No. 07-16903 ________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT __________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. THE BOEING CO., Defendant-Appellee. _______________________________________________________ On Appeal from the United States District Court for the District of Arizona, No. 05-03034 _______________________________________________________ BRIEF OF PLAINTIFF-APPELLANT EQUAL EMPLOYMENT OPPORTUNITY COMMISSION _______________________________________________________ RONALD S. COOPER EQUAL EMPLOYMENT OPPORTUNITY General Counsel COMMISSION Office of General Counsel CAROLYN L. WHEELER 1801 L Street, N.W., Room 7042 Acting Associate General Counsel Washington, D.C. 20507 (202) 663-4724 LORRAINE C. DAVIS Assistant General Counsel ANNE NOEL OCCHIALINO Attorney TABLE OF CONTENTS STATEMENT OF JURISDICTION............................................. 1 STATEMENT OF THE ISSUES................................................ 1 STATEMENT OF THE CASE ................................................. 2 A. Nature of the Case and Course of Proceedings....................2 B. Statement of the Facts .................................... 3 C. District Court Opinion....................................... 24 SUMMARY OF ARGUMENT ................................................. 29 STANDARD OF REVIEW ....................................................32 ARGUMENT ............................................................. 33 THIS COURT SHOULD REVERSE THE DISTRICT COURT'S GRANT OF SUMMARY JUDGMENT ON THE EEOC'S CLAIMS THAT CASTRON'S TRANSFER AND LAYOFF WERE BASED ON SEX DISCRIMINATION AND/OR RETALIATION AND THAT WREDE'S LAYOFF WAS THE RESULT OF SEX DISCRIMINATION. ................... .....................33 A. Antonia Castron............................................... 34 1. Sex Discrimination .................................... 34 a. Transfer ..................................................34 b. Layoff.....................................................41 2. Retaliation ...................................................44 a. Transfer...................................................44 b. Layoff.....................................................47 B. Renee Wrede .................................................. 48 CONCLUSION ........................................................... 60 STATEMENT OF RELATED CASES.............................................62 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES FEDERAL CASES Abuan v. Level 3 Comm'n, Inc., 353 F.3d 1158 (10th Cir. 2003). . 27, 28, 54, 56 Bahri v. Home Depot, USA, Inc., 242 F. Supp. 2d 922 (D. Or. 2002). . . . . . 42 Burlington N. & Santa Fe Ry. v. White, 126 S. Ct. 2405 (2006). . 24, 26, 34, 45 Casillas v. United States Navy, 735 F.2d 338 (9th Cir. 1984). . . . . . 28, 51 Chuang v. Univ. of California Davis, 225 F.3d 1115 (9th Cir. 2000). . . . passim Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1095 (9th Cir. 2005). . . . . . 49 Connecticut v. Teal, 457 U.S. 440 (1980). . . . . . . . . . . . . . . . . . 38 Cordova v. State Farm Ins., 124 F.3d 1145 (9th Cir. 1997). . . . . . . . 35, 36 Davis v. Widnall, No. 97-15313, 1998 WL 856505 (9th Cir. Nov. 19, 1998). . . 43 Dominguez-Curry v. Nevada Transp. Dep't, 424 F.3d 1027 (9th Cir. 2005). . . . . . . . . . . . . . . . . . 35, 37, 39, 41, 42 Johnson v. Boys & Girls Club, 191 Fed.Appx. 541, 545 (9th Cir. July 6, 2006) .39 Fielder v. UAL Corp., 218 F.3d 973 (9th Cir. 2000), cert. granted and judgment vacated on other grounds, 536 U.S. 919 (2002). . . . . . . . . . . . . . . . 45 Miller v. Fairchild Indus., Inc., 885 F.2d 498 (9th Cir. 1989). . . . . . 45, 48 Nesbit v. Pepsico, Inc., 994 F.2d 703 (9th Cir. 1993). . . . . . . . . . . . 36 Nidds v. Schindler Elevator Corp., 113 F.3d 912 (9th Cir. 1997). . . . . . . . 36 Peterson v. Hewlett-Packard Co., 358 F.3d 599 (9th Cir. 2004). . . . . . . . . 37 Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000). . . . . . . . . . . . . . 44, 47 Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133 (2000). . . . . . 42, 49 Reynaga v. Sun Studs, Inc., 27 Fed. Appx. 740, 742 (9th Cir. Oct. 11, 2001)34, 46 Rose v. Wells Fargo & Co., 902 F.2d 1417 (9th Cir. 1990). . . . . . . . . . 59 Schnidrig v. Columbia Machine, Inc., 80 F.3d 1406 (9th Cir. 1996). . . . . . 33 St. John v. Employment Development Dep't, 642 F.2d 273 (9th Cir. 1981). . . . 34 Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981). . . . . . . . . 50 Tomasso v. Boeing Co., 445 F.3d 702 (3d Cir. 2006). . . . . . . . . . 51, 52, 57 Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054 (9th Cir. 2002). . . . . . 44 Winarto v. Toshiba America Elec. Components, Inc., 274 F.3d 1276 (9th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 Xin Liu v. Amway Corp., 347 F.3d 1125, 1136 (9th Cir. 2003). . . . . . . . . . 52 Yartzoff v. Thomas, 809 F.2d 1371 (9th Cir. 1987). . . . . . . . . . . . 45, 47 FEDERAL STATUTES 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . 1 28 U.S.C. §§ 1331, 1345. . . . . . . . . . . . 1 42 U.S.C. §§ 2000e-2, -3. . . . . . . . . . . . 2 42 U.S.C. § 2000e-5. . . . . . . . . . . . . . 2 FEDERAL RULES Fed. R. App. P. 4(a)(1). . . . . . . . . . . . . . 1 Fed. R. App. P. 32(a)(7)(B)(i). . . . . . . . . . 63 Fed. R. Civ. P. 54(b). . . . . . . . . . . . . . 1 STATEMENT OF JURISDICTION a. The district court had subject matter jurisdiction over this enforcement action pursuant to 28 U.S.C. §§ 1331, 1345. b. Pursuant to 28 U.S.C. § 1291, this Court has jurisdiction over this appeal from the district court's entry of final judgment entered under Fed. R. Civ. P. 54(b), which disposed of all claims as to all parties. c. On August 16, 2007, the district court entered final judgment in favor of Defendant-Appellee the Boeing Company ("Boeing") and against Plaintiff- Appellant Equal Employment Opportunity Commission ("EEOC" or "Commission"). RE21. The EEOC filed its timely notice of appeal on October 15, 2007. RE22. See Fed. R. App. P. 4(a)(1). STATEMENT OF THE ISSUES 1. Whether the district court erred in granting summary judgment on the EEOC's claim that Boeing discriminated based on sex when it transferred Antonia Castron and then laid her off in a reduction-in-force ("RIF") where the EEOC offered direct evidence of discrimination in the form of the decisionmaker's sexist comments and conduct and indirect evidence casting doubt on the veracity of the reasons given for the transfer and termination. 2. Whether the district court erred in granting summary judgment on the EEOC's claim that Antonia Castron's transfer and layoff in a RIF were retaliatory where the EEOC offered evidence that Castron engaged in protected conduct by complaining about sexual harassment and was transferred a few days later and laid off within ten weeks, and where the EEOC also offered evidence that Boeing knew the transfer made her more likely to be laid off and that the reason for her layoff was unworthy of belief. 3. Whether the district court erred in granting summary judgment on the EEOC's claim that Boeing discriminated against Renee Wrede on the basis of her sex when it laid her off in a RIF where Boeing conceded a prima facie case of discrimination and the EEOC offered evidence from which a reasonable jury could conclude that the reason given for Wrede's layoff was unworthy of belief. STATEMENT OF THE CASE A. Nature of the Case and Course of Proceedings This is an enforcement action pursuant to Section 706 of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-5, alleging sex discrimination and retaliation in violation of Sections 703 and 704 of Title VII, 42 U.S.C. §§ 2000e-2 to -3, on behalf of two charging parties. RE338. The district court entered summary judgment in Boeing's favor, and the EEOC appealed. B. Statement of Facts Antonia Castron In 1997, Antonia Castron, who had worked on and off for Boeing for several years, began working in the Electrical Engineering Department as a liaison engineer ("LE"). RE283-85(Castron Depo.29-30,43-44). From 1998 until her termination in January of 2003, she worked under department manager Bill Charlton, and her skill code was 62E. RE292(Charlton Depo.32). As department manager, Charlton reviewed the performance evaluations given by the supervisors to the liaison engineers, but he never changed any scores on the evaluations. RE290-91(Charlton Depo.24,27-28). Glen Foster, who was a manager at some point but is now a senior manufacturing engineer at Boeing, testified that over the years Charlton made "a lot" of negative comments about women. RE95,RE105. As far back as 1984, Charlton would say of his ex-wife, who was an employee, that she "should be at home, not working." RE96. Charlton said "several times" in meetings with other managers on unspecified dates that "he didn't have good luck with females and they hadn't been around long enough for his satisfaction." RE100-01. Charlton also said that he "just didn't have time" to train women. RE103. Charlton's negative comments about women were "repetitious . . . over the years." RE104. Foster heard Charlton say things like "he [Charlton] didn't want any more women and that women were not worth a shit." RE104-05. Foster also testified that sometime between 1992 and 1994, Charlton had difficulty working with an unidentified female engineer who worked under Foster's supervision; Foster believed the difficulties were based on her gender, and he reported it to HR. RE110. Another time, a female employee named Christine Hunter was being considered for a position as a production engineer; Charlton scored her lower than the male applicants with less education, and, for that reason, she did not receive the position. RE98-100. With respect to filling the position, Charlton said he "didn't have the time [to train women]," "that they weren't up to speed because they didn't have the time in job," and "they [women] kind of should come to him all trained." RE106. Charlton never expressed these expectations with respect to men. RE107. Castron initially worked in the electrical product center ("EPC") and Ron Bartlett was her supervisor. RE115. In late 2000,<1> Castron and several other LEs had to find other positions because of downsizing. RE308(Hobby Depo.61). Castron and two others transferred into Pre-Shop Analysis ("PSA") while Donald Duff and Pete Quintus transferred to Structures-Mod. RE114, RE308(Hobby Depo.61-62). The LEs in PSA reviewed Apache aircraft to determine how to modify them into Longbow models. RE288(Charlton Depo. 17). The work in PSA involved some electrical work but primarily involved mechanical work. RE115; RE289(Charlton Depo. 20). In early 2001, Castron began to feel mistreated by her male co-workers. RE116-17, RE100. Castron, the only female liaison engineer, complained to Bartlett that her male co-workers were being hostile to her.