No. 09-16019 _______________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT _______________________________________________________ U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant v. BANNER HEALTH, d/b/a Banner Good Samaritan Medical Center, an Arizona corporation, Defendant-Appellee. _______________________________________________________ On Appeal from the United States District Court for the District of Arizona (2:07-cv-1424-FJM) The Honorable Frederick J. Martone, Presiding _______________________________________________________ BRIEF OF PLAINTIFF-APPELLANT U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION _______________________________________________________ JAMES L. LEE Deputy General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel CORBETT L. ANDERSON Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., 5th Floor Washington, D.C. 20507 (202) 663-4579 (phone) (202) 663-7090 (fax) corbett.anderson@eeoc.gov TABLE OF CONTENTS STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . .2 A. The Nature of This Case and the Course of Proceedings.2 B. Statement of Facts . . . . . . . . . . . . . . . . . .2 C. District Court's Decision . . . . . . . . . . . . . .11 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . 13 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . 15 A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Standard of Review 15 B. When Read in the Light Most Favorable to the EEOC, the Record Would Permit a Finding that Banner Discriminated Against the Rosaleses Because of Age. . . . . . . . .16 1. Prima Facie Case. . . . . . . . . . . . . . . . . . 17 2. Pretext. . . . . . . . . . . . . . . . . . . . . . .23 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . 26 STATEMENT OF RELATED CASES . . . . . . . . . . . . . . . . . 28 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . 29 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . 30 TABLE OF AUTHORITIES Cases Aragon v. Republic Silver State Disposal, Inc., 292 F.3d 654 (9th Cir. 2002) . . . . . . . . . . . . . . . 18 Barnes v. GenCorp Inc., 896 F.2d 1457 (6th Cir.1990) . . . . . . . . . . . . . . . 18 Beck v. United Food Commercial Workers Union, 506 F.3d 874 (9th Cir. 2007) . . . . . . . . . . . . . .20-21 Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115 (9th Cir. 2000). . . . . . . . . . . . . . . 15 Davis v. Team Elec. Co., 520 F.3d 1080 (9th Cir. 2008). . . . . . . . . . . . . . . 23 Dep't of Veterans Affairs Med. Ctr. v. Fed. Labor Rel. Auth., 16 F.3d 1526 (9th Cir. 1994) . . . . . . . . . . . . . . . 22 Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d 1201 (9th Cir. 2008). . . . . . . . . . . . . 17, 20 Douglas v. Anderson, 656 F.2d 628 (9th Cir. 1981) . . . . . . . . . . . . . . . 18 Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978) . . . . . . . . . . . . . . . . . . . 19 Graham v. Long Island R.R., 230 F.3d 34 (2d Cir. 2000) . . . . . . . . . . . . . . . . 21 Lindahl v. Air France, 930 F. 2d 1434 (9th Cir. 1991) . . . . . . . . . . . . . . 15 Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979). . . . . . . . . . . . . . . 23 McDonnell Douglas v. Green, 411 U.S. 972 (1973). . . . . . . . . . . . . . . . . . . . 16 Nidds v. Schindler Elevator, 113 F.3d 912 (9th Cir. 1996) . . . . . . . . . . . . . 12, 17 Noyes v. Kelly Servs., 488 F.3d 1163 (9th Cir. 2007). . . . . . . . . . . . . . . 19 O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996). . . . . . . . . . . . . . . . . . . . 18 Pejic v. Hughes Helicopters, Inc., 840 F.2d 667 (6th Cir. 1988) . . . . . . . . . . . . . . . 20 Reeves v. Sanderson Plumbing Prods. Co., 530 U.S. 133 (2000). . . . . . . . . . . . 16, 23, 24, 25, 26 Rodriguez-Torres v. Caribbean Forms Mfr., Inc., 399 F.3d 52 (1st Cir. 2005). . . . . . . . . . . . . . . . 20 Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406 (9th Cir. 1996) . . . . . . . . . . . . . . . 26 Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002). . . . . . . . . . . . . . . . . . . . 19 T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626 (9th Cir. 1987) . . . . . . . . . . . . . 24, 25 Vasquez v. County of Los Angeles, 349 F.3d 634 (9th Cir. 2004) 21 TABLE OF AUTHORITIES Statutes 28 U.S.C. § 451. . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. § 1337 . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. § 1343 . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. § 1345 . . . . . . . . . . . . . . . . . . . . . . . .1 29 U.S.C. § 216(c) . . . . . . . . . . . . . . . . . . . . . . .1 29 U.S.C. § 217. . . . . . . . . . . . . . . . . . . . . . . . .1 29 U.S.C. § 623(a)(1). . . . . . . . . . . . . . . . . . . . . .2 29 U.S.C. § 626(b) . . . . . . . . . . . . . . . . . . . . . . .1 Rules Circuit Rule 28-2.6(a) . . . . . . . . . . . . . . . . . . . . 