EEOC v. BCI Coca-Cola Bottling Co., (10th Cir.) Brief as Appellant March 7, 2005 ORAL ARGUMENT REQUESTED Case No. 04-2220 IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff/Appellant, v. BCI COCA-COLA BOTTLING COMPANY OF LOS ANGELES, et al., Defendant/Appellee. On Appeal from the United States District Court for the District of New Mexico, No. CIV 02-1644 The Honorable James O. Browning, Presiding BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT ERIC S. DREIBAND General Counsel SUSAN R. OXFORD Attorney CAROLYN L. WHEELER EQUAL EMPLOYMENT Acting Associate General Counsel OPPORTUNITY COMMISSION 1801 L Street, N.W., Room 7010 LORRAINE C. DAVIS Washington, D.C. 20507 Assistant General Counsel (202) 663-4791 TABLE OF CONTENTS page TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . .. . . . . . . . i TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . iii PRIOR OR RELATED APPEALS . . . . . . . . . . . . . . . . . . vi STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF ISSUE . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Decision Below . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . 15 STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . .. . . . . . . 17 SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . 18 ARGUMENT THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT BECAUSE A REASONABLE FACTFINDER COULD FIND THAT BCI'S PROFFERED REASON FOR TERMINATING STEPHEN PETERS IS A PRETEXT FOR RACE DISCRIMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 A. Evidence of Grado's racial animus toward African American employees and evidence that Grado treated non-African American employees more favorably than Peters demonstrates that a jury could reasonably find that Grado engineered Peters' termination based on a racially discriminatory motive . 22 B. The District Court Erred When it Held, as a Matter of Law, that Grado's Racial Bias Cannot be Imputed to BCI on this Factual Record. . . . . . . . . . . . . . . . . . . 30 C. Material Issues of Fact in the Record Concerning BCI's Explanation and Edgar's Misrepresentation Provide Additional Support for a Finding of Pretext in this Case. . . 36 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . .. . . . 42 CERTIFICATE OF COMPLIANCE . . . . . . . . .. . . . . . . . 43 APPENDIX Memorandum Opinion and Order in EEOC v. BCI Coca-Cola Bottling Co. of Los Angeles, Civil Action No. 02-1644 (D.N.M. June 14, 2004), R.81 . . . . . . . . . . . . . . . . . . . . . . . . 1a Brooks v. Barnhart, 78 Fed.Appx. 52, 2003 WL 22293796 (10th Cir. 2003) (unpub.) . . . . . . . . . . . . . . . . . . . . 39a CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Federal Cases page Abrams v. Lightolier, Inc., 50 F.3d 1204 (3d Cir. 1995) . . . . . . . . . . 34 Aka v. Washington Hosp. Ctr., 156 F.3d 1284 (D.C. Cir. 1998) . . . . 41 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) . . . . . . . . . . . 17 Aramburu v. The Boeing Co., 112 F.3d 1398 (10th Cir. 1997) . . . . . 23 Bergene v. Salt River Proj. Agric. Improvement & Power Dist., 272 F.3d 1136 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Brooks v. Barnhart, 78 Fed.Appx. 52, 2003 WL 22293796 (10th Cir. 2003) (unpub.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) . . . . . . . . . . . . 31 EEOC v. Flasher Co., Inc., 986 F.2d 1312 (10th Cir. 1992) . . . . . . . . 24 EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184 (10th Cir. 2000) . . . . . . . . . . . . . . .. . . . . . . . . . . . 17, 21, 23 English v. Colo. Dep't of Corr., 248 F.3d 1002 (10th Cir. 2001) . . . . 32, 33 Ercegovich v. Goodyear Tire Co., 154 F.3d 344 (6th Cir. 1998) . . . . 34 Griffin v. Wash. Conv. Ctr., 142 F.3d 1308 (D.C. Cir. 1998) . . . . . . . . 34 Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277 (4th Cir. 2004) (en banc), petition for certiorari dismissed, 125 S.Ct. 1115 (Jan. 25, 2005) (Mem.) . . . . . . . . . . . . . . . . . . . . 34 Hunt v. City of Markham, 219 F.3d 649 (7th Cir. 2000) . . . . . . . . . . . . 34 Kariotis v. Navistar Int'l Transp. Corp., 131 F.3d 672 (7th Cir. 1997) . . 40 Federal Cases (cont'd) page Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220 (10th Cir. 2000) . . . . . . . . . . . . . . . . . . . 23, 29, 30, 32, 34 Lamon v. City of Shawnee, 972 F.2d 1145 (10th Cir. 1992) . . . . . . . 40 Lust v. Sealy, Inc., 383 F.3d 580 (7th Cir. 2004) . . . . . . . . . . . . . . . . 34 McCowan v. All Star Maintenance, Inc., 273 F.3d 917 (10th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . 17, 35 McDonnell Douglas v. Green, 411 U.S. 792 (1973) . . . . . . . . . . . . . . 18, 19 Miller v. Eby Realty Group, 396 F.3d 1105 (10th Cir. 2005) . . . . . . . 20, 21, 36, passim Mulero-Rodriguez v. Ponte, Inc., 98 F.3d 670 (1st Cir. 1996) . . . . . . . 33 Ortiz v. Norton, 254 F.3d 889 (10th Cir. 2001) . . . . . . . . . . . . . . . . . . . 35 Ostrowski v. Atl. Mut. Ins. Cos., 968 F.2d 171 (2d Cir. 1992) . . . . . . . 34 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000) . . . . . 21, 36 Rivera v. City and County of Denver, 365 F.3d 912 (10th Cir. 2004) . . . 37 Russell v. McKinney Hosp. Venture, 235 F.3d 219 (5th Cir. 2000) . . . . 33, 34 St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993) . . . . . . . . . . . . . . . 40 Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46 (1st Cir. 2000) . . . . . . . . . . . . . . . . . . . . . .. . . . 33 Stacks v. Southwestern Bell Yellow Pages, Inc., 27 F.3d 1316 (8th Cir. 1994) . . . . . . . . . . . . . . . . . .. . . . . . . 34 Stinnett v. Safeway, Inc., 337 F.3d 1213 (10th Cir. 2003) . . . . . . 17 Federal Cases (cont'd) page Stowers v. Wells' Dairy, Inc., 982 F. Supp. 1441 (D. Kan. 1997) . . . . . 24 s Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981) . . . . . . 36 Tran v. Trs. of State Colls. in Colo., 355 F.3d 1263 (10th Cir. 2004) . . . 29 Federal Statutes 28 U.S.C.  451 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 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 42 U.S.C.  1981a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C.  2000e-1 et seq.. . . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C.  2000e-5(f)(1), (3) . . . . . . . . . . . . . . . . . . . . . . . 1 PRIOR OR RELATED APPEALS PRIOR APPEALS There are no prior appeals. RELATED APPEALS There are no related appeals. STATEMENT OF JURISDICTION The district court had jurisdiction over this matter pursuant to 28 U.S.C.  451, 1331, 1337, 1343 and 1345 and 42 U.S.C.  2000e-5(f)(1) and (3). The district court's final judgment entered on June 30, 2004, R.82, constitutes a final decision that this Court has jurisdiction to review pursuant to 28 U.S.C.  1291. Plaintiff-Appellant Equal Employment Opportunity Commission ("EEOC" or "Commission") filed a timely notice of appeal on August 27, 2004. R.87. STATEMENT OF ISSUE Whether the district court erred in granting BCI's motion for summary judgment because the record evidence creates genuine issues of material fact as to whether BCI's proffered reason for terminating Stephen Peters is a pretext for discrimination. EEOC raised this issue below in its opposition to BCI's motion for summary judgment. See R.73 ("EEOC SJ Opp. Mem.") at 17-25 (Appendix ("Appx.") at 110-18). The district court addressed this issue in its opinion and order granting summary judgment. See R.81 (slip op.) at 21-37 (attached). STATEMENT OF THE CASE Plaintiff-Appellant EEOC brought this action against Defendant-Appellee BCI Coca-Cola Bottling Company ("BCI") alleging the company discriminated against Stephen Peters based on his race (African American) in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C.  2000e-1 et seq., and 42 U.S.C.  1981a. R.1 (Appx. at 10). On June 14, 2004, the district court granted BCI summary judgment on EEOC's claims of discriminatory discharge and disparate discipline. R.81 (attached). The district court entered final judgment in favor of BCI on June 30, 2004. R.82 (Appx. at 295). This appeal followed. R.87 (Appx. at 296). STATEMENT OF FACTS BCI is a wholly owned subsidiary of Coca-Cola Enterprises, Inc., doing business in Albuquerque, New Mexico, as the Coca-Cola Bottling Company of Albuquerque. See R.81 (slip op.) at 1. From 1995 through October 2001, Stephen Peters worked as a merchandiser in the Albuquerque facility. Appx. at 166. Merchandisers are hourly employees responsible for product placement in retail grocery and other outlets and for cleaning, arranging and rotating displays and promotional materials. Slip op. at 2. In 2001, Peters' day-to-day work activities were overseen by account manager Jeff Katt. Id.; Affidavit ("Aff.") of Stephen Peters  9 (Appx. at 144). Account managers are salaried sales employees responsible for selling Coca-Cola products to retail outlets in their area of responsibility. Slip op. at 2. Peters and Katt were among the six merchandisers and two account managers who reported to District Sales Manager Cesar Grado in 2001. Id. Peters was one of the few African American employees at the Albuquerque facility. Grado coordinated the day-to-day activities of his merchandisers through his account managers. For instance, after Grado established the merchandisers' weekly work schedules and route assignments, id., Katt was responsible for providing a copy to each of the merchandisers servicing his assigned stores, and would