Case No. 04-10322 __________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT __________________________________________________________ BRENDA J. OWENS, Plaintiff/Appellant, v. EXCEL MANAGEMENT SERVICES, INC. and VARTEC TELECOM, INC., Defendants/Appellees. ________________________________________________________ On Appeal from the United States District Court For the Northern District of Texas, No. 3:02CV0835L, The Honorable Sam A. Lindsay, Presiding _________________________________________________________ Brief of the U.S. Equal Employment Opportunity Commission as Amicus Curiae Supporting Plaintiff-Appellant _________________________________________________________ ERIC S. DREIBAND General Counsel U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION CAROLYN L. WHEELER Office of General Counsel Acting Associate General Counsel 1801 L Street, N.W., Room 7020 Washington, DC 20507 JOSEPH A. SEINER (202) 663-4772 Attorney TABLE OF CONTENTS Page TABLE OF CONTENTS ................................................ i TABLE OF AUTHORITIES....................................... ii STATEMENT OF INTEREST ......................................... 1 STATEMENT OF RELATED CASES .................................. 1 STATEMENT OF ISSUE................................................ 2 STATEMENT OF FACTS AND PROCEEDINGS BELOW ..................... 2 STANDARD OF REVIEW........................................ 4 SUMMARY OF ARGUMENT............................................. 5 ARGUMENT................................................ 6 PLAINTIFF IS NOT REQUIRED TO SHOW THAT A SIMILARLY SITUATED EMPLOYEE OF A DIFFERENT RACE OR SEX WAS TREATED MORE FAVORABLY TO ESTABLISH A PRIMA FACIE CASE UNDER TITLE VII .......... 6 CONCLUSION ......................................................... 17 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES FEDERAL CASES Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456 (2d Cir. 2001) . . . . . . . . . . . . . . . . . . . .10 Amburgey v. Cohart Refractories, 936 F.2d 805 (5th Cir. 1991) . . . . . . . . . . . . . . . . . . . 9 Barnes v. Yellow Freight Sys., Inc., 778 F.2d 1096 (5th Cir. 1985) . . . . . . . . . . . . . . . . . . . 8 Bauer v. Albermarle Corp., 169 F.3d 962 (5th Cir. 1999) . . . . . . . . . . . . . . . . . 12-13 Benchmark Elecs. v. J.M. Huber Corp., 343 F.3d 719 (5th Cir. 2003) . . . . . . . . . . . . . . . . . . . 4 Bodenheimer v. PPG Indus., Inc., 5 F.3d 955 (5th Cir. 1993) . . . . . . . . . . . . . . . . . . . .12 Brown v. CSC Logic, Inc., 82 F.3d 651 (5th Cir. 1996) . . . . . . . . . . . . . . . . . . . .12 Byrd v. Roadway Express, Inc., 687 F.2d 85 (5th Cir. 1982) . . . . . . . . . . . . . . . . . . 7, 13 Conward v. Cambridge Sch. Comm., 171 F.3d 12, 19 (1st Cir. 1999) . . . . . . . . . . . . . . . . . .15 EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184 (10th Cir. 2000) . . . . . . . . . . . . . . . . . .15 Elliott v. Group Med. & Surgical Serv., 714 F.2d 556 (5th Cir. 1983) . . . . . . . . . . . . . . . . . . .14 Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978) . . . . . . . . . . . . . .7 Green v. Armstrong Rubber Co., 612 F.2d 967 (5th Cir. 1980) . . . . . . . . . . . 11 Guthrie v. Tifco Indus., 941 F.2d 374 (5th Cir. 1991). . . . . . . . . . . . . . .14 Herrero v. St. Louis Univ. Hosp., 109 F.3d 481 (8th Cir. 1997) . . . . . . . . . . . . . . . . . . .15 Jones v. W. Geophysical Co. of Am., 669 F.2d 280 (5th Cir. 1982) . . . . . . . . . . . . . . . . . . . 8 Keelan v. Majesco Software, Inc., Case No. 04-10317 (5th Cir.) . . . . . . . . . . 1 Kosereis v. Rhode Island, 331 F.3d 207 (1st Cir. 2003) . . . . . . .15 Marzano v. Computer Sci. Corp., 91 F.3d 497 (3d Cir. 1996) . . . . . . . . . . . . . . . . . . . .11 Mayberry v. Vought Aircraft Co., 55 F.3d 1086 (5th Cir. 1995) . . . . . . . . . . . . . . . . . . .11 McCorstin v. U.S. Steel Corp., 621 F.2d 749 (5th Cir. 1980) . . . . . . . . . . . . . . . . . .8, 9 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) . . . . . . . . . . . . . . . . . . . . . .passim McGuinness v. Lincoln Hall, 263 F.3d 49 (2d Cir. 2001) . . . . . . . . . . . . . . . . . . . .15 Nichols v. Loral Vought Syst. Corp., 81 F.3d 38 (5th Cir. 1996) . . . . . . . . . . . . . . . . . . . . 