No. 03-4787 _________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _________________________________________ UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. HAARMANN & REIMER, Defendant-Appellee. ______________________________________________ On Appeal from the United States District Court for the District of New Jersey ______________________________________________ Brief of the U.S. Equal Employment Opportunity Commission as Plaintiff-Appellant Seeking Reversal of Grant of Defendant-Appellee's Motion for Summary Judgment ______________________________________________ ERIC S. DREIBAND General Counsel U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., 7th Floor Washington, D.C. 20507 (202) 663-4724 LORRAINE C. DAVIS Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel ANNE NOEL OCCHIALINO Attorney TABLE OF CONTENTS Table of Authorities . . . . . . . . . . . . . . . . . . . . .iii Statement of Jurisdiction. . . . . . . . . . . . . . . . . . . .1 Statement of Related Cases and Proceedings . . . . . . . . . . .2 Statement of the Issue . . . . . . . . . . . . . . . . . . . . .2 Statement of the Case. . . . . . . . . . . . . . . . . . . . . .2 1. Nature of the Case and Course of Proceedings . . . . .2 2. Statement of Facts . . . . . . . . . . . . . . . . . .2 3. District Court Decision . . . . . . . . . . . . . . 11 Standard of Review . . . . . . . . . . . . . . . . . . . . . . 13 Summary of Argument . . . . . . . . . . . . . . . . . . . . . 13 Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 THIS COURT SHOULD REVERSE THE DISTRICT COURT'S ENTRY OF SUMMARY JUDGMENT BECAUSE THE EEOC ESTABLISHED A PRIMA FACIE CASE OF AGE DISCRIMINATION AND OFFERED SUFFICIENT EVIDENCE FOR A JURY TO FIND THAT H&R FAILED TO PROMOTE BANQUECER BECAUSE OF HIS AGE. . . . . . . . . . . . . . . . . . . . . . . . 15 A. The district court correctly held that the EEOC established a prima facie case of age discrimination. . . . . . . 16 1. Banquecer was qualified to be the Mailroom Supervisor. 16 TABLE OF CONTENTS (con't) 2. H&R is precluded from arguing that Banquecer was unqualified since Delgado did not have the very qualification Banquecer allegedly lacked. . . . 17 B. The EEOC offered sufficient evidence from which a reasonable jury could find that H&R's proffered reasons for choosing Delgado over Banquecer were a pretext for age discrimination. 18 1. Banquecer met the stated job qualifications but Delgado did not. . . . . . . . . . . . . . . . . . . . 19 2. H&R has offered shifting and inconsistent reasons for choosing Delgado. . . . . . . . . . . . . . . . 20 3. H&R's offered reasons for choosing Delgado over Banquecer that were untrue or exaggerated. . . 25 a. Delgado's supervisory experience. . . . . 26 b. Delgado's inventory control experience . . 29 4. H&R had an unequal promotion process. . . . . . 30 5. The thirty-year age gap between Banquecer and Delgado is indicative of pretext. . . . . . . . . . . . 31 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Certificate of Compliance Certificate of Service TABLE OF AUTHORITIES CASES Abramson v. William Paterson Coll., 260 F.3d 265 (3d Cir. 2001). . . . . . . . . . . . . .20, 24, 26, 28-29, 30 Anthony v. BTR Automotive Sealing Sys. Inc., 339 F.3d 506 (6th Cir. 2003)17 Banks v. Travelers Co., 180 F.3d 358 (2d Cir. 1999). . . . . . 31 Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639 (4th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . passim EEOC v. Ethan Allen, Inc., 44 F.3d 116 (2d Cir. 1994). . . . . 21 EEOC v. Sears Roebuck & Co., 243 F.3d 846 (4th Cir. 2001). 21, 24 Farrell v. Planters Lifesavers Co., 206 F.3d 271 (3d Cir. 2000)13 Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994) . . . . 18, 21, 31 Lindahl v. Air France, 930 F.2d 1434 (9th Cir. 1991) . 22, 24, 25 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). . . . . 15 Reeves v. Sanderson Plumbing, Prods., Inc., 530 U.S. 133 (2000). . . . . . . . . . . . .13, 15, 18, 19, 31 Seay v. Tennessee Valley Auth., 339 F.3d 454 (6th Cir. 2003)19, 20 Sempier v. Johnson & Higgins, 45 F.3d 724 (3d Cir 1995). . . . 16 STATUTES 28 U.S.C. 1291 . . . . . . . . . . . . . . . . . . . . . . . .2 28 U.S.C. 1331 . . . . . . . . . . . . . . . . . . . . . . . .2 TABLE OF AUTHORITIES (con't) 28 U.S.C. 1335 . . . . . . . . . . . . . . . . . . . . . . . .2 29 U.S.C. 621-634 (Age Discrimination in Employment Act). . .1 No. 03-4787 _________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _________________________________________ UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. HAARMANN & REIMER, Defendant-Appellee. ______________________________________________ On Appeal from the United States District Court for the District of New Jersey ______________________________________________ Brief of the U.S. Equal Employment Opportunity Commission as Plaintiff-Appellant Seeking Reversal of Grant of Defendant-Appellee's Motion for Summary Judgment ______________________________________________ STATEMENT OF JURISDICTION On April 23, 2001, the United States Equal Employment Opportunity Commission ("EEOC" or "Commission") brought this action under the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. 