<2> RE118-19. About once a week she asked Bartlett to transfer her, telling him that her co-workers did not want her around because she was a woman. RE121-24. Castron also complained to her subsequent manager, Sam Turk, that she was being harassed because she was a woman. RE123-25. She requested transfer to a workgroup called Final Assembly. RE129. In November 2001, Castron asked Charlton to transfer her. RE 130. At Turk's suggestion, she did not mention the harassment; instead, she told Charlton that she wanted to advance her career. RE 131, RE143. Castron received a very positive 2001 evaluation; she received "meets expectations" or above for all twelve rating categories, and her written comments were uniformly laudatory. RE187. Turk asked Charlton four or five times to transfer Castron before sending a January 4, 2002, e-mail to Charlton asking again that Castron be transferred. RE175-76, RE132-33, RE185. Turk relayed in the e-mail that Castron wanted to be transferred to Final Assembly. RE177, RE185. A week later, Castron asked Charlton to move her to Final Assembly, although she did not tell him of her problems with co-workers, and he said that he would look into it.<3> RE134-35, RE191, 13. Castron wanted to transfer to Final Assembly because the work involved electrical engineering, which was her area of expertise and training. Id. Instead of moving Castron to Final Assembly, however, Charlton transferred one of her male co-workers. RE137-38. When Castron asked Charlton why he had not transferred her instead, he became angry and said he would transfer her in three months. RE138. In July 2002, Castron requested a shift change so that she could avoid her co-workers. RE140-41. That month, she again asked Charlton to move without mentioning her co-workers. RE142. Before he transferred in July 2002, Sam Turk also asked Charlton several more times to approve Castron's transfer, RE178, but Charlton failed to do so. On August 6, 2002, Castron had had enough of the harassment and told Charlton that she "was working in a hostile environment" and that "these guys were keeping her from performing her job." RE144. Charlton proposed transferring Castron to Structures-Mod, which was also referred to as "Pre-Mod."<4> RE145. The work in Structures-Mod is more difficult and complex than that in PSA because PSA addresses only component parts while Pre-Mod addresses the entire airframe. RE306(Hobby Depo. 18-19). While LEs in PSA needed only general knowledge of aircraft parts, LEs in Structures-Mod had to be familiar with airframe repairs, structural loads, and stress analysis; thus, Structures-Mod required a different skill set than that utilized in PSA. RE150-152. In the four years before Castron's transfer, not a single engineer had transferred from PSA to Structures-Mod. RE153. On August 7, 2002, Charlton called Castron into a meeting and told her that Rick Hobby, who was sitting there, would be her supervisor. RE128, RE145. Although Castron was happy to be moved, Castron "was scared" when she saw Hobby because of her history with him. RE145. On approximately January 4, 2001, Castron's hand had slipped off a door she was opening, and he said, "Oh, did the little girl break a nail?" RE126. Castron just stared at him. Id. A few weeks later, Castron walked by Hobby and he said, "Oh, there's a little girl." RE126-27. When Castron replied, "I'm not a little girl," Hobby said, "Oh, yes, you are." RE120. When Castron told him she was old enough to be his mother, he said he was kidding and "stormed off." RE127-28. From that point until he became Castron's manager, Hobby never spoke again to her. RE128. Castron was also concerned that the transfer would make her more vulnerable in an upcoming RIF. RE146. When Castron specifically asked Charlton, "is this going to affect me in the RIF," he said, "It will not affect you." Id. While Charlton denies having said this or even being aware of the RIF at the time of the meeting, RE295-96(Charlton Depo.71-72), he admitted that as of early 2002 he knew that there were no "new-build" aircrafts scheduled for 2003, so "we knew that there was going to be a reduction." RE297(Charlton Depo.94). Castron also stated that it had already been announced as of August 2002 that there was going to be a RIF. RE189, 1. At the meeting with Charlton and Hobby, Castron expressed frustration with her co-workers, including Joe Cottone. RE224. Charlton testified that he understood Castron and Cottone to be having a personality conflict. RE294(Charlton Depo.67). Castron told Charlton that Cottone should be transferred instead of her, RE224, but Charlton went ahead and transferred Castron on August 12, 2002. RE317. In accepting the transfer, Castron relied on Charlton's assurance that she would not be adversely affected in the RIF. RE190, 4. Charlton assigned a senior engineer named Leendert Hartoog to train Castron. RE154. Over the next two months, Hartoog acted as Castron's supervisor. He was pleased with her progress and effort to learn, but, in his view, it would have taken five or six years of training for anyone, like Castron, who lacked an educational background in structures engineering to get up to speed. RE156. In short, "she was set up to fail." RE 171-72. In October of 2002, Boeing declared an excess of five employees in skill code 62E and conducted a RIF. Boeing assessed employees for a RIF based on: (1) attendance; (2) formal education; (3) service time; (4) ability to perform remaining work; and (5) performance (which was referred to as both "performance evaluation" and "past performance"). RE203. The HR department assessed the first three factors (worth 50% of the total score) while management assessed the latter two factors (worth the other 50% of the total score). Charlton, Hobby, and Bartlett created forms for the RIF to assess "ability to perform remaining work" and "performance," which looked at an employee's past performance. RE293, RE299, RE302(Charlton Depo.49-50,110, 128-29). The "past performance" form assessed ability in five general categories that each contained three sub-categories for which the ratings ranged from 1-3; the average scores for each of the five categories were then added together to come up with the final score. RE323. The "ability to perform remaining work" form similarly assessed employees in six categories containing multiple sub-categories for which the ratings ranged from 0- 5. RE325. The categories were weighted differently, so the average score from each category was multiplied by how much weight it was assigned, and then the totals were added together to come up with a final score. Id. Hobby prepared the scores. RE298(Charlton Depo.97). According to Hobby, he assessed Castron based on his personal interactions with her and the feedback he received from the senior engineers that Castron worked with, which was that she was struggling with the work. RE307(Hobby Depo.34-35). Castron, however, testified that Hobby, who worked in another building, came around only twice between August 12, 2002, and October 25, 2002, when she received her RIF notice. RE146-A. Similarly, Hartoog testified that he was the only person who trained Castron and the only person who had knowledge of Castron's performance but that Hobby never once asked him about her progress. Hartoog Depo. RE155, RE157, RE158-61. Nor did Charlton ever ask about Castron's performance. RE158. Hobby gave Castron low scores for "ability to perform remaining work," purportedly because she lacked experience or exposure to many of the systems and processes used in the Pre-Mod mechanical engineering environment. RE311-14 (Hobby Depo.117-129); RE231. Hobby also gave Castron a low score for "past performance," giving her just 10 out of 15 possible points. RE203, RE229. Castron's score for "past performance" was higher than only 4 of the 28 other LEs in skill code 62 that were assessed for the RIF. RE203. Although Sam Turk testified that in the past when he did RIF assessments as to the past performance of employees whom he had supervised for only a month, he looked at prior evaluations and that it would be "tough to evaluate a person without doing that," Hobby based Castron's score on only her two months in Structures-Mod. RE182- 83, RE309-10(Hobby Depo.80,84). Charlton also met with Hobby and Bartlett to review all of the assessments for consistency. RE300(Charlton Depo.113-14). According to Hartoog, it was difficult to assess the quality of Castron's work because she was a trainee. RE165. He agreed with all of Castron's scores for "past performance" except for the "1" she received for "performed quality work"; he felt that the score was unfair because she was just a trainee and that the category really did not apply to her. RE164-67. He also testified, however, that he would have given Castron a total of three more points on some of the sub-categories (adding an additional point to "SRP's", "writing tech engineering text," and "ability to perform insp. methods") for "ability to perform remaining work." RE168-70, RE326. Hartoog testified that he had expected Chuck Green to be laid- off because he was "not a real go-getter." RE162. Hartoog knew this based on his previous experience working with Green and on Green's general reputation. RE163. Castron was identified for the RIF on October 25, 2002, and then terminated. Four other employees were also identified for layoff and then terminated, including Lathrop, Duff, and Quintus. RE203, RE303(Charlton Depo.155). When Castron asked Hobby why she was being laid off, he said he could not tell her. RE147. He did help her with her resume and gave her a positive recommendation for another job. RE328. The EEOC offered evidence that Castron likely would have been retained had she remained in PSA. Castron's RIF assessment score of "10" for past performance - the fourth lowest score out of the 28 LEs subject to the RIF assessment - was based solely on her two months in Pre-Mod. RE203. In contrast, Castron's 2001 evaluation from when she worked in PSA was very positive and, in fact, was slightly more positive than the 2001 evaluations of two LEs who were still working in PSA at the time of the RIF assessment - Bobbie Klement and Ron Newell - who received, respectively, scores of "13" and "11" for past performance and were retained. RE187,RE203,RE232,RE236. Because Castron received a total score of 66 on the RIF assessment and employees who scored 68 were not laid off, an increase of just two points for "past performance" would have ensured her retention. RE203. Sam Turk, Castron's former PSA supervisor, also stated that Castron's work product was better than that of Chuck Green and Terry Weir, two LEs who were not laid off, and he said that he definitely would have laid off Green, and possibly Weir, before laying off Castron. RE179-81. Finally, Castron's score of 14.7 for "ability to perform remaining work" was the lowest score out of the 28 engineers assessed for the RIF (most scored in the upper twenties to low thirties). RE203. Although Charlton reneged on his promise to exclude Castron from any future RIFs while she was a Structures-Mod trainee, three engineers in the D32 skill code were excluded from the RIF assessment, which is permissible under Boeing's policy. RE227; RE92. The three individuals were excluded because they had only been assigned to the D32 skill code for two weeks prior to the RIF, although it appears that they were doing D32 work for several months prior to the RIF. RE227. Additionally, the decision was made to exclude one of the employees, a woman named "Lorraine," because Wright "implied" at the time of her transfer that she would not be assessed for RIF as a D32. Id. Renee Wrede Wrede began working for Boeing in 1989. RE36. In 1991, she transferred to the Manufacturing Engineering Division and became a "Manufacturing