Equal Employment Opportunity Commission and Francisco Santana v. Sears Roebuck & Co. 00-1507 IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT _________________________________________________ No. 00-1507 __________________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Plaintiff/Appellant, and FRANCISCO SANTANA Intervenor, v. SEARS ROEBUCK & CO., Defendant/Appellee. __________________________________________________ On Appeal from the United States District Court for the Eastern District of North Carolina ___________________________________________________ REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ____________________________________________________ In its initial brief, the Equal Employment Opportunity Commission ("EEOC or Commission") argued that the district court improperly applied a "pretext plus" standard in assessing the Commission's claim of national origin discrimination and therefore erroneously entered summary judgment in favor of the defendant, Sears Roebuck & Co. ("Sears"). The Commission noted that the Supreme Court recently reaffirmed that the "pretext plus" standard is inappropriate in employment discrimination cases such as this and that under the proper standard, the evidence put forth by the Commission of a prima facie case and of pretext was more than sufficient to put the case before a jury. In its response brief, Sears argues that the Commission's evidence was insufficient even to make out a prima facie case. Sears also argues that the Commission's evidence was insufficient to support a finding that Sears' proffered reasons for not hiring Mr. Santana were pretext. Sears asserts that summary judgment was proper despite the fact that the Commission presented strong evidence of a prima facie case, as well as substantial evidence that cast doubt on Sears' articulated legitimate, non-discriminatory reasons. For the reasons discussed below, and for the reasons presented in our opening brief, the Commission urges this Court to reverse the district court's summary judgment and remand the case for further proceedings. ARGUMENT I. The Commission Presented Sufficient Evidence To Establish a Solid Prima Facie Case In its response brief, Sears first argues that the Commission was unable to present a prima facie case of discrimination or that the prima facie case presented was weak. (Sears Brief at 16, 20-24.) Specifically, Sears argues that the Commission was unable to create an inference of discrimination because Ms. Kiely, the store manager, was allegedly unaware of Francisco Santana's national origin; because the white individuals hired instead of Mr. Santana were not "similarly situated" in that they were not former loss prevention agents who were believed to have been involved in a sexual harassment investigation; and because other Hispanics had been hired in the Morehead City store. Defendant's argument is entirely without merit and reveals a fundamental misunderstanding of the nature and purpose of a prima facie case. Indeed, it takes no more than a cursory glance at the evidence here to understand that the Commission's prima facie case was firmly established. A plaintiff relying on the methodology established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) bears the initial burden of establishing a prima facie case by a preponderance of the evidence. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). To state a prima facie claim in a suit for failure to hire based on disparate treatment, a plaintiff must show: (1) that he belongs to a protected class; (2) that he applied and was qualified for a job; (3) that, despite his qualifications, he was rejected; and (4) that, after his rejection, the position remained open and the employer continued to seek applications from persons of plaintiff's qualifications. See McDonnell Douglas, 411 U.S. at 802. The burden that such a plaintiff must meet in order to defeat summary judgment at the prima facie stage is "not onerous," Burdine, 450 U.S. at 253, and has often been described as "de minimis," see, e.g., Howley v. Town of Stratford, 217 F.3d 141, 150 (2d Cir. 2000); Fernandez v. Costa Bros. Masonry, Inc., 199 F.3d 572, 584 n.4 (1st Cir. 1999). Furthermore, the prima facie case is not intended to be rigid or mechanistic. See Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978); Duke v. Uniroyal, Inc., 928 F.2d 1413, 1417 (4th Cir. 1991). It is a flexible standard that serves the simple and straightforward purpose of eliminating the most likely reasons for an employer to take an adverse action, such as lack of qualifications or the absence of a job opening. See Burdine, 450 U.S. at 254; International Bhd. of Teamsters v. United States, 431 U.S. 324, 358 & n.44 (1977) (emphasizing that the prima facie case is a flexible standard that may be modified to accommodate different factual situations). Once those reasons have been eliminated, and a qualified member of a protected class demonstrates that he suffered an adverse employment action, an inference of discrimination has necessarily been established. See Burdine, 450 U.S. at 254.