). Reed testified that four supervisors were present: Mike White, Rodney Aman, Stuart Scott, and Mike Swoboda. II-P.A.400. Reed stepped out of the conference room to take the call. II-P.A.401. Reed testified that the caller, who did not identify himself, reported that a pilot in a TSA uniform "was in a lower bar at the Howard Johnson's" and "was making comments about 9/11," and that "the bartender had asked him to leave." II-P.A.401. According to Reed, the caller "did not say [the pilot] was drinking. They said he was in the bar, in a uniform, making comments and that the bartender told him to leave the bar. . . . He took some of his uniform pieces off and went into the bar upstairs." II-P.A.402. The caller did not describe what Hussein was wearing, but stated only that he was in a pilot's uniform. II-P.A.410-11. According to Reed, the caller told him that he obtained Hussein's name and airline "because he had read his ID." II-P.A.401, 411. Reed testified that he stepped back into the conference room and told the flight managers "[t]hat I just received a report . . . what they told me on the phone. Asked them to verify that the pilot was indeed in town for that day or not out on a trip. . . . And they told me he was not on a trip for the company and that he was a probationary pilot." II-P.A.402. According to Reed, "after that answer came back I said with this phone call and this thing, I believe it's happened and we should terminate him and I made that call." II-P.A.411. Reed testified that the decision to terminate Hussein was made approximately an hour after he received the anonymous phone call. II-P.A.410; see also II-P.A.428. Reed testified that he directed one of his manager pilots to terminate Hussein. II-P.A.411. Reed testified that he did not obtain the identity of the person who reported Hussein in a drinking establishment because "[t]he individual said that I would be getting a follow-up phone call explaining everything to me." II-P.A.400, 401. Although he considered the allegations "serious," Reed made no record or notes of the call. II-P.A.399, 400. Reed acknowledged that he had no idea who the caller was or what motivated him to call. II-P.A.407. In Reed's mind, "it was a reliable call because I verified that the pilot was in town and that very possibly could have happened. And I think it's a reliable call when he comes up with the pilot's name." II-P.A.406. Reed stated that if Hussein "had not been in St. Louis I was going to dismiss the call." II-P.A.404. He stated that at the time he decided to discharge Hussein, he did not know his national origin or race or that he was a Muslim. II-P.A.443 (Reed Decl. ¶ 31); see also II-P.A.413 (Reed Dep. 70-72). Mike Swoboda testified that Reed left the meeting room when the call came in about Hussein, and his conversation could not be heard. II-P.A.465. According to Swoboda, Reed was gone for 3 to 5 minutes. Id.; see also I-P.A.197 (Conrecode Dep. 103) (stating his conversation with Reed was three minutes long). He returned after the call had ended and asked those present who Mohammed Hussein was. II-P.A.465. Swoboda told Reed that he knew Hussein, and that he was a first officer based in St. Louis and was probably probationary. Id. According to Swoboda, "It was then that Mr. Reed instructed me to terminate Mr. Hussein's employment." II-P.A.465. Flight manager Rodney Aman testified that Reed was still on the phone when he came back to the meeting. He said he heard Reed say: "It doesn't matter, he was in a bar in uniform." I-P.A.147. According to Aman, the call lasted "less than a minute" and Reed said nothing to those in the meeting after he finished the call. I-P.A.148. Neither Stuart Scott nor Mike White remembered the call about Hussein. II-P.A.452 (Scott Dep. 26); II-P.A.488 (White Dep. 12-13). TSA has an Employee Handbook which sets forth the company's policies regarding the fair treatment of employees. The Handbook does not distinguish between probationary and non-probationary employees and Reed testified that the handbook is applicable to every employee of TSA. II-P.A.397, 430. The handbook states that TSA "commit[s] to our employees that we will discuss any problem, answer any questions, and address any issue that you will bring to our attention." I-P.A.50. The handbook's "Open Door Policy" provides: The management of the Company has been committed to a policy of open and direct communications between employees and managers and supervisors. We endeavor to keep employees informed on current Company business and enable them to discuss issues of concern with their supervisors. The Company will always give utmost consideration to the well being of its employees. We intend that every employee shall be treated justly and considerately at all times. I-P.A.51. After examining the "open door policy" during his deposition, Reed testified that it affords employees accused of misconduct notice of the charges against them and an opportunity to respond to the allegations. II-P.A.430 (Reed Dep. 141). The handbook also sets out a system of progressive discipline as follows: It is the policy of Trans States Airlines, Inc., to treat all employees as fairly as possible, given the exact circumstances of each individual situation. A system of progressive discipline will be utilized with employees who fail to observe/follow company procedures, rules, or meet work performance requirements. Except for serious violations, an employee is to be first given a supervisor's verbal warning for an infraction. Subsequent steps will include a supervisor's written warning, time off without pay, and discharge. Certain serious infractions may necessitate a consolidation of one or more of the progressive steps. The basic Rules of Conduct . . . summarize those rules that may warrant immediate grounds for dismissal. I-P.A.56. Notwithstanding his testimony that the Handbook applied to all employees, Reed stated that a probationary employee would not be protected by the open-door policy or the progressive discipline policy in the Handbook. II- P.A.435 (Reed Dep. 159). TSA pilot and union leader Dario Miranda stated that being in a bar in uniform is subject to TSA's progressive discipline policy and is not grounds for discharge for a first offense. II-P.A.347-48 (Miranda Decl. ¶ 19). Chief pilot James White testified that a 30-day suspension would be an appropriate punishment for a first offense for a nonprobationary pilot. II-P.A.498 (White Dep. 51-52). There is no evidence that any pilot, either probationary or not, other than Hussein, has been fired by TSA for violating this rule. See, e.g., II-P.A.410 (Reed Dep. 60-61); II-P.A.498 (White Dep. 51); II-P.A.348 (Miranda Decl. ¶ 20). TSA also has a collective bargaining agreement ("CBA") with the Air Line Pilots Association ("ALPA"), the pilots' union. The CBA sets out a grievance process applicable to disciplinary actions including discharge; the process includes notification to the pilot of any charges, an opportunity to defend himself, and the right to appeal disciplinary action. I-P.A.35-36 (CBA at 52-53, § B). Probationary pilots are expressly denied access to the grievance process. I-P.A.36 (CBA at 53, § B(5)). According to Reed, under the CBA, "TSA is not required to have ‘just cause' to terminate a probationary pilot and is not required to conduct an investigation, provide notice of discipline, the reasons therefore or provide a probation [sic] pilot accused of a rules violation an opportunity to present information on his/her behalf." II-P.A.440 (Reed Decl. ¶ 11). Reed also asserted that it is TSA's "consistent practice" not to take these steps. II-P.A.440 (Reed Decl. ¶¶ 11-13). Miranda, the head of the pilots' union, testified that provisions in the Employee Handbook apply to pilots unless they conflict with the CBA. II- P.A.345 (Miranda Decl. ¶¶ 8, 10). According to Miranda, nothing in the CBA conflicts with the Employee Handbook's policies of fair treatment and open communication with employees. II-P.A.346 (Miranda Decl. ¶¶ 13-15). TSA did not ascertain whether Conrecode's allegations were true. No one who was at the meeting testified that he checked to see if Hussein was in St. Louis on September 13th. See, e.g., II-P.A.488 (White Dep. 12). Reed stated he did not investigate the allegations because "I had what I considered a credible report and he's