621-634, alleging that Defendant-Appellee Haarmann & Reimer ("H&R") discriminated against Luis Banquecer because of his age. (A36-A40) The district court had jurisdiction over this matter pursuant to 28 U.S.C. 1331, 1345. On October 14, 2003, the district court entered an opinion and final judgment, disposing of all claims as to all parties. (A1, A12) On December 16, 2003, the Commission filed a timely notice of appeal under Federal Rule of Appellate Procedure 4(a)(1)(B). (A13) This Court has jurisdiction under 28 U.S.C. 1291. STATEMENT OF RELATED CASES AND PROCEEDINGS There are no prior or related appellate proceedings in this case. STATEMENT OF THE ISSUE Whether the EEOC offered enough evidence for a reasonable jury to conclude that the reasons given by the defendant for refusing to promote the fifty-nine year old charging party were a pretext for age discrimination and this Court should therefore reverse the entry of summary judgment in favor of the defendant. (R.11 (Memo. in support of Mo. for Summ. J.), pp. 16-17) (R.16 (Resp.), pp. 8-15)(A9-A11 (opinion)). STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings On April 23, 2001, the EEOC brought this ADEA action against H&R alleging that it discriminated against Banquecer based on his age when it promoted a younger employee over him to the position of Mailroom Supervisor. (A36-A40) On October 14, 2003, the district court entered a written opinion and order granting H&R's motion for summary judgment. (A1; A12) 2. Statement of Facts H&R is a company that produces perfumes and flavorings. (A2) In January of 2000, H&R created the position of Mailroom Supervisor. (A130) Banquecer applied for the position. (A4) At the time, he was fifty-nine years old and was working in H&R's mailroom as a Mailroom Coordinator. (A4) Despite his numerous years of experience working in mailrooms, discussed infra, and the fact that H&R called him a "good employee," (A28), H&R selected a twenty-nine year old employee named Mary Delgado to be the Mailroom Supervisor. (A4) Job posting and selection process At the end of 1999, Facilities Manager Gary Wildenstein and his supervisor decide to create a new position called "Mailroom Supervisor." (A45) Together they determined the qualifications for the position. (A118; A130) On January 14, 2000, H&R posted an Open Position Notice for the position of "Mailroom Supervisor." (A19) The notice states in part: Brief Description of the Position: Responsible for running the mailroom operation. Define new procedures by communication with internal customers to optimize the incoming and outgoing deliveries. Inventory control of facility supplies. Position Requirements: 5 years experience in running a mailroom operation. Organizational skills; leadership capabilities; [g]ood communication skills both oral and written; able to define new procedures and communicate to internal customers. (Id.) Two employees applied for the position: Banquecer and Delgado. (A110, Depo. pg. 30) Both candidates submitted self-nomination forms and supporting material to H&R's personnel department, which were forwarded to Wildenstein. (A110, Depo. pp. 30-31) Wildenstein asserts that he interviewed both Delgado and Banquecer. (A52) Banquecer, however, has consistently denied that Wildenstein ever interviewed him. (A23; A101, Depo. pg. 50) On February 8, 2000, H&R posted a notice stating that it had selected Delgado to be the Mailroom Supervisor. (A129) Soon afterward, H&R promoted Banquecer to Senior Mailroom Clerk, which involved a two-grade salary increase. (A28) Banquecer's work experience Banquecer's mailroom experience began in 1965 when he started working for K-mart. (A142) Banquecer's responsibilities at K-mart included "mailroom, shipping, receiving, and packing." (A142) He held this job for over seventeen years. (A142) In 1984, Banquecer took a job at the Employment Office in Clifton, New Jersey, where he worked for two years in the mailroom and supply room. (A142) From late 1986 to early 1988, Banquecer worked at Kline and Company as the Assistant Manager of the mailroom where he sorted and delivered mail and did "receiving, stock, [and] inventory supply." (A142) Starting in late 1988, Banquecer worked for a year at the Radisson Hotel where he had mail duties and performed maintenance work. (A142) Beginning in 1990, Banquecer worked for three years at Mokrynski and Associates as the Assistant Manager of the Mailroom where he again did shipping, receiving, and inventory. (A142) From 1994 to 1998, Banquecer was the sole person working in the mailroom at Creations Aromatique where he "r[a]n the entire operation in the company, in the mailroom, and shipping and receiving, everything." (A99, Depo. pp. 22-23) In 1998, H&R acquired Creations. (A99, Depo. pp. 24) Banquecer continued working in the mailroom, although he changed job locations from Englewood Cliffs, New Jersey, to Teterboro, New Jersey. (A99, Depo. pp. 22, 25) He was one of up to six people who worked in the mailroom. (A99, Depo. pg. 25) Banquecer received positive evaluations; in 1998 he earned "meets expectations" or "exceeds expectations" in each of twenty-one categories and his supervisor, Gary Wildenstein, called him an "excellent worker" with a "very positive attitude." (A146) In August of 1999, Banquecer won a "Service Plus Award" and seventy-five dollars for working late to ensure that H&R shipped a product on time. (A148-A149) Beginning in October of 1998, Wildenstein became Banquecer's supervisor. (A152, Aff. at 3) For most of the period from October 1998 through February 2000, however, the person who answered Banquecer's questions at work was Eric Colon, another mailroom employee. (Id.) In January of 1999, Wildenstein announced that Colon would be in charge of the mailroom; in 1999 Wildenstein made Colon "Team Leader" of the mailroom. (A153, Aff. at 4) During 1999, Colon made work assignments in Wildenstein's absence, signed time sheets, and handled complaints about the mailroom. (A153, Aff. at 5-7; A154-A180) Delgado's work experience In December of 1995, Delgado started working at what was then called "H&R Florasynth," a predecessor company to