call them if the schedule changed during the week. Deposition ("Dep.") I of Jeff Katt at 38 (Appx. at 67). Merchandisers were required to call in at the start of each shift to let Katt know they were at their assigned stores. Id. at 22 (Appx. at 202). Merchandisers routinely contacted Katt if they were unable to work because of illness or any other reason, and Katt would then relay that information to Grado. Id. at 22-25 (Appx. at 202); see also Dep. of Cesar Grado at 223-24 (Appx. at 200) (merchandiser Arturo Lopez called Katt requesting time off during a work day, which Katt authorized). Merchandisers generally work five days each week and have two days off. Since retailers require service seven days a week, the merchandisers covering a given district have different days off to ensure continuous servicing, and Peters and the other merchandisers worked overtime on their days off as needed. Slip op. at 2; Grado Declaration ("Decl.")  3-4 (Appx. at 33). Because of his greater seniority, Peters had Saturdays and Sundays off. Grado Decl.  5 (Appx. at 33). The incident that resulted in Peters' termination involved a dispute in which Grado told Peters on Friday, September 28, 2001, that Peters was needed to work on Sunday, September 30 (one of his regular days off). Peters did not work as assigned because he was sick. Extra coverage was needed the weekend of September 29 and 30, 2001, because several retail chains were running Coca-Cola specials. On Friday morning, September 28, Damian Mirabal, who regularly covered Peters' route on the weekends, suffered an on-the-job injury that put him out of work for a week. Merchandiser Joseph Rivera, who regularly had Sunday off, had earlier told Grado he would not be available to work overtime that Sunday because of a prior commitment. To cover the weekend schedule, Grado asked Katt to direct Peters to work overtime on Sunday. Grado Decl.  7 (Appx. at 34-35). Katt said that when Grado asked him to contact Peters about working that weekend, he told Grado that Peters had just worked a six-day week, including the prior Sunday, and would not want to work another six days the coming week. Katt Dep. I at 40 (Appx. at 67). Grado, on the other hand, said Katt responded that Peters would not work on Sunday and might call in sick. Grado Decl.  7 (Appx. at 35). According to Katt, Grado then instructed Katt to tell Peters if he did not work on Sunday, Grado could change Peters' days off to something less desirable than the Saturday and Sunday Peters presently had because of his seniority. Katt Dep. I at 40, 46-48 (Appx. at 67, 239). Katt called Peters as directed and told him he was needed to work on Sunday because they were short of people. Katt said Peters responded, "I can't do it. I've got plans." Id. at 40-25 to 41-6 (Appx. at 67). Following Grado's directions, Katt told Peters that Grado threatened to change Peters' days off if Peters did not agree to work that Sunday. Id. at 46-48 (Appx. at 239). At some point Grado decided to speak to Peters himself. Before doing so, Grado contacted Pat Edgar, a BCI Human Resources ("HR") official based in Phoenix, and asked if he could order Peters to work on his day off. Grado Decl.  8 (Appx. at 35). Edgar said he could, and explained how to give an "insubordination" warning if Peters resisted working the assigned overtime. Id. Edgar instructed Grado first, however, to "find out what the situation was" and to give the insubordination warning only if Peters did not "present[] some compelling reason why he could not work on the day in question." Decl. of Patricia K. Edgar  6 (Appx. at 23). According to Peters, Grado paged him around noon or 1:00 p.m. on Friday. When Peters responded to the page, Grado said, "I need you to come in on Sunday to work." Peters Dep. at 119-5 to 120-19 (Appx. at 191). Peters replied that he had plans and had not been feeling well all week. Id. at 121-4 to 6 & 23 to 24 (Appx. at 58). Peters states that Grado never asked him what his plans were or why he was not feeling well, but simply told Peters to report to work, stating: "I'm not asking you to come to work, I'm telling you to come to work. If you do not come to work, it could lead to insubordination and could lead to termination." Id. at 121-9 to 16 (Appx. at 58); Peters Aff.  28 (Appx. at 146). Peters says he never told Grado he was refusing to work on Sunday, and Grado never warned him that he considered Peters' telephone responses to be insubordination. Peters Aff.  29 (Appx. at 146). To end the conversation, to prevent a confrontation, Peters told Grado "to do what [you have] to do and I'll do what I [have] to do." Peters Aff.  6 (Appx. at 144). Grado tells a somewhat different story, and offers inconsistent versions of what he said to Peters in this telephone conversation. Grado alleges that when he told Peters he needed him to work on Sunday, Peters said only that he "had plans" and never mentioned feeling ill. Grado maintains he then asked Peters what his plans were "in an effort to determine whether [Peters] was able to work one of the weekend days," and Peters said his plans were none of Grado's business. Grado Decl.  9 (Appx. at 35-36). In his deposition, Grado testified that he "explained to [Peters] . . . that I was giving him a direct order [to work on Sunday], and failure to follow a direct order would be considered insubordination, and that would be grounds for termination." Grado Dep. at 259 (Appx. at 65) (emphasis added). In a subsequent declaration provided in support of BCI's motion for summary judgment, Grado claimed he offered to let Peters work Saturday instead of Sunday, but Peters refused to work at all that weekend. Grado claimed he then told Peters "his refusal to work as ordered was insubordination, and could lead to termination." Grado Decl.  9 (Appx. at 36) (emphasis added). Grado asserts that Peters raised his voice during this exchange. Id.; Grado Dep. at 258-59 (Appx. at 65). Grado immediately contacted Edgar and "told her what had happened." Grado Decl.  10 (Appx. at 36). According to Edgar, Grado told her "Stephen Peters had in fact refused to come in to work that weekend." Edgar Decl.  7 (Appx. at 23-24). Edgar claimed that Grado further represented that Peters said he "had plans" but "refused to tell [Grado] what the plans were," and that Grado then informed Peters that his refusal to comply was insubordination and could lead to termination. Id. Because Peters felt ill, he postponed his weekend plans and on Saturday, September 29, went to the doctor instead, where he was diagnosed with a sinus infection and given a prescription. Peters Dep. at 122-23, 145-52 (Appx. at 58, 194- 95); EEOC Ex. W (Appx. at 217). After he returned home from the doctor's office, Peters telephoned Katt on Saturday evening to inform Katt that he was sick, following the standard practice when merchandisers could not work an assigned shift because they were ill. Katt Dep. I 22-24 (Appx. at 202). Katt then excused Peters from work the next day on that basis. Peters Dep. at 194-15 to 195-8 (Appx. at 1997). Katt paged Grado Saturday evening to let him know Peters had called in sick, but Grado never returned Katt's pages. Katt Dep. I at 25 (Appx. at 202). As a result, it was not until Monday evening, when Grado telephoned Katt at home to discuss the next day's schedule, that Katt told Grado Peters had called in sick on Saturday and he had excused Peters from working Sunday on that basis. Id. at 66 (Appx. at 204). Katt stated in his deposition that Grado called him around 6:00 p.m. Monday evening to discuss the next day's schedule. When Katt asked Grado which route Peters was going to cover or why Grado was reassigning Peters' route, Grado replied, "I think I'm going to terminate him." Katt asked why, and after Grado explained, Katt responded: "You do know he called in, he called in sick to me?" According to Katt, Grado "kind of paused" and then said, "'Why didn't you tell me that earlier?' And I said, 'I did. I tried to page you.'" Katt Dep. I at 64-67 (Appx. at 203-04). In the meantime, according to BCI, on Monday afternoon Edgar decided to discharge Peters for "insubordination," after learning from Grado on Monday morning that Peters had not come to work on Sunday. Edgar Decl.  12-13, 17 (Appx. at 25- 28). Edgar said she made this decision alone, without seeking or receiving any recommendation from Grado. Edgar Decl.  15 (Appx. at 27). In her declaration in support of summary judgment, Edgar further asserted that she based her decision primarily on Grado's representation of what Peters said to Grado during their telephone conversation on Friday, not on Peters' failure to work on Sunday. Edgar Decl.  13-16 (Appx. at 26-27). Edgar admitted, however, that Peters' failure to work on Sunday also played a part in her decision, because it purportedly ratified Peters' previously-stated intention to defy his supervisor's direct order. Id. at  14 (Appx. at 26-27). Edgar asserted she learned of Peters' sick call to Katt on Saturday and Katt's approval for Peters to stay home sick before she made her decision on Monday afternoon to discharge Peters, but claims this information did not affect her resolve to terminate him. Edgar Decl.  14 (Appx. at 26-27). In Edgar's opinion, the fact that Peters reported his illness to Katt instead of