28 Fed. R. App. P. 4(a)(1)(B) . . . . . . . . . . . . . . . . . . .1 Fed. R. App. P. 32(a)(7)(B). . . . . . . . . . . . . . . . . . 29 Fed. R. App. P. 32(a)(7)(B)(iii) . . . . . . . . . . . . . . . 29 STATEMENT OF JURISDICTION The U.S. Equal Employment Opportunity Commission (EEOC or Commission) filed this action under the authority granted in Section 626(b) of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 626(b) (ADEA), which incorporates by reference Section 16(c) and 17 of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. §§ 216(c) and 217. ER-II at 2 (Complaint ¶ 3).<1> The district court had jurisdiction over the EEOC's suit under 28 U.S.C. §§ 451, 1331, 1337, 1343, and 1345. On March 12, 2009, the district court entered an order granting a motion for summary judgment filed by Defendant-Appellee Banner Health d/b/a Banner Good Samaritan Center, an Arizona corporation (Banner). ER-I at 1, 6. The EEOC filed a timely notice of appeal on May 8, 2009. E.R. 134; Fed. R. App. P. 4(a)(1)(B). This Court now has appellate jurisdiction under 28 U.S.C. § 1291. STATEMENT OF THE ISSUES 1. Whether the district court erred in concluding the EEOC failed to show evidence of a prima facie case sufficient to withstand summary judgment where, after the sixty-one year-old charging parties were terminated, Banner hired several significantly younger persons to work in the same job categories, on the same shift, under the same supervisor, to perform the same duties, and there is evidence that Banner more leniently treated a thirty-four year-old employee who engaged in conduct of comparable seriousness. 2. Whether the evidence is sufficient for a reasonable jury to find Banner's stated reason for terminating the Rosaleses is a pretext for age discrimination. STATEMENT OF THE CASE A. The Nature of This Case and the Course of Proceedings The EEOC alleges that Banner discriminated against Maria and Fernando Rosales on the basis of age in violation of Section 623(a)(1) of the ADEA, 29 U.S.C. § 623(a)(1). ER-II at 3 (Complaint ¶ 7). The district court entered summary judgment in Banner's favor, and the EEOC appealed. B. Statement of Facts Banner owns and runs healthcare facilities in several states, including Arizona. Fernando and Maria Rosales, a married couple, both worked for a Banner hospital in Phoenix, Arizona. Prior to their terminations, Maria Rosales had worked for Banner for ten years, and Fernando Rosales for approximately seven years (in two separate stints). ER-II at 5, 27. Maria Rosales was an Environmental Services Technician I ("EVS Tech I"), i.e., a housekeeper primarily responsible for cleaning the hospital's rooms. ER-II at 6. Fernando Rosales was an Environmental Services Technician II ("EVS Tech II"), i.e., a custodian/janitor primarily responsible for cleaning and maintaining the hospital's floors. ER-II at 27-28. As EVS Techs, the Rosaleses did not have specific responsibilities tied to specific locations in the hospital. Rather, they were given various assignments within their job descriptions at various locations in the hospital, depending on the need on the particular day. See ER-II at 6, 28, 64-65. During the relevant time period, both Rosaleses worked the evening shift, and both reported to Danny Armstrong, the evening shift EVS supervisor. ER-II at 6, 28, 59. Armstrong had authority to discipline employees, and had authority to terminate employees with the approval of his supervisor, Marlin Slattum, the Assistant Director of Environmental Services. ER-II at 61-63. Slattum usually followed Armstrong's recommendations. ER-II at 63. Armstrong also consulted Human Resources on discipline and discharge. Id. Banner has an Attendance and Time Clock Policy containing a progressive discipline system. ER-II at 76, 89. The system is based on the number of "occurrences" an employee has within a rolling six month period, with seven occurrences being grounds for termination. ER-II at 91-92. An unauthorized absence – i.e., an absence without prior authorization/approval from the employee's supervisor – counts as one occurrence as long as the employee contacts his or her supervisor prior to the end of his or her scheduled shift. Id. at 90 (¶III.G.2.c.). However, an unauthorized absence where the supervisor is not contacted prior to the end of the shift – i.e., a no call/no show – counts as two occurrences, and it is the only type of absence for which the policy explicitly states that paid time off ("PTO") would not be retroactively provided. Id. at 90, 91 (¶¶ III.E.2, G.3.a.). The policy states that if an employee is "absent three consecutive