a probationary pilot, I do not go any further." II-P.A.405. Reed also stated "[For] [t]he probationary pilot I did no investigation." II-P.A.409. According to Swoboda, if a probationary employee was accused of violating a rule of conduct, TSA would not care if the probationary person actually violated the rule. II- P.A.474. Swoboda agreed with the statement that it would make no difference if a probationary employee was falsely accused. II-P.A.474. However, when Swoboda was asked during his deposition what he would do to investigate to determine whether or not a rule of conduct violation has occurred, he replied, "If a rule of conduct was broken by a probationary employee . . . . I would have to know something about the accuser." II-P.A.482. Swoboda testified that he would want to know whether the accuser is a pilot and his motivation for making the accusation. II-P.A.482; see also II-P.A.482 ("I've got to know why somebody is accusing somebody"). Aman testified that he assumed an investigation had been done because the company did not take lightly decisions to terminate pilots. I-P.A.153. Aman agreed that, if Hussein was not in uniform or in a bar, his discharge was not justifiable. I-P.A.153. He testified, "I would say yes, they should investigate that, but it was from every indication that I had, that it had been." I-P.A.153. Aman stated, "I would trust that they would" fully investigate allegations before terminating an employee. I-P.A.153. When asked what he would do if someone called and identified a pilot as being in a bar in uniform, Aman agreed that he would want to know the identity of the caller, the name of the bar where the pilot was seen, when the pilot had been seen, and agreed that he would make a record of the phone call. I-P.A.153-54. He also stated, "If Mr. Hussein had witnesses or whatever, that would have peaked [sic] my curiosity, but he made no claim." I- P.A.155. Aman explained, "I didn't do the investigation . . . I don't know what- all, who-all was interviewed; I don't know where the interviews took place. I don't know if they had a picture of the man in uniform . . . ." I-P.A.155. Aman stated that he "would have trusted [TSA] to conduct the investigation as they saw appropriate." I-P.A.155. He stated it would not have surprised him if TSA asked Hussein if he had any witnesses and agreed it was something they should have done. I-P.A.155. In answering the question of whether it would make a difference how he conducted the investigation if the pilot was probationary or non- probationary, he answered that "for probationary pilots, they serve at the discretion of the company, they're not entitled to an investigation." I-P.A.155. James White, TSA's chief pilot who supervised the flight managers, testified that "[a] person is innocent until proven guilty. So you gather your facts, conduct your investigation." II-P.A.494. When asked if this was true for probationary pilots, White stated that, because probationary pilots are not afforded rights under the collective bargaining agreement, the company would not need to verify if a probationary pilot was actually guilty of a rule violation and White would not care if he was guilty or not. II-P.A.494. White said he would want to know the identity of the person reporting the incident "in most cases." II-P.A.495. He said if he got a call from the Federal Aviation Administration or from a current employee, "that's good enough for me." II-P.A.494-95. And he stated it would be important to assess the credibility of the allegation "for me." II-P.A.495. Reed testified that he has fired other pilots based on an anonymous phone call. He stated that in 1999, he received an anonymous call that a group of 6-8 pilots was in a bar drinking in South Bend, Indiana, during a training exercise. II- P.A.407. Because they violated TSA's policy prohibiting pilots from drinking alcohol within twelve hours of reporting for duty, "I terminated all the probationary pilots on the spot and the ones that weren't terminated on the spot were not probationary and they went through the bargaining agreement grievance process but they were all terminated." II-P.A.407. Reed asserted that he did not investigate the accuracy of the allegation for the probationary pilots. Id. He stated that the report "matched a number of [a] group I had up there in training; the pilots I knew were there." Id. To verify the accuracy of the report for the non- probationary pilots, Reed testified that he had someone obtain "statements from the bartender and stuff like that that they were in there drinking." II-P.A.407-08. Reed acknowledged that the bartender's statements addressed both whether probationary pilots were present at the bar as well as non-probationary pilots. II- P.A.407-08 (Reed Dep. 49-50). A pilot who was present at the incident, Lionel Purnwasy, recounted that the class of pilots sent to South Bend numbered 12-16. II-P.A.369. The night of the training session, "a couple of guys there had a couple— had beers to drink, one or more of them got drunk, and a few people were fired over the incident." II- P.A.369. Purnwasy testified that "[a] good portion of the class, if not all of us" was at a bar prior to the training waiting to begin the exercise. II-P.A.372, 375, 378. He testified that three of the group were fired, two of them probationary pilots. II-P.A.373. All three drank alcohol prior to the training exercise, and one was intoxicated during the exercise. II-P.A.373, 382-83. According to Purnwasy, none of the others in the training group had had any alcohol. II-P.A.387. Purnwasy testified that the three pilots were fired "[w]ithin a week" of TSA finding out about the incident. II-P.A. 383-84. On September 18, Swoboda handed Hussein his termination letter when he saw Hussein at TSA's offices that morning. II-P.A.467 (Swoboda Dep. 31). The letter stated: "As you are aware, probationary pilots serve at the discretion of the company. After careful review, your employment with Trans States Airlines is terminated effective immediately." I-P.A.98. Hussein recalled that he asked if the termination letter was a joke and asked several times for the reason. II-P.A.256. Neither Swoboda nor Aman gave Hussein a reason for his termination; they told him he was not entitled to a reason. I-P.A.150 (Aman Dep. 71); II-P.A.257 (Hussein Dep. 128). Aman did not answer Hussein when Hussein asked if his termination was connected to the FBI interview. II-P.A.257 (Hussein Dep. 128). Hussein filed a charge with the EEOC on December 10, 2001, alleging that he was fired because of his race, national origin, and religion. I-P.A.99. Reed testified that the FBI contacted him about Hussein after he had terminated him. II-P.A.413. According to Reed, the FBI agent asked if Hussein was employed by TSA, Reed said he no longer was, and the conversation lasted 1- 2 minutes. Id. Reed stated this call did not affect his decision to terminate Hussein because he had already terminated him. II-P.A.414. However, James Gall, an EEOC investigator, stated in his August 1, 2002 report that Reed told him that Reed instructed his flight managers to investigate Conrecode's allegation, but before the investigation had been completed, a representative from the FBI called to say the FBI wanted to talk to Hussein. I-P.A.112 (Gall Respondent Witness Interview Summary at 1); I-P.A.212 (Gall Dep. 55-56); I-P.A.225 (Gall Decl. ¶ 15). Reed therefore terminated Hussein because he was already suspected of being in a drinking establishment in uniform. Id. In deposition testimony and in statements offered in support of TSA's motion for summary judgment, however, Reed maintained that he ordered Hussein's termination within an hour of Conrecode's call and without engaging in any investigation because Hussein was a probationary employee and, Reed maintained, he never investigated allegations of misconduct by probationary pilots. II-P.A.405, 409 (Reed Dep. 39, 57); II-P.A.503-04, 505-06 (TSA's Memorandum in Support of Summary Judgment). Furthermore, contrary to Reed's statement to the EEOC investigator that the decision to fire Hussein was influenced by the fact that Hussein had been interviewed by the FBI, Reed testified at his deposition that he decided to fire Hussein before he had been contacted by the FBI and the only reason was the anonymous report that Hussein was seen