Grado was "particularly suspicious," as Edgar believed that if Peters was genuinely unable to work due to illness and truly interested in keeping his job, he would have called Grado, not Katt. Id. (Appx. at 27). Edgar said she was also influenced, in part, by Peters' two-day suspension for "insubordination" from a different supervisor in 1999. Edgar Decl.  11, 13 (Appx. at 25-26). That supervisor had made a last-minute request that Peters work overtime on a Saturday, his regular day off. Peters refused because he was serving as a pall bearer at the funeral of his fianc‚'s son, who had died unexpectedly in a car accident. Peters Aff.  33 (Appx. at 146-47); Peters Dep. at 163 (Appx. at 196). During Peters' six and a half years with the company, the 1999 incident was the only unexcused absence on Peters' record. Peters Aff.  34 (Appx. at 147-48); Peters Dep. at 163 (Appx. at 196); see also Katt Dep. I at 74 (Appx. at 206) (Peters "was an excellent worker" and Katt never had any problems with him showing up for work or performing his duties). Peters' almost perfect attendance record stands in marked contrast to that of other merchandisers who were not fired despite frequent unexcused absences. See, e.g., Peters Dep. 162-63 (Appx. at 196); Katt Dep. I at 75-77 (Appx. at 206-07) (discussing Arturo Lopez); Grado Dep. at 210-13, 223-27 (Appx. at 199- 201) (same); EEOC SJ Opp. Mem. at 23-24 & n.7 (Appx. at 116-17) (discussing attendance problems of Oran Sage and Damien Mirabel); Plaintiff's Statement of Facts ("PSOF") ## 18, 32, 34, 36-38 (Appx. at 126-29). Peters was discharged Tuesday morning, October 2, 2001, at a meeting attended by Grado, Grado's supervisor Don Bateluna, and HR representative Sherry Pedersen. Peters Dep. at 137 (Appx. at 193). According to Peters, Grado asked him if he knew why he was there, and when Peters said no, Grado explained, "You've been terminated for insubordination, for not showing up for work." Id. at 138 (Appx. at 193). Peters says no one at the meeting asked him why he did not show up for work on Sunday, nor was he given a chance to explain his absence before being handed the termination notice. Id. at 139 (Appx. at 193). After receiving the termination notice, Peters told the group he had not been feeling well and Katt had authorized him to stay home sick. Id. at 138-39 (Appx. at 193). Peters stated: "[A]fter I told them that, they all got quiet. And when I left they shut the door and [were] in there talking." Id. at 139 (Appx. at 193). According to Edgar, Pedersen called Edgar after the meeting and asked Edgar if she knew that Peters is African American. Edgar Decl.  17 (Appx. at 27-28). Peters filed a charge with EEOC on October 11, 2001, alleging his termination was racially discriminatory. EEOC filed suit on December 30, 2002. Following discovery, BCI moved for summary judgment, R.65, 66, maintaining that BCI terminated Peters for insubordination based primarily on Peters' statements to Grado on Friday afternoon. BCI further asserted that EEOC's race discrimination claim must fail because Edgar was the lone decisionmaker and there is no evidence she knew Peters' race until after his termination. In opposition, EEOC contended that Grado harbored racial animus toward African American employees and that this bias was properly imputed to BCI because of Grado's substantial involvement in the termination process as Peters' supervisor and Edgar's sole source of information about the events on which BCI alleges the termination was primarily based. As circumstantial evidence that Peters' termination resulted from Grado's racial bias, EEOC presented evidence of Grado's racial animus toward African-American employees, his more favorable treatment of non-African American employees, and BCI's shifting explanations for Peters' termination. R.73 at 18-24 (Appx. at 111-17). EEOC presented statements from a number of BCI employees to demonstrate Grado's racial bias. Michael Wilson, another African American merchandiser who worked under Grado, said Grado continually demeaned him and threatened to replace him, and generally subjected the few African American merchandisers to much greater scrutiny and more rigorous performance standards than Hispanic merchandisers. Wilson Aff.  7 (Appx. at 185). Wilson also stated that Grado made race-based remarks to him during working hours, including stating "Black guys [do] not look good in trucks, they should drive Cadillacs"; telling jokes about Black men dating Caucasian women; and once, while Wilson was performing an outdoor task that Grado had ordered him to do even though it was not part of his job duties, remarking that Wilson should hurry and finish because "'brothers don't like the cold." Id.  5 (Appx. at 184-85). See also Aff. of James Young  6, 9 (Appx. at 181) (Grado treated African American employees worse than non-African American employees, applied more rigorous performance standards to Young's work than to non-African American employees, and constantly threatened to change Young's days off and route); Aff. of Bryan Esquibel  5, 6 (Appx. at 182-83) (observed Grado treat African American employees, including Peters, worse than non-African American employees). Peters complained to Young on several occasions that he felt he was being treated differently because he was African American. Peters Aff.  16 (Appx. at 145). Katt attested that he believed (although he said he was not certain) that Grado had used the word "nigger" or something like it to refer to Peters after Grado learned that Peters intended to pursue a race discrimination claim against BCI. Katt Dep. II at 62-64 (Appx. at 212). EEOC also presented several examples of Grado's more favorable treatment of non-African American employees under similar circumstances. For instance, on one occasion Grado ordered Katt to direct a Hispanic merchandiser, Monica Lovato, to work one of her weekend days off, even though she was "having a birthday that weekend, and she wanted both those days off pretty badly." Katt Dep. I at 118 to 120 (Appx. at 211). Lovato failed to show up for work, failed to call in, and failed to answer Katt's several pages. Id. After Katt informed Grado that she did not show up for work, Grado did not contact Lovato to give her an "insubordination" warning, nor did he refer the matter to the HR department for possible disciplinary action. Indeed, no discipline was ever imposed on Lovato. Decl. of Sherry Pedersen  14 (Appx. at 46). Discussing Lovato's situation later that week, Grado told Katt, "You can't make somebody work one of their days off." Katt Dep. I at 119-20 (Appx. at 211). On another occasion, Grado gave an insubordination warning to a Hispanic merchandiser, Arturo Lopez, after Lopez failed one day to call in as required at the start of work and failed to respond to his supervisor's pages. Grado Decl.  19 (Appx. at 38). Although Lopez ignored Grado's warning and failed to comply with Grado's directive, Grado did not contact anyone in the HR department to report the insubordination. Id. (Appx. at 38-39). Instead, Grado took no action for several days, and after Lopez failed to show up for work for three days, he was deemed to have voluntarily terminated his employment with BCI. Pedersen Decl.  12 (Appx. at 45). Finally, approximately six months after Peters was fired, Bryan Esquibel, a Hispanic driver who worked for a different district sales manager, refused a direct order to take out a delivery, telling his supervisor, "Go ahead and fire me." When the supervisor reported this to the HR department, Esquibel was not immediately terminated, as Peters had been. Instead, the HR representative asked Esquibel, the next day, to provide a written statement so his version of events could be considered before discipline was imposed (a step never offered to Peters before his termination). Esquibel refused to provide a statement, and he was then terminated for insubordination. See Disciplinary Status Notice (Appx. at 55). EEOC further maintained that the inference that Peters' termination was because of his race is supported by the fact that district sales managers ("DSMs") like Grado had discretion on whether to refer matters such as Peters' alleged refusal of assigned overtime to the HR department for possible discipline. See Bateluna Dep. at 38-39 (Appx. at 175). Indeed, managers apparently had discretion on whether to give an employee an "insubordination" warning, and Grado did not give the warning in at least one other situation involving a non-African American employee (Monica Lovato) that otherwise is materially similar to the Peters situation. Decision Below The district court granted BCI's motion for summary judgment, concluding EEOC failed to establish any genuine dispute that BCI's asserted reason for discharging Peters (insubordination) was a pretext for discrimination. R.81 (slip op.) (attached). According to the district court, EEOC sought to prove "pretext" by characterizing Peters' discharge as attendance-related (failure to work on Sunday), and then by demonstrating that BCI did not terminate other employees with similar, or worse, attendance records. The court rejected this theory on the ground that BCI had asserted "insubordination," not attendance, as the reason it terminated Peters. Id. at 23-26. Viewing the facts as they appeared