9 Nieto v. L&H Packing Co., 108 F.3d 621 (5th Cir. 1997) . . . . . . . . . . . . . . . . . . .12 Page v. U.S. Indus., Inc., 726 F.2d 1038 (5th Cir. 1984) . . . . . . . . . . . . . . . . . . . 7 Palasota v. Haggar Clothing Co., 342 F.3d 569 (5th Cir. 2003), cert. denied, 124 S. Ct. 1441 (2004). . . . . . . . . . . 3, 6, 12-13 Peterson v. Hewlett-Packard Co., 358 F.3d 599 (9th Cir. 2004) . . . . . . . . . . . . . . . . . . .16 Pivirotto v. Innovative Sys., Inc., 191 F.3d 344 (3d Cir. 1999) . . . . . . . . . . . . . . . . . . . .16 Ramirez v. Sloss, 615 F.2d 163 (5th Cir. 1980) . . . . . . . . . . . . . . . . . . . 9 Rose v. Wells Fargo & Co., 902 F.2d 1417 (9th Cir. 1990) . . . . . . . . . . . . . . . . . . . 9 Rutherford v. Harris County, 197 F.3d 173 (5th Cir. 1999) . . . . . . . . . . . . . . . . . . . 8 Tex. Dep't of Comm. Affairs v. Burdine, 450 U.S. 248 (1981) . . . . . . . . . . . . . . . . . . . . . . . 6-7 Urbano v. Cont'l Airlines, 138 F.3d 204 (5th Cir. 1998) . . . . . . . . . . . . . . . . . . . 8 White v. FCI USA, Inc., 319 F.3d 672 (5th Cir. 2003) . . . . . . . . . . . . . . . . . . . 4 FEDERAL STATUTES AND RULES Age Discrimination in Employment Act, 29 U.S.C. 621 et seq. . . . . . . . . . . . . . . . . . 3, 5, 12-14 Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. . . . . . . . . . . . . . . . . . . .passim Fed. R. App. P. 29(a) . . . . . .1 STATEMENT OF INTEREST The U.S. Equal Employment Opportunity Commission (EEOC or Commission) is the federal agency charged with administering, interpreting, and enforcing Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq., and other federal laws barring employment discrimination. In this case, the district court erroneously ruled that the plaintiff failed to prove a prima facie case of discrimination under Title VII because she had not shown that a similarly situated individual of a different race or sex was treated more favorably. Because of the importance of this issue to enforcement of Title VII, we offer our views to the Court in accordance with Fed. R. App. P. 29(a), which authorizes a government agency to file an amicus curiae brief "without the consent of the parties or leave of court." STATEMENT OF RELATED CASES The Commission is aware of another appeal pending in this Court, Keelan v. Majesco Software, Inc., Case No. 04-10317, which addresses the same issue raised in this case, of whether a plaintiff must show that similarly situated employees were treated more favorably to establish a prima facie case of discrimination. STATEMENT OF THE ISSUE Did the district court err in requiring a Title VII plaintiff to show that a similarly situated individual of a different race or sex was treated more favorably to establish a prima facie case of discrimination? STATEMENT OF FACTS AND PROCEEDINGS BELOW Brenda Owens, a 52-year-old African-American female, worked for Excel as the Director of Corporate Tax from March 13, 1995, until her termination on October 19, 2001. Owens v. Excel Mgmt. Servs., 2004 WL 358153 (N.D. Tex. Feb. 13, 2004) at *1. In October 2001, the company instituted a reduction in force. Id. Owens' supervisor eliminated two positions as part of the workforce reduction: Owens' job and the Revenue Specialist position occupied by a 32-year-old white male. Id. Owens then applied for the open position of Director of Corporate Tax at a company that was being acquired by Excel, but she was rejected in favor of a 35-year-old white male. Id. Owens claimed that she was terminated (and subsequently not rehired) because of her race, sex, and age, and that the reduction in force was pretextual. Id. at *4, *6. Owens further alleged that the failure to hire was in retaliation for exercising her rights under Title VII and the ADEA. Id. at *10. The district court granted summary judgment to the company on all of plaintiff's claims. Applying the framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the court determined that Owens' race and sex discharge claims failed because she had not satisfied all of the elements of a prima facie case