in a bar in uniform. II-P.A.411, 414 (Reed Dep. 64, 74-75). On January 28, 2003, the EEOC found cause to believe discrimination had occurred. I-P.A.114. The EEOC provided TSA with its determination letter and invited TSA and Hussein to engage in conciliation. The EEOC and TSA exchanged correspondence, including a proposed conciliation agreement drafted by the EEOC, dated May 16, 2003. I-P.A.119. TSA representative David Hayes submitted a counter-proposal on June 13, 2003, which lacked a calculation for back pay. I-P.A.129. Among other things, Hayes stated that TSA's counteroffer "would be our highest possible offer" but said, "if we are moving closer toward settlement I will be glad to have that number calculated and then make you an additional offer." Id. On June 16, 2003, Gall sent a letter asking Hayes to calculate back pay and respond by June 20, 2003, or it would consider conciliation a failure. I-P.A.130. When Gall informed Hussein of TSA's offer on June 17, 2003, Hussein rejected it. I-P.A.224 (Gall Decl. ¶ 12). The difference between TSA's offer and Hussein's monetary demand for compensatory damages, punitive damages, and back pay was over $150,000, and there was lack of agreement about the terms of Hussein's proposed reinstatement. I-P.A.223-34 (Gall Decl. ¶ 12). Because of the large gap between the parties' offers and demands, as well as TSA's statement that its last offer "would be our highest possible offer," the EEOC concluded that conciliation had failed. I-P.A.224 (Gall Decl. ¶ 13). On June 18, 2003, the EEOC notified the parties that conciliation had failed. I- P.A.131; I-P.A.224 (Gall Decl. ¶ 13). Neither party requested conciliation be re- opened and neither party made a new offer or demand. I-P.A.224-25 (Gall Decl. ¶ 14). EEOC filed suit on July 17, 2003. R.1. On July 12, 2004, the EEOC, Hussein, and TSA engaged in mediation in an attempt to settle the case, but the mediation was unsuccessful. II-P.A.312 (Hussein Decl. ¶ 16). The District Court Decision The district court granted the defendant's motion for summary judgment but denied its request for attorney's fees. The court assumed that the plaintiffs established a prima facie case of discrimination based on race, religion, and national origin. Addendum 24. However, the Court concluded that "the EEOC and Hussein have failed to present sufficient evidence to raise a question of material fact as to whether TSA's explanation that Hussein was fired because Reed received a report that he, a probationary pilot, was in a bar in uniform was pretextual and to create a reasonable inference of discrimination based on his race, religion, or national origin." Id. at 29. According to the Court, the only evidence the EEOC and Hussein presented was "Hussein's name, race, religion, and national origin and the date he was fired–two days after the terrorist attacks on September 11." Id. at 28. The court added, "[t]hey have introduced no statements or actions by persons involved in TSA's decision-making process reflective of a discriminatory attitude." Id. The court stated that "neither the EEOC nor Hussein have introduced any evidence that Reed was not told during a telephone call that Hussein had been in a uniform in a bar on September 13." Id. at 25. The court pointed out that Hussein's denial that he had been either in uniform or in a bar that evening "is not evidence that TSA fabricated the telephone call." Id. The court rejected the plaintiffs' contention that TSA's failure to follow its progressive discipline policy constitutes evidence of pretext. Although the court acknowledged that a company's failure to follow its policies may support an inference of pretext, the court concluded that there is no dispute that TSA followed its established policies in this case. Id. at 25. The court determined that, because § B(5) of the CBA "specifically negates any progressive discipline procedure for probationary pilots," "insofar as this provision conflicts with the employee handbook's progressive discipline policy, the CBA clearly controls." Id. at 26. The court concluded, "The evidence before the Court is that Hussein was fired following a report to Reed that he had been in a bar in uniform and that the progressive discipline policy did not apply to him because he was a probationary pilot." Id. The court stated that the defendant "did follow its own rules in firing Hussein without an investigation or notification of the reasons for his discharge." Id. at 28. In addition, the court determined that Hussein was treated the same as similarly situated probationary pilots who had been fired in 1999 for drinking alcohol 12 hours prior to reporting to work in violation of TSA's General Operations Manual. The court stated, "Those that were probationary pilots were discharged ‘on the spot' without verification of the accuracy of the anonymous report. The non-probationary pilots were discharged after a substantiating statement was taken from the bartender." Id. at 26. The district court rejected the contention that the timing of Hussein's discharge so close to the 9/11 attacks could support an inference of discriminatory animus. In the court's view, Reed decided to discharge Hussein "based on an anonymous report and without an investigation that went further than learning that Hussein was in St. Louis and was a probationary pilot." Id. at 27. The court stated that, "assuming, without deciding, that Captain Conrecode also informed Reed, as he had informed the FBI, that Hussein appeared to be of Middle Eastern descent and spoke in favor of the terrorist attacks, there is no evidence that this influenced Reed in his decision to terminate Hussein for a violation of TSA rules." Id. The court pointed out that the only statement "credited to Reed" once he got the call about Hussein was the comment, "[i]t doesn't matter, he was in a bar in uniform." Id. The court emphasized that "Hussein testified that at no time during his employment with TSA did anyone in management or otherwise make any negative comment about his race, religion, or national origin. Indeed, there is no evidence that anyone in TSA's management or employ spoke against, or took any action, after the September 11 attacks in relation to people of Middle Eastern descent." Id. at 27. The court stated that there is evidence that Reed "was unaware of Hussein's race, religion, or national origin" and that "[t]here is no evidence that Reed presumed Hussein was of the Islamic faith because of his name." Id. at 27- 28. "To conclude that the EEOC and Hussein have presented a triable issue as to pretext in response to the properly-supported pending motion, the Court would have to find that the timing of his discharge gives rise to an inference that someone of Hussein's name and appearance was discriminated against in reaction to the tragic events of September 11. This the Court cannot do under the standards set forth above." Id. at 28. In a footnote, the court recognized that there is a dispute in the record about what being "in uniform" means and whether Hussein was "in uniform" the night of September 13. In the court's view, because "there is no dispute that Reed was told [Hussein] was in uniform," reliance on an honest yet incorrect belief is not evidence of pretext, and "any ambiguity about what being ‘in uniform' requires does not, in and of itself, support an inference of discrimination." Id. at 27 n.16 (case citations omitted). The court rejected the defendant's request for attorney's fees. The court stated, "[a]lthough the claims of discrimination are found to be without merit, they are not frivolous or groundless," making an award of fees "inappropriate." Id. at 30. The court also rejected the defendant's argument that it was entitled to fees because the EEOC failed in its duty to conciliate. The court stated, "The record clearly shows that both the EEOC and TSA attempted to resolve this dispute through conciliation rather than litigation." Id. at 31. The court noted that Captain Hayes who was conducting negotiations for TSA stated "that he was reluctant to take the time to provide further calculations because the parties were so far apart in their respective positions." Id. Nonetheless, EEOC investigator Gall requested that TSA perform the calculations. According to the court, the EEOC filed suit prior to the time period specified by