to Edgar, the person making the decision, the district court found "no evidence to support the contention that BCI did not honestly believe that Peters was insubordinate on Friday." Id. at 25. The district court also rejected EEOC's contentions that the termination decision was tainted by Grado's racial animus. Id. at 31. Although the district court found EEOC "created a genuine issue of fact whether Grado was biased against African Americans," the court reasoned that the issue was not material because: Edgar decided to terminate Peters without any recommendation from Grado; there was no evidence "Grado communicated his racial bias to Edgar" before she made her decision; and the court found no evidence the information Grado gave Edgar was false or misleading. Id. at 27-29, 34. The district court rejected EEOC's contention that Edgar acted as a "rubber stamp" or "cat's paw" for Grado's prejudice. Id. at 29 & n.9. The court reasoned that the cases applying the "rubber stamp" theory involved situations where "a decision-maker accepted the recommendations of a biased supervisor without conducting an independent investigation." Id. at 29. Here, the court concluded, "Grado did not make any recommendations to Edgar" and "Edgar attempted to do at least some independent investigation by consulting with Pedersen regarding Peters' disciplinary history." Id. at 30. STANDARD OF REVIEW This Court reviews de novo a district court's decision granting summary judgment, applying the same legal standards applicable in the district court. McCowan v. All Star Maintenance, Inc., 273 F.3d 917, 921 (10th Cir. 2001). Summary judgment should be denied if, viewing the evidence and drawing all reasonable inferences therefrom in the light most favorable to the non-moving party, there is a genuine issue of material fact. See, e.g., id. at 926 (reversing district court's grant of summary judgment for defendant because there were genuine issues of material fact); Stinnett v. Safeway, Inc., 337 F.3d 1213, 1216-19 (10th Cir. 2003) (same); EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184 (10th Cir. 2000) (same). "A fact is 'material' if, under the governing law, it could have an effect on the outcome of the lawsuit. . . . A dispute over a material fact is 'genuine' if a rational jury could find in favor of the nonmoving party on the evidence presented." Id. at 1190 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Determining credibility, weighing the evidence, and drawing legitimate inferences from the facts are functions of the jury, not the district court. Stinnett, 337 F.3d at 1216. At summary judgment, the court's role "is simply to determine whether the evidence proffered by plaintiff would be sufficient, if believed by the ultimate factfinder, to sustain [plaintiff's] claim." Id. (citations omitted). SUMMARY OF THE ARGUMENT The district court committed reversible error in granting summary judgment for BCI because EEOC presented substantial evidence to support its theory that Grado was biased against African American employees and engineered Peters' termination because of that bias. EEOC sought to establish BCI's liability through circumstantial evidence under the three-part "pretext" method of proof described in McDonnell Douglas v. Green, 411 U.S. 792 (1973). Consistent with this proof paradigm, the Commission presented evidence that Grado exhibited racial bias generally toward African American employees under his supervision and specifically toward Peters. The Commission also presented evidence that Grado set Peters up for possible discharge by giving him an insubordination warning right after Peters indicated that he had plans and was feeling sick, and by then misrepresenting the conversation to Edgar in order to present Peters in the worst possible light. EEOC's summary judgment evidence further showed that Grado treated non-African American employees more favorably than Peters under similar circumstances. Grado's racial animus is properly imputed to Edgar, the putative decisionmaker in this case. Edgar claims she terminated Peters primarily because he refused Grado's directive to work overtime. In concluding that Peters had refused to work on Sunday, however, Edgar relied entirely on Grado's version of his conversation with Peters, a version that EEOC disputed below. In addition, Edgar's credibility is severely undermined by record evidence that during this litigation she lied or at least made demonstrably false statements in her declaration when she claimed that she knew on Monday afternoon, when she made the decision to fire Peters, about Peters' Saturday evening call to Katt. Edgar could not have known of this fact until after she made her decision, if EEOC's evidence specifically, Katt's sworn statement that he did not inform Grado about Peters' Saturday call until Monday evening is believed. The record, viewed as a whole, suggests the company was making up its explanation of Peters' insubordination as it went along in an effort to justify Peters' termination, after Grado engineered it through his false and misleading statements to Edgar. In all, there are a number of genuine issues as to pretext that, when viewed together, mandate reversal of the district court's grant of summary judgment. ARGUMENT THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT BECAUSE A REASONABLE FACTFINDER COULD FIND THAT BCI'S PROFFERED REASON FOR TERMINATING STEPHEN PETERS IS A PRETEXT FOR RACE DISCRIMINATION. As this Court recently explained, "Pretext exists when an employer does not honestly represent its reasons for terminating an employee." Miller v. Eby Realty Group, 396 F.3d 1105, 1111 (10th Cir. 2005). In this instance, EEOC presented substantial evidence that Grado exhibited racial bias in his treatment of the African American employees under his supervision, and the district court properly found that EEOC established a disputed issue of fact on this point. The district court wrongly concluded that this disputed fact was not "material," reasoning that the decision to terminate Peters was made by Edgar, a Human Resources ("HR") official located at a different worksite who had never met Peters and purportedly did not know Peters was African American when she made her decision. Edgar, however, relied entirely on Grado's version of events in deciding Peters had been insubordinate. Indeed, it is undisputed that Edgar determined Peters' offense warranted termination without hearing Peters' side or speaking to Peters' immediate supervisor, Jeff Katt. Furthermore, BCI admits that Grado had supervisory discretion in deciding whether to contact HR about matters involving his staff, and EEOC presented evidence of similar situations involving Hispanic employees when Grado decided not to contact the HR department possible disciplinary action. Thus, Grado was indisputably the motivating influence behind BCI's decision to terminate Peters, and his racial animus is, therefore, properly imputed to BCI. A jury could reasonably conclude, on this basis, that Peters' termination was "because of" race in violation of Title VII. A jury would also be entitled to consider that in explaining Peters' termination for "insubordination," there is strong evidence Edgar lied about a material fact. Specifically, Edgar said that she knew, on Monday afternoon when she made her termination decision, that Peters had called in sick and was excused by Katt. Katt's testimony that he first informed Grado of Peters' sick call on Monday evening establishes that Edgar could not have found out about the call until after she made her decision. Standing alone, Edgar's misrepresentation might not suffice to establish pretext. Miller, 396 F.3d at 1111 (rejection of employer's explanation does not compel finding of discrimination). Along with the other evidence of Grado's discriminatory animus, however, Edgar's misrepresentation is an additional factor a jury should be entitled to consider in assessing whether to discredit BCI's proffered explanation and to find, instead, that Peters' discharge was motivated by race discrimination in violation of Title VII. See id. (permissible for jury to infer ultimate fact of discrimination from falsity of employer's explanation) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000)); EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d at 1199-1200 and n.11 (reversing summary judgment for defendant where EEOC's evidence, in aggregate, was sufficient to support finding of pretext). A. Evidence of Grado's racial animus toward African American employees and evidence that Grado treated non-African American employees more favorably than Peters demonstrates that a jury could reasonably find that Grado engineered Peters' termination based on a racially discriminatory motive. There is ample evidence in the record that Grado was racially biased he disfavored African American employees, favored Hispanic employees, and used his position as district sales manager to mete out differences in treatment consistent with this bias. As the district court acknowledged, slip op. at 34, EEOC introduced the affidavits of several employees who described how Grado treated African American employees less favorably than he treated employees of other races. One African American merchandiser, Michael Wilson, described how