shifts (unauthorized or not calling in) you may be considered to have voluntarily terminated your employment." Id. at 90 (¶ III.E.1). The policy further states that when employees take time off after they have asked for it but have been denied, they will be subject to formal discipline, but that management will consider the employee's length of service, previous attendance, and performance record. Id. at 93 (¶ V.E.1). Certain types of absences are exempt from the policy altogether, such as leave authorized by the Family and Medical Leave Act (FMLA). Id. at 89 (¶ III.A.6). On or about January 3, 2006, Banner terminated the Rosaleses. ER-II at 78- 79. The Rosaleses were both age 61. ER-II at 5, 27. According to Banner, it terminated the Rosaleses because they took three consecutive days of unauthorized leave without calling in – i.e., Banner contends they were no shows/no calls – during the 2005 Christmas season, and were considered to have abandoned their jobs. ER-II at 74-75. The Rosaleses contend that they did not violate Banner's attendance policy because they sought and received pre-authorization for their leave. Specifically, the Rosaleses state that in early September 2005, they gave Armstrong a single form for the both of them requesting PTO for Thanksgiving Day and for the period from December 26, 2005 to January 1, 2006, and Armstrong immediately gave them oral approval for the leave. ER-II at 6, 17, 29. Shortly thereafter, one of the lead housekeepers,<2> Sylvia Gonzales, told the Rosaleses that Armstrong said that they actually could not have both Thanksgiving and Christmas off, but had to choose, and they had to submit separate forms. ER-II at 29, 45. Thus, the Rosaleses submitted separate PTO forms, each requesting PTO for December 26, 2005 to January 1, 2006. ER-II at 6, 45-56. Fernando Rosales testified that he followed up with Armstrong regarding the status of their PTO requests sometime prior to Thanksgiving and that Armstrong told Fernando Rosales that their requests were approved. ER-II at 29, 49-50. The day before Thanksgiving, Armstrong approached Maria Rosales and asked her if she and Fernando wanted Thanksgiving Day off after all, and Maria answered, "[I]f you will give it to us, yes." ER-II at 20-21. Armstrong said that he would. ER-II at 6-7, 21. Fernando Rosales also spoke to Armstrong later that day, to confirm for himself that he could take Thanksgiving Day off. ER-II at 47. The Rosaleses did not fill out a PTO form for Thanksgiving. ER-II at 6-7, 29, 105a. Banner has not asserted that the Rosaleses were a no call/no show on Thanksgiving. The Rosaleses testified that, shortly after Thanksgiving, they again sought to confirm the approval of their Christmas PTO requests, and Armstrong again confirmed that the requests were approved. ER-II at 48-50. Maria Rosales testified that she asked Armstrong for a signed copy of their PTO forms but that Armstrong said they did not need it. ER-II at 18-19. Relying on this conversation, the Rosaleses purchased airline tickets and traveled during the Christmas holidays to Denver, Colorado, where they spent time with their daughter and her family. ER-II at 7, 30. On January 3, 2006, the Rosaleses' flight from Denver was scheduled to arrive in Phoenix at 1:07 PM, almost two hours before the 3:00 PM start-time of the Rosaleses' shift. ER-II at 15. However, their flight out of Denver was delayed, so Fernando Rosales called Banner to inform management that they would probably be late to work. ER-II at 7, 22, 30, 52-53. When the Rosaleses arrived at work, one of the lead housekeepers, Catalina Arenivar, told them not to clock in because Armstrong wanted to talk to them. ER-II at 7, 22, 22a, 30, 54. When they met with Armstrong, he told the Rosaleses that they were being terminated for job abandonment from December 26, 2005, to January 1, 2006. ER-II at 7, 30, 54. Fernando Rosales responded by asking why they would need to call in given that Armstrong had approved the time off. See ER-II at 30, 55. Armstrong did not respond except to advise the Rosaleses to talk to upper management. ER-II at 55. Banner disputes the Rosaleses' testimony that Armstrong gave them oral approval of their PTO requests. Armstrong testified that employees were specifically told that, due to short staffing, employees had to choose between having Thanksgiving Day and Christmas Day off, and that no extended leave would be provided during the holiday season. ER-II at 72. Banner makes much of the fact that the Rosaleses' PTO forms were not marked "granted" and returned to them which was, according to Banner's Human Resources Consultant, Lisa Baker, standard practice. ER-II at 116. Other testimony, including