Engineer" ("ME"). Id. She was assigned skill code D32, which was for MEs performing assembly and installation work. RE254(Wright Depo.16); RE263. MEs took engineering designs and created instructions for manufacturing employees to use to build an item, such as an Apache helicopter. RE253(Wright Depo.9-10). Usually, one or two MEs supported a manufacturing team. MEs reported directly to an engineering manager called the "hard-line manager." RE199, 25. MEs also reported, indirectly, to the manufacturing manager who supervised the manufacturing team, also called the "dotted-line manager." Id. A significant part of an ME's job was how well the ME supported the team. RE262(Feuerstein Depo.19). In 1999, after Boeing substantiated Wrede's complaint of sexual harassment by her direct supervisor, Wrede was transferred to the Apache manufacturing assembly installation support group and Bruce Wright became her hard-line manager. RERE37-40, RE41. Wright reported to Rob Feuerstein, the department manager for the Manufacturing Engineering Division; Feuerstein's duties included reviewing performance evaluations. RE260(Feuerstein Depo.6), RE261(Feuerstein Depo.14). Wright gave Wrede a positive 2001 evaluation, rating her "meets expectations" in eight categories, between "below expectations" and "meets expectations" for two other categories, and higher than "meets expectations" for two categories. RE55. Wright also included several written comments, including that "Renee had a good year working with the military assembly area in 520" and had continued her "personal development" with "UG v 16 [Unigraphics version 16], product vision, IMAN, and ESIS." Id. He noted one "positive flaw," which was that Wrede saw herself as "Miss Fix-It" and needed to share her responsibilities rather than do everything herself. Id. While Wright testified that Wrede was on a "performance improvement plan," he admitted that all he meant by that was that he and Wrede had discussed during her review that she needed to improve the two areas for which she received below "meets expectations" and how she would do this. RE49-51. In March 2002, Boeing declared an excess of two MEs in skill code 32. RE269. In April 2002, Boeing conducted a RIF assessment. Wright assessed Wrede for "ability to perform remaining work" and either he and/or Feuerstein assessed Wrede for "performance evaluation." RE46-48, RE27. A RIF assessment roster ranking the 38 MEs in skill category D32 was prepared; Wrede scored higher than seven of the MEs. RE92. The RIF was never finalized, however, because some MEs transferred or left the company, eliminating the excess of D32 employees. RE272. In July 2002, Boeing declared a surplus of four MEs in skill code 32. RE271. The scores from the April RIF assessment were utilized for the July assessment. RE92(listing April RIF scores); RE70(listing raw and "normalized" "ability to perform" scores); RE74(listing scores for July RIF).<5> Wrede was ranked 26th out of the 38 MEs in skill code 32 assessed for the RIF. RE74. The four lowest-ranking MEs were given RIF notices, but none were actually laid off. RE74, RE81.<6> In October 2002, Boeing determined that it had seven excess MEs in skill code D32 and again conducted a RIF assessment. RE77. Although Wright had recently transferred and Sean Warner had become Wrede's supervisor, Wright performed the assessments for his former group of MEs. RE53. He assessed the "ability to perform remaining work" scores, which had four categories, by looking at the April 2002 RIF assessment scores and updating them based on training records.<7> RE53-54. As before, the rankings for the sub-categories was on a 0-5 scale with a "0" indicating "no background/experience" and a "5" indicating "breakthrough skills and abilities." RE79. The final "ability to perform remaining work" score was tallied by adding up the average scores from each of the four categories. Id. Wrede's total score for "ability to perform remaining work" was 21.1, which was rounded down to 21; the score was a 1.5 point drop from her April RIF assessment. RE80; RE77. The drop was primarily due to a drop from 3.2 to 2.3 for the category "communication/leadership," which encompassed the sub- categories "team skills " (Wrede's score dropped from a "4" to a "2"), "communication skills," (her score dropped from a "3" to a "2"), and "leadership skills" (her score dropped from a "3" to a "1"). RE80, RE68. Wright testified that the lower "communication/leadership" score were justified by Wrede's increasing issues with team interface and the decline of Wrede's communication and leadership skills, but he admits that he does not recall any specific individuals complaining about her and that there is no written record of any communication problems. RE55, RE56-58. When pressed about Wrede's allegedly deteriorating communication skills, Wright cited Wrede's failure to timely complete her weekly status reports. RE56. Wrede testified, however, that although she did not always turn in her reports on time, other MEs also failed to turn in their reports on time or failed to turn them in at all, and that Wright never spoke to her individually about it but only to the group at staff meetings. RE250 (Wrede Depo.144-45). As for her technical scores, Wrede received a "0" for the categories of "wiring system," indicating absolutely no background or experience, although she testified that she had wiring experience on C17, Apache, and a commercial helicopter. RE80; RE201, 33. She also received a "0" for "UG," which stood for "Unigraphics," a computer-aided design system, although in the April/July RIF assessment she had received a "1." RE80, RE68, RE214. Additionally, Wrede testified that she had been trained in Unigraphics 15 and had multiple Unigraphics certificates, which her training records should have reflected. RE35, RE43-43A, RE201, 35. Wrede's 2001 evaluation, which Wright completed, even notes that she had had some training on Unigraphics version 16.<8> RE65. While Wrede received a score of "3" for "CCAR [cause and corrective action],"she testified that she had "a lot of experience" with that system. RE80, RE43. Wright also assessed Wrede's "past performance," giving her a "9." RE77. The "past performance" scores were not based on the 2001 evaluations of the MEs, but on the MEs' performance in the last nine to ten months. RE59-60. Accordingly, Wright used a newly-devised form comprised of five categories to assess Wright's "past performance" score. RE220. Wright does not recall how he assigned Wrede's scores for this category. RE257(Wright Depo.148, 150). Out of the 32 MEs evaluated for the RIF, Wrede's "past performance" score of "9" out of 15 points was tied for the second lowest; all but three MEs scored a "10" or above. RE77. Feuerstein met at least once with Wright and the other managers who assessed the MEs in skill code 32 for the October 2002 RIF assessment to ensure that their scoring was uniform. RE61. At the conclusion of the RIF, Wrede - the only woman in the entire group of MEs in skill code 32 - and six other men were given 60-day RIF notices. RE77; RE31. Of the six men, one (James Early) had his notice canceled after he expressed concerns about his assessment process. RE32. The remaining five men avoided being laid off by transferring to other Boeing positions. RE81. One of them, Donald York, stated in an EEOC interview that he obtained his new position after Feuerstein called and told him of the opening. RE242. Another of the men slated for the RIF, Darrell Johnson, stated that Feuerstein "called [him] one time and said they had some potential openings over in another building," although Johnson found the position he took on his own. RE64; RE280(Johnson Aff. 6). Wrede testified that Feuerstein never told her about any job openings. RE199, 21, 22. The Commission also offered evidence from David Eroh, another ME in skill code 32 who was also assessed for the RIF, about Wrede's abilities. Eroh was one of the highest-scoring MEs for "past performance" and "ability to perform remaining work." RE77. He worked in the ME Department for over twenty years and had regular and continuous contact with Wrede beginning in 1989. RE205-09, 1, 16. He sometimes worked as a "lead," meaning that he had four to five MEs reporting to him as they worked on a project, and at various times beginning in 1989 he assigned tasks to Wrede. RE206-07, 7-8, 12. According to Eroh, Wrede "excelled where other colleagues" failed, handled numerous jobs without assistance, took on her own "lead" responsibilities from management, became the first ME to be called for assistance, successfully handled multiple assignments to different areas at the same time, produced "stellar" work, and was "a very accomplished and competent employee." RE206-10, 8, 12, 16, 17, 19, 23. In his view, Wrede was a better worker than "many of the other MEs" he had worked with and should have earned scores in the October 2002 RIF assessment that were comparable to his. RE211-12, 27, 28. Eroh also reviewed Wrede's scores for "ability to perform remaining work" and gave detailed explanations for why her score should have been 27.61 instead of 21.1. RE212-15, RE218. According to Eroh, Wrede's scores for lean tools, DTI processes, company procedures, eng. Chg. Process, spec. knowledge, AMAPS, MEPLAN, CCAR SFCG, teams skills, communication skills, leadership skills, and Unigraphics all should have been increased, and he gave detailed explanations as to why. Id. For instance, he explained that her Unigraphics score should have been a 3 instead of a 0 because Wrede's skills "were better than that of the average ME at the time," and that her score for "leadership skills" should have been a 3 instead of a 1 because she "took on many independent tasks and provided information and direction not only to other MEs but also to other disciplines." RE214, 30(m). Eroh offered similarly detailed explanations as to why Wrede's "past performance" score should have been a 13 instead of a 9. RE215-16, 32-34; RE219-22. He would have raised her score for "organization of assignments" from a 1 to a 2 (on a 3-point scale) because a 1 was for those "unable to maintain" their workload or "just sleeping at [their] desk." RE215, 32(a). He would have increased Wrede's score from a 2 to a 3 for "effectively used resources" because of her use of her knowledge and skills to implement changes, and he would have raised her "readily accepted assignment" score from a 2 to a 3 because he had never known her to refuse an assignment. RE215, 32(b),(c). He called Wrede's score of "1" for "cooperated and supported team decisions" "extremely odd" and unsupportable because Wrede had always been receptive to group/team decisions. Id. RE215, 32(d). Therefore, he would have given her at least a 2, for a total score of 13. Id. The EEOC also submitted evidence that a number of managers whose teams Wrede was currently supporting at the time of the RIF held her in high regard. RE195-98. At the time of her layoff, Wrede was formally supporting both the sub- assembly and the Longbow Apache Production Remanufacturing ("LAPPAR") group, which upgraded and retrofitted Apache helicopters returning from the field. RE195, 1,2. Wrede had been supporting the LAPPAR group for approximately six months. Id. 2. The LAPPAR Program Manager, Dave