Grado continually demeaned him, threatened to replace him, and generally subjected him and the few other African American merchandisers to much greater scrutiny and more rigorous performance standards than Hispanic merchandisers. This merchandiser also described various race-based remarks that Grado made to him during working hours. Another African American merchandiser, James Young, described how Grado applied more rigorous performance standards to his work than to that of non-African American employees, and constantly threatened to change his days off and route (similar to Grado's threat to change Peters' days off if he did not work overtime on September 30, 2001). A Hispanic employee, Bryan Esquibel, said he observed Grado treat African American employees worse than non-African American employees. Peters said he complained to James Young that he felt he was being treated differently because he was African American. See discussion supra at 12-13. Based on this record evidence, the district court properly found that EEOC "created a genuine issue of fact whether Grado was biased against African Americans." Slip op. at 34. In addition, EEOC presented evidence of non-African American employees who worked under Grado and who violated similar workplace rules but were treated more leniently than Peters. "Unexplained or irrational differences" in an employer's treatment of similarly-situated employees may provide a basis for a finding of pretext. EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d at 1199; Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1230 (10th Cir. 2000) (plaintiff can also show "pretext" by demonstrating "he was treated differently from other similarly-situated employees who violated work rules of comparable seriousness"). "Similarly situated employees are those who deal with the same supervisor and are subject to the same standards governing performance evaluation and discipline." Aramburu v. The Boeing Co., 112 F.3d 1398, 1404 (10th Cir. 1997) (internal quotes and citations omitted). EEOC offered examples of non-African American merchandisers under Grado's supervision who received more favorable treatment than Peters under similar circumstances. See discussion supra at 13-15. For example, Monica Lovato who, like Grado, is Hispanic, was asked on one occasion to work one of her weekend days off. She initially objected, stating she did not wish to work the overtime because she was celebrating her birthday. Although she was directed to work anyway, she failed to show up, failed to call in, and did not respond to pages from her supervisor that morning. When Grado learned of this, he did not consider her to be insubordinate and did not give her an "insubordination" warning. See Grado Decl.  20. BCI never imposed any discipline on Lovato; indeed, Grado never even contacted the HR department about this incident. Pedersen Aff.  14. In contrast to his response when Peters objected to assigned overtime because he had plans and was feeling ill, Grado said of Lovato, "You can't make an employee work on their day off." Katt Dep. I at 118-20. Contrary to the district court's conclusion, see slip op. at 30, Lovato and Peters' circumstances are sufficiently similar to make comparison meaningful in a pretext analysis. As this Court has said, "The infractions giving rise to the comparison need not involve exactly the same offenses; they need only be of comparable seriousness." EEOC v. Flasher Co., Inc., 986 F.2d 1312, 1316 (10th Cir. 1992) (citation omitted); Stowers v. Wells' Dairy, Inc., 982 F. Supp. 1441, 1444 (D. Kan. 1997) (same). Moreover, the very aspect on which the district court found dissimilarity the absence of an insubordination warning in Lovato's case is itself a product of Grado's bias (i.e., Grado elected to give Peters a warning but not to give Lovato one after she failed to call in or show up for her assigned weekend overtime). It makes no sense to view as exculpatory one of the very acts challenged as discriminatory, and BCI cannot establish dissimilarity on this basis. Rather, under circumstances such as this, a jury should determine whether the employees are sufficiently similar that their differential treatment supports an inference of discriminatory intent. Given the evidence here, a jury could easily conclude that Grado would never have even contacted Edgar about Peters had Peters been Caucasian or Hispanic. The district court should have permitted the jury to determine whether Grado's more lenient treatment of Lovato when she failed to show up, or even call in, for her assigned weekend overtime (having previously indicated she had birthday plans) was because she is Hispanic. Considering Grado's comment that "[y]ou can't make someone work on their day off," Appx. at 211, a jury could plausibly conclude from this differential treatment, along with the evidence of Grado's demonstrated animus toward African American employees, that Grado's decision to orchestrate Peters' discharge by elevating the matter to Edgar was motivated by racial bias. Grado's handling of another incident shortly after Peters' termination, an act of alleged insubordination by Hispanic merchandiser Arturo Lopez, suggests Grado intentionally escalated the Peters matter, by immediately bringing it to the attention of the HR department, to set Peters up for discharge. Grado gave Lopez an insubordination warning that Lopez, unlike Peters, indisputably ignored. Grado did not advise the HR department of Lopez's insubordination, however. Appx. at 38. Lopez thereafter failed to show up for work for the next several days and was subsequently deemed to have voluntarily terminated his employment. Pedersen Decl.  12 (Appx. at 45). Had Grado treated Lopez like he treated Peters, he would have immediately notified HR and not waited several days to take action. Thus, the fact that BCI eventually found Lopez to have abandoned his job does not diminish the significance of the comparison. Lopez was insubordinate as soon as he failed to respond to Grado's directive following the insubordination warning. Grado could not have known, at that point, that Lopez would not show up for work for the next three days, yet Grado took no disciplinary action toward Lopez. In stark contrast, Grado called Edgar about Peters immediately following their telephone conversation on Friday afternoon, without even waiting to see whether Peters would heed Grado's warning and show up for work on Sunday as he had been directed. A reasonable jury could find that Grado knew that once he brought Peters to the attention of the HR department in this manner, Peters' days would likely be numbered. A reasonable jury could conclude, on this basis, that Grado set Peters up to be discharged, while calling no attention to Lovato and Lopez's conduct. Similarly, Grado admits he ordered Peters to work overtime on Sunday and not Joseph Rivera, although Rivera had less seniority than Peters. See Grado Decl.  7 (Appx. at 34-35). Given the evidence of Grado's hostility toward non-Hispanic employees, a reasonable jury could find that Grado simply treated the less-senior Rivera better because he happened to be Hispanic, just as the jury could find that Grado treated Lovato and Lopez more leniently than Peters because they happen to be Hispanic. The evidence also shows that in the only other instance where a BCI employee was terminated for insubordination a Hispanic driver who worked for a different supervisor even that employee was treated better than Peters. When Bryan Esquibel was faced with termination for insubordination approximately six months after Peters was fired, the HR department offered him the opportunity to give his version of events even though it was undisputed he had failed to follow a supervisor's directive, daring his supervisor to "[g]o ahead and fire me." See Appx. at 55. Peters, on the other hand, who told Grado he was feeling ill and was subsequently excused by Katt on this basis, was never given this opportunity. In sum, the district court erred in not permitting a jury to consider whether the dissimilarities between Peters' treatment and that of several Hispanic employees under similar, albeit not identical, circumstances support an inference of race discrimination on the part of Grado. The record evidence further shows that Grado acted on his bias against African American employees when he intentionally manipulated the disciplinary process with respect to Stephen Peters. Edgar had instructed Grado on Friday to "find out what the situation was" and give Peters the insubordination warning only if Peters did not offer "some compelling reason why he could not work on the day in question." Edgar Decl.  6 (Appx. at 23). EEOC presented evidence from which a jury could reasonably conclude that Grado lied to Edgar about the content of his conversation with Peters in order to engineer Peters' termination. Specifically, Grado told Edgar, among other things: that he asked Peters about his plans (Peters disputes Grado ever asked him this question, see Plaintiff's Statement of Disputed Facts ("PSODF") #51, (Appx. at 135); Peters Aff.  28 (Appx. at 146)), that Peters said his plans were none of Grado's business (EEOC disputes that Peters had any occasion to discuss his plans because Grado never asked about his plans, see id.), and