that of Armstrong, is more equivocal regarding Banner's practices for granting PTO. According to Armstrong, in seeking pre- approval of PTO, an employee had to fill out a PTO form indicating the dates he or she wanted off and submit it to him. ER-II at 69. He had authority to approve it or disapprove it. Id. If approved, official policy was to put the original in a PTO file, put a copy on the wall in his office where schedules were posted, and to give the employee a copy. Id. Armstrong testified, however, that he did not always return approved PTO forms to employees – he could only say it was "most likely," and he admitted that "there [were] times" that he did not return them. ER- II at 69-70. If PTO was disapproved, Armstrong testified that he would put the original in the PTO file and would "sometimes" return a copy to the employee. ER-II at 71. Lead housekeeper Sylvia Gonzalez testified that Armstrong neglected Banner's policies once in a while. See ER-II at 108. Maria Rosales testified that while she received her PTO form back under previous supervisors, she had no previous experience with PTO involving Armstrong. ER-II at 23-24. Fernando Rosales explained that Armstrong not giving back an approved PTO form was consistent with his prior experience working for Banner. ER-II at 50-51. With respect to the Rosaleses, Armstrong testified that when he denied the Rosaleses' requests for PTO from December 26, 2005, to January 1, 2006, he did so in writing, recording the denial on their PTO forms. ER-II at 72. While Armstrong testified that PTO forms denying the Rosaleses' PTO requests should be in Banner's files, ER-II at 72-73, the forms are not in the record. Despite repeated discovery requests, Banner has not produced any form indicating that Armstrong denied the PTO. ER-II at 126. The only PTO forms in the record do not support Armstrong's contention and are the subject of conflicting testimony. On Maria Rosales's PTO form, neither the "granted" nor the "not granted" box is marked, and it is unsigned by Armstrong. ER-II at 88. On Fernando Rosales's form, the "not granted" box is not marked, and "granted" was initially marked but then whited out. ER-II at 87. There is conflicting testimony among Banner's own witnesses as to how "granted" came to be whited out. Armstrong testified that he marked "granted" by mistake, and then whited it out. ER-II at 73. However, lead housekeeper Sylvia Gonzalez testified that it was either she or the other lead housekeeper, Catalina Arenivar, who whited out "granted" – not Armstrong. ER- II at 106-07. Armstrong admits that prior to the alleged attendance problem in late December 2005, the Rosaleses did not have any problems with no-calls/no shows, nor did they have attendance problems generally. ER-II at 66-68. Indeed, on December 22, 2005, shortly before the Rosaleses' vacation, Armstrong gave Fernando Rosales a positive performance review which included a statement that he was a role model for others due to his commitment to attendance and timeliness. ER-II at 28-29, 42. After the Rosaleses were terminated, they attempted to get their jobs back but were unsuccessful. They sought meetings with Marlin Slattum, the Assistant Director of Environmental Services, and Lisa Baker, the H.R. Consultant, to no avail. ER-II at 7-8, 30. The Rosaleses also wrote a letter to Banner explaining that Armstrong orally approved their PTO during the Christmas season and that they assumed Armstrong's oral permission to take the leave was sufficient in light of their previous experience with him. ER-II at 8, 30, 56. The Rosaleses further pointed out that they both were longtime employees with no previous problems of this kind, and would have never taken time off without permission. ER-II at 56. The Rosaleses stated that they did not intend to abandon their jobs at any time. ER-II at 57. They concluded the letter by stating, "I ask that you please reconsider the disciplinary action taken, we completely understand that it is our fault for not obtaining the written document with the approval, and although not an excuse can honestly tell you that we thought it was okay based on past situations." Id. Banner denied the Rosaleses' request to be rehired. In the three weeks following the Rosaleses' terminations, Armstrong hired four people into EVS Tech I positions – ages 21, 28, 35 and 43 – and hired one person for an EVS Tech II position, age 50. ER-II at 86, 97. Like the Rosaleses, these EVS Techs did not have specific responsibilities tied to specific locations in the hospital – they were assigned variously to work throughout the hospital, depending on the need. Cf. ER-II at 80, 81, 85, 118, 122. There was also comparative