<1> Here, the Commission presented undisputed evidence that Mr. Santana was a member of a protected class (Hispanic); that he applied and was abundantly qualified for the position of loss prevention associate; that despite these qualifications he was rejected; and that the position remained open and Sears continued to recruit persons for the job. In fact, the evidence reveals that just before it rejected Mr. Santana, Sears hired a white man with no loss prevention experience, and that just after Mr. Santana was rejected, Sears hired a white woman who also had no loss prevention experience. This evidence is more than sufficient to satisfy the Commission's de minimus burden under the McDonnell Douglas framework and raises the necessary inference of discrimination. See Burdine, 450 U.S. at 254. Sears nevertheless contends that a prima facie case was not established because there is no "independent" evidence that raises an inference of discrimination. (Sears Brief at 21.) This argument misconstrues the essential nature and purpose of the prima facie case. The inference of discrimination exists because the prima facie case was established. See Furnco, 438 U.S. at 577 (holding that the prima facie case "raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors"). Furthermore, the district court expressly noted that such an inference of discrimination was created by Sears' "questionable rationale for refusing to hire Santana." (J.A. at 295.) Although the court was relying on evidence more properly analyzed in the pretext stage of the case, its conclusion regarding the inference of discrimination was nevertheless correct when considering the evidence as a whole. See Hazlewood Sch. Dist. v. United States, 433 U.S. 299, 316 (1977) ("Taking the Government's evidence as a whole, there can be no doubt about the sufficiency of its prima facie case."). In attempting to undermine the prima facie case established by the Commission, Sears similarly makes arguments more properly considered in the pretext analysis of the case. However, even if these arguments were considered at this stage, they do not defeat the Commission's case. For example, it does not undermine the Commission's prima facie case that Ms. Kiely alleges she was not aware of Mr. Santana's national origin or that Virginia Born, a white woman, was hired only after Mr. Santana was rejected. (Sears Brief at 21 & n.10.) Whether Ms. Kiely was aware of Mr. Santana's national origin is not an undisputed fact,<2> and it therefore remains a question of credibility for a jury to determine. Furthermore, the subsequent hiring of Ms. Born for the position for which Mr. Santana applied and was abundantly qualified is classic prima facie evidence.<3> See McDonnell Douglas, 411 U.S. at 802. In addition, there is no requirement for a plaintiff in a failure to hire case to demonstrate, as Sears argues, that the person who received the job instead of him is "similarly situated" in all respects. (Sears Brief at 22.) The construction of a prima facie case varies depending on the nature of the claim brought. See McDonnell Douglas, 411 U.S. at 802 n.13; Jones v. Frank, 973 F.2d 673, 676 (8th Cir. 1992). Generally, in a failure to hire claim, it is only required that a plaintiff demonstrate that the defendant continued to seek someone for the job with plaintiff's qualifications. See McDonnell Douglas, 411 U.S. at 802. If that showing is made, there exists no reason a plaintiff should have to produce similarly situated comparators. Even if a similarly situated analysis was appropriate in this case, Sears articulation of what a similarly situated comparator would be is ludicrous. To expect that the Commission must demonstrate that the individual hired instead of Mr. Santana was a former loss prevention associate who was believed to be involved in a sexual harassment investigation goes well beyond requiring similarity; it asks that the person who was hired be identical in every respect to Mr. Santana. This is clearly more than is necessary. All that is required is that there be sufficient similarity to permit a meaningful comparison of treatment. See, e.g., A.M. Alexander v. Fulton County, Georgia, 207 F.2d 1303, 1333 (11th Cir. 2000) (holding that the law does not require that a "similarly situated" individual be identical, but only similar to the plaintiff). Furthermore, Sears' argument that any comparator must have been believed to have been involved in a sexual harassment investigation is faulty because it conflates the well-known elements of the McDonnell Douglas analysis. The alleged reason Sears did not hire Mr. Santana - - that he may have been involved in a sexual harassment investigation - - is defendant's articulated nondiscriminatory reason under the McDonnell