that Peters refused to work that weekend (Peters states Grado never asked him to work on Saturday, and Peters never refused to work on Sunday, PSODF ## 50, 53,54, 59 (Appx. at 135-36)). Significantly, neither Grado nor Edgar maintain that Grado ever told Edgar that Peters said he was feeling ill. Crediting EEOC's version, as the district court was required to do, this evidence is more than sufficient to permit a jury to infer that Grado lied to Edgar when he told her Peters refused to disclose his weekend plans and expressly refused to work. The evidence is also sufficient to permit the jury to infer that Grado further deceived Edgar by failing to mention that Peters said he was feeling ill. Considering this disputed evidence along with EEOC's additional evidence that Grado exhibited racial animus toward African American employees and that Grado treated non-African American employees who committed similar infractions more favorably, a reasonable jury could infer that Edgar's decision to terminate Peters was based on inaccurate and incomplete information tainted by Grado's bias. The district court concluded that the only relevant inquiry is whether Edgar sincerely believed Peters was insubordinate, and found that she did. Slip op. at 22-24. This was error. Although the district court properly "look[ed] at the facts as they appear[ed] to" the decisionmaker, Kendrick v. Penske Transp., 220 F.3d at 1231, if EEOC's evidence is believed, as it must be on summary judgment, Grado intentionally manipulated the information he provided to Edgar to cast Peters in the worst possible light. Thus, the facts on which Edgar relied here were filtered through and, it can be inferred, were distorted by Grado's racial bias, without any opportunity for Peters to explain. Based on all the evidence, a jury could reasonably infer that Grado's false and misleading statements were the basis for Edgar's termination decision, and that these statements were motivated by Grado's racial animus. B. The District Court Erred When it Held, as a Matter of Law, that Grado's Racial Bias Cannot be Imputed to BCI on this Factual Record. Having properly found that EEOC presented sufficient evidence of Grado's bias against African American employees to create a genuine issue of fact, slip op. at 34, the district court erred in concluding this issue is not "material" here. Id. The district court reasoned that no race discrimination claim can be established on these facts because Edgar authorized the termination, not Grado. The court acknowledged EEOC's argument that under certain circumstances "'a defendant may be held liable if the manager who discharged the plaintiff merely acted as a rubber stamp, or the "cat's paw," for a subordinate employee's prejudice, even if the manager lacked discriminatory intent.'" Id. at 29 (quoting Kendrick v. Penske Transp., 220 F.3d at 1231). The district court wrongly concluded, however, that "Edgar . . . did not act as a 'rubber stamp' or 'cat's paw' for Grado's prejudice" because Grado did not express any opinion or make a recommendation to Edgar regarding Peters' termination. Slip op. at 29. Imputing Grado's racial animus to BCI is proper under the circumstances presented here. Clearly, Grado, as District Sales Manager, was BCI's agent for purposes of managing and supervising merchandisers like Peters. As Peters' supervisor, Grado substantially controlled his work environment and directed his work activities. As part of his supervisory duties, Grado had been trained to contact HR staff for guidance in disciplinary matters, but had discretion on whether to contact HR for possible discipline in specific circumstances. Grado Decl.  6; Bateluna Dep. at 37-39. When Grado gave Peters work assignments, and when he contacted the HR department about Peters, he did so in his capacity as Peters' supervisor and BCI's agent. BCI is, therefore, at least potentially liable for how Grado performed those supervisory duties, including whether he did so in a discriminatory manner. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 754-65 (1998) (applying basic principles of agency in determining employer's vicarious liability for harm caused by a supervisor's misuse of supervisory authority). Furthermore, Grado substantially influenced Edgar's termination decision. Grado initiated the disciplinary process, and after he did so, Edgar relied entirely on information from Grado in deciding Peters was insubordinate on Friday. Edgar stated that a primary factor in her decision to terminate Peters was "firsthand observation or information" from Grado. Edgar Dep. II at 142-45 (Appx. at 170). She admitted she did not speak to Peters or otherwise investigate what happened Friday afternoon before authorizing Peters' termination. Id. at 148 (Appx. at 171). Moreover, contrary to the district court's conclusion, see slip op. at 27, 34, EEOC presented evidence that significant elements of what Grado told Edgar were inaccurate or incomplete, see discussion at 5-6 & 28, supra, and a reasonable jury could infer from EEOC's evidence that Grado intended these inaccuracies to cast Peters in the worst possible light, making it almost a certainty that Edgar would impose harsh discipline on Peters. Thus it is immaterial whether there was any "evidence that Grado communicated his racial bias to Edgar." Slip op. at 34. Edgar, by relying completely on Grado for information about the weekend's events, created a classic "cat's paw" situation. See English v. Colo. Dep't of Corr., 248 F.3d 1002, 1011 (10th Cir. 2001) (defendant may be liable for subordinate employee's prejudice where decisionmaker does not independently investigate complaint against employee). Although the district court noted that other circuits have recognized a defendant may be held liable if the discharging official acted as a "rubber stamp" or "cat's paw" for a biased subordinate, the district court erroneously concluded that this Circuit has not yet adopted this standard. See slip op. at 29 n.9 (noting this Circuit stated, in Kendrick, only that other circuits have recognized this principle of employer liability). Subsequent to Kendrick, this Circuit expressly acknowledged that "under certain circumstances, a defendant may be held liable for a subordinate employee's prejudice even if the manager lacked discriminatory intent." English, 248 F.3d at 1011 (citing Kendrick, 220 F.3d at 1231-32) (other citations omitted). Such liability is proper where a plaintiff can show that "the decisionmaker followed the biased recommendation [of a subordinate] without independently investigating the complaint against the employee." Id. The district court further erred in concluding that a supervisor's bias can be imputed only where the decision-maker "accepted the recommendations of a biased supervisor without conducting an independent investigation." Slip op. at 29-30 (citations omitted). A subordinate's bias is also properly imputed where the subordinate substantially influenced the decision, regardless of whether the biased subordinate made an express recommendation. See, e.g., Russell v. McKinney Hosp. Venture, 235 F.3d 219, 221 (5th Cir. 2000) (evidence of age bias sufficient to withstand summary judgment where plaintiff was fired immediately after a non- supervisory peer, who had exhibited age animus, threatened to quit if plaintiff was not fired) ; Mulero-Rodriguez v. Ponte, Inc., 98 F.3d 670 (1st Cir. 1996) (influence by allegedly-biased company accountant precluded summary judgment). In any event, in this instance the fact that Grado may not have expressly recommended Peters' termination is immaterial, because the information Grado provided to Edgar was such that serious disciplinary action was bound to follow. Grado clearly had a substantial influence over Edgar's decision to terminate Peters. The district court incorrectly concluded that Edgar "attempted to do at least some independent investigation." Slip op. at 30. The fact that Edgar asked Pedersen to check Peters' personnel file and discovered the 1999 disciplinary action does not constitute "independent investigation" of what occurred September 28-30, 2001. Even if the 1999 incident constitutes additional support for Peters' termination, it is undisputed that Edgar would not have been considering possible discipline of Peters had it not been for the events that transpired during the last weekend of September 2001. And in determining what happened on September 28-30, Edgar relied solely on Grado and conducted no independent investigation. Of particular note, Edgar relied solely on Grado for the content of his Friday afternoon telephone conversation with Peters, which BCI now claims is the primary reason Peters was terminated, and which EEOC asserts was inaccurate or misleading in several material respects. Compare Kendrick v. Penske Transp., 220 F.3d at 1231 (decisionmaker's independent investigation included asking plaintiff for his version of events). The district court also rejected EEOC's race discrimination claim, in part, because "EEOC has not directed the Court's attention to any evidence in the record linking Grado's potential bias to his decision to involve Edgar in the situation with Peters." Slip op. at 30. In so doing, the district court failed to view the evidence in the light most favorable to EEOC