evidence of Armstrong's treatment of another employee's attendance. One of Maria Rosales's co-workers, a 34-year-old EVS Tech I named Lydia Sewere, was absent at least sixteen times between August and December of 2005, according to the employee schedule. ER-II at 100-05, 109-14. Although, for reasons that are not clear in the record, Banner did not count all of Sewere's absences against her for purposes of discipline, her records show that Sewere incurred seven occurrences in the last six months of the year. ER-II at 82, 95. Although reaching seven occurrences is potential grounds for termination, ER-II at 92, 95, Armstrong did not terminate Sewere. Instead, Armstrong met with Sewere and gave her an "initial reminder" for her "attendance pattern," noting she assured him that she would do better. ER-II at 83, 96. Armstrong testified that he gave Sewere such light discipline because she was sick. ER-II at 83. However, none of the documents pertaining to Sewere corroborate Armstrong's assertion that Sewere was sick, and although Armstrong testified that Sewere applied for FMLA leave, the record contains no evidence that it was granted. See ER-II at 83-84. C. District Court's Decision The district court granted Banner's motion for summary judgment, ER-I at 1-5, first holding that the EEOC could not establish a prima facie case, and then holding that the EEOC also could not demonstrate pretext. According to the district court, the EEOC did not proffer evidence sufficient to satisfy the fourth element of the prima facie case – i.e., it held that a reasonable jury could not find that the Rosaleses were replaced by substantially younger employees with equal or inferior qualifications, or that anyone not in the protected class was treated more favorably. ER-I at 3. Specifically, with respect to the several younger EVS techs Armstrong hired after the Rosaleses' terminations, the court stated that "Defendant did not hire any employee to specifically fill the positions vacated by the Rosaleses. Although defendant hired five employees younger than the Rosaleses within three weeks after they left, plaintiff has not shown that any of the newly hired employees assumed their job duties." Id. The court rejected the EEOC's reliance on Nidds v. Schindler Elevator Corp., 113 F.3d 912, 917 (9th Cir. 1996), for the proposition that a plaintiff need not always demonstrate a specific replacement. The court distinguished Nidds as applicable only in reduction-in- force cases. ER-I at 3 n.1. The district court also rejected Lydia Sewere as a proper comparator for purposes of establishing the fourth prong of the prima facie case. The court held that the Rosaleses were not similarly situated to Sewere because Sewere's absences were due to medical problems and she had advised Banner of her absences in advance, and thus Sewere "did not engage in problematic conduct of comparable seriousness" to that of the Rosaleses. ER-I at 3. Next, the district court held that even assuming the EEOC had shown a prima facie case, the EEOC could not show that Banner's legitimate, nondiscriminatory reason for terminating the Rosaleses – that they failed to report to work for three consecutive shifts – is a pretext for discrimination. The court stated that the EEOC's evidence that Armstrong had "whited out" the notation of "granted" on Fernando Rosales's PTO form did not contradict Banner's assertion that its official policy required the Rosaleses to receive written approval for PTO and that they failed to do so. ER-I at 4. Moreover, the court viewed the statement in the Rosaleses' letter – that "we completely understand that it is our fault for not obtaining the written document with the approval" – as an acknowledgment by the Rosaleses that they were at fault for not obtaining written approval for their PTO request. Id. Thus, the district court held the EEOC's evidence insufficient for a reasonable jury to find age discrimination. SUMMARY OF ARGUMENT Summary judgment is improper in this case because the EEOC's evidence is sufficient to find that Banner discriminated against the Rosaleses because of their age. The record contains evidence establishing a prima facie case of discrimination, and sufficient evidence from which a reasonable jury could find Banner's explanation for the Rosaleses termination was a pretext for discrimination. The EEOC's prima facie case is established by evidence that the Rosaleses (1) were sixty-one years old and therefore in the protected class, (2) were performing their jobs satisfactorily as evidenced by their performance reviews, (3) were discharged, and (4) shortly thereafter Banner replaced them by hiring several significantly younger persons to