Douglas framework. That reason cannot be offered by Sears to defeat the Commission's claim at the prima facie case stage because it is the very question at issue. See EEOC v. Horizon/CMS Healthcare, 2000 WL 1051839, *6 (10th Cir. 2000) ("At the prima facie stage of the McDonnell Douglas analysis, a plaintiff is only required to raise an inference of discrimination, not dispel the non-discriminatory reasons subsequently professed by the defendant."). Finally, Sears argues that the Commission cannot make out a prima facie case because there was evidence that it hired other Hispanics in the Morehead City store. (Sears Brief at 23-24.) This evidence does not undermine the Commission's prima facie case. Because employment law protects individuals against discrimination, a violation can occur despite the fact that some members of the group were treated more favorably than others in the same group. See Connecticut v. Teal, 457 U.S. 440, 453-55 (1982)( noting that the "principal focus of [Title VII] is the protection of the individual employee, rather than the protection of the minority group as a whole" and recognizing that "an employer . . . [cannot] discriminate against some employees . . . merely because he favorably treats other members of the employees' group"). Thus, contrary to what Sears argues, an employer cannot insulate itself from liability for discrimination by treating some members of a protected group better than others. See Olmstead v. Zimring, 119 S. Ct. 2176, 2186 n.10 (1999) (reaffirming its position that intra-group discrimination is actionable); O'Connor, 517 U.S. at 312 (holding that the the fact that one person in the protected class lost out to another is irrelevant as long as they lost out because of age). In sum, the Commission has presented undisputed evidence that Mr. Santana, a member of a protected class, applied for and was denied a job for which he was abundantly qualified. This position was offered instead to two persons who had no qualifications and who were outside the protected class. It is clear that based on this evidence, a prima facie case has been established. II. The Commission Presented Sufficient Evidence of Pretext to Defeat Summary Judgment and Put the Case Before a Jury Sears next argues that even if the Commission was able to present a prima facie case of discrimination, it was unable to present sufficient evidence of pretext to rebut Sears' legitimate, non-discriminatory reason for failing to hire Mr. Santana. (Sears Brief at 25.) This argument ignores both the appropriate pretext analysis set forth by the Supreme Court in Reeves v. Sanderson Plumbing Prods., Inc., 120 S. Ct. 2097 (2000) and the evidence presented in this case that, as a whole, would allow a jury to find discrimination under Title VII. As noted in our opening brief, the Supreme Court in Reeves flatly rejected the "pretext plus" standard that was applied by the district court here. Reeves, 120 S. Ct. at 2109. The Reeves Court noted that the lower court had "erred in proceeding from the premise that a plaintiff must always introduce additional, independent evidence of discrimination." Id. Importantly for this case, the Court in Reeves made clear that evidence of the prima facie case, along with evidence that casts doubt on the employer's proffered reasons for its action, is generally sufficient to put the case before a jury. Id. It is true, as Sears points out in its brief, that the Supreme Court in Reeves left room for the possibility that a case may arise where the evidence of pretext is so thin, and the prima facie case so weak, that no reasonable jury could make the necessary inference of discrimination. Id. at 2109. This exception, however, was very narrowly drawn by the Court and comes into play only if: (1) the record "conclusively" demonstrates a non-discriminatory reason for the employer's decision; or (2) the plaintiff creates only a weak issue of fact on whether the employer's reason was unworthy of credence and there exists "abundant and uncontroverted independent evidence" that there has been no discrimination. Id. The Supreme Court included this caveat because it did not want to insulate an entire category of employment discrimination cases from review under Rules 50 or 56. Id. However, based on the inherently circumstantial nature of discrimination cases, see United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983), and the importance of jury determinations in matters of credibility and intent, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), this exception was narrowly drawn and must be narrowly applied. See Reeves, 120 S. Ct. at 2112 (Ginsberg, J., concurring) (noting that application of this exception will be "uncommon" and "atypical" because "the ultimate question of liability ordinarily should not be taken from the jury once the plaintiff has introduced [a prima facie case and evidence of pretext]"). Because the Commission has established a strong prima facie case and ample evidence to cast doubt on Sears' proffered non-discriminatory reasons, and because there is no conclusive and uncontroverted independent evidence that discrimination played no part, this narrowly drawn exception in Reeves does not apply in this case. Here, the Commission presented sufficient evidence from which a jury could find pretext by pointing to the shifting, inconsistent, and implausible nature of defendant's legitimate, non-discriminatory reasons.