Gall for TSA to respond to his request because he concluded that "Hussein and TSA were so far apart in their respective positions." Id. The court noted, "Thus, the parties agree on this–that they were far apart." Id. Furthermore, the court stated, "There is no indication that the EEOC could have convinced Hussein to come down in his settlement demand, or that TSA would have come up." Id. STANDARD OF REVIEW A district court's grant of summary judgment is reviewed de novo applying the same standard as the district court. Keathley v. Ameritech Corp., 187 F.3d 915, 919 (8th Cir. 1999). In determining whether summary judgment was appropriate, this Court assesses the facts in the light most favorable to the non- moving party, drawing all reasonable inferences in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment is appropriate only if no reasonable fact finder could return a verdict for the Commission. Keathley, 187 F.3d at 919 ("‘Summary judgment should not be granted unless the evidence could not support any reasonable inference' of discrimination.") (quotation omitted). This Court has emphasized that, "[b]ecause discrimination cases often turn on inferences rather than on direct evidence, we are particularly deferential to the non-moving party alleging discrimination." Webb v. Garelick Mfg. Co., 94 F.3d 484, 486 (8th Cir. 1996) (citation omitted). Therefore, "summary judgment should seldom be used in employment discrimination cases." Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir. 1994); Bassett v. City of Minneapolis, 211 F.3d 1097, 1099 (8th Cir. 2000) ("emphasiz[ing] the oft repeated phrase that summary judgment should seldom be granted in discrimination cases"). SUMMARY OF ARGUMENT Contrary to the district court's view, there is sufficient evidence to support a finding that TSA's assertion that Mohammed Hussein was terminated because of an anonymous report that he was in a bar in uniform is not the true explanation for its action. A reasonable jury could infer from this finding that Hussein was terminated for discriminatory reasons. Daniel Reed asserted that he decided to terminate Hussein based on an anonymous tip that Hussein was in a bar in uniform without knowing the identity or motivation of the caller or whether the allegations were true. Reed insisted that he did no investigation because it is TSA's policy and consistent practice not to investigate reports of misconduct for probationary pilots such as Hussein. However, given the inconsistent statements made by Reed and his managers regarding the company's policies and practices, a reasonable jury could disbelieve TSA's stated reason for his termination and infer a discriminatory motive was behind it. First, because Reed gave inconsistent reasons for and about Hussein's termination, a jury could infer that the explanation TSA offered in court was not its true reason. Reed initially told the EEOC that he had instructed his flight managers to investigate the report that Hussein was in a bar in uniform but called off the investigation and fired Hussein when he received a call from the FBI informing him that the FBI wanted to interview Hussein. In later statements, however, Reed acknowledged that the FBI did not contact him until after he had fired Hussein, and Reed asserted that he ordered Hussein's termination in response to Conrecode's call without initiating an investigation into the identity of the anonymous tipster or the veracity of his allegation. Second, a jury could find that Reed's current version of events— that, because Hussein was a probationary pilot, TSA fired him on the basis of an anonymous phone call without even a cursory investigation to verify the allegation—is inherently incredible, as well as inconsistent with statements of TSA officials regarding the company's policies. The policy Hussein was accused of violating is ambiguous, as evidenced by TSA managers' conflicting testimony about what it means to be "in uniform." Yet Reed maintains that he decided to fire Hussein based on the anonymous call stating that he was in a bar "in uniform" without knowing what Hussein was wearing on the night in question or any information at all as to the familiarity of the caller with TSA's rules regarding uniforms. Moreover, although Reed testified that he checked on Hussein's whereabouts on the night in question, there is contrary evidence in the record including the testimony of TSA's flight manager that, when he told Reed shortly after Conrecode's call that Hussein was based in St. Louis and probably probationary, Reed immediately "instructed [him] to terminate Mr. Hussein's employment" without any further inquiry into his whereabouts on September 13. A reasonable jury could find it improbable that TSA would invest months of pilot training in Hussein only to terminate him based on a brief, uncorroborated, anonymous call reporting an act of misconduct that would not typically warrant such a drastic penalty, and accordingly, infer from Reed's overreaction to the call that discriminatory animus motivated him. Additionally, there is evidence that Reed's failure to investigate the allegation against Hussein or give him an opportunity to respond before he was fired is inconsistent with the TSA Employee Handbook's written policies providing for progressive discipline and fair treatment to employees. Although the district court accepted TSA's assertion that these policies did not apply to Hussein because he was probationary, there is evidence in the record, including Reed's testimony, that the Handbook applied to all employees, including probationary employees. Consequently, a reasonable jury could find, based on TSA's departure from these policies when it fired Hussein without considering less severe sanctions, without informing him of the reason for his termination, and without giving him an opportunity to defend himself, that the company's explanation constituted a pretext for discrimination. There is also evidence that Reed's hasty termination of Hussein is inconsistent with TSA's usual practices in addressing a report of employee misconduct. Reed's insistence that he never conducts an investigation into reports of misconduct by probationary pilots is inconsistent with his statement to an EEOC investigator that he had initiated an investigation into the allegation against Hussein, but called it off after he was contacted by the FBI. The record is also replete with inconsistencies in TSA managers' testimony regarding the company's practices upon receiving a complaint that a probationary pilot violated one of its rules. While two of the managers said it would not matter if the probationary pilot was guilty of the alleged misconduct or not, all of them testified that they would at least want to know the identity of the caller reporting an act of misconduct. One manager testified he assumed an investigation had been done and agreed that if Hussein had not in fact been in a bar in uniform, his termination was unwarranted. The district court found the plaintiffs' case wanting because there was no evidence of statements or actions by persons involved in the defendant's decision- making process reflecting open hostility toward Muslims or persons of Middle Eastern descent. However, it is well-established that direct evidence is not required to prevail in a discrimination action. The district court also erred by uncritically accepting Reed's assertion that he did not infer from Hussein's name that he was a Muslim or might be of Middle Eastern descent. A reasonable jury could find that Reed knew or assumed that Hussein was Muslim and/or Middle Eastern based on the fact that Reed knew that Hussein had a Middle Eastern name— the same name (Mohammed) as the founder of the Muslim faith. Because a reasonable jury could infer from the collective evidence that, if Hussein were not Muslim and perceived to be Middle Eastern, the defendant would not have terminated him based on an anonymous phone call without taking reasonable steps to verify the truth of the accusation against him, summary judgment was improperly granted. ARGUMENT THERE IS SUFFICIENT EVIDENCE TO SUPPORT A FINDING THAT THE DEFENDANT'S ASSERTION THAT IT FIRED HUSSEIN BECAUSE IT RECEIVED AN ANONYMOUS REPORT THAT HE WAS IN A BAR IN UNIFORM IS A PRETEXT FOR DISCRIMINATION. The plaintiffs allege in this action that TSA violated Title VII by firing Mohammed Hussein because of his religion, race, or national origin, or a combination of those factors. The district court granted TSA's motion for summary judgment because it concluded that there is insufficient evidence that TSA's asserted, non-discriminatory explanation for its decision to fire Hussein is pretextual. This was error. When the evidence is properly viewed in the light most favorable to the plaintiffs and reasonable inferences are drawn in the plaintiffs' favor, a reasonable jury could find that TSA's explanation is a pretext for unlawful discrimination. Pretext can be shown by "‘such weaknesses, implausibilities, inconsistencies, incoherence, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons.'" Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997) (quoting Olson v. Gen'l Elec. Astrospace, 101 F.3d 947, 951-52 (3d Cir. 1994)). TSA is not entitled to summary judgment because there is sufficient evidence to support a finding that TSA's assertion that Hussein was terminated because of an anonymous report that he was in a bar in uniform is not the true explanation for its action, and a reasonable jury could infer from this finding that TSA terminated Hussein's employment for discriminatory reasons. Daniel Reed testified that he received the call about Hussein on his cell phone while he was in a morning staff meeting with several of his flight managers. Reed stated that the caller, who did not identify himself, reported that a pilot in a TSA uniform "was in a lower bar at the Howard Johnson's" and "was making comments about 9/11," and that "the bartender had asked him to leave." II- P.A.401. According to Reed, the caller told Reed Hussein's name, which the caller said he had obtained "because he had read his ID." II-P.A.401.<5> The caller did not tell Reed what Hussein was wearing; but stated only that he was in a pilot's uniform. II-P.A.410-11. Reed made no record or notes of the call, had no idea who the caller was, nor the caller's motivation for reporting Hussein. II-P.A.399, 400, 407. Reed testified that he did not obtain the identity of the anonymous caller because "[t]he individual said that I would be getting a follow-up phone call explaining everything to me." II-P.A.400, 401. Yet, within an hour of receiving the anonymous call and after he learned that Hussein was based in St. Louis and a probationary pilot, Reed decided to fire Hussein without knowing who had made the call. Reed maintained that, because Hussein was probationary and he had what he considered a credible report, he did not look into the matter further before terminating Hussein. II-P.A.405. He stated that the company need not have just cause to terminate a probationary pilot, and if a probationary pilot is accused of misconduct, it is both TSA's policy and "consistent practice" to dispense with investigating the report, informing the pilot of the reason for his termination, or affording him an opportunity to give his side of the story. A jury could discredit this version of events for several reasons. First, a jury could infer that the explanation TSA offered in court for terminating Hussein was not its true reason from the evidence that the defendant's explanation shifted over time. See Young v. Warner-Jenkinson Co., 152 F.3d 1018, 1024 (8th Cir. 1998) ("When an employer has offered different explanations for an adverse employment action and when evidence has been presented that would allow a reasonable trier of fact to disbelieve each explanation, the trier of fact may reasonably infer that the employer is hiding something–that is, that the true explanation is unlawful discrimination"). In August 2002, Reed told the EEOC during its investigation that he had instructed his flight managers to investigate the report that Hussein was in a bar in uniform but called off the investigation and fired Hussein when he received a call from the FBI informing him that the FBI wanted to interview Hussein about a matter it would not divulge. I-P.A.112. In Reed's deposition testimony and declaration offered in support of TSA's motion for summary judgment, however, Reed insisted that he ordered Hussein's termination within an hour of Conrecode's call and without engaging in any investigation because Hussein was a probationary employee and, Reed maintained, he never investigated allegations of misconduct by probationary pilots. II-P.A.405, 409; see also II-P.A.503-04. Contrary to his statement to the EEOC investigator that the decision to fire Hussein was influenced by the fact that Hussein had been interviewed by the FBI, Reed testified at his deposition that he decided to fire Hussein before he had been contacted by the FBI and the only reason was the anonymous report that Hussein was seen in a bar in uniform. Such shifting justifications constitute evidence of pretext. See EEOC v. Ethan Allen, Inc., 44 F.3d 116, 120 (2d Cir. 1994) (discrepancies in justifications for termination permitted inference that explanations were pretextual and developed over time to counter evidence suggesting discrimination). And Reed's statements that TSA's consistent practice is to conduct no investigation of reports of misconduct by probationary pilots is flatly inconsistent with Reed's earlier statement to Gall that he called off the investigation he had asked his flight managers to perform. Because these two statements cannot be reconciled, a jury could find that Reed, when approached by the EEOC investigator, fabricated a story about ordering an investigation because he thought the investigator would find it implausible that Reed fired Hussein without verifying the accuracy of the anonymous phone call. A reasonable jury could further conclude that TSA's present explanation for why it did not investigate the veracity of the call–Hussein was probationary–is also false, and offered to mask the true reason it did no investigation–bias stemming from Hussein's religion and perceived national origin. A factfinder's disbelief of an employer's proffered reason for an employment action, particularly where "disbelief is accompanied by a suspicion of mendacity," allows an inference that the employer acted for a discriminatory motive. See Reeves v. Sanderson Plumbing, 530 U.S. 133, 147 (2000) (quoting St. Mary's Honor Center v. Hicks, 509 U.S. 501, 511 (1993)); see also Dominguez v. Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 432 (1st Cir. 2000) ("[W]hen a company, at different times, gives different and arguably inconsistent explanations, a jury may infer that the articulated reasons are pretextual"). In addition, a jury could reject TSA's assertion that, because Hussein was a probationary pilot, it fired him on the basis of an anonymous phone call without even a cursory investigation to verify the allegations because it is both inherently implausible and inconsistent with statements of TSA officials regarding the company's policies. The policy Hussein was allegedly terminated for violating is ambiguous, as evidenced by the fact that even TSA's managers did not give consistent testimony regarding what being "in uniform" means. Compare II- P.A.464 (Swoboda Dep. 19) and II-P.A.493 (White Dep. 30-31) (pilot dressed in pilot's dark pants and white shirt without the epaulet shoulder boards attached would not be in uniform) with I-P.A.142 (Aman Dep. 38) and II-P.A.453 (Scott Dep. 30) (wearing the white shirt with or without the epaulets would be considered being in uniform). Nonetheless, Reed testified that he decided to fire Hussein based on an anonymous phone call stating that he was in a bar "in uniform" without any specific information as to what Hussein was wearing or any information at all as to the familiarity of the tipster with TSA's rules regarding uniforms. II-P.A.411. Furthermore, Reed testified that he trusted the information relayed by the call because he verified that Hussein was in St. Louis the night of September 13 and that if Hussein had not been in St. Louis he "was going to dismiss the call." II-P.A.404. However, a jury could discredit Reed's testimony that he checked to see if Hussein was in St. Louis. According to Swoboda, when he told Reed shortly after Conrecode's call that Hussein was based in St. Louis and probably probationary, Reed instructed him to terminate Hussein without any further inquiry into his whereabouts on