H&R, as a Data Entry Receiving Clerk. (A63, Depo. pg. 6) In this position she entered data into the computer, received noninventory shipments, and printed labels. (A64, Depo. pg. 12) In 1996, Delgado was promoted to Production Coordinator/Warehouse Receiving Clerk, a position in which she performed all her old duties and became more involved with the inventory of raw materials. (A65, Depo. pg 13) In early 1997, H&R promoted Delgado to Inventory Control Coordinator where she performed her old duties and some new ones, including: training three employees on a system called SAP and answering their questions about it; creating and implementing a log for noninventory items that were received in the warehouse and were taken to the mailroom for distribution; creating and implementing a log for samples sent to the labs; documenting and maintaining files about the samples; and, when her supervisor was absent, answering questions about problems in the warehouse. (A66-A67, Depo. pg. 20-24) She did not keep attendance records or evaluate employees' work performance. (A68, Depo. pg. 25) Delgado also testified that she never supervised any warehouse employees as Inventory Control Coordinator. (Id.) Delgado's 1997 performance review, which mentions her negative attitude towards other employees, does not refer to any supervisory duties she performed. (A136) In January of 1999, H&R promoted Delgado to the position of Facilities Coordinator, a position in which she worked under Wildenstein. (A68, Depo. pg. 26) Her duties included: meeting with vendors; redirecting in-house facilities complaints (e.g., about clogged toilets or lamps that were out); maintaining responsibility for company vehicles; updating registration and insurance; performing inventory control of facilities supplies, such as hand soap and Kleenex, and all mailroom supplies; helping the engineering personnel with the computers; and assisting the security personnel director. (A68, Depo. pg. 27; A69, Depo. pp. 30-32; A128) According to Delgado, she also handled complaints concerning the mailroom; had responsibility for the mailroom in Wildenstein's absence; offered input when Wildenstein prepared performance reviews of the mailroom employees, including Banquecer and Colon; and kept attendance records of all mailroom employees. (A103, Depo. pg. 45; A106-A107, Depo. pp. 58, 60-62). Neither Delgado's 1998 nor her 1999 performance evaluation refers to any supervisory responsibilities she performed as Facilities Coordinator. (A134, A138) It is undisputed that Delgado lacked five years of experience running a mailroom operation. (A121, Depo. pg. 58; R.11, Memo. in Support of Summ. J., at 6) H&R Position Statement On November 27, 2000, H&R submitted a position statement to the EEOC in the form of a letter responding to Banquecer's charge of discrimination. (A28) The letter states that Banquecer's position as Mailroom Coordinator did not involve supervisory responsibility and that he "was not as qualified for this supervisory position as Ms. Delgado." (A28) In the letter, H&R reviewed Delgado's employment history and asserted that she "had held two supervisory positions before being promoted" Inventory Control Coordinator and Facilities Coordinator. (A29) Accordingly, H&R stated that Delgado "possessed the requisite supervisory experience and knowledge of the mailroom operation fitting the criteria of Mailroom Supervisor." (A29) H&R further contended that Wildenstein interviewed "both Ms. Delgado and Mr. Banquecer." (A29) (emphasis in original). According to H&R, it "simply determined that Mary Delgado was the best applicant for this position" because she "had more supervisory experience and better qualifications." (A29) Wildenstein's Deposition Testimony Wildenstein testified at his March 26, 2002, deposition that he interviewed both candidates. (A50-53) According to Wildenstein, he talked with Banquecer about "why he did not fit the qualifications," including that Banquecer was "not as computer literate as much as [he] needed somebody to be." (A52-53) Wildenstein added that he also needed "somebody that can look beyond what was happening in the mailroom at the present time and be able to correct the deficiencies that were in there" and that he "needed somebody who knew inventory control, that could take and continue on with the total inventory of what we keep in there." (A53) According to Wildenstein, although Banquecer was "an excellent worker overall," he "had a tendency to disregard the procedures that were set down in the mailroom to try and help people to do different things within the floor area to send out packages and/or to do different things during that period of time." (A59) As to Delgado, Wildenstein testified that as Facilities Coordinator she assisted him by investigating mailroom complaints, taking over responsibility for running the mailroom, and helping him prepare evaluations for several mailroom workers, including Banquecer. (A48, A56-A57) Wildenstein also stated that Delgado took over in the absence of supervisors in shipping and receiving when the two of them were working at Florasynth, which was a predecessor company to H&R. (A55) EEOC Lawsuit On April 23, 2001, the EEOC sued H&R for age discrimination. (A36) In H&R's motion for summary judgment, it argued that the EEOC had failed to establish a prima facie case because Banquecer was unqualified and because Delgado was better qualified. (R.11, Memo. in Support of Summ. J., at 13-15) In making this argument, H&R relied on Wildenstein's deposition testimony. (Id.) H&R also argued that the EEOC had failed to show that H&R's proffered reason for not selecting Banquecer "he did not possess