<4> It is well-settled that a jury may infer from such evidence that a defendant's articulated non-discriminatory reasons for its actions are pretextual. See, e.g., Dominguez-Cruz v. Suttle Carible, 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."); Thurman v. Yellow Freight Sys., Inc., 90 F.3d 1160, 1167 (6th Cir. 1996) ("An employer's changing rationale for making an adverse employment decision can be evidence of pretext."); Kobrin v. University of Minn., 34 F.3d 698, 703 (8th Cir. 1994) ("Substantial changes over time in the employer's proffered reason for its employment decision support a finding of pretext."). As noted in our opening brief, Sears initially claimed in its position statement in response to the EEOC's charge of discrimination that it did not hire Mr. Santana between late 1995 and early 1996 because they could not reach him by telephone and they were told either by Mr. Santana himself or by a military official at the base that he had been deployed. (J.A. at 155, 194.) This explanation, however, was undermined by Mr. Santana?s testimony that he made numerous attempts to contact management at the Morehead City store after his first visit and filed several applications, id. at 50, 59, 63, 73-90, 250; by the undisputed fact that the military had placed Mr. Santana in a non-deployable position during this time, id. at 149, 250; and by the fact that Sears was unable to identify the source of this information. Id. at 155, 158, 194. Sears also claimed that Mr. Santana was not hired in October 1996 because there were insufficient hours available in the loss prevention department. (J.A. at 195.)<5> Ms. Katsekes later testified, however, that this was not actually true and that Sears could have obtained additional hours in the loss prevention department to hire Mr. Santana, but did not. Id. at 162-66. Ms. Katsekes then stated she was informed by the loss prevention manager, David Mrazick, that the store manager, Patricia Kiely, did not want to hire Mr. Santana. Id. at 168. According to Ms. Katsekes, she was not given a reason for the decision and did not ask for one. Id. Patricia Kiely, the store manager, provided her own reason for Sears? failure to hire Mr. Santana. Ms. Kiely testified that she had a conversation with a Sears field loss prevention manager, Ann Manhertz, in which she was told that a loss prevention agent who was looking for work in the southeast region had been involved in a sexual harassment matter at a Sears store in California. (J.A. at 220.) Ms. Manhertz, however, testified that she had never heard of Mr. Santana and did not recall speaking to Ms. Kiely about any allegations of sexual harassment concerning Mr. Santana. Id. at 202-04. Neither Ms. Kiely nor Ms. Manhertz could recollect the conversation specifically, when it occurred, or what was said. Id. at 221-25, 274. Indeed, it turned out that Mr. Santana was in fact not the person in California who had been investigated for sexual harassment. (J.A. at 201-02; 274.)<6> Even assuming this conversation took place, Ms. Kiely testified that she made no effort to confirm what Ms. Manhertz told her, or to obtain further information about the identity of the alleged harasser, the incident, or any discipline imposed. (J.A. at 225.) Similarly, she did not question Mr. Santana regarding the incident or look at his employment file. Id. This alone is enough to cast doubt on her assertions. See 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 . . . its decisional process [is] ?unworthy of credence . . . ."); Bechold v. IGW Sys., Inc., 817 F.2d 1282, 1285 (7th Cir. 1987) (holding that "the lack of inquiry is [not] irrelevant; it may show that the [the employer's] belief was incredible, and merely a pretext for discrimination"). Furthermore, this final contention, which the district court relied upon to the exclusion of all other evidence, did not surface until Ms. Kiely?s deposition. Such a questionable, post-hoc rationale for failing to hire Mr. Santana could reasonably lead a jury to believe that it did not actually motivate Ms. Kiely?s actions. See Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 958 (5th Cir. 1993) (noting that to avoid summary judgment, a factfinder must be able to infer that employer?s reason was either a post-hoc fabrication or did not actually motivate the employment action). At the very least, this post-hoc rationale, when viewed alongside