of discrimination. Id. at *5. More specifically, Owens did not demonstrate that the company treated her differently from similarly situated employees of a different race or sex. Id. at *5. In reaching this determination, the court rejected plaintiff's argument that she could bypass this requirement by presenting other evidence that Excel fired her for discriminatory reasons. Id. at *4. Although this Court held in Palasota v. Haggar Clothing Co., 342 F.3d 569 (5th Cir. 2003), cert. denied, 124 S. Ct. 1441 (2004), that a plaintiff need not show that similarly situated workers were treated differently if there is other evidence of discrimination, the district court distinguished that case as applying only to age rather than Title VII claims. Id. at *5. In the alternative, the court concluded that Owens had not overcome Excel's legitimate, nondiscriminatory reason for termination a reduction in force. Id. at *5 n.6. The district court also granted summary judgment on Owens' age- discrimination claim, concluding that there was no evidence of pretext to overcome the employer's stated reason for the discharge. Id. at *6-7. The court further granted summary judgment on Owens' remaining hiring and retaliation claims. Id. at *8-*11. STANDARD OF REVIEW This Court reviews a district court's summary judgment ruling de novo. See Benchmark Elecs. v. J.M. Huber Corp., 343 F.3d 719, 730 n.9 (5th Cir. 2003). Summary judgment should be granted only when "the record, viewed in the light most favorable to the non-moving party, shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Id. Thus, a "factual dispute precludes a grant of summary judgment if the evidence would permit a reasonable jury to return a verdict for the nonmoving party." White v. FCI USA, Inc., 319 F.3d 672, 674 (5th Cir. 2003) (citation omitted). SUMMARY OF ARGUMENT The district court's decision is erroneous in that the court strictly adhered to a rigid formulation of the prima facie case which required that the plaintiff show that a similarly situated individual of a different race or sex was treated more favorably. Neither the Supreme Court nor this Court has ever required this showing to establish a prima facie case of discrimination. Rather, both Courts have acknowledged that the prima facie showing is a flexible standard and that there are various ways to establish claims of discrimination. This Court has explicitly recognized that a plaintiff need not show that a similarly situated younger employee was given preferential treatment to establish a prima facie case of age discrimination, and the district court's attempt to limit this holding to ADEA, rather than Title VII cases, is unpersuasive. Additionally, the district court failed even to address the Title VII cases in which this Court has not required a showing that similarly situated employees were treated differently. Moreover, other circuits have applied the same flexible standard that the Commission urges here. For these reasons, the district court's holding that a Title VII plaintiff must show that a similarly situated employee was given preferential treatment to establish a prima facie case of discrimination should be rejected by this Court. ARGUMENT PLAINTIFF IS NOT REQUIRED TO SHOW THAT A SIMILARLY SITUATED EMPLOYEE OF A DIFFERENT RACE OR SEX WAS TREATED MORE FAVORABLY TO ESTABLISH A PRIMA FACIE CASE UNDER TITLE VII The district court erred in requiring the plaintiff to show that similarly situated male or non-African-American employees were treated more favorably as part of her prima facie case. In the Commission's view, the plaintiff may bypass this requirement by showing other evidence that suggests discrimination. Under the traditional McDonnell Douglas framework applied by the district court, a fired employee can establish a prima facie case of discrimination by submitting evidence that: (1) she was discharged; (2) she was qualified for the position; (3) she was within a protected class at the time of discharge; and (4) she was i) replaced by someone outside the protected class, ii) treated less favorably than a similarly situated employee outside the protected class, or