Stallings, told Wrede that it was a poor decision to lay her off because she had helped improve the LAPPAR review process and engineering support. Id. 3. In November 2002, Stallings even sent an e-mail to Warner and Feuerstein stating that Wrede "has done an admirable job" on the PSA team and had really excelled there. RE244. Similarly, John Houseman, a manager in Final Assembly whom Wrede had supported since 1997 and was supporting at the time of the RIF when his assigned MEs were out of the area, told her that he was going to suggest to Feuerstein that other MEs be moved out (including Wayne Christian, who had survived the RIF) and that Wrede be "hard-lined" to his group because she was a reliable performer and his crew depended on her. RE196, 8, 9. Houseman's second-shift counterpart, John Kivler, whom Wrede had supported for several years, also said that laying her off was a poor decision and that Earl Bartley should have been laid off instead. RE197, 10. Dean Johnson and Frank Goodrich, the Tool Design and Liaison Mangers, whom Wrede had known and supported since 1997 and 1989 respectively, told her that they had asked Feuerstein about moving her to the Tool Engineering Department. RE197, 11. Ted Hall, a manager Wrede had supported since 1991, also told Wrede her selection for layoff was unfair and that other MEs should have been laid off first, and managers Bill Sheppard and Bobby DiBartolomeo told Wrede that she should not have been laid off. RE197, 13, 14. Stallings, Houseman, Johnson, and Goodrich also told Wrede that they had talked to Feuerstein about assigning Wrede to work in their areas, but that he had refused. RE199, 20-21. Finally, Tom Reilly, a manager Wrede had supported from 1998-2000, told her that Earl Bartley and George Willard should have been laid off instead of her. RE196, 5. C. District Court Opinion The district court granted summary judgment on the EEOC's claim that Castron's transfer from PSA to Structures-Mod constituted sex discrimination. RE12. The court agreed with the EEOC that the transfer constituted an adverse action under Burlington N. & Santa Fe Ry. v. White, 126 S. Ct. 2405, 2415 (2006). The court nevertheless found that the claim failed because the EEOC had failed to show that similarly situated men were treated more favorably. The court found that Castron had transferred into Structures-Mod "around the same time" as a male employee in her skill code, Donald Duff, and that Duff was also evaluated for the RIF and laid off despite his lack of mechanical engineering experience. RE13. The court went on to consider the EEOC's argument that "Lorraine's" exclusion from the October RIF because of her recent transfer showed that Castron, as a trainee, also could have been excluded from the RIF. RE13. Although the EEOC had made this point regarding its argument that Castron's termination was pretextual, the court determined that this "evidence defeats [EEOC's] prima facie case" of discriminatory transfer, reasoning that comparator evidence must be "of a similarly situated male employee treated more favorably," and that "Lorraine" was not similarly situated because she was female, in a different skill code, and had transferred into that skill code just two weeks before the RIF assessment. RE13-14. "Even if Lorraine was similarly situated," the court said, "this fact . . . would be evidence that Castron's transfer had nothing to do with her sex." RE14. Next, the court rejected the EEOC's claim that Castron's termination was due to her sex. The court acknowledged that Boeing had conceded the establishment of a prima facie case but concluded that the EEOC had failed to show that Boeing's asserted legitimate non-discriminatory reason - her low scores in the RIF assessment - was a pretext for sex discrimination. RE14. The court noted that the EEOC had pointed to sexist remarks made by Castron's supervisors, including some who were involved in her RIF evaluations, but concluded that they were unrelated to Castron's termination and therefore failed to constitute direct evidence of discrimination. RE14. The court also rejected the EEOC's argument that Hobby's assessment scores of Castron were baseless because he had supervised Castron for just two and a half months and had failed to review or consult her prior evaluations. RE15. Although the EEOC offered evidence that the person most qualified to evaluate Castron's performance would have told Hobby that Castron was "doing ok," the court concluded that this failed to show that Hobby's evaluations were inaccurate. Id. The court also rejected the EEOC's argument that it had established a factual question of pretext by offering evidence that Castron was transferred and then compared to more experienced employees; other employees were also transferred before the RIF, the court found, and were also assessed against more experienced employees. Id. Finally, the court turned to the retaliation claim. The court assumed without deciding that Castron's complaints to Charlton about her male co-workers and the "hostile work environment" constituted protected activity. RE16. The court also assumed that Castron's transfer constituted an adverse action. RE17. The court again found, however, that the EEOC had failed to offer evidence that Boeing's legitimate non-discriminatory reason for the transfer - that Castron had repeatedly requested it - was a pretext for retaliation. The court rejected the EEOC's argument that it had established pretext by showing that Charlton reneged on his promise to give Castron sufficient time to train before evaluating her against other Structures-Mod engineers in making any RIF assessment. Id. Even if Charlton had made this promise, the court found, Boeing was entitled to evaluate Castron's ability to perform in Structures-Mod. Id. As for Castron's layoff, the court concluded that Castron had engaged in protected activity when she confronted Hobby about his "little girl comment" and assumed that the EEOC had established a prima facie case. RE18. But the court concluded that the EEOC had failed to establish Boeing's proffered non- discriminatory reason for the termination was a pretext for retaliation. The court did not consider the EEOC's argument that the termination was the result of Castron's complaint to Charlton about the hostile work environment. Doc.111, pg.17. The district court also granted summary judgment on the EEOC's claim that Wrede's termination was the result of sex discrimination.<9> The court noted that Boeing had conceded that the EEOC had established a prima facie case. RE2. The court therefore considered only whether the EEOC had established that Boeing's legitimate non-discriminatory reason for the layoff - a departmental RIF necessitated by a downturn in work and budgetary constraints - was a pretext for sex discrimination. The court rejected the EEOC's argument that it had offered sufficient circumstantial evidence of pretext to overcome summary judgment. The court disagreed with the EEOC that under Abuan v. Level 3 Comm'n, Inc., 353 F.3d 1158, 1170 (10th Cir. 2003), Eroh's testimony that Wrede's assessment scores should have been higher was probative of pretext. RE7. The court also reasoned that Eroh's assessment was "meaningless in isolation" because Wrede was "not singled out for termination but was evaluated against others Eroh did not assess," and because "Eroh might be an unusually soft grader who inflates everyone's scores." RE8. Similarly, the court found unpersuasive evidence that other manufacturing managers thought Wrede did good work, stating that the EEOC had failed to allege these managers supervised other MEs subject to the RIF. Id. The court also found that the fact that Wrede was not on a formal performance improvement plan at the time of her RIF did not establish pretext and that Boeing's use of subjective criteria in the RIF had no "talismanic significance.'" RE8-9 (quoting Casillas v. United States Navy, 735 F.2d 338, 345 (9th Cir. 1984)). Finally, the court reasoned that the EEOC's argument that discrimination was evidenced by the fact that Feuerstein helped two of the six male employees identified for the RIF to find other positions was unpersuasive because four male employees were not helped.<10> RE9. SUMMARY OF ARGUMENT The court erred in granting summary judgment on the EEOC's claim that Castron's transfer and termination were the result of sex discrimination. As to the discriminatory transfer, the court properly found that the transfer constituted an adverse action but erred in concluding that the EEOC had failed to establish a prima facie case because it had not shown that similarly-situated men were treated differently. The EEOC offered evidence that although Charlton, the decisionmaker, testified that he believed Castron and Cottone were having personality issues in PSA, he transferred Castron to Structures-Mod. Thus, this evidence shows that a similarly-situated male was treated differently. Moreover, the EEOC offered direct evidence of discrimination in the form of Charlton's numerous sexist comments about women, difficulty working with women, and his refusal to select a woman for a promotion, which was sufficient to establish a prima facie case. This evidence was also sufficient, by itself or in conjunction with other circumstantial evidence, to allow a reasonable jury to find that the reason given for Castron's transfer was a pretext for sex discrimination. Similarly, the court erred in concluding that the EEOC's evidence was insufficient to allow a reasonable jury to find that Castron's termination was the product of sex discrimination. Although the district court reasoned that Hobby and Charlton's sexist remarks did not constitute direct evidence because they were "unrelated to Castron's termination," it is well established in this circuit that discriminatory comments need not be related to the plaintiff's adverse action (and need not even be about the plaintiff) in order to constitute direct evidence. Thus, the EEOC's direct evidence was enough to establish a factual question as to pretext. Moreover, the EEOC offered additional circumstantial evidence of pretext in the form of evidence casting doubt on whether Castron's low assessment scores accurately reflected her abilities. This additional evidence would also allow a reasonable jury to infer that Castron's termination was the result of sex discrimination. Finally, the court erred in granting summary judgment on the EEOC's claim that Castron's transfer and termination were retaliatory. The court correctly assumed that the EEOC had established a prima facie case of retaliatory transfer but erred in concluding that the evidence did not establish pretext. To the contrary, a reasonable jury could infer from the six-day gap between Castron's complaint to Charlton about working in a hostile work environment and her transfer to Structures-Mod, where the work was more complex and Castron would take years to catch up, that the transfer was retaliatory. Additionally, the jury could reach this conclusion based on evidence that Castron and her supervisors had been requesting her transfer to Final Assembly for at least seven months, but that Charlton did nothing about these requests until Castron complained of discrimination - at which point he transferred her to Structures-Mod, knowing that