the other discredited reasons, sufficiently undermines Sears? credibility to avoid summary judgment. See Fuentes, 32 F.3d at 764 n.7 ("[T]he factfinder?s rejection of some of the defendant?s proffered reasons may impede the employer?s credibility seriously enough so that a factfinder may rationally disbelieve the remaining proffered reasons, even if no evidence undermining those remaining rationales in particular is available."). Indeed, a jury could easily determine that it was entirely implausible that Ms. Kiely would reject such a qualified and experienced candidate based on a wholly unsubstantiated rumor. Ms. Kiely testified that it is "very difficult" to find people experienced in loss prevention. (J.A. at 221.) A juror could certainly conclude that, given Mr. Santana?s qualifications and Sears? need for a loss prevention associate, it is unlikely that Ms. Kiely would have failed to take even the simple step of asking Mr. Santana about the alleged investigation or checking his employment file. That Ms. Kiely failed to confirm whether Mr. Santana was the person in question, or to get further information about the incident, either from Mr. Santana or from Sears officials in California, could easily lead a reasonable jury to conclude that Kiely's statement is unworthy of credence. See Smith, 155 F.3d at 807-08; Bechold, 817 F.2d at 1285. Sears nevertheless argues that this evidence of pretext, in conjunction with the prima facie case, is insufficient even under Reeves because the prima facie case was "weak" and there was no evidence from which to find national origin discrimination. (Sears Brief at 26.) First, as detailed above, the prima facie case presented by the Commission was very strong. See supra pp. 1-9. Indeed, the Commission offered even more evidence than was necessary to establish its prima facie case under the McDonnell Douglas framework. To the extent Sears argues that "smoking gun" evidence of national origin discrimination is necessary, it is mistaken.<7> (Sears Brief at 41) ("[T]here is no evidence of any derogatory or negative comments in reference to Mr. Santana's . . . national origin.") Despite Sears' repeated arguments to the contrary, direct evidence of national origin discrimination is not necessary to demonstrate pretext in a case based on circumstantial evidence. (Sears Brief at 7-8) ("No Sears employee . . . ever made any derogatory comments regarding national origin or told him that he could not be hired because of his national origin.") Such a requirement would be contrary to the very nature of a circumstantial evidence discrimination case. Obviously, if direct evidence is available, there would be no need to rely on the McDonnell Douglas paradigm. See Aikens, 460 U.S. at 716 (holding that plaintiff is not required to submit direct evidence of discriminatory intent as "[t]here will seldom be 'eyewitness' testimony as to the employer's mental processes"). Sears is also in error when it suggests that the Commission must also demonstrate that the company's articulated reasons for its action are actually false or outright lies for purposes of pretext. (Sears Brief at 32-33.) While we have established that some of defendant's reasons are false, we need only present evidence that defendants reasons are, as a whole, unworthy of credence. See Reeves, 120 S. Ct. at 2108 ("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."). The Commission has done this by demonstrating Sears' articulated reasons, including the reason offered by Ms. Kiely, to be shifting, conflicting, and generally implausible. See Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 432 (1st Cir. 2000). The bulk of Sears' argument regarding pretext rests on its contention that it is improper to consider any explanation other than that offered by Ms. Kiely because she was the decisionmaker in regard to Mr. Santana. Specifically, Sears contends that it is improper to consider the conflicting reasons offered in Ms. Katsekes' testimony and in the official position statement of the company. (Sears Brief at 33-37.) Sears states that "[i]n the present litigation, Sears has proffered a single explanation from a single decision-maker explaining [Santana's] nonemployment." (Sears Brief at 34.) This statement is simply untrue. First, in direct response to the charges in this case, Sears presented an official position statement of the company regarding Mr. Santana's "nonemployment." (J.A. at 193-96.) This position statement offers reasons for the employment action that are contrary to the position that Sears now wishes to set forth as its official reason why Mr. Santana was not hired. The position statement is therefore entirely relevant to the determination of whether Sears' asserted non-discriminatory reason is worthy of credence. There is no plausible reason, and Sears has offered none, that this document should not be considered when examining whether defendant's