iii) discharged because of her protected characteristic. See, e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Tex. Dep't of Comm. Affairs v. Burdine, 450 U.S. 248, 253 (1981) (Title VII prima facie case satisfied where applicant for available job was qualified but "rejected under circumstances which give rise to an inference of unlawful discrimination."); Palasota, 342 F.3d at 575-76 (setting forth prima facie case in age discrimination case). Establishing a "prima facie case merely 'raises an inference of discrimination . . . because we presume [that the alleged discriminatory] acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.'" Page v. U.S. Indus., Inc., 726 F.2d 1038, 1052 (5th Cir. 1984) (quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978)). If the employee satisfies this prima facie standard, the burden then shifts to the employer to articulate a legitimate non-discriminatory reason for the termination. See, e.g., Burdine, 450 U.S. at 253. Finally, the burden shifts back to the employee to show that the employer's proffered reason was pretextual. Id. The district court's conclusion that the plaintiff's Title VII case fails because she did not show that similarly situated males or non-African-Americans were treated more favorably ignores the flexible approach to the prima facie case advocated by the Supreme Court and the Fifth Circuit. This Court has observed that it and the Supreme Court have "repeatedly pointed out" that "no single formulation of the prima facie evidence test may fairly be expected to capture the many guises in which discrimination may appear." Byrd v. Roadway Express, Inc., 687 F.2d 85, 86 (5th Cir. 1982) (citations omitted). "The focus of the inquiry may not be obscured by the blindered recitation of a litany." Id. While this Court has recognized that the fourth element of the prima facie case may be satisfied by showing that similarly situated employees without the protected characteristic were treated more favorably, see, e.g., Rutherford v. Harris County, 197 F.3d 173, 184 (5th Cir. 1999) (including as element of prima facie case that similarly situated employees treated differently); Urbano v. Cont'l Airlines, 138 F.3d 204, 206 (5th Cir. 1998) (same), neither the Supreme Court nor this Court has ever found this showing to be indispensable for establishing a prima facie case of discrimination under Title VII. To the contrary, both Courts have explicitly recognized that there are varied approaches to establishing claims of discrimination, because discrimination "exists in forms as myriad as the creative perverseness of human beings can provide." McCorstin v. U.S. Steel Corp., 621 F.2d 749, 753-54 (5th Cir. 1980); see also Barnes v. Yellow Freight Sys., Inc., 778 F.2d 1096, 1100 (5th Cir. 1985) ("The Supreme Court has recognized that the facts of Title VII cases necessarily vary, so the specific prima facie proof that was demanded of the McDonnell Douglas plaintiff 'is not necessarily applicable in every respect to differing factual situations.'" (quoting McDonnell Douglas, 411 U.S. at 802 n.13)); Jones v. W. Geophysical Co. of Am., 669 F.2d 280, 284 (5th Cir. 1982) ("The underlying purpose of the fourth element in the McDonnell Douglas formulation is precisely to establish this unlawful inference of discrimination."); Ramirez v. Sloss, 615 F.2d 163, 168 (5th Cir. 1980) ("Courts must not allow the mechanical formula to blind them to the real issue of whether the defendant illegally discriminated against the plaintiff. McDonnell Douglas is only one way to establish a prima facie case of employment discrimination."); Amburgey v. Cohart Refractories, 936 F.2d 805, 812 (5th Cir. 1991) (stating in an age case that "[t]he necessary elements of a prima facie employment discrimination case are not Platonic forms, pure and unchanging; rather, they vary depending on the facts of a particular case" (quotation omitted)); McCorstin, 621 F.2d at 753 ("[t]his circuit has also recognized that the McDonnell test is not the alpha and omega of possible tests" in age discrimination cases). This need for flexibility is particularly heightened when the