a RIF was likely and that Castron had no background in structural engineering. Lastly, evidence that Charlton promised Castron that she would be excluded from any RIF because she was a trainee, but then reneged on that promise, would support a finding of retaliation. Similarly, the court erred in concluding that the EEOC's retaliatory termination claim failed because the EEOC did not establish a jury question as to pretext. While the court focused on whether Hobby had retaliated against Castron, the court ignored the EEOC's argument that Charlton retaliated against Castron by approving her RIF just two months after she complained of sex discrimination. The evidence of pretext discussed above was more than sufficient to allow a reasonable jury to conclude that Castron's layoff in the RIF was the result of Charlton's retaliation against her for having complained. The district court also erred in granting summary judgment on the EEOC's claim that Boeing discriminated against Wrede based on her sex when it laid her off in a RIF. Boeing conceded below that the EEOC had established a prima facie case of discrimination but asserted that her termination was the result of a RIF necessitated by a downturn in work and Wrede's low RIF assessment scores. Contrary to the district court's conclusion, the EEOC offered sufficient circumstantial evidence of pretext to overcome Boeing's motion for summary judgment. Specifically, the following evidence would allow a reasonable jury to find that Wrede's low assessment scores were not credible and that sex discrimination was the real reason for her termination: Wrede's long-time co-worker, who was also subject to the RIF, testified in detail as to why her scores should have been higher; Wrede testified that some of her scores inaccurately reflected her abilities; Wright was unable to fully explain all of Wrede's low scores, including scores for such subjective categories as "leadership" and "communication"; current and former managers that Wrede was supporting stated that she should not have been laid off; and the ultimate decisionmaker for the RIF, Rob Feuerstein, offered assistance to two of the other male employees identified for layoff, but not to Wrede. STANDARD OF REVIEW The district court's grant of Boeing's motion for summary judgment is reviewed de novo, looking at the facts in the light most favorable to the EEOC. Chuang v. Univ. of California Davis, 225 F.3d 1115, 1120 n.3 (9th Cir. 2000). "This Court has set a high standard for the granting of summary judgment in employment discrimination cases." Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406, 1410 (9th Cir. 1996). Because "the ultimate question is one that can only be resolved through a searching inquiry - one that is most appropriately conducted by a factfinder, upon a full record," "very little evidence" is needed to survive summary judgment in an employment discrimination case. Id. (internal quotations and citation omitted). ARGUMENT THIS COURT SHOULD REVERSE THE DISTRICT COURT'S GRANT OF SUMMARY JUDGMENT ON THE EEOC'S CLAIMS THAT CASTRON'S TRANSFER AND LAYOFF WERE BASED ON SEX DISCRIMINATION AND/OR RETALIATION AND THAT WREDE'S LAYOFF WAS THE RESULT OF SEX DISCRIMINATION. This Court has repeatedly stated that "[a]s a general matter, the plaintiff in an employment discrimination action need produce very little evidence in order to overcome an employer's motion for summary judgment." Chuang, 225 F.3d at 1124. In ruling that the EEOC had failed to make this minimal showing, the district court contravened the requirements of Federal Rule of Civil Procedure 56 by failing to view the facts in the light most favorable to the EEOC, resolving disputed factual issues in Boeing's favor, and disregarding other significant evidence. Additionally, the court made a legal error by relying on cases outside the Ninth Circuit to determine that comments evincing discriminatory animus do not constitute direct evidence unless they pertain to the plaintiff's adverse action. Accordingly, this Court should reverse the district court's grant of summary judgment as to the EEOC's claims that Castron's transfer and termination were discriminatory and retaliatory and that Wrede's termination was discriminatory. A. Antonia Castron 1. Sex Discrimination a. Transfer The district court properly held that Castron's transfer from PSA to Structures-Mod constituted an adverse employment action for purposes of the EEOC's prima facie case. RE13 (citing Burlington N. & Santa Fe Ry. v. White, 126 S.Ct. 2405, 2415 (2006)); see also St. John v. Employment Dev. Dep't, 642 F.2d 273, 274 (9th Cir. 1981) (retaliatory transfer may be adverse action); Reynaga v. Sun Studs, Inc., 27 Fed. Appx. 740, 742 (9th Cir. Oct. 11, 2001) (in discrimination case, holding that transfer to position with less overtime and incentive pay constituted adverse action). The court erred, however, in concluding that the EEOC had failed to establish a prima facie case because it had not shown that similarly-situated men were treated more favorably than Castron. RE13. This Court has held that "a plaintiff can . . . establish a prima facie case of disparate treatment without satisfying the McDonnell Douglas test, if she provides evidence suggesting that the 'employment decision was based on a discriminatory criterion illegal under'" Title VII. Cordova v. State Farm Ins., 124 F.3d 1145, 1148-49 (9th Cir. 1997) (concluding that reference to another employee as a "dumb Mexican" who was hired only because he was a minority constituted direct evidence and establish a prima facie case) (citation omitted). Here, the EEOC offered direct evidence of discriminatory animus in the form of Foster's testimony as to Charlton's numerous derogatory comments about women, including comments like "he [Charlton] didn't want any more women and that women were not worth a shit," he "just didn't have time" to train women, and "he didn't have good luck with females and they hadn't been around long enough for his satisfaction." RE100-01, RE103-05. Additionally, Foster testified that Charlton had so much trouble working with a female subordinate that Foster reported him to HR, and that Charlton negatively evaluated Christine Hunter, preventing her promotion, despite the fact her education was superior to other male applicants. RE110, RE98-100. While these comments and conduct were not directed at Castron, they constituted direct evidence of discrimination. See Cordova, 124 F.3d at 1149; see also Dominguez-Curry v. Nevada Transp. Dep't, 424 F.3d 1027, 1038 (9th Cir. 2005) (decisionmaker's comments that he "wished he could get men to do [women employees'] jobs," "women have no business in construction," and "if you girls were men, you would know that" constituted direct evidence, "even if" they were "directed . . . to other women"); Chuang, 225 F.3d at 1128 (decisionmaker's comment that "two Chinks" in the department were "more than enough" constituted direct evidence of discrimination, even though the comment referred to another individual's employment). Because Charlton's comments expressed his unambivalent animus toward women, they fall outside the ambit of stray remarks that have been held insufficient to constitute direct evidence. Cf. Nesbit v. Pepsico, Inc., 994 F.2d 703, 705 (9th Cir. 1993) (concluding that comment that "[w]e don't necessarily like grey hair," which was uttered in an "ambivalent manner" and was unrelated to the plaintiff's termination, provided only weak circumstantial evidence of discriminatory animus); Nidds v. Schindler Elevator Corp., 113 F.3d 912, 918-19 (9th Cir. 1997) (concluding that "old timers" comment failed to establish pretext because it was ambiguous and unrelated to layoff). Moreover, the fact that Foster, not Castron, recounted Charlton's sexist comments lends "credibility to [the EEOC's] offer of proof." Cordova, 124 F.3d at 1149 n.5. Even if the EEOC did have to establish a prima facie case under McDonnell Douglas, the court erred in concluding that the EEOC failed to do so because it did not show that "similarly situated men were [ ] treated more favorably than Castron." RE13. Although Charlton testified that he thought Castron and her PSA co-worker Joe Cottone had a "personality conflict," making Cottone a similarly- situated male, Charlton transferred Castron - not Cottone - to Structures-Mod. RE295(Charlton Depo.70). Additionally, the EEOC offered evidence that although Charlton ignored Castron's multiple requests to transfer to Final Assembly, Charlton transferred a male to Final Assembly. RE137-38. Moreover, this Court has held that in lieu of pointing to similarly-situated individuals, a plaintiff can establish a prima facie case by showing that the adverse action occurred under circumstances giving rise to an inference of discrimination. Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir. 2004). The direct evidence discussed above is more than enough to satisfy this showing. See Dominguez-Curry, 424 F.3d at 1036 ("At summary judgment, the degree of proof necessary to establish a prima facie case is 'minimal and does not even need to rise to the level of a preponderance of the evidence.'") (citation omitted). The court also erred in reasoning that the EEOC's prima facie case was defeated by the fact that Donald Duff was also transferred from electrical work to Structures-Mod at the same time as Castron and then evaluated in the RIF and laid off. Contrary to the court's finding, the evidence shows that Duff was transferred from EPC to Structures-Mod at the end of 2000 (at the same time Castron transferred to PSA) to avoid layoff, which was nearly two years before the October RIF assessment; in contrast, Castron was transferred from PSA, because she had complained of problems with her co-workers, only two months before the RIF assessment. See supra at 4-5. Accordingly, Duff was not similarly situated in terms of either the reason for his transfer or the number of months he was in Structures-Mod before the October RIF assessment. Finally, to the extent that the district court reasoned that the EEOC could not establish a prima facie case because there was evidence that a female employee in another department was excused from the RIF where her transfer occurred just two weeks beforehand, RE13, this reasoning was incorrect because "a plaintiff must show that an employer treated similarly situated individuals outside the plaintiff's protective class more favorably, not that the employer treated all other members within the class less favorably." Chuang, 225 F.3d at 1124 n.8 (emphasis in original) (holding that district court erred in holding that Asian plaintiff had failed to establish prima facie case of discriminatory failure-to-promote because employer had promoted seven Asian professors); see also Connecticut v. Teal, 457 U.S. 440, 453-54 (1980) (rejecting the "bottom line" defense in disparate impact case and emphasizing that Title VII protects individuals, not groups, against unlawful discrimination). The EEOC's evidence was also more than sufficient to allow a jury to find that Boeing's proffered reason for the transfer - Castron had requested it - was pretextual.