proffered explanation for its action is pretextual. See, e.g., Murtha v. Forest Elec. Corp., 1992 WL 174606 (E.D. Pa. 1992) (holding that defendant's position statement submitted to the EEOC was admissible because it was made in the course of an EEOC investigation, as a formal response to charges). Sears similarly argues that the testimony of Ms. Katsekes also should not be considered in the determination of pretext. However, the testimony of Ms. Katsekes, a manager at the Morehead City store who had several conversations with Mr. Santana regarding the status of his employment, had influence over the hiring process, and offered reasons for the employment action that were different than those offered by Ms. Kiely is certainly probative of whether Sears' asserted nondiscriminatory reasons were worthy of credence. See Oxman v. WLS-TV, 846 F.2d 448, 457 (7th Cir. 1988) (holding that statement of defendant's lower-level agent to discharged employee after decision was made by a supervisor was admissible and probative of pretext). Indeed, the record reveals that Ms. Katsekes had the authority to speak for the company on matters of hiring, and in speaking to Mr. Santana and giving him definitive reasons as to why he was not hired, she was acting within the scope of her employment. (J.A. at 164-66, 171-72.) Further, Ms. Katsekes could make independent hiring decisions (subject to being overruled on occasion), and had contact with Ms. Kiely on a regular basis to discuss personnel matters. Id. at 256-59. Thus, because Ms. Katsekes had the power to speak for the company on such personnel matters and was involved in negotiations with Mr. Santana, and because her testimony directly calls into question the testimony of Ms. Kiely, it is relevant to the determination of whether the reasons offered by Sears are the real reasons for the adverse employment action. See Oxman, 846 F.2d at 457; EEOC v. HBE Corp., 135 F.3d 543, 552 (8th Cir. 1998) (holding that the testimony of employer's agents within the scope of their employment was admissible to establish racial bias). Sears characterizes the conflict among the position statement, Ms. Katsekes' testimony, and Ms. Kiely's testimony as merely "differences." (Sears Brief at 34.) However, that there exist differences among the reasons offered for the employment action is exactly the point. See Dominguez-Cruz, 202 F.3d at 432; Toth v. Gates Rubber Co., 2000 WL 796068, **7 (10th Cir. 2000) (unpublished) (holding that conflict between supervisor and subordinate as to the reason for plaintiff's termination was sufficient evidence of pretext to survive summary judgment). Sears, however, has pointed to the one reason for its employment action that suits it best and, incredibly, urges this Court to ignore other evidence that casts doubt upon that reason. It is understandable that an employer would like to have a court ignore relevant evidence unfavorable to it and have the analysis focus solely upon evidence which favors its position. However, especially for summary judgment purposes, a court must look to all of the evidence and leave any resolution of conflicting stories to the finder of fact. See United States v. Murphy, 35 F.3d 143, 148 (4th Cir.1994) (holding that "[t]he jury, not the reviewing court, weighs the credibility of the evidence and resolves any conflicts in the evidence presented"). Even if these conflicting explanations were "isolated" or "uninformed," as Sears purports, they are nonetheless probative of pretext. (Sears Brief at 34-35.) In sum, it is clear that in this case the Commission offered a strong prima facie case and substantial evidence to cast doubt on Sears' articulated nondiscriminatory reason for its adverse employment action. Sears' attempt to fit this case within the narrow exception carved out in Reeves is unavailing, as it has not demonstrated, as it must, "abundant and uncontroverted independent evidence" that there was no discrimination. For these reasons, the district court erred in entering summary judgment against the Commission. CONCLUSION For the reasons expressed herein, this Court should reverse the judgment below and remand for further proceedings. Respectfully submitted, C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel _________________________ LISA J. BANKS Attorney EQUAL EMPLOYMENT OPPORTUNITY COMM'N Washington, D.C. 20507 (202) 663-4772 September 8, 2000 1 Contrary to Sears' formulation of the prima facie case, it is not necessary in a failure to hire context that the desired job be filled by a person outside the protected class. See O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312 (1996). It is necessary only that the position remained open and the employer continued to seek applicants with similar qualifications. See McDonnell Douglas, 411 U.S. at 802. Here, however, the Commission was nevertheless able to demonstrate that Sears filled the job sought by Mr. Santana with individuals outside the protected class and who had no comparable or relevant experience. This evidence only further solidified the required inference of discrimination. Thus, contrary to defendant's contention, the prima facie case here is particularly strong. 