the necessary qualifications" was a pretext for age discrimination. (R.11, Memo. in Support of Summ. J. at 17) 3. District Court Decision The district court concluded that the EEOC had established a prima facie case of age discrimination. (A7-A9). In reaching this conclusion, the court rejected H&R's argument that Banquecer was unqualified because he lacked supervisory experience. (A8) Specifically, the court noted that "managerial supervisory experience" was not a posted requirement. (A8) According to the court, "[t]o 'run' a mailroom operation does not necessarily imply supervision of other employees, if, for instance, the mailroom is composed of one employee." (A8) The court also stated that "one can be capable of 'leadership' without having had prior managerial experience." (A8) Moreover, the district court found, H&R could not argue that Banquecer was unqualified because he lacked five years of experience running a mailroom operation since H&R admitted that Delgado also lacked this experience. (A8-A9) Finally, the court concluded that Banquecer satisfied the other qualifications listed in the position notice. (A9) The district court noted that H&R had proffered legitimate non- discriminatory reasons for selecting Delgado. (A10) The court then turned to the issue of pretext. (Id.) The court rejected the EEOC's argument that H&R had offered shifting reasons that were probative of pretext. (Id.) In the court's view, H&R had "consistently asserted that Banquecer was not qualified for the position and that Delgado was better qualified" and "Wildenstein's offering during his deposition of more examples showing why, in his opinion, Delgado was better qualified does not indicate a shift in position designed to cover up a discriminatory motive." (Id.) The district court further concluded that neither Wildenstein's deposition testimony nor any other evidence offered by the EEOC suggested a discriminatory motive. (A10-A11) Finally, the court noted that H&R had submitted evidence that two-thirds of its staff is over forty years of age, which, in the court's view, did "not indicate any company-wide discrimination on the basis of age." (A11) STANDARD OF REVIEW This court reviews a grant of summary judgment applying the same standard as the district court. See Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000). Summary judgment should only be granted "'if the pleadings, depositions, answers to interrogatories, and admission on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.'" Id. (citing Fed. R. Civ. P. 56(c)). In making this determination, the court must view the facts in the light most favorable to the nonmoving party and must draw all inferences in its favor. See id. SUMMARY OF ARGUMENT This Court should reverse the district court's entry of summary judgment in favor of H&R on the EEOC's claim of age discrimination. The district court's finding that the EEOC had failed to establish pretext with respect to Banquecer's non-promotion to the Mailroom Supervisor position contradicts the Supreme Court's central teaching in Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000), that a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's proffered justification is false, may allow a fact-finder to conclude that an employer unlawfully discriminated. The district court properly concluded that the EEOC had established a prima facie case of age discrimination. As the court found, Banquecer satisfied the requirement of five years' experience in running a mailroom operation since he had multiple years of experience running a one-person mailroom. Moreover, H&R is precluded from arguing that Banquecer's lack of experience rendered him unqualified for the position because H&R does not dispute that Delgado lacked this experience. The district court erred, however, in concluding that the EEOC's evidence fell short of raising a jury question as to whether H&R's asserted justifications for selecting Delgado were unworthy of belief. The EEOC's evidence establishes that H&R selected the one candidate who failed to meet the stated qualifications Delgado instead of hiring the one candidate who did Banquecer. The EEOC also offered evidence that H&R proffered shifting and inconsistent reasons for choosing Delgado over Banquecer. Further, the EEOC offered evidence that some of the reasons H&R gave for selecting Delgado were untrue or exaggerated and that H&R had an unequal promotion process. Based on this evidence, and the thirty-year age gap between Delgado and Banquecer, a reasonable jury could conclude that the reasons given by H&R for not selecting Banquecer to be Mailroom Supervisor were false and that H&R unlawfully discriminated against Banquecer based on his age. ARGUMENT THIS COURT SHOULD REVERSE THE DISTRICT COURT'S ENTRY OF SUMMARY JUDGMENT BECAUSE THE EEOC ESTABLISHED A PRIMA FACIE CASE OF AGE DISCRIMINATION AND OFFERED SUFFICIENT EVIDENCE OF PRETEXT FOR A JURY TO FIND THAT H&R FAILED TO PROMOTE BANQUECER BECAUSE OF HIS AGE. The district court erred in granting summary judgment in favor of H&R. In reaching its ruling, the district court utilized the familiar burden-shifting analysis for employment discrimination claims set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 803-805 (1973). The district court properly found that the EEOC had established a prima facie case of age discrimination. The district court erred, however, in concluding that the EEOC's evidence was insufficient to allow a reasonable jury to conclude that H&R's reasons for choosing Delgado over Banquecer to be Mailroom Supervisor were a pretext for age discrimination. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000) ("[A] plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated."). Therefore, this Court should reverse the district court's entry of summary judgment in favor of H&R and remand this case for trial. A. The district court correctly held that the EEOC established a prima facie case of age discrimination. Two reasons support the district court's conclusion that the EEOC had established a prima facie case of age discrimination. First, Banquecer was qualified to be the Mailroom Supervisor. Second, H&R is precluded from arguing that Banquecer was unqualified since Delgado, who was selected, did not meet the very job qualification Banquecer was alleged to lack. 1. Banquecer was qualified to be the Mailroom Supervisor. In concluding that the EEOC had established a prima facie case, the district court correctly rejected H&R's argument that Banquecer did not meet the requirement of five years of experience "running" a mailroom operation because he lacked supervisory experience. (A8-A9) As the district court noted, the position notice did not list managerial or supervisory experience and "[t]o 'run' a mailroom operation does not necessarily imply supervision of other employees, if, for instance, the mailroom is composed of one employee." (A8) Since Banquecer had more than five years of experience running a one-person mailroom at Creations, Kline & Company, and Mokrynski & Associates, he satisfied the "five year running a mailroom operation" requirement. (A99, Depo. pg. 24; A20; A142) 2. H&R is precluded from arguing Banquecer was unqualified since Delgado did not have the very qualification Banquecer allegedly lacked. The district court correctly found that even if Banquecer did not satisfy the requirement of five years "running" a mailroom operation, H&R is precluded from arguing that he was unqualified because H&R concedes that Delgado lacked this experience. See Anthony v. BTR Automotive Sealing Sys. Inc., 339 F.3d 506, 515 (6th Cir. 2003) ("A plaintiff should not be required to prove that he is qualified to meet the stated requirements for a position where the selected candidate likewise does not meet the requirements."); Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 646 (4th Cir. 2002) (plaintiff's evidence sufficient for jury to find she was qualified where neither she nor selectee met all the posted qualifications and they satisfied aspirational list equally well). Thus, the district court properly found that the EEOC successfully established a prima facie case of age discrimination. B. The EEOC offered sufficient evidence from which a reasonable jury could find that H&R's proffered reasons for choosing Delgado over Banquecer were a pretext for age discrimination. The central issue on appeal is whether the EEOC raised a genuine issue of material fact as to pretext. The district court concluded that the EEOC had not, going so far as to state that the EEOC failed to offer "any" evidence that H&R's asserted reasons for promoting Delgado in lieu of Banquecer were a pretext for age discrimination. (A11) (emphasis in original). In making this ruling, the district court overlooked relevant evidence in the record and violated the basic tenet of Reeves v. Sanderson Plumbing, 530 U.S. at 148, which is that "a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." See also Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994) (plaintiff may defeat summary judgment by establishing a prima facie case and "discrediting the proffered reasons, either circumstantially or directly"). While this showing does not always defeat a defendant's motion for summary judgment, the EEOC's evidence in this case was enough to allow a reasonable jury to find that H&R discriminated against Banquecer based on his age. The EEOC's evidence of pretext falls into five general categories. 1. Banquecer met the stated job qualifications but Delgado did not. Pretext can be inferred when an employer eliminates applicants for a failure to meet unstated qualifications rather than eliminating applicants who fail to meet stated qualifications. See Seay v. Tennessee Valley Auth., 339 F.3d 454, 466-67 (6th Cir. 2003) (pretext established where employer claimed it reduced large applicant pool by eliminating applicants (including plaintiff) who lacked management experience but did not eliminate applicants who failed to meet stated qualifications). Here, the district court agreed with the EEOC that Banquecer satisfied the posted requirement of five years of experience running a "mailroom operation" and that "the position notice does not list any qualification that Banquecer lacked." (A8-A9) In contrast, H&R concedes that Delgado did not satisfy the posted requirements since she lacked five years of experience running a mailroom. (A55) Thus, the only applicant who satisfied the stated qualifications for the position was Banquecer. While H&R asserts that it primarily selected Delgado because she had "supervisory experience," that was not a posted qualification. (A19) Thus, H&R eliminated Banquecer for failing to meet an unstated qualification and selected Delgado although she was the only one who failed to meet the stated qualifications. "This inconsistency tends to undermine [H&R]'s legitimate nondiscriminatory explanation and raises 'an inference [of pretext] that must be drawn, at summary judgment, in favor of the nonmovant.'" Seay, 339 F.3d at 468 (citation omitted). 