September 13. II-P.A.465. According to Aman, Reed said nothing to those in the meeting after he finished the call. I-P.A.148. None of the other TSA managers who were at the meeting testified that he checked to see whether Hussein was in St. Louis before he was fired. While TSA may argue that Reed could assume Hussein was in St. Louis on the night of September 13 because Swoboda told him Hussein was based there, a jury could find otherwise–Hussein lived in California and commuted to his St. Louis base, and because planes were grounded after September 11, Hussein could have been stranded elsewhere. Given that TSA had invested several months of pilot training in Hussein at some expense, a jury could find it implausible that the company would be so hasty in letting one of its pilots go and could infer from Reed's apparent overreaction to an uncorroborated allegation against Hussein that he acted out of a discriminatory motive. See Kempcke v. Monsanto Co., 132 F.3d 442, 447 (8th Cir. 1998) (in reversing the district court's grant of summary judgment to the defendant in an age discrimination case, the court held that a reasonable factfinder could conclude that the employer's action in firing the plaintiff for giving innocently discovered incriminating documents to his lawyer rather than returning them such an extreme overreaction as to be "unworthy of credence"); see also EEOC v. Sears Roebuck & Co., 243 F.3d 846, 854 (4th Cir. 2001) (in a Title VII action in which a store manager rejected the plaintiff for a position allegedly because she thought, mistakenly, that he had been accused of sexual harassment in the past and made no effort to confirm that the plaintiff was indeed the suspected individual, the court found sufficient evidence to support a finding that the defendant's asserted justification for failing to hire the plaintiff was false, stating, "A juror could easily find it implausible that [the decision-maker] would reject a qualified applicant, such as Santana, without first substantiating that he was, in fact, the individual accused of sexual harassment."); Smith v. Chrysler Corp., 155 F.3d 799, 807-08 (6th Cir. 1998) ("When the employee is able to produce sufficient evidence to establish that the employer failed to make a reasonably informed and considered decision before taking its adverse employment action, thereby making its decisional process ‘unworthy of credence,' then any reliance placed by the employer in such a process cannot be said to be honestly held"). There is evidence that Reed's failure to investigate the allegation against Hussein or give him an opportunity to respond before he was fired is inconsistent with TSA's normal practices in dealing with a report of misconduct. An employer's failure to follow its ususal policies may support an inference of pretext. See, e.g., Russell v. TG Missouri Corp., 340 F.3d 735, 746 (8th Cir. 2003) ("[A]n employer's deviation from its own policies can, in some instances, provide evidence of prextext"). Reed testified that TSA's Employee Handbook applies to all employees, including probationary employees, and affords an employee accused of misconduct notice of the charges against him and an opportunity to respond. II-P.A.430. The handbook also sets out a system of progressive discipline. I-P.A.56. TSA's failure to investigate the veracity of an anonymous report of Hussein's misconduct and immediate termination of Hussein without considering less severe sanctions constituted a significant departure from these policies. TSA pilot and union leader Dario Miranda testified that being in a bar in uniform was not a dischargeable offense and would be subject to the progressive discipline policy. II-P.A.347-48. Chief pilot James White stated that a month-long suspension would be an appropriate punishment for a first offense for a nonprobationary pilot. II-P.A.498. And there is no evidence that any pilot other than Hussein has been fired by TSA for violating this rule. The district court concluded that Reed's explanation of his decision to fire Hussein was corroborated by Reed's testimony about a 1999 incident in South Bend, Indiana, in which Reed received an anonymous phone call that some TSA pilots were drinking within 12 hours of a training exercise and fired the probationary pilots "on the spot." Addendum at 26. Reed testified that based on the call, he fired the entire group of 6-8 pilots at the exercise, and the probationary pilots were fired immediately. Reed testified that for the nonprobationary pilots involved, he obtained a statement from the bartender to verify who was drinking. II-P.A.407-08. However, Lionel Purnwasy, a TSA pilot who was one of the group in South Bend for the training, gave a different version of events. According to Purnwasy, there were 12-16 pilots at the exercise and all of them were in the bar. II-P.A.369, 372, 378. However, only three were drinking–two probationary pilots and one nonprobationary pilot–and only those three were fired. II-P.A.369, 373. Purnwasy recalled that the three pilots were fired "within a week" of TSA learning they had been drinking prior to the training exercise. II-P.A.384. Because, according to Purnwasy, not all the pilots at the training were fired, as Reed had asserted, and the three rule-offenders were fired "within a week" rather than immediately, a jury could infer that at least some investigation had been done to identify which of the group had been drinking and which had not. Reed acknowledged that the bartender's statement addressed both whether probationary pilots were present at the bar as well as non-probationary pilots. II-P.A.407-08. Because Reed did not fire everyone and had no way of knowing who had violated the rule, a reasonable jury could find that the bartender's statement identifying which of the group was drinking was obtained before the probationary pilots were fired. If this were the case, a jury could conclude that TSA's failure to verify the accuracy of Conrecode's call and its decision to terminate Hussein an hour after receiving the call demonstrates that Hussein was not given the same treatment as the probationary pilots in South Bend. Accordingly, a reasonable jury could find that discriminatory animus motivated Hussein's termination. Even if the evidence did establish that the probationary pilots accused of drinking in South Bend were terminated without an investigation into the veracity of the report, however, this would not compel a finding that Reed's explanation for Hussein's termination is true. Because Reed had sent the group of pilots to South Bend for training, he knew they were there when he received the call reporting that TSA pilots were drinking within 12 hours of the training exercise. II-P.A.407. Furthermore, the pilots in South Bend were accused of a more serious violation–three pilots had been drinking prior to participating in the training exercise, and at least one was intoxicated. II-P.A.373, 382-83. Moreover, the policy they were accused of violating–drinking alcohol within 12 hours of reporting for duty–is more straightforward than the policy prohibiting pilots from being in a drinking establishment in uniform. Consequently, a jury could reject TSA's assertion that other probationary pilots were treated in the same manner as Hussein. Cf. Cherry v. Ritenour Sch. Dist., 361 F.3d 474, 479 (8th Cir. 2004) (test to determine whether employees are "similarly situated" is a "rigorous one;" individuals used for comparison must have engaged in the same conduct without any mitigating or distinguishing circumstances). Thus Reed's testimony regarding the South Bend incident does not conclusively establish that Reed would have fired Hussein without an investigation into Conrecode's call simply because he was probationary. In addition, TSA's failure to give Hussein a reason for his termination or give him a chance to defend himself is inconsistent with the handbook's open door policy and general policies regarding the fair treatment of employees and encouragement of open communication between management and employees, as well as inconsistent with how the company typically acted, at least according to flight manager Aman. Aman agreed that TSA should have asked Hussein if he had witnesses to his behavior the night of the 13th, that it would not have surprised him if TSA had done so, and that he