2 This point was never conceded at trial and the Commission presented an argument to the contrary below. Ms. Kiely's assertion that she never learned Francisco Santana's name, the person that she instructed not to be hired, is not supported by any other testimony in the record. For example, Ms. Katsekes noted in her affidavit that Ms. Kiely had directed Mr. Mrazik to tell her "that the store would not hire Mr. Santana." (J.A. at 258.) As the Commision argued below, it belies logic to accept that in becoming informed of Mr. Santana's impending hire and in making a decision that Mr. Santana would not be hired, Ms. Kiely never heard his name or saw it on an application or some other document. It is undisputed that the management officials with whom Ms. Kiely had contact regarding personnel matters, namely Mr. Mansfield, Mr. Mrazik, and Ms. Katsekes, all had full knowledge of Francisco Santana's name and national origin. 3 Sears attempts to contradict this argument by also inexplicably arguing that the prima facie case is undermined by the fact that Richard Harwood was hired before Mr. Santana was rejected. (Sears Brief at 22 n.11.) It matters not when either Ms. Born or Mr. Harwood was hired; it matters only that Mr. Santana was rejected for the position and these two white individuals with little to no experience were hired. 4 In examining Sears' articulated reasons, we focus on several sources of information, including the position statement submitted by Sears in response to the charge of discrimination, and the testimony of Ms. Katsekes and Ms. Kiely, both of whom played significant roles in Sears' dealings with Mr. Santana and both of whom offered reasons as to why Sears did not hire him. (EEOC Brief at 14-17.) To the extent Sears argues that the analysis should focus only on the reasons given by Ms. Kiely because she ultimately made the decision regarding Mr. Santana, and that the shifting and conflicting reasons offered by Sears as part of this litigation should be disregarded, it is mistaken. (Sears Brief at 33-36.) The proper analysis contemplates that the reasons put forth by the employer be explored and tested in their entirety. See, e.g., Reeves, 120 S. Ct. at 2109 (focusing its analysis on the "employer's" and "respondent's" explanation for its employment decision). In response to our claim that Sears discriminated in not hiring Mr. Santana, Sears offered testimony from the two persons most involved with his attempts to be hired, as well as a document setting forth its official position on the matter. For purposes of determining pretext, the court should properly consider all the evidence and should examine the entire corporate conduct relevant to the claim. 5 Sears also claims in its brief that Mr. Santana's initial inquiries regarding a job are irrelevant since no one was hired as a part-time loss prevention associate between late 1995 and October 1996. (Sears Brief at 13 n.7.) That fact, however, does not demonstrate that no one could have been hired during this time. Ms. Katsekes admitted that it would have been possible to hire someone if they wanted to. (J.A. at 162-66.) It may be simply that no one applied or was qualified for the position during that time. Sears' suggestion that they were not looking for anyone during that time period is belied by the fact that, as early as October 1995, Mr. Mansfield expressed an interest in having someone with Mr. Santana's impressive experience become a loss prevention associate and told Mr. Santana that he would be hired when he arrived in North Carolina. (J.A. at 42-47, 248.) 6 Sears spends a good deal of time in its brief making the unremarkable point that bad business decisions or mistakes by an employer are not in and of themselves actionable under Title VII. The Commission does not disagree. We are not making that argument, however. The question presented is not whether Sears made a bad business decision, but rather whether it made a discriminatory one. We argue simply that defendant's shifting, conflicting, and implausible reasons for failing to hire Mr. Santana, along with the evidence of the prima facie case, is sufficient to put the case before a jury to determine the ultimate issue of discrimination. 7 In its brief, Sears purports to recognize the holding of the Supreme Court in Reeves that pretext plus is not the appropriate standard and that evidence in addition to the prima facie case and pretext is unnecessary. However, Sears nevertheless continues to make arguments regarding the specific evidence of national origin discrimination in this case that are tantamount to a pretext plus argument. (Sears Brief at 7-8, 11-12, 26, 29, 31, 41.)