2. H&R has offered shifting and inconsistent reasons for choosing Delgado. H&R's shifting and inconsistent reasons for its failure to promote Banquecer gives rise to a genuine issue of material fact as to pretext. This Court has consistently recognized that "[i]f a plaintiff demonstrates that the reasons given for [an employment action] did not remain consistent, beginning at the time they were proffered and continuing throughout the proceedings, this may be viewed as evidence tending to show pretext." Abramson v. William Paterson Coll., 260 F.3d 265, 284 (3d Cir. 2001) (agreeing that "ever-changing nature" of defendant's proffered reasons for firing plaintiff "detract[ed] from their legitimacy" and reversing summary judgment); see also Fuentes, 32 F.3d at 765 (stating that "inconsistencies" and "contradictions" in employer's reasons can demonstrate pretext). Like this Court, other circuits have also routinely held that an employer's shifting reasons for an employment action are probative of pretext. See, e.g., EEOC v. Sears Roebuck & Co., 243 F.3d 846, 852-53 (4th Cir. 2001) ("[T]he fact that Sears has offered different justifications at different times for its failure to hire [plaintiff] is, in and of itself, probative of pretext."); EEOC v. Ethan Allen, Inc., 44 F.3d 116, 120 (2d Cir. 1994) (holding that jury could find that employer discriminated based on age where it offered inconsistent and contradictory explanations for termination). An employer's justifications do not need to be directly contradictory to be probative of pretext. Instead, plaintiffs "provide sufficient evidence of falsity" where they show that an employer offered an initial explanation but later offered an additional explanation. See Dennis, 290 F.3d at 646 (justifications for promotion "inconsistent" and probative of pretext where decisionmaker testified at deposition that selectee had better managerial experience but testified at trial that selectee's managerial experience and computer knowledge set him apart). Similarly, a jury may find that an employer's justification is "a later fabrication" where the employer initially gives "vague explanations about 'overall qualifications'" and supplies a straightforward answer only after litigation begins. Lindahl v. Air France, 930 F.2d 1434, 1438 (9th Cir. 1991) (explanation of "computer proficiency" was so straightforward "one might expect that [employer] would have mentioned it if it really were the explanation"). Here, H&R offered inconsistent explanations for its selection of Delgado over Banquecer. In H&R's November 27, 2000, position statement, it asserted that Wildenstein had interviewed both candidates and found Delgado better qualified. (A28-A29) Specifically, H&R said that Delgado "had more supervisory experience and better qualifications" than Banquecer because she had held two supervisory positions while Banquecer had held none. (A29) Significantly, H&R did not assert in its November 27, 2000, position statement that Banquecer was "unqualified" for the Mailroom Supervisor position because he lacked five years of experience running a mailroom operation or for any other reason. (A28-A30) Sixteen months later, however, H&R changed its tune. Wildenstein testified at his March 26, 2002, deposition that Banquecer "did not fit the qualifications" for a number of specific reasons conspicuously absent in H&R's position statement: 1) that Banquecer was "not computer literate as much as [he] needed somebody to be"; 2) that Banquecer was not "somebody that can look beyond what was happening in the mailroom at the present time and be able to correct the deficiencies that were in there"; and 3) that Banquecer was not someone who "knew inventory control, that could take and continue on with the total inventory of what we keep in there." (A52-A53) Additionally, Wildenstein gave two other reasons for not promoting Banquecer that H&R did not mention in its position statement. First, Banquecer "had a tendency to disregard the procedures that were set down in the mailroom to try and help people to do different things within the floor area to send out packages and/or to do different things during that period." (A59) Second, Banquecer did "not specifically fully" meet the requirement of five years running a mailroom operation. (A119, Depo. pp. 51-52) Relying on Wildenstein's testimony, H&R argued to the district court that it did not select Banquecer for the reasons Wildenstein gave in his deposition. (A10; R.11, Memo. in Support of Summ. J., at 6, 14) Accordingly, H&R initially asserted in its November 27, 2000, position statement that Banquecer was less qualified than Delgado but later relied on Wildenstein's testimony to assert that Banquecer was unqualified for reasons not originally mentioned in its position statement. These "ever changing" reasons for refusing to promote Banquecer "may be viewed as evidence tending to show pretext." Abramson, 260 F.3d at 284; see also Dennis, 290 F.3d at 646 (plaintiff provided sufficient evidence of falsity where decisionmaker gave at trial additional reason for not selecting plaintiff that decisionmaker failed to mention during his deposition). Adding to the inference of pretext a jury could draw, at least two of the reasons Wildenstein gave for not selecting Banquecer his alleged lack of computer proficiency and inventory control experience are such "straightforward answers" that H&R reasonably could be expected to have mentioned them in its position statement had they actually been true. See Lindahl, 930 F.2d at 930 (stating that "computer explanation would have been such a straightforward answer" to plaintiff's inquiries about non-promotion that "one might expect" employer would have initially mentioned it "if it really were the explanation"); see also Abramson, 260 F.3d at 284 (noting that "two technology- related concerns" for employment action "were not mentioned until [decisionmaker's] deposition"). Accordingly, "a