discrimination occurs in the context of a reduction in force, where there often are no similarly situated employees. See Nichols v. Loral Vought Syst. Corp., 81 F.3d 38, 41 (5th Cir. 1996) (in reduction in force cases, the fourth prong can be proven by showing "'evidence, circumstantial or direct, from which a factfinder might reasonably conclude that the employer intended to discriminate in reaching the decision at issue'" (quoting Amburgey, 936 F.2d at 812)). See generally Rose v. Wells Fargo & Co., 902 F.2d 1417 (9th Cir. 1990) (where discharge occurs in the context of a reduction in force, replacement need not be shown, and "[m]ost circuits are in accord and require instead that the plaintiff show through circumstantial, statistical, or direct evidence that the discharge occurred under circumstances giving rise to an inference of age discrimination" (citing cases)). The need for flexibility in the prima facie showing is well illustrated by this case. As the district court acknowledged, Excel contends that [plaintiff] cannot establish that white males remained in similar positions because there were no employees who were similarly situated to her or in nearly identical circumstances to hers. In other words, Excel contends that because Owens was the only director-level employee, or 'Grade-12' employee, in the tax department, she did not have a 'nearly identical' comparator, and therefore cannot establish a Title VII prima facie case. 2004 WL 358153 at *4. Under this reasoning, then, the plaintiff in this case could never avail herself of the McDonnell Douglas framework to establish discrimination, regardless of the weight of the evidence. In essence, then, Title VII's protections would arguably no longer exist in cases such as this where there is no "'nearly identical' comparator." Thus, by ensuring that a particular position did not have a "nearly identical" comparator, employers could attempt to insulate themselves from claims of discrimination, no matter how suspicious the circumstances might otherwise seem. See also Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 468 (2d Cir. 2001) (refusing to encourage "the grotesque scenario where an employer can effectively immunize itself from suit if it is so thorough in its discrimination that all similarly situated employees are victimized"); Marzano v. Computer Sci. Corp., 91 F.3d 497, 511 (3d Cir. 1996) ("Under [the similarly situated] scheme, any employee whose employer can for some reason or other classify him or her as 'unique' would no longer be allowed to demonstrate discrimination inferentially, but would be in the oft-impossible situation of having to offer direct proof of discrimination. We see no value in, and no mandate in our jurisprudence for, such a requirement."). This Court should not create a rule that could have these perverse effects. Such flexibility is consistent with the approach this Court has taken in other contexts. This Court has recognized that a plaintiff need not establish that a similarly situated individual was treated differently where the employer's legitimate non-discriminatory reason can be shown to be false. See Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir. 1995) ("In work-rule violation cases, a Title VII plaintiff may establish a prima facie case by showing 'either that he did not violate the rule or that, if he did, white employees who engaged in similar acts were not punished similarly.'" (emphasis added) (quoting Green v. Armstrong Rubber Co., 612 F.2d 967, 968 (5th Cir. 1980))). Moreover, in a discharge case, this Court has indicated that "the fact that one's replacement is of another national origin 'may help to raise an inference of discrimination, [but] it is neither a sufficient nor a necessary condition.'" Nieto v. L&H Packing Co., 108 F.3d 621, 624 n.7 (5th Cir. 1997) (citation omitted). Similarly, in the context of the ADEA, this Court has explicitly held that a plaintiff need not show that a similarly situated younger employee was given preferential treatment if she can offer other evidence of discriminatory motivation. See Palasota, 342 F.3d at 575 ("Our reading of the record