work for Armstrong as EVS Techs – the same job as the Rosaleses. The district court's holding that these new hires did not replace the Rosaleses is an error, as it is contrary to the evidence when viewed in the light most favorable to the EEOC. The law does not require a hyper-exact one-to-one identification of the Rosaleses' replacements. Rather, the prima facie case must be adapted to the circumstances. Both the Supreme Court and this Court have held that the prima facie case is a minimal burden, and that the elements must be applied flexibly. The EEOC's comparative treatment evidence also satisfied the fourth element of the prima facie case. There is evidence that Armstrong treated Lydia Sewere much more leniently than the Rosaleses. The district court erred in rejecting this comparison because the court erroneously credited Armstrong's assertion that he treated Sewere lightly because she was sick. The district court instead should have viewed the record in the light most favorable to the EEOC and acknowledged that Banner's attendance policy evinces that Sewere's absences and the Rosaleses' alleged absences were subject to the same level of discipline—termination—and thus a reasonable jury could find Sewere and the Rosaleses to be similarly situated. Finally, the Rosaleses' testimony directly contradicting Armstrong's explanation that he terminated them for taking unapproved leave is strong evidence of pretext. The district court erroneously ignored the import of this conflict and the reasonable inferences in the EEOC's favor that must be drawn from it on summary judgment, and instead credited Armstrong's explanation as true, despite there being additional evidence of mendacity on Armstrong's part. The district court thus usurped the role of the jury and committed reversible error. ARGUMENT A. Standard of Review The district court's grant of Banner's motion for summary judgment is reviewed de novo, applying the same summary judgment standard as the district court. Lindahl v. Air France, 930 F. 2d 1434, 1436 (9th Cir. 1991). Summary judgment is not proper if there exists a factual issue that might affect the outcome of the suit and the evidence is such that a reasonable jury could return a verdict for the non-moving party, the EEOC. See id. In reviewing a summary judgment motion, the non-moving party's "evidence is to be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in the light most favorable to the non-moving party." Id. at 1437. "As 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 v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1124 (9th Cir. 2000). The EEOC raised the issues which are the subject of this appeal in its summary judgment response, Doc. 96, and its statement of facts in support. Doc. 97. B. When Read in the Light Most Favorable to the EEOC, the Record Would Permit a Finding that Banner Discriminated Against the Rosaleses Because of Age. Permeating the district court's consideration of this case is its failure to credit the EEOC's evidence as true for purposes of evaluating the summary judgment motion, and its failure to draw all reasonable inferences in the EEOC's favor. The district court should have given credence to the evidence favoring the EEOC and only given credence to evidence supporting Banner that is "‘uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses.'" Reeves v. Sanderson Plumbing Prods. Co., 530 U.S. 133, 151 (2000) (Fed. R. Civ. P. 50 decision analogizing to Fed. R. Civ. P. 56 standard, and quoting C. Wright & A. Miller, Federal Practice & Procedure § 2529, at 299 (2d ed. 1995)). To the contrary, as discussed below, on critical points the district court usurped the factfinder's role and simply accepted Banner's witnesses' testimony as true. Moreover, the district court's disregard of traditional summary judgment principles contributed to the court's making several reversible legal errors in applying the three-stage burden-shifting framework laid out in McDonnell Douglas v. Green, 411 U.S. 972 (1973). Under that framework, the EEOC's prima facie burden is to show there is sufficient evidence to find that the Rosaleses were (1) members of the protected class; (2) performing their jobs satisfactorily; (3) discharged; and (4) replaced by substantially younger employees with equal or inferior qualifications. See Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d 1201, 1207 (9th Cir. 2008); Nidds v. Schindler Elevator, 113 F.3d 912, 917 (9th Cir. 1996). The fourth element may also be satisfied with evidence that Banner treated similarly situated younger employees more favorably than the Rosaleses. See Diaz, 521 F.3d at 1207-08. Banner may rebut the EEOC's prima facie case by articulating a legitimate, nondiscriminatory reason for its decision to terminate the Rosaleses. Id. at 1207. The EEOC then must show there is sufficient evidence to conclude that Banner's reason is a pretext for discrimination. Id. When the evidence is viewed under the proper legal framework, it is clear that the EEOC made the requisite showing in this case to survive summary judgment. 