and failed to draw all reasonable inferences in EEOC's favor. EEOC's evidence of Grado's more favorable treatment of non-African American employees under similar circumstances, along with EEOC's general evidence of a Grado's bias against African American employees, see discussion at pp 11-14, supra, is sufficient for a jury to infer that Grado acted based on a discriminatory motive when he decided to involve Edgar in the situation with Peters. See, e.g., Ortiz v. Norton, 254 F.3d 889, 896 (10th Cir. 2001) (evidence supporting inference that decisionmakers harbored bias against Hispanics in other types of employment actions was relevant because the same bias "might have affected other decisions, including decisions adverse to [the] plaintiff"); Brooks v. Barnhart, 78 Fed.Appx. 52, 2003 WL 22293796 (10th Cir. 2003) (reversing district court's grant of judgment as a matter of law, in part because district court failed to consider evidence that supervisor generally disparaged male employees and treated them less favorably than female employees) (unpub.) (attached); see also McCowan, 273 F.3d at 926 (nexus between racially hostile comments and plaintiffs' termination is essential only when arguing comments are "direct" evidence of discrimination, but "is not the test in proving discrimination with circumstantial evidence"). In sum, Grado's demonstrated racial bias is properly imputed to BCI here because Edgar relied wholly on information from Grado concerning the 2001 incident which served as the primary basis for terminating Peters; Grado was acting in his official capacity as an agent of BCI when he conveyed the information to Edgar; and EEOC disputes, in critical respects, the veracity of the information Grado supplied. Thus, EEOC could establish a claim of race discrimination in violation of Title VII through circumstantial evidence since a reasonable jury could conclude here that the asserted reason for firing Peters (insubordination) was a pretext for race discrimination because the basis on which Edgar premised her decision was engineered by Grado, and a reasonable jury could conclude, on this evidence, that Grado's actions were motivated by his racial animus. C. Material Issues of Fact in the Record Concerning BCI's Explanation and Edgar's Misrepresentation Provide Additional Support for a Finding of Pretext in this Case. A plaintiff can show pretext by demonstrating that "the employer's proffered explanation is unworthy of credence." Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Miller, 396 F.3d at 1111 (permissible to infer ultimate fact of discrimination from falsity of employer's explanation) (citing Reeves, 530 U.S. at 147). "The relevant inquiry is not whether [the employer's] proffered reasons were wise, fair or correct, but whether [the employer] honestly believed those reasons and acted in good faith upon those beliefs." Rivera v. City and County of Denver, 365 F.3d 912, 924-25 (10th Cir. 2004) (citations omitted; emphasis added). In this case, evidence submitted by the Commission casts serious doubt as to the veracity of a material aspect of Edgar's explanation. Edgar maintains she knew Peters called in sick and was excused by Katt when she made her decision, and took this fact into account. See slip op. at 25; Edgar Decl.  14 (Appx. at 26-27); see also BCI SJ Reply at 6 (Appx. at 223). Indeed, Edgar asserts that before deciding whether to terminate Peters, she "asked Mr. Grado to check and make sure that Mr. Peters had not tried to page him or leave a message for him regarding why he was not coming in to work [on Sunday]," Edgar Decl.  12 (Appx. at 25), indicating she considered this a relevant consideration in her decisionmaking. But if EEOC's evidence is believed, as it must be on summary judgment, Edgar could not have known on Monday afternoon, when she made the decision to fire Peters, that Katt had authorized Peters to stay home sick, because Edgar said she learned this from either Grado or Pedersen, id., and neither Grado nor Pedersen knew of it until Monday evening at the earliest, after Grado called Katt to discuss the next day's schedule. Katt Dep. I at 66-67 (Appx. at 203-04); Pedersen Decl.  6 (Appx. at 44). In addition, Peters explained that after he was informed at the Tuesday morning termination meeting that he was being fired for failing to work on Sunday, he told the group (consisting of Grado, Pedersen, and Grado's supervisor Don Bateluna) that he had not been feeling well over the weekend and had called in sick to Katt. Peters says that afterward, "they all got quiet." Appx. at 193. According to Edgar, Pedersen, whose reaction at the meeting suggests she had previously been unaware Katt had excused Peters from working on Sunday, called Edgar after the meeting and asked Edgar if she knew Peters is African American. Edgar Decl.  17 (Appx. at 28). If EEOC's evidence that Katt did not tell Grado about Peters' sick-call until Monday evening is believed, Edgar's account of Pedersen's Tuesday telephone call without any reference to Pedersen's newly-acquired knowledge of Peters' medical excuse from work seems implausible under the circumstances, and a reasonable juror could choose not to believe Edgar on this point. Indeed, it is difficult to imagine why Pedersen would ask Edgar if she knew Peters was African American, unless Pedersen was concerned about BCI's treatment of Peters because of race or concerned that Peters might bring a charge of race discrimination against the company. Even if Pedersen was concerned that Peters might bring a discrimination charge against BCI based on Peters' comments at the termination meeting, see Appx. at 193; see discussion at 11 n.6, supra, a reasonable jury could conclude that Pedersen called Edgar immediately after the termination meeting to inform her, as well, that Peters, who had just been fired for failing to show up for assigned overtime on Sunday, had actually called in sick to Katt pursuant to standard company procedure. Thus, if EEOC's evidence is believed, a jury could conclude that Edgar's statement that she knew Peters called in sick to Katt before making her decision is a lie or at least is not true. A jury could believe that, in fact, Edgar only learned Katt had excused Peters when Pedersen called her after the Tuesday morning termination meeting, or from Grado on or after Monday evening when Katt first informed Grado of the Saturday call, and that Edgar, therefore, could not have taken this into account in deciding to fire Peters. A jury could further conclude generally, given this evidence of dissembling, that BCI management, having been manipulated by Grado into terminating Peters, devised after-the-fact explanations in an effort to rationalize their decision. The "question is not whether the employer's reasons for a decision are right but whether the employer's description of its reasons is honest." Kariotis v. Navistar Int'l Transp. Corp., 131 F.3d 672, 677 (7th Cir. 1997) (internal quotation marks and citations omitted). Where the evidence would permit a jury to conclude that an employer lied in some aspect of its reasons, the jury can infer from this dishonesty that the employer may be lying overall in its explanation of its actions in order to mask an illegal motivation. This Court recently explained that one of a factfinder's primary roles is to assess credibility in deciding how to view the evidence. See Miller, 396 F.3d at 1112 (citing Lamon v. City of Shawnee, 972 F.2d 1145, 1159 (10th Cir. 1992)). "If the factfinder concludes that one of the employer's reasons is disingenuous, it is reasonable for it to consider this in assessing the credibility of the employer's other proffered reasons." Miller, 396 F.3d at 1112. A factfinder's disbelief of the defendant's asserted reasons, "particularly if disbelief is accompanied by a suspicion of mendacity," suffices to support a finding of intentional discrimination. Id. at 1113 (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993)). Once BCI began refocusing its explanation of Peters' alleged insubordination from his failure to show up for work on Sunday to his Friday afternoon statements to Grado, BCI could have admitted that Edgar did not know, when she made her decision, that Peters had been medically excused by Katt on Saturday evening, and BCI could have further asserted that such knowledge would not have altered Edgar's decision, in any event. BCI chose, instead, to assert that Edgar learned about Peters' medical excuse from Grado before she made her decision and took this information into account on Monday afternoon when she decided to fire Peters. Given BCI's contention on this point, the record evidence presents a material issue of fact concerning the honesty of BCI's asserted explanation. When an employer "chooses to lie about its reasons for terminating an employee it runs the risk that 'the lie will lead the jury to draw an adverse inference,'" a principle that holds true "even when there are possible legitimate explanations for the lie." Miller, 396 F.3d at 1113-14 (citing and quoting Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1293-4 & n.8 (D.C. Cir. 1998)). The district court erred in not permitting a jury to consider this evidence of dishonesty, along with EEOC's other evidence of Grado's bias against African American