<11> Pretext can be proved either "directly, by showing that unlawful discrimination more likely motivated the employer," or "indirectly, by showing that the employer's proffered explanation is 'unworthy of credence,'" or by a combination of direct and indirect evidence. Chuang, 225 F.3d at 1127 (citation omitted). "Very little" direct evidence is needed to overcome summary judgment, id. at 1128, and Charlton's numerous derogatory comments about women, and his difficulty working with them, easily satisfy this threshold. See Dominguez-Curry, 424 F.3d at 1038 (holding that decisionmaker's comments that "he wished he could get men to do [women employees'] jobs," that "women have no business in construction," he "would never work for a woman," and "if you girls were men, you would know that," constituted direct evidence and established pretext); Chuang, 225 F.3d at 1128-29 (holding that the plaintiffs' direct evidence established pretext where decisionmaker said "two Chinks" were "more than enough" and another decisionmaker laughed at comment; also holding that advice of high-ranking official that plaintiffs "pray to [their] Buddha for help" in avoiding relocation was "sufficient evidence of discriminatory motive for purposes of McDonnell Douglas pretext analysis"). In addition to presenting direct evidence, which was sufficient by itself to establish a factual question as to pretext, the EEOC offered circumstantial evidence of pretext. Castron and her supervisors had repeatedly requested that she be transferred, and Castron specifically requested transfer to Final Assembly, which matched her skill set, but Charlton repeatedly denied the requests and instead transferred another male to Final Assembly. See supra at 6. He then transferred Castron to Structures-Mod, despite knowing that there were no "new-build" aircrafts for 2003 and that "there was going to be a reduction," and despite evidence showing that it would have taken years for Castron to catch up in Structures-Mod and that in the last four years not a single LE had transferred from PSA to Structures-Mod. RE297, RE156, RE153. Therefore, the court erred in granting summary judgment. b. Layoff As the court acknowledged, Boeing conceded that the EEOC had established a prima facie case of discriminatory termination. RE14. The court erroneously concluded, however, that although the sexist comments of "Castron's supervisors . . . and co-workers" "might make women feel unwelcome," they did not constitute direct evidence because they were unrelated to Castron's termination. RE14. This conclusion misstates the law of this Court. Earlier in its opinion, the court cited to a number of cases outside this Circuit holding that unless comments are tied to the adverse action, they do not constitute direct evidence. RE4. As discussed above, however, this Court has consistently held that comments evidencing discriminatory animus constitute direct evidence regardless of whether they are about the plaintiff. See Dominguez-Curry, 424 F.3d at 1038; Chuang, 225 F.3d at 1128. Accordingly, as discussed, supra in Section B.1.a, Charlton's sexist and derogatory comments and conduct constituted direct evidence of sex discrimination and were therefore probative of pretext. Because he was the ultimate decisionmaker for the RIF (he signed off on Hobby's RIF assessment for Castron), a reasonable jury could find that Castron's termination was the result of Charlton's discriminatory animus. The EEOC also offered direct evidence of discrimination in the form of Hobby's discriminatory comments. In January 2001, he twice called her "little girl," once mocking her by saying, "Oh, did the little girl break a nail?" RE126-27. A reasonable jury could find that these comments "overtly exhibit[ed] [Hobby's] hostility to women in the workplace." Dominguez, 424 F.3d at 1038; see Bahri v. Home Depot, USA, Inc., 242 F. Supp. 2d 922, 956 (D. Or. 2002) (stating that "girl[]" is a "demeaning comment[] which clearly ha[s] a gender component"). Although Hobby was not the ultimate decisionmaker, this Court has recognized that "[w]here, as here, the person who exhibited discriminatory animus influenced or participated in the decisionmaking process, a reasonable factfinder could conclude that the animus affected the employment decision." Dominguez-Curry, 424 F.3d at 1039-40. In addition to this direct evidence, which was independently sufficient to establish pretext, the EEOC came forward with circumstantial evidence that would allow a jury to find discrimination. First, although Hobby testified that he assessed Castron based on his interaction with her and on feedback from the senior engineers she worked with, Castron testified that he only checked on her twice, and Hartoog testified that he was Castron's only trainer and that Hobby never once asked about her progress. RE146-A, RE155, RE157, RE158-61; see Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000) ("Proof that the defendant's explanation is unworthy of credence is . . . one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive."). Second, Hartoog testified that he would have increased several of Castron's sub-category scores for "ability to perform remaining work." RE168-11, RE170. Although the scores he would have given Castron would not have insulated her from termination, a reasonable jury could find that his testimony further undermined the legitimacy of Castron's scores. Third, Hobby based Castron's "past performance" score solely on her performance during the two months he had supervised her, but Turk testified that in similar situations in past RIFs, he had looked at the employee's past performance evaluations and that it would "be tough to evaluate a person without doing that," suggesting that Hobby ought to have done the same. RE182-83. Fourth, Turk testified that Castron's work product was better than that of Terry Weir's and Chuck Green's - two other PSA engineers who were assessed for the RIF but not laid off - and that he would have definitely laid off Chuck Green, and possibly Terry Weir, before laying off Castron. RE179, RE180-81. Similarly, Hartoog testified that he expected Green to be laid off because he was not a go-getter. RE162. See Davis v. Widnall, No. 97-15313, 1998 WL 856505, at *1 (9th Cir. Nov. 19, 1998) (concluding that the plaintiff had established pretext where he "offered testimony of prior supervising officers who testified that he was a good to excellent engineer"). This additional circumstantial evidence would allow a jury to infer that the real reason given for Castron's termination was merely a pretext for sex discrimination. Thus, the court erred in granting summary judgment on the EEOC's discriminatory termination claim. 2. Retaliation a. Transfer To establish a prima facie case, the EEOC had to show that 1) Castron engaged in protected activity; 2) she suffered an adverse action; and 3) there was a causal connection. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1064 (9th Cir. 2002). The district court correctly assumed that Castron engaged in protected activity when she complained to Charlton on August 5, 2002, that she was experiencing a "hostile work environment." Order at 16; see Ray v. Henderson, 217 F.3d 1234, 1240 n.3 (9th Cir. 2000) ("[A]n informal complaint to a supervisor is [] a protected activity."). The court also correctly held that Castron's transfer constituted an adverse action because the transfer made her more vulnerable to being laid off. RE17. Although Castron had requested to be transferred into Final Assembly, which matched her skill set, Charlton gave her two options: either remain in PSA and continue to be harassed, or transfer to Structures-Mod, which involved more difficult work and where it would take Castron years of training to become efficient because her background was in electrical, not mechanical, engineering. Under these circumstances, "a reasonable employee would have found the [transfer] materially adverse." Burlington N. & Santa Fe Ry. v. White, 126 S.Ct. 2405, 2415 (2006); see also Fielder v. UAL Corp., 218 F.3d 973, 984 (9th Cir. 2000) (stating that adverse employment actions include disadvantageous transfers), cert. granted and judgment vacated on other grounds, 536 U.S. 919 (2002). Although the district court did not address it, the close temporal proximity between Castron's protected activity and her transfer - a mere six days - was sufficient to establish causation. See Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987) (causation established where adverse actions occurred within three months of complaint). Therefore, the EEOC established a prima facie case. The court erred, however, in concluding that the evidence was insufficient to show that Boeing's articulated non-discriminatory reason for the transfer - that Castron had requested it - was a pretext for retaliation. A reasonable jury could find that this proffered reason was pretextual based on the mere six days between Castron's protected activity and her transfer. See Miller v. Fairchild Indus., Inc., 885 F.2d 498, 505 (9th Cir. 1989) (pretext established by showing discharges occurred 42 and 59 days after EEOC hearings). Additionally, a jury could infer pretext from the fact that Castron and her supervisors had repeatedly requested - and had been repeatedly denied - her transfer to Final Assembly, which shows that Boeing's proffered reason for her transfer to Structures-Mod (that she had requested it) was untrue. A jury could additionally find pretext based on Castron's testimony that Charlton had assured her that the transfer would not make her more vulnerable to a RIF but then identified her for layoff just two months later. While Boeing argued below that there was no evidence that Charlton knew of the upcoming RIF, a reasonable jury could find otherwise. Charlton testified that although he did not know what the ultimate result would be, as of early 2002 he knew that there were no "new-build" aircrafts scheduled for 2003, so "there was going to be a reduction." RE297(Charlton Depo.94). Additionally, Castron testified that it had been announced as of August 2002 that a RIF was upcoming. RE189, 1. Based on this evidence, and Castron's testimony that Charlton assured her that she would not be more vulnerable to a RIF (suggesting that he knew one was upcoming), a jury could conclude that Charlton knew a RIF was likely. Based on Hartoog's testimony that it would have taken years for Castron to get up to speed in Structures-Mod, and based on undisputed evidence that the work there was more complex than in PSA, see supra at 7-8, a jury could conclude that Charlton transferred Castron to Structures-Mod to get rid of her after she complained. See, e.g., Reynaga, 27 Fed. Appx. at 742-43 (where employer purportedly transferred plaintiff because of an economic downturn without knowing that transfer would result in less overtime and incentive pay, concluding that the plaintiff had established pretext by offering evidence that it was widely known that transfer entailed less overtime and incentive pay). This conclusion would also be supported by evidence that Feuerstein and Wright excluded recently transferred employees from RIF assessment, RE227, suggesting that Charlton could have done the same for Castron, as Castron said he had promised. Accordingly, summary judgment on this claim was inappropriate. b. Layoff The EEOC established a prima facie case of retaliatory termination by showing that Castron engaged in protected conduct by complaining to Charlton about the hostile work environment in PSA, that she suffered an adverse action when she was laid off, and that there was a causal connection between her protected activity on August 6, 2002, and her termination two months later.