factfinder could infer from the late appearance of [H&R]'s current justification[s]" that they are merely "post- hoc" rationalizations instead of legitimate explanations for its non-promotion of Banquecer. Sears, 243 F.3d at 852. H&R's shifting and inconsistent explanations are particularly probative of pretext in this case because at least one of the explanations given by Wildenstein during his deposition Banquecer's lack of computer proficiency differed from the written job qualifications. See Dennis, 290 F.3d at 646 (stating that both of employer's late explanations for non-promotion "differed from the written job qualifications, giving them the flavor of post-hoc rationalizations"); Lindahl, 930 F.2d at 1438 (noting that "computer proficiency had never been listed as a qualification for the position"). The omission of "computer proficiency" from the posted requirements is particularly telling because Wildenstein helped determine the qualifications for the Mailroom Supervisor position. (A118, Depo. pg. 45) A jury therefore could infer that had Wildenstein really been looking for someone with "computer proficiency" he would have included it in the written qualifications and that his failure to do so indicates that "computer proficiency" was a later fabrication intended to cover up for age discrimination. In short, the EEOC offered evidence that H&R provided shifting and inconsistent reasons for refusing to promote Banquecer. Based on this evidence alone, a jury could find that the reasons given by H&R were a pretext for discrimination. 3. H&R's offered reasons for choosing Delgado over Banquecer that were untrue or exaggerated. The EEOC offered evidence that some of the reasons H&R gave for choosing Delgado over Banquecer were untrue or exaggerated, which is also probative of pretext. This evidence would also allow a jury to disbelieve H&R's explanations for Banquecer's non-promotion. See Abramson, 260 F.3d at 283-84 (discussing plaintiff's evidence disputing reasons given for termination and reversing summary judgment). Similarly, evidence that an employer exaggerated a selectee's qualifications can support a jury's finding that an employer's proffered reasons were false. See Dennis, 290 F.3d at 647 (jury could have found that selectee's "management and computer skills were overplayed" where selectee had failed computer class and only managed a small store years earlier). As discussed below, the EEOC's evidence shows that H&R exaggerated or made up Delgado's supervisory experience and that, contrary to H&R's assertion, Banquecer had inventory control experience. a. Delgado's supervisory experience According to H&R, Delgado held two supervisory positions Inventory Control Coordinator and Facilities Coordinator before her promotion. (A29) The EEOC, however, offered evidence disputing this. Delgado herself denied that she supervised any warehouse personnel when she was the Inventory Control Coordinator. (A68, Depo. pg. 25; A66, Depo. pg. 20) She also denied that she kept any attendance records or evaluated the performance of any warehouse workers as Inventory Control Coordinator. (A68, Depo. pg. 25) Delgado's self-nomination form and memorandum are also devoid of any reference to supervisory experience she had as Inventory Control Coordinator. (A131-A133) Delgado's 1997 evaluation, when she was the Inventory Control Coordinator, makes no mention of supervisory experience or duties. (A136-A137) Thus, a jury could find that Delgado had no supervisory duties as Inventory Control Coordinator. The EEOC's evidence also casts doubt upon H&R's assertion that the Facilities Coordinator position was supervisory. (A29) For this point, H&R appears to rely on the deposition testimony of Wildenstein and Delgado stating that Delgado assisted the mailroom clerks, supervised mailroom employees in Wildenstein's absence, investigated mailroom complaints, and participated in mailroom employees' evaluations. The EEOC's evidence, however, contradicts H&R's contention that the Facilities Coordinator position was supervisory. According to Banquecer, from October of 1998 until February 8, 2000, Eric Colon not Delgado answered his questions about the mailroom. (A152, Aff. at 3) In January of 1999 Wildenstein announced to the mailroom employees that Colon not Delgado would be in charge of the mailroom and later appointed him "Team Leader." (A153, Aff. at 4) Banquecer also stated that Colon not Delgado handled mailroom complaints in 1999. (A153, Aff. at 7) Banquecer further stated that Colon made work assignment in Wildenstein's absence (and even when Wildenstein was available). (A153 Aff. at 5) Banquecer also specifically denied that Delgado assigned work to mailroom employees, discussed their work performance with them, or did anything to make him or the other mailroom employees think she was a supervisor. (A153, Aff. at 8) Further, although Delgado testified that she kept attendance records for "all the mailroom employees," (A106, Depo. pg. 60), Banquecer denied this fact in his affidavit and his 1999 attendance sheets submitted by the EEOC are all signed by Colon or Wildenstein. (A153, Aff. at 6; A154-A180) Finally, neither the requisition for the Facilities Coordinator position nor Delgado's 1998 and 1999 performance evaluations refers to any supervisory duties. (A128; A134; A138) Thus, the EEOC's evidence would allow a jury to find either that Delgado did not have any supervisory duties as Inventory Control Coordinator or Facilities Coordinator or, at the very least, that H&R over-emphasized any supervisory experience she actually did have. Thus, a reasonable jury could find that H&R's claim