and the district court's opinions convinces us that it erred by . . . holding that [plaintiff] was required to show that a younger employee was given preferential treatment."); Brown v. CSC Logic, Inc., 82 F.3d 651, 656-57 (5th Cir. 1996) (plaintiff, whose position was terminated and who was unable to show that younger employees were treated more favorably, established prima facie case through age-related comments). All that is required is some showing that gives rise to an inference of discrimination. See, e.g., Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir. 1993) (fourth element of prima facie case can be satisfied by showing plaintiff was "otherwise discharged because of his age"). The district court minimized the applicability of this Court's holdings in age discrimination cases by stating that the prima facie elements of Title VII differ from those under the ADEA. The district court relied on Bauer v. Albermarle Corp., 169 F.3d 962, 966 (5th Cir. 1999), for the proposition that the elements of a prima facie case under Title VII and the ADEA differ. While this decision does set forth a different prima facie case for the ADEA and Title VII, nothing in that case suggests that the elements set forth are the only way to prove discrimination under those statutes. Thus, nothing in Bauer contradicts the premise that there are many ways for a plaintiff to establish a prima facie case of discrimination under both Title VII and the ADEA. Indeed, as shown earlier, this Court has emphasized that the prima facie case is flexible and should be adapted to the facts of the case at hand under both Title VII and the ADEA. This Court should take this opportunity to reaffirm the principle of flexibility in Title VII cases and explicitly apply the reasoning of Palasota to Title VII. In Title VII as in ADEA cases, the purpose of the fourth element of the prima facie case is simply "to identify actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were based on a discriminatory criterion illegal under the Act." Byrd v. Roadway Express, Inc., 687 F.2d 85, 86 (5th Cir. 1982) (citations and internal quotations omitted). Title VII and the ADEA prohibit disparate treatment in identical terms. Compare 42 U.S.C. 2000e-2(a) (it is unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin") with 29 U.S.C. 623(a) (it is unlawful for an employer "to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age"). Therefore, the requirements for establishing a prima facie case should be the same under both statutes. See, e.g., Guthrie v. Tifco Indus., 941 F.2d 374, 376 (5th Cir. 1991) ("The elements of a Title VII case, as set forth in McDonnell-Douglas . . . apply to suits arising under the ADEA."); Elliott v. Group Med. & Surgical Serv., 714 F.2d 556, 565 n.11 (5th Cir. 1983) ("We recognize that McDonnell Douglas, supra, involves a Title VII action. However, the analysis of Title VII cases has been applied to ADEA cases given the common purpose of the statutes and their nearly identical substantive provisions."). The district court offered no reason for creating different evidentiary standards to establish an inference of discrimination under the two statutes. Other circuits have specifically concluded that a plaintiff need not establish that a similarly situated employee was treated differently to satisfy the requirements of a Title VII prima facie case. In a recent First Circuit opinion, the court explained why such a requirement collapses the McDonnell Douglas burden-shifting framework: We [have] explicitly rejected the notion that plaintiffs in disparate treatment cases are required to demonstrate that they were treated differently as part of their prima facie case. . . . Rather, we [have] held that '[T]he time to consider comparative evidence in a disparate treatment case is at the third step of the burden-shifting ritual, when the need arises to test the pretextuality vel non of the employer's articulated reason for having acted adversely to the plaintiff's interests.' Kosereis v. Rhode Island, 331 F.3d 207, 213 (1st Cir. 2003) (quoting Conward v. Cambridge Sch. Comm., 171 F.3d 12, 19 (1st Cir. 1999)). The