<12> See Ray, 217 F.3d at 1240 n.3 (informal complaint to supervisor constitutes protected activity); Yartzoff, 809 F.2d at 1376 (causation established where adverse actions occurred within three months of complaint). The EEOC also provided evidence from which a reasonable jury could find that Boeing's proffered reason for Castron's layoff was a pretext for retaliation. First, the evidence shows a close proximity between Castron's complaint to Charlton on August 6, 2002, about the hostile work environment and her layoff, which Charlton approved, just two months later. See Miller, 885 F.2d at 505 (lags of less than two months between protected activity and layoffs were probative of pretext). Second, a jury could infer pretext based on evidence that Charlton reneged on his promise to Castron that, as a trainee, she would not be affected by any upcoming RIF, and on evidence that other employees were exempted from the RIF, as Boeing's policy permitted. Third, as outlined above in Section B.2.a., a jury could find that Charlton transferred Castron to Structures-Mod knowing that a RIF was coming up and that the complex work there, coupled with her lack of structural engineering experience, would make her layoff likely. Finally, a jury could find, based on evidence discussed, supra at 42-43, that the evidence cast doubt on whether the scores Castron received in the RIF assessment were credible. Thus, the Commission should have been allowed to go to trial on this claim. B. Renee Wrede The court also erred in granting summary judgment on the EEOC's claim that Wrede's layoff was the result of sex discrimination. As the district court acknowledged, Boeing conceded below that the EEOC had established a prima facie case. RE2. Boeing asserted, however, that Wrede's termination was the result of a RIF necessitated by a downturn in work and Wrede's low scores in the October RIF assessment. Doc.103, pgs. 4, 5-8. Because Boeing proffered a legitimate non-discriminatory reason for Wrede's layoff, the EEOC bore the burden of coming forward with "specific and substantial" evidence of discrimination. Coghlan v. American Seafoods Co., 413 F.3d 1090, 1095 (9th Cir. 2005). Although the EEOC's burden as to this claim was heightened, the district court erred in finding that the EEOC had failed to satisfy it. Id. at 1098 (applying the same-actor inference and holding that it gives rise to a "strong inference," but not a "mandatory presumption").<13> Accordingly, this Court should reverse that finding and remand the claim for trial. The EEOC produced more than sufficient evidence to allow a reasonable jury to conclude that Wrede's low scores in the RIF assessment were not credible and to infer that the real reason for her layoff was sex discrimination. See Reeves, 520 U.S. at 148 ("[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 Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 259 (1981) (stating that an employer's misjudgment of an applicant's qualifications may be probative of pretext); Winarto v. Toshiba Am. Elec. Components, Inc., 274 F.3d 1276, 1285 (9th Cir. 2001) (affirming jury verdict where plaintiff offered evidence of retaliation and "sufficiently rebutted as pretext defendants' explanations for the low scores" leading to her layoff). Both Wrede's declaration and Wright's 2001 evaluation of her refute several of her low "ability to perform remaining work" scores. During the October RIF assessment, Wright assigned Wrede a "0" for "Unigraphics," indicating that she had "no background or experience." RE80. In the April/July RIF assessments, however, Wright had assigned Wrede a "1." RE68. Boeing has failed to offer any plausible explanation for why Wright downgraded Wrede's score in October, since, by his own admission, Wrede had at least some background or experience with Unigraphics just three months earlier. The credibility of Wrede's score of "0" is further undermined by the fact that her 2001 evaluation - which Wright performed - states specifically that Wrede "continues her personal development" with training in "UG v. 16 [Unigraphics version 16]," a predecessor version of Unigraphics 15. RE65, RE35-36. Finally, Wrede stated that she had been trained on Unigraphics. RE201, 35. All of this evidence casts doubt on whether her "0" was a credible score. The EEOC's evidence also casts doubt on whether the "0" Wrede received for "product vision" - indicating no background or experience - was credible. Wright testified that this score was warranted because Wrede lacked experience with "product vision," but on her 2001 evaluation he wrote that Wrede "continues her personal development this year with . . . product vision." RE65. Wright also gave Wrede a "0" for "wiring systems," but Wrede had some wiring experience. RE200-01, 33. Wright also gave Wrede only a "3" for CCAR ("cause and corrective action reports"), but Wrede testified that she had "a lot of experience" with that system because she responded to "conditions requiring corrective action on a daily" basis. RE201, 34. Hence, a jury could find from Wrede's declaration and her 2001 evaluation that the reasons given for her low scores for Unigraphics, product vision, wiring, and CCAR were not just mistaken but were so implausible as to be unworthy of belief. See Tomasso v. Boeing Co., 445 F.3d 702, 708 (3d Cir. 2006) (stating that the plaintiff's affidavit refuting the stated reasons for his low RIF assessment scores "does not merely suggest that the low score assigned by [his supervisor] was 'wrong or mistaken,'" but that there were "'such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions' in Boeing's explanation as to deem it 'unworthy of credence'") (internal citations omitted). Although Title VII does not prohibit the use of subjective criteria, Casillas v. United States Navy, 735 F.2d 338, 345 (9th Cir. 1984), this Court has explained that "[w]here termination decisions rely on subjective evaluations, careful analysis of possible impermissible motivations is warranted because such evaluations are particularly 'susceptible of abuse and more likely to mask pretext.'" Xin Liu v. Amway Corp., 347 F.3d 1125, 1136 (9th Cir. 2003) (holding that under the circumstances, a jury could find that the plaintiff's low scores in such "soft skills" as "being upbeat" were "vague enough to be suspect") (citation omitted); see also Tomasso, 445 F.3d at 706, 709-10 ("low evaluation scores may be a pretext for discrimination, especially where, as here, an employer uses subjective criteria such as 'attitude' and 'teamwork'"; holding that the jury could infer pretext from Boeing's failure to explain these and other low scores). Here, Wright gave Wrede low scores on a number of subjective sub-categories for "ability to perform remaining work," making her evaluation "particularly susceptible of abuse and more likely to mask pretext." Xin Liu, 347 F.3d at 1136 (internal quotations and citation omitted). Wrede scored only 2.3 for the category "Communication/Leadership," which consisted of such subjective subcategories as "team skills," "communication skills," and "leadership skills." RE80. Wrede's score of 2.3 was 1.2 points lower than her April/July RIF assessment score; Wrede's "team skills" score dropped from a 4 to a 2, her "communication skills" dropped from a 4 to a 2, and her "leadership skills" dropped from a 3 to a 1. RE68, RE80. Despite the dramatic drop, Wright provided little explanation for the low scores. He offered the conclusory assertion that "her communication [and] leadership skills had declined," but he was unable to recall any specific individual who complained about Wrede's communication skills, or about anything else, and Wright admitted that there was no written record of any communication problems. RE58. When pressed specifically about Wrede's "communication skills," Wright asserted that she had trouble communicating with "the teams, her managers, her dotted-line managers," and himself, but he could not even recall who was Wrede's dotted-line manager, and the only specific problem he related was that Wright failed to turn in her weekly reports on time. RE56. Wrede, however, testified that other MEs also failed to timely hand in their reports, or failed to complete them altogether, and that Wright never spoke to her individually about it. RE250 (Wrede Depo.144-45). While Wright asserted that Wrede's "team skills" had "continued not to improve" and she was "having more issues with her team interface," he offered no specific explanation of what he meant. RE55. Wrede's low "communication/leadership" score was particularly suspect because Wrede, the only woman, was the second-lowest ranking ME for this subjective category; eleven men scored at least a point higher than she did. RE77. Finally, Wright also failed to offer any explanation whatsoever for Wrede's low scores on two of the subjective categories comprising "past performance" - "cooperated and supported team decisions" and "readily accepted assignments" - which would permit a reasonable jury to infer that Wrede's scores for these categories were also a pretext for sex discrimination. RE59 (testifying that he did not know how he assigned points for past performance). A reasonable jury could further discredit Wrede's low scores for the non- subjective categories of "ability to perform remaining work" and "past performance" based on Dave Eroh's testimony that Wrede's scores should have been significantly higher. Although the district court concluded that co-employee evaluations are not probative of pretext, RE7-8, other courts have held that a co- worker's assessment of a plaintiff's work "is clearly probative of pretext" where an adverse action was taken based on managers' assessment of the plaintiff's work. Abuan v. Level 3 Commc'n, Inc., 353 F.3d 1158, 1174 (10th Cir. 2003). The court also erred in reasoning that Eroh's evaluation was "meaningless in isolation" because "Eroh might be an unusually soft grader who inflates everyone's scores." RE8. Eroh testified that he was often a "lead" who assigned Wrede tasks beginning in 1989, that he was himself assessed in the RIF, that Wrede's "capacities, skills and abilities were comparable to [his] own," and that her "scores should have been comparable to [his.]" RE206-12, 7-8, 12, 28. Accordingly, Eroh did not evaluate Wrede "in isolation" but against his own RIF assessment scores, and his long history of working with Wrede and assigning her tasks made him qualified to do this. Eroh's evaluation, which the district court failed to consider because the court found it irrelevant, provided significant circumstantial evidence of pretext. According to Eroh, Wrede's scores for a number of categories for "ability to perform remaining work" should have been significantly higher. RE212, 30. For instance, he testified that because Wrede's "skills at Unigraphics were better than that of the average ME at the time," her Unigraphics score should have been a "3" instead of a "0." RE214, 30(m). Consistent with Wrede's own testimony, Eroh would have changed Wrede's CCAR score from a 3 to a 5 because she "ha[d] the ability to navigate all of the screens better than the majority of her counterparts." RE214, 30(h). Eroh also offered detailed statements as to why Wrede deserved higher scores, and what those scores should have been, in seven other technical sub-categories, including lean tools, DTI Processes, Company Procedures, Engineering Change Process, Specification Knowledge, AMAPS, MEPLAN. RE212-14, 30. Eroh also testified that Wrede should have received higher scores in three subjective sub-categories: she deserved a 3 instead of a 2 for "team skills," a 4 instead of a 2 for "communication skills," and a 3 instead of a 1 for "leadership skills." RE214, 30(j)-(l). Eroh provided detailed explanations for why this was so. Id. Based on his scores, Wrede should have received 27.61 instead of 21.1 for "ability to perform remaining work," which would have prevented her from being laid off. RE218, RE77(showing that 6 points separated Wrede from those retained in the RIF). Eroh also offered testimony that Wrede's "past performance" score should have been a 13 instead of a 9. As he had for her "ability to perform remaining work" scores, Eroh offered detailed statements about why Wrede's scores for each of the five "past performance" categories were inaccurate and why they should have been higher. RE215, 32. Significantly, Eroh gave lengthy and explicit reasons for why Wrede should have earned higher scores for the subjective categories "readily accepts assignments" and "cooperated and supported team decisions," stating that, to his knowledge, Wrede never refused any assignments and that she "was always receptive to group/team decisions."