that it selected Delgado because she had held two supervisory positions is a post-hoc rationalization covering up for discrimination. See Abramson, 260 F.3d at 283-84 (discussing plaintiff's evidence refuting employer's proffered reasons for termination and reversing summary judgment); Dennis, 290 F.3d at 647 (jury could have concluded that selectee not chosen for his allegedly superior skills where plaintiff offered evidence that decisionmaker "overplayed" selectee's management experience and computer skills). b. Banquecer's inventory control experience The EEOC's evidence also casts doubt upon the truth of Wildenstein's testimony that Banquecer was unqualified in part because he did not know "inventory control." (A53, Depo. pg. 56) The EEOC submitted Banquecer's self- nomination form, which states that he did "inventory" at Mokrynski & Associates, and his Creations' application, which states that "inventory" was one of his responsibilities at Kline & Company. (A20; A142) Wildenstein also testified that he saw these documents. (A123, Depo. pg. 72). Thus, the EEOC's evidence shows not only that Banquecer had inventory control experience, but that Wildenstein knew it. A factfinder could therefore find that H&R's "inventory control" reason was false. See Abramson, 260 F.3d at 283-84 (discussing plaintiff's evidence refuting reasons for termination and finding pretext). 4. H&R had an unequal promotion process. Other evidence a jury could rely upon to conclude that H&R's reasons for not promoting Banquecer were false concerns H&R's unequal promotion process. See Dennis, 290 F.3d at 647 ("evidence of the unequal way in which [decisionmaker] conducted the promotion process could have persuaded the jury that" the decisionmaker "did not give [plaintiff] fair consideration but rather discriminated against her"). Although H&R asserts that Wildenstein interviewed both candidates, Banquecer has consistently denied that Wildenstein interviewed him. (A23); (A101, Depo. pg. 50). Since the court must view all facts in the light most favorable to the EEOC on summary judgment, the court must assume that Wildenstein interviewed only Delgado. Based on this fact, a jury could conclude that H&R had an unequal promotion process. See Dennis, 290 F.3d at 647 (unequal promotion process where decisionmaker sought out and intensively interviewed male selectee but did not fully look into plaintiff's qualifications and may have denied fair consideration to another female applicant). Therefore, a jury could find that H&R's explanations for choosing Delgado are merely post-hoc rationalizations covering up for age discrimination. 5. The thirty-year age gap between Banquecer and Delgado is indicative of pretext. Finally, the thirty-year age gap between Banquecer and Delgado provides further evidence from which a jury could conclude that H&R chose Delgado over Banquecer because he was too old. See Banks v. Travelers Co., 180 F.3d 358, 367 (2d Cir. 1999) (where no other plausible reasons existed, jury entitled to infer age discrimination when employer kept twenty-seven year old and terminated the forty-nine year old plaintiff). Here, Banquecer was fifty-nine years old when he applied for the Mailroom Supervisor position. Delgado was twenty-nine years old. (A4) The thirty-year age gap between Banquecer and Delgado is one more piece of evidence that a reasonable jury could rely upon to find that age discrimination was the real reason for Banquecer's non-promotion. See Banks, 180 F.3d at 367. In summary, the EEOC offered more than enough evidence to establish a genuine issue of material fact as to pretext by discrediting H&R's explanations for Banquecer's non-promotion. Accordingly, this evidence, combined with the EEOC's prima facie case, would permit a reasonable jury to conclude that H&R discriminated against Banquecer based on his age. See Reeves, 530 U.S. at 148; Fuentes, 32 F.3d at 764. Therefore, this Court should find that the district court erred when it concluded that the EEOC's evidence was insufficient to show that H&R discriminated based on age. CONCLUSION For the reasons stated above, the Commission believes the district court erred in finding that the EEOC failed to establish a genuine issue of material fact as to pretext. Therefore, the Commission requests that this Court reverse the district court's entry of summary judgment in favor of H&R and remand this case for trial. Respectfully submitted, ERIC S. DREIBAND General Counsel LORRAINE C. DAVIS Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel __________________________ ANNE NOEL OCCHIALINO Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., 7th Floor Washington, D.C. 20507 (202) 663-4724 March 15, 2004 CERTIFICATE OF COMPLIANCE WITH RULE 32(a) 1. I certify that this brief complies with the type-volume limitation set forth in Fed. R. App. P. 32(a)(7)(B) because this brief contains 6,518 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. I certify that this brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using WordPerfect 9 in 14-Point Font in Times New Roman Style. ____________________________ ANNE NOEL OCCHIALINO Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., 7th Floor Washington, D.C. 20507 (202) 663-4724 Dated: March 15, 2004 CERTIFICATE OF SERVICE I certify that on March 15, 2004, I served two copies of this brief by mailing them first-class, postage prepaid, to the following: Timothy I. Duffy McElroy, Deutsch & Mulvaney 1300 Mount Kemble Avenue P.O. Box 2075 Morristown, NJ 07962 ____________________________ ANNE NOEL OCCHIALINO Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., 7th Floor Washington, D.C. 20507 (202) 663-4724