Tenth Circuit has also concluded that a Title VII plaintiff "can satisfy the fourth element of her prima facie case in a number of ways." EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1194 n.6 (10th Cir. 2000). That Court made clear that "[n]othing in the case law in this circuit requires a plaintiff to compare herself to similarly-situated co-workers to satisfy the fourth element of her prima facie case." Id. Other appellate courts have reached the same conclusion. See McGuinness v. Lincoln Hall, 263 F.3d 49, 54 n.2 (2d Cir. 2001) ("a Title VII plaintiff may establish a prima facie case of discrimination in a number of different ways depending on the specific facts of a given case" and the case law "does not require that a plaintiff always be able to show disparate treatment of an otherwise similarly situated employee as a necessary prerequisite to a prima facie case under Title VII"); Herrero v. St. Louis Univ. Hosp., 109 F.3d 481, 483-84 (8th Cir. 1997) (stating that fourth element of prima facie case requires plaintiff to "produce some additional evidence that a prohibited criterion such as age, race, or ethnic origin was a factor in [plaintiff's] termination"); Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir. 2004) (stating that fourth element of prima facie case requires showing that "similarly situated individuals outside his protected class were treated more favorably, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination" (emphasis added)); see also Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 357 (3d Cir. 1999) ("We [have] held [in an ADA case] that a plaintiff could make out a prima facie case even without demonstrating that employees outside of the relevant class were treated more favorably, let alone that the plaintiff herself was replaced by someone outside of the relevant class."). The district court erred, then, in requiring the plaintiff to show that similarly situated employees were treated more favorably. This Court's precedent makes it clear that such an offer of proof is one of the ways in which a plaintiff can demonstrate a prima facie case of discrimination. The law is equally clear, however, that it is not the only way to show discrimination. CONCLUSION The district court erred in requiring a Title VII plaintiff to show that a similarly situated individual of a different race or sex was treated more favorably to establish a prima facie case of discrimination. The similarly situated requirement has been rejected by the Supreme Court and this Court in many contexts, and should be rejected in this case as well. Respectfully submitted, ERIC S. DREIBAND General Counsel CAROLYN L. WHEELER Acting Associate General Counsel _________________________ JOSEPH A. SEINER Attorney Equal Employment Opportunity Commission Office of General Counsel 1801 L Street, N.W., Room 7020 Washington, D.C. 20507 (202) 663-4772 CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation set forth in Fed. R. App. P. 29(d) and 32(a)(7)(B). This brief contains 3839 words. See Fed. R. App. P. 29(d) and 32(a)(7)(B)(i). The brief was prepared using the WordPerfect 9 processing system, in 14-point proportionally spaced Times New Roman type for text and 14-point Times New Roman type for footnotes. See Fed. R. App. P. 32(a)(5). _____________________ JOSEPH A. SEINER May 27, 2004 CERTIFICATE OF SERVICE I, Joseph A. Seiner, hereby certify that on the 27th day of May, 2004, I caused: (1) copies of the attached brief; (2) a diskette containing the brief in an Adobe Acrobat PDF format; and (3) a copy of my appearance form to be sent via first-class U.S. mail to: Clerk of Court Susan Motley Ann Marie Painter U.S. Court of Appeals Gillespie, Rozen, Watsky Littler Mendelson for the Fifth Circuit & Motley 2001 Ross Avenue 600 Camp Street 3402 Oak Grove Avenue Suite 2600 New Orleans, LA 70130 Suite 200 Dallas, TX 75201 Dallas, TX 75204 Attorneys for Appellee Attorneys for Appellant __________________________ JOSEPH A. SEINER Attorney Equal Employment Opportunity Commission Office of General Counsel 1801 L Street, N.W., Room 7020 Washington, D.C. 20507 (202) 663-4772 May 27, 2004