<14> RE215, 32(c)&(d). Eroh's assessment of Wrede's "past performance" is particularly probative of pretext because Wright offered no explanation at all in his deposition for why Wrede scored only a "9" for past performance, which was the second- lowest score any ME in skill code 32 received. RE59, RE77. See Tomasso, 445 F.3d at 709-10 (reversing summary judgment where some of the plaintiff's "low scores remain unexplained," and, if he "had received higher scores in these or other areas, he would have been ranked high enough to avoid being laid off"). Based on Eroh's assessment of Wrede's "ability to perform remaining work" and "past performance," Wrede would have received a total RIF assessment score of 73, not 62, which was well above the cut-off for the RIF.<15> RE77. Accordingly, a reasonable jury could find - based on Wright's vague testimony, Wrede's testimony, Wrede's 2001 evaluation, and Eroh's testimony - that her low scores were not credible and, therefore, infer that her layoff was a pretext for sex discrimination. In reaching this determination, a reasonable jury could also rely on evidence that a number of managers Wrede was supporting at the time of her layoff, or had supported in the past, offered laudatory comments about her performance, and that a few of them even singled out other MEs who should have been laid off instead of Wrede. See Davis, 1998 WL 856505, at *1 (concluding that the plaintiff had established pretext where he "offered testimony of prior supervising officers who testified that he was a good to excellent engineer"). Specifically, Dave Stallings, the LAPPAR Program Manager, whom Wrede had been supporting for six months, said that Wrede's layoff was a poor decision, and he even e-mailed Warner and Feuerstein after the RIF to say that Wrede had "done an admirable job" and really excelled in PSA. RE195, 3; RE244. Similarly, John Houseman, a manager in Final Assembly whom Wrede had supported since 1997 and was supporting at the time of the RIF when his assigned MEs were out of the area, told Wrede that he was going to suggest to Feuerstein that other MEs be moved out (including Wayne Christian, who had survived the RIF) and that Wrede be "hard-lined" to his group because she was a reliable performer and his crew depended on her. RE196, 9. Houseman's second-shift counterpart, John Kivler, whom Wrede had supported for several years, also said that laying her off was a poor decision and that Earl Bartley should have been laid off instead. RE197, 10. Dean Johnson and Frank Goodrich, two managers Wrede had known and supported since 1997 and 1989, respectively, told her that they had also asked Feuerstein about moving her to the Tool Engineering Department. RE197, 11. Stallings, Houseman, Johnson, and Goodrich told Wrede that they had talked to Feuerstein about assigning Wrede to work in their areas, but that he had refused. RE199, 20-21. Ted Hall, a manager Wrede had supported since 1991, also told Wrede her selection for layoff was unfair and that other MEs should have been laid off first. RE197, 14. Similarly, former managers Bill Sheppard and Bobby DiBartolomeo told Wrede that she should not have been laid off, RE197, 13, and Tom Reilly, a manager Wrede had supported from 1998-2000, told her that Earl Bartley and George Willard should have been laid off instead of her. RE196, 5. Finally, a reasonable jury could infer pretext based on evidence that Feuerstein offered assistance to at least two of the men identified for RIF but not to Wrede, who was the only woman identified for layoff. See Rose v. Wells Fargo & Co., 902 F.2d 1417, 1422-23 (9th Cir. 1990) (where plaintiffs challenged their layoffs in RIF, stating that an "inference of discrimination is raised where" an employer voluntarily assumes a duty to transfer employees to other positions and the plaintiff shows that non-protected employees were treated more favorably). Both York and Johnson stated that Feuerstein had called them and told them of job openings, but Wrede stated that Feuerstein never told her of any job openings. RE242, RE64. Although the district court concluded that this evidence was irrelevant because Feuerstein failed to offer assistance to the other men, it was up to the jury to weigh this evidence. CONCLUSION For the reasons discussed above, the Commission respectfully requests that this Court reverse the entry of summary judgment on the EEOC's claims of sex discrimination as to Wrede and the claims of sex discrimination and retaliation as to Castron. Respectfully submitted, RONALD S. COOPER General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ___________________________ ANNE NOEL OCCHIALINO Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Rm. 7042 Washington, D.C. 20507 (202) 663-4724 February 28, 2008 STATEMENT OF RELATED CASES This appeal is not related to any other known case pending in this Court. CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with the type-volume limitations of Fed. R. App. P. 32(a)(7)(B)(i). The brief contains 13,435 words. ______________________________ Anne Noel Occhialino CERTIFICATE OF SERVICE I, Anne Noel Occhialino, hereby certify that I served two copies of the foregoing brief and one copy of the excerpts of record this 28th day of February, 2008, by overnight mail, postage pre-paid, to the following: Counsel for Defendant-Appellee Tibor Nagy Erika K. Rocush OGLETREE DEAKINS 6760 N. Oracle Rd., Ste. 200 Tucson, AZ 85704-5608 (520) 544-0300 _____________________ Anne Noel Occhialino Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Office of General Counsel 1801 L Street, N.W., Room 7042 Washington, D.C. 20507 (P)(202) 663-4724 (F)(202) 663-7090 *********************************************************************** <> <1> Although there was some evidence offered that the transfer occurred in 2002, Boeing asserted in its statement of facts that the transfers occurred in late 2000. RE247. <2> Castron testified that Bartlett stepped in as a PSA supervisor when another supervisor was ill. RE121. <3> Castron specifically requested transfer to "building 520," which housed Final Assembly. RE134, RE177. <4> Although many of the witnesses used the terms interchangeably below, "Structures-Mod" and "Pre-Mod" technically refer to different parts of the modification process. RE308(Hobby Depo.61-62). Castron joined "Structures- Mod." RE308(Hobby Depo.62). <5> For the July RIF, Feuerstein "normalized" the raw scores for "ability to perform remaining work" scores by using a multiplier; this was intended to better spread the scores across the 35 points allotted for this category. RE70, RE74, RE30. This process was abandoned for the October 2002 RIF. RE30. <6> One of the four employees, William Eidsmore, avoided layoff because he was redeployed to another division. RE81, RE28-29. Christian Johnson's RIF was "cancelled" on 9/6/02 when he took an ME job in Texas. RE81, RE256(Wright Depo.127). Jeffrey Schultz's RIF notice was also "cancelled" on 8/15/02, but he was not listed an ME in skill code D32 for the 10/25/02 RIF assessment, suggesting that he transferred to another position. RE81, RE77. The fourth employee identified for the RIF, Eric Schulke, also had his RIF notice cancelled on 8/15/02 and apparently remained as an ME in skill code 32. RE81, RE77. <7> The "ability to perform remaining work" form was modified slightly from the earlier form; some categories were added and others deleted. RE80. <8> Unigraphics 15 was a more recent version of Unigraphics 16; essentially, version 15 was an upgrade. RE35-36. <9> The court also granted summary judgment on the EEOC's claim of retaliatory discharge as to Wrede, but the Commission is not appealing that ruling. <10> The court mistakenly believed that the EEOC was arguing that the failure to transfer Wrede to another position after she was identified for layoff constituted a separate adverse action. RE9. What the EEOC actually argued was that "additional evidence of pretext" regarding her layoff "arises from the difference between the assistance Boeing provided the males identified for RIF" and what it provided to Wrede. Doc.111, pg.9. <11> Boeing argued below that the same-actor inference applied to the EEOC's discriminatory transfer claim because Charlton had treated Castron fairly in the past. Doc.116, pg.9. Even if Charlton's prior treatment of Castron could be characterized as favorable, which the Commission does not concede, the same- actor inference is inapplicable here because the EEOC offered direct evidence of Charlton's discriminatory animus. Johnson v. Boys & Girls Club, 191 Fed.Appx. 541, 545 (9th Cir. July 6, 2006) (concluding that the same-actor inference does not apply where the plaintiff offers evidence that her supervisor harbored discriminatory animus). <12> The district court did not consider this argument; it considered only the argument that Castron's termination was the result of Hobby's retaliatory animus. The Commission is not pursuing that argument on appeal. <13> The Commission acknowledges that the same-actor inference applies in this case because Feuerstein and Wright were the decisionmakers during the July 2002 RIF assessment, when Wrede was not targeted for layoff. <14> Eroh would have rated Wrede a 3 instead of a 2 for "readily accepts assignments" (on a 1-3 scale), and a 2 instead of a 1 for "cooperated and supported team decisions" (on a 1-3 scale). <15> Because Wrede's score of 21.1 for "ability to perform remaining work" was rounded down to 21, this calculation is based on the presumption that the score of 27.61 that Eroh would have given her for "ability to perform remaining work" would have been rounded up to 28.