employees and his more favorable treatment of Hispanic employees, in assessing whether BCI's proffered reason is a pretext for discrimination. CONCLUSION For all of the foregoing reasons, EEOC respectfully urges this Court to reverse the district court's grant of summary judgment in favor of BCI and to remand this matter for a jury trial. STATEMENT IN SUPPORT OF REQUEST FOR ORAL ARGUMENT The Commission believes oral argument would materially assist this Court in resolving the issues presented in this very fact-intensive controversy. The district court failed to recognize that some of the material facts are in dispute. The district court wrongly concluded that other disputed facts raised by EEOC are not material in this instance. As a result, the district court short-circuited the Commission's statutorily-authorized enforcement of Title VII and deprived the jury of its role as factfinder in this matter. The Commission believes that a discussion of these and related issues at oral argument would benefit this Court in its consideration of this appeal. Respectfully submitted, ERIC S. DREIBAND General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel SUSAN R. OXFORD, Attorney U.S. Equal Employment Opportunity Commission 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4791 Dated: March 7, 2005 CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation set forth in Fed. R. App. P. 32(a)(7)(B). This brief contains 10,720 words. See Fed. R. App. P. 32(a)(7)(B)(i). The brief was prepared using the WordPerfect 9 word processing system, in 14-point proportionally-spaced type for text and 14-point type for footnotes. See Fed. R. App. P. 32(a)(5). March 7, 2005 Susan R. Oxford CERTIFICATE OF SERVICE I, Susan R. Oxford, hereby certify that on this 7th day of March, 2005, I caused two copies of the attached brief, along with one copy of the accompanying appendix, to be sent by Federal Express, next-day delivery, postage prepaid, to counsel for BCI Coca-Cola Bottling Company of Los Angeles at the following address: E. Todd Presnell, Esq. MILLER & MARTIN LLP 1200 One Nashville Place 150 Fourth Avenue North Nashville, Tennessee 37219 tpresnell@millermartin.com On this same date, I am also e-mailing a copy of this brief to the U.S. Court of Appeals for the Tenth Circuit at esubmission@ca10.uscourts.gov and to counsel for BCI at the e-mail address noted above. The document that I am filing and serving electronically is an exact copy of the written document filed with the Court and served on counsel for BCI today. Prior to e-mailing this brief to the Court and counsel, I scanned the document using the Symantec AntiVirus program version 8.00.9374 on March 7, 2005, at approximately 2:15 p.m. No viruses were found. No privacy redactions were required before filing and serving this brief electronically. Susan R. Oxford EEOC / Office of General Counsel 1801 L Street, N.W., Room 7010 Washington, D.C. 20507 Tel. (202) 663-4791 March 7, 2005 Fax. (202) 663-7090 susan.oxford@eeoc.gov A P P E N D I X __________________________________ 1 In April 2002, six months after Peters was terminated, only three of the 200 employees in BCI’s Albuquerque facility were African American. Slip op. at 34 n.10. There were 127 Hispanic employees. See BCI Ethnicity/Race Employee Information (Appx. at 155-60). Cesar Grado is Hispanic; Jeff Katt is Caucasian. Appx. 157-58. 2 Katt explained, for instance, that if a merchandiser assigned to work on the weekend did not report in by 5:30 a.m., “I would start getting nervous . . . , because if they didn’t show up, that [would mean] I had to either go out there or to reassign people to get the work done.” Katt Dep. I at 91 (Appx. at 208). 3 BCI asserted in its reply brief below that Peters had worked only five days that week. BCI SJ Reply at 3 n.7 (Appx. at 220). Apparently, BCI’s work week runs from Monday through Sunday. See Appx. at 40, 232. For the week immediately preceding the one in question, Peters worked six days (Monday through Friday and Sunday). As a result, he had just finished working six consecutive days, although the first day (Sunday) was actually counted in the prior week. Appx. 40, 143. 4 See also Pedersen Decl. ¶ 7 (Edgar decided Monday afternoon to fire Peters) (Appx. at 44). 5 Edgar claims she learned this from either Grado or HR representative Sherry Pedersen. Edgar Decl. ¶ 12 (Appx. at 25). Pedersen claims she learned this from Grado. Pedersen Decl. ¶ 6 (Appx. at 44). Grado does not explain exactly how he learned this (see, e.g., Grado Decl. ¶ 13, Appx. at 37), but presumably he learned it from Katt. As noted above, Katt states that the first time he mentioned this to Grado was on Monday evening, after Grado told Katt Peters was being fired the next day. See Katt Dep. I at 66 (Appx. at 204); see also n.4 and accompanying text, supra. 6 Pedersen never mentioned this conversation in her declaration. As noted above, see p.9 n.6, supra, she did assert, however, that at some unspecified point (described only as “later”) she learned from Grado that Peters had called in sick to Katt and relayed this to Edgar (again without specifying when she passed this information along). Pedersen Decl. ¶ 6 (Appx. at 44). Notably, neither Edgar nor Pedersen mention in their declarations that Peters left the meeting saying, “You’ll be hearing from my attorneys.” Peters Dep. at 140 lines 15-16 (Appx. at 193). 7 Grado was Wilson’s district sales manager from 1997 until 2000. Wilson Aff. ¶¶ 2, 3 (Appx. at 184). Young worked at BCI from 1995 to October 2000, during which Grado was his district sales manager for approximately three to six months. Young Aff. ¶¶ 2, 3 (Appx. at 180). 8 BCI does not dispute, and the district court agreed, that EEOC satisfied the first prong of the McDonnell Douglas analysis by demonstrating a prima facie case of discrimination. BCI SJ Mem. at 16 (Appx. at 83); slip op. at 18-19. BCI satisfied the second prong by offering a non-discriminatory reason for discharging Peters, namely, that Peters was insubordinate. Id. at 19-20. The issue on appeal is whether EEOC satisfied the third prong of McDonnell Douglas by offering sufficient evidence for a reasonable jury to find BCI’s asserted reason was a pretext for race discrimination. 9 This is not a decision that simply later turned out to be mistaken in light of subsequently-acquired information. See Tran v. Trs. of State Colls. in Colo., 355 F.3d 1263, 1268-69 (10th Cir. 2004) (employer’s good faith belief not pretextual even if belief later found to be erroneous). Grado’s intentional manipulation of the facts to misrepresent his conversation with Peters makes Edgar’s reliance on this misinformation more than just an innocent error in business judgment. 10 Edgar could have taken a number of responsible steps to ensure she was receiving accurate and complete information. For example, she could have offered Peters a chance to provide his version of the telephone conversation, and she could have asked Katt what happened on Friday afternoon, since Katt was Peters’ immediate supervisor and had first-hand knowledge of much of what transpired. See Pedersen Dep. I at 31-32 (Appx. at 62). Edgar elected not to make any of these simple inquiries. 11 At least nine circuits have concluded a subordinate’s prejudice is properly imputed to an employer if a biased subordinate substantially influenced the decision or played a role in the decisionmaking process. See, e.g., Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 55 (1st Cir. 2000); Ostrowski v. Atl. Mut. Ins. Cos., 968 F.2d 171, 182 (2d Cir. 1992); Abrams v. Lightolier, Inc., 50 F.3d 1204, 1214 (3d Cir. 1995); Russell v. McKinney Hosp. Venture, 235 F.3d 219, 227 (5th Cir. 2000); Ercegovich v. Goodyear Tire Co., 154 F.3d 344, 354-56 (6th Cir. 1998); Hunt v. City of Markham, 219 F.3d 649, 652-53 (7th Cir. 2000); Stacks v. Southwestern Bell Yellow Pages, Inc., 27 F.3d 1316, 1323 (8th Cir. 1994); Bergene v. Salt River Proj. Agric. Improvement & Power Dist., 272 F.3d 1136, 1141 (9th Cir. 2001); Griffin v. Wash. Conv. Ctr., 142 F.3d 1308, 1312 (D.C. Cir. 1998). Only the Fourth Circuit has squarely ruled to the contrary. See Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277 (4th Cir. 2004) (en banc), petition for certiorari dismissed based on parties’ stipulation, 125 S.Ct. 1115 (Jan. 25, 2005) (Mem.); but see Lust v. Sealy, Inc., 383 F.3d 580, 584 (7th Cir. 2004) (criticizing Hill’s reliance on Seventh Circuit precedent for Fourth Circuit’s restricted analysis of “causation”). 12 When Grado asked Katt why he did not mention this sooner, Katt explained that he paged Grado Saturday evening at least twice, but Grado never responded. Appx. at 202-04. 13Such after-the-fact reasoning is also reflected in BCI’s explanations of Peters’ alleged insubordination. BCI initially stated that Peters’ insubordination was his failure to show up for work on Sunday. See Peters Dep. at 138 (Grado’s statement to Peters at termination meeting) (Appx. at 193); Ex. 3 attached to Grado Decl. (written termination notice) (Appx. at 41); EEOC SJ Opp. Mem., Ex. I (BCI’s Statement to New Mexico Dept. of Labor) (Appx. at 165). Only later did BCI describe the insubordination as based primarily on Peters’ stateme nts to Grado on Friday afternoon. See, e.g., BCI SJ Mem. at 11 (Appx. at 78).