assumed Hussein had been given an opportunity to name witnesses in his defense. See I-P.A.155 ("If Mr. Hussein had witnesses or whatever, that would have peaked [sic] my curiosity, but he made no claim"). The district court accepted TSA's assertion that the Employee Handbook's policies regarding the fair treatment of employees, open door policy, and progressive discipline policy afforded no protection or rights to Hussein because he was a probationary pilot. See Addendum at 26. There is evidence casting serious doubt upon the contention that the Handbook is inapplicable to probationary pilots or that there is a conflict between the CBA and Employee Handbook. The district court erred in accepting the defendant's assertion uncritically, without considering contrary evidence. See Reeves, 530 U.S. at 151 ("‘Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge'") (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)); Yates v. Rexton, 267 F.3d 793, 800 (8th Cir. 2001) (district court is prohibited from making a credibility judgment or a factual finding from conflicting evidence). The Handbook does not distinguish between probationary and non-probationary employees nor indicate that probationary pilots are excluded from any of its provisions. Reed himself testified that the Handbook is applicable to every employee of TSA. II-P.A.397. See Young, 152 F.3d at 1024 (court rejected defendant's contention that employee policy manual did not apply to temporary employees because a former human resources manager testified that the policy manual applies to all employees). The district court erred in accepting TSA's assertion that the Handbook policies conflict with the CBA's provision exempting probationary pilots from the union's grievance process in the event of discipline and discharge. A reasonable jury could find that the CBA and the Handbook can be read together without conflict based on the plain language of the documents. The fact that Hussein did not have access to the union's grievance process would not necessarily cancel out the rights and benefits outlined in the Handbook. Miranda, who was familiar with these documents as the head of the pilot's union, testified that nothing in the GOM or CBA conflicts with the Employee Handbook's policies of fair treatment and open communication with employees. II-P.A.346. Miranda's testimony directly conflicts with Reed's, yet the district court accepted Reed's testimony. This was improper. See Reeves, 530 U.S. at 151 ("[A]lthough the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe"). Accordingly, a jury could find that the manner in which TSA terminated Hussein deviated from its written policies and infer that TSA stated reason for firing Hussein is pretextual. See, e.g., Stern v. Trs. of Columbia Univ., 131 F.3d 305, 313 (2d Cir. 1997) (reasons for employment decisions are subject to scrutiny under Title VII and "‘[d]epartures from procedural regularity . . . can raise a question as to the good faith of the process where the departure may reasonably affect the decision'") (quoting Zahorik v. Cornell Univ., 72 F.2d 85, 93 (2d Cir. 1984)). There is conflicting evidence as to the truthfulness of TSA's assertion that its "consistent practice" was not to "conduct an investigation, provide a reason for discipline or discharge, or provide the probationary pilot an opportunity to present information on his behalf." II-P.A.440. TSA's assertion that it undertakes no investigation of accusations against probationary pilots is belied by Reed's explanation to EEOC investigator James Gall in August 2002 that he had called off the investigation regarding Hussein once he got a call from the FBI informing him that the FBI wanted to interview Hussein. I-P.A.112. Moreover, there are inconsistencies in TSA managers' testimony regarding the company's practices upon receiving a complaint of a pilot violating one of its policies. For example, although flight manager Swoboda testified that TSA would not care if the probationary employee actually violated a rule or if he had been falsely accused, when Swoboda was asked what he would do to investigate to determine whether or not a rule of conduct had in fact been broken as reported, he replied, "If a rule of conduct was broken by a probationary employee . . . . I would have to know something about the accuser." II-P.A.482. He testified that he would want to know whether the accuser was a pilot and his motivation for making the accusation. Id. And while chief pilot White testified that, because probationary pilots are not afforded rights under the collective bargaining agreement, the company would not need to verify if Hussein was actually guilty of a rule violation, he stated he would want to know the identity of the person reporting the incident "in most cases." II-P.A.495. According to White, the identity and position of the person reporting misconduct would be important, as would an assessment of the caller's credibility. Id. Flight manager Aman agreed that if Hussein was not in uniform or in a bar, his discharge was unwarranted. I-P.A.153. Aman testified that he assumed an investigation had been done because the company did not take lightly decisions to terminate pilots. I-P.A.153. Aman stated the company "should investigate" and that he assumed and trusted that they had investigated the report about Hussein. I-P.A.153. Instead of stating that no investigation was warranted because of Hussein's probationary status, Aman offered, "I didn't do the investigation . . . I don't know what-all, who-all was interviewed; I don't know where the interviews took place. I don't know if they had a picture of the man in uniform . . . ." I-P.A.155. In answer to the question of what would Aman do if someone called in and identified a pilot as being in a bar in uniform, he agreed that he would want to know the identity of the caller, the name of the bar where the pilot was seen, when the pilot had been seen, and agreed that he would want to make a record of the phone call. I-P.A.153-54. He also stated that he would want to know if Hussein had witnesses and agreed that TSA should have asked Hussein if he had any witnesses. I-P.A.155. A jury could conclude from this testimony that such measures were typically taken, and that TSA had departed from its usual practice in its handling of the call about Hussein. Based on this evidence, which is not mentioned in the district court's decision, a reasonable jury could find that, although probationary pilots lack a contractual right to an investigation, TSA's normal practice would be to at least make some effort to verify the truth of an anonymous report of misconduct. Although Reed admitted that he did not determine the identity of the caller before ordering Hussein's termination and stated that he would never do so where a probationary pilot was accused of misconduct, every other manager who testified agreed that he would want to know the identity of the caller in such a case. A jury could view these inconsistencies as further evidence that the company's stated reason for terminating Hussein was not the real reason. See Reeves, 530 U.S. at 148 ("[O]nce the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision"). The district court found the plaintiffs' case lacking because the record contains "no statements or actions by persons involved in TSA's decision-making process reflective of a discriminatory attitude." Addendum at 28; see also id. at 27 (noting that there is no evidence anyone at TSA took action against or spoke out against people of Middle Eastern descent). According to the court, the only evidence presented was "Hussein's name, race, religion, and national origin and the date he was fired–two days after the terrorist attacks on September 11." Id. The district court is mistaken. This case should go to a jury because there is sufficient evidence to support a finding that TSA's articulated nondiscriminatory reason for firing Hussein is false, as detailed above. See Reeves, 530 U.S. at 147 ("Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive"). Were this not the case, the mere fact that an individual with a Muslim or Arab-sounding name was fired shortly after September 11 would not be enough to support a Title VII claim. The court also thought it was important that the only person who testified that he heard Reed say anything in relation to the call reporting Hussein testified that Reed said only "it doesn't matter, he was in a bar in uniform." This, in the court's view, shows that Reed did not voice any hostility towards Muslims or Arabs. See id. However, it is well established that direct evidence is not necessary to prove a discrimination claim under Title VII. See, e.g., Desert Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003) ("We have often acknowledged the utility of circumstantial evidence in discrimination cases"); Griffith v. City of Des Moines, 387 F.3d 733, 744 (8th Cir. 2004) (Magnuson, J., concurring) ("The language and legislative history of the Civil Rights Act of 1991 do not support a distinction between direct and indirect evidence"). A Title VII plaintiff may establish that the defendant acted for a discriminatory motive by means of either direct or circumstantial evidence, Cherry, 361 F.3d at 478, and circumstantial evidence should not be seen as inferior. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983) (recognizing that direct evidence is not required because "[t]here will seldom be ‘eyewitness' testimony as to the employer's mental processes," thus the "sensitive and difficult" issue of intentional discrimination will frequently be proven by circumstantial evidence of pretext). In its decision, the district court stated that there is evidence–in the form of Reed's own testimony–that Reed "was unaware of Hussein's race, religion, or national origin," and there is no evidence that Reed "presumed that Hussein was of the Islamic faith because of his name." Addendum at 27-28. However, a jury could find that Reed at least suspected that Hussein was Muslim or Arab or both. That a person would not connect the name Mohammed Hussein with being Muslim and Arab defies belief. It is widely known that Mohammed is a common Muslim first name. Because Mohammed was the founder of Islam, many Muslims are named after him, including the famous boxer Mohammed Ali. Moreover, the pilot who flew the first plane into the World Trade Center was named Mohammed Atta. "Hussein" is a well-known Middle-Eastern name given that, at the time of the events in question here, the ousted Iraqi dictator Saddam Hussein was an infamous Arab leader. The district court ignored these realities, instead focusing on the fact that the only thing anyone remembers Reed saying when he got the call about Hussein was "it doesn't matter, he was in a bar in uniform." See Addendum at 27. TSA is free to argue to a jury that this demonstrates a lack of discriminatory animus on Reed's part, but it is not conclusive. Swoboda did not recall Reed saying anything to the caller. See II-P.A.465 (testifying that Reed's conversation could not be heard and Reed returned to the room after the call had ended). Moreover, Reed knew Hussein's name and was told, days after the 9/11 terrorist attacks, that Hussein was making comments supportive of the attacks by a person who believed he was of Middle Eastern descent "based on his name" and who told the police he was Middle Eastern when he reported Hussein's activities the night of September 13. Conrecode testified that he "may have" told Reed that Hussein was making comments in support of the 9/11 attacks and that the FBI would be contacting TSA because he had reported his behavior to the FBI. I-P.A.196. Based on this evidence and the fact that Mohammed Hussein's name is plainly Muslim and Arab-sounding, a jury could find implausible Reed's testimony that he had no idea what Hussein's religious faith was and did not consider that he was Middle Eastern, particularly days after the 9/11 attacks when hostility towards Muslims and Arabs was widespread. See Sarmiento v. Queens Coll. CUNY, No. 01-CV- 5266, 2005 WL 396385, at *11 (E.D.N.Y. Feb. 11, 2005) (in Title VII action, court noted "[i]t is likely that [one of the decision-makers] knew that Plaintiff was Hispanic given his identifiably Hispanic name."); cf. Hernandez v. State of Texas, 347 U.S. 475, 480 n.12 (1954) (in case challenging exclusion of Hispanics from jury service, the Court rejected the defendant's argument that the plaintiff should not have relied on names as showing the descent of persons in the Texas county at issue, and stated that "just as persons of a different race are distinguished by color, these Spanish names provide ready identification of the members of this class"). In Rosen v. Thornburgh, 928 F.2d 528, 534 (2d Cir. 1991), a Title VII action, the court of appeals found "unavailing" the defendants' contention that the plaintiff could not survive summary judgment because the person who recommended he be terminated during a training program, during which the plaintiff had been subject to harassing comments, did not know he was Jewish. The court stated: "We believe that a trier of fact might reasonably conclude that Rosen's religion was apparent from his surname as well as from the vocal anti- semitism engendered by his presence at the [training center]." Id. A reasonable jury could make a similar connection in this case–that Hussein's religion and national origin were apparent from his name, and the fact that the report which precipitated his termination was linked to the 9/11 attacks. A jury weighing the conflicting evidence could conclude that Reed credited the call from Conrecode and failed to give Hussein the same treatment he would have had his name been Joe Smith. The district court maintained that, even assuming that Conrecode informed Reed that Hussein appeared to be of Middle Eastern descent and spoke in favor of the terrorist attacks, there was no evidence that this influenced Reed's decision to terminate Hussein. On a motion for summary judgment, the court was required to assume Conrecode told Reed Hussein was of Middle Eastern descent because it is a reasonable inference, and whether it influenced Reed is a question for the jury. "To survive summary judgment, [the plaintiff] must adduce enough admissible evidence to raise genuine doubt as to the legitimacy of a defendant's motive, even if that evidence does not directly contradict or disprove a defendant's articulated reasons for its actions." Buettner v. Arch Coal Sales Co., Inc., 216 F.3d 707, 717 (8th Cir. 2000). CONCLUSION For the foregoing reasons, the judgment of the district court should be reversed and the case remanded for further proceedings. Respectfully submitted, ERIC S. DREIBAND General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel ___________________________________ JULIE L. GANTZ Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4718 June 20, 2005 CERTIFICATE OF COMPLIANCE Pursuant to FRAP 32(a)(7)(C), I certify that this brief has been prepared in proportionally spaced typeface using Corel Word Perfect 9, Times New Roman 14-point font, and the textual portion contains 13,026 words. _________________________ Julie L. Gantz CERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing brief have been overnight mailed to: William B. Jones MCMAHON, BERGER, HANNA, LINIHAN, CODY & MCCARTHY 2730 North Ballas Road, Suite 200 St. Louis, MO 63131 Jerome J. Dobson Michelle D. Neumann WEINHAUS, DOBSON, GOLDBERG & MORELAND 906 Olive Street, Suite 900 St. Louis, MO 63101 ____________________________ Julie L. Gantz Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 June 20, 2005 ADDENDUM ************************** <1> Citations to the record are abbreviated “R.” and refer to the district court docket number. <2> The FBI Report was filed separately with the Clerk because it was filed under seal in the district court and was subject to a protective order issued by the district court. <3> This intake form documenting Conrecode’s call to the St. Louis Airport Police is attached to the FBI Report that was filed under seal in the district court. <4> There is a conflict in the evidence as to when this call occurred. Flight manager Mike Swoboda testified that he prepared Hussein’s termination letter on the same day that Conrecode called TSA, and gave the letter to Hussein the following day. II-P.A.466. It is undisputed that Swoboda gave Hussein his termination letter on September 18. <5> Conrecode testified that he learned Hussein’s name and employer from the hotel’s desk clerk. I-P.A.182. Conrecode could not recall if Hussein showed his ID at any time in Skooner’s. I-P.A.181 (Conrecode Dep. 41).