1. Prima Facie Case First, there is sufficient evidence to find that the EEOC satisfied the fourth element of the prima facie case – that Banner replaced the Rosaleses with substantially younger employees.<3> A person is replaced when "another employee is hired or reassigned to perform the plaintiff's duties." Barnes v. GenCorp Inc., 896 F.2d 1457, 1465 (6th Cir.1990). Banner cannot dispute that it hired several significantly younger EVS Techs between the ages of 21 and 50<4> to work under Armstrong shortly after firing the Rosaleses. The fact that Banner hired significantly younger persons into the same positions as the Rosales, for the same shift, under the same supervisor, to perform the same general duties is more than sufficient to satisfy the replacement element. The district court was simply wrong in ruling otherwise. Armstrong testified that the Rosaleses did not have specific responsibilities tied to specific locations in the hospital. Rather, they were given various assignments within their job descriptions, depending on the need. See ER-II at 64- 65. Not surprisingly, then, when Armstrong was asked directly who performed the Rosaleses' specific job duties while they were on leave after Christmas 2005, Armstrong could not identify a specific person and instead simply reiterated that Tech I's and Tech II's do not have designated areas of responsibility. ER-II at 80- 81. Armstrong gave a similar answer when he was asked whether he hired anyone to do the job specifically that Mrs. Rosales was doing. ER-II at 85. The former HR Director, Maureen McLarney, confirmed in her deposition that it is simply impossible to look at the hiring done by Banner after the Rosaleses' terminations and determine who exactly, among the new hires, replaced them. ER-II at 118 (McLarney Dep. 73:15-19). Banner disingenuously argued, and the district court apparently agreed, that the EEOC's case must be dismissed because the Rosaleses' replacements cannot be identified with more specificity. Banner cannot assert that EVS techs are hired to perform a constellation of duties that vary daily, and then argue that the EEOC must show a "specific" replacement. In any event, the case law is well settled that the prima facie case is a flexible analytical model that should be adapted to accommodate the particular circumstances of the case. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) ("the precise requirements of a prima facie case can vary depending on the context and were ‘never intended to be rigid, mechanized, or ritualistic'") (quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978)); Noyes v. Kelly Servs., 488 F.3d 1163, 1169 (9th Cir. 2007) (stating it is "appropriate to tailor the elements of a prima facie showing according to the particular circumstances of each case"). The point of the replacement element is to demonstrate that the employer had a continued need for the employee's services and skills. See Pejic v. Hughes Helicopters, Inc., 840 F.2d 667, 672 (6th Cir. 1988) (proof that employer sought replacement "thus demonstrate[es] a continued need for the same services and skills"); Rodriguez- Torres v. Caribbean Forms Mfr., Inc., 399 F.3d 52, 59 (1st Cir. 2005) (holding demonstration that employer continued to need the work done, and assigned duties to current employees without designating a specific replacement, satisfied fourth element of prima facie case); Diaz, 521 F.3d at 1211 (holding identification of group that assumed plaintiff's duties sufficient to satisfy fourth element of prima facie case, given high turnover preventing more specificity, and citing Rodriguez- Torres with approval). Banner's hiring of EVS Techs to work under Armstrong shortly after terminating the Rosaleses demonstrates Banner's continued need for the Rosaleses' skills and services. Thus, the district court erred by requiring the EEOC to identify the Rosaleses' replacements with a level of specificity inappropriate under the circumstances of this case. The EEOC's comparative treatment evidence is also sufficient to satisfy the fourth element of the prima facie case. A reasonable jury could find Lydia Sewere and the Rosaleses were similarly situated because they engaged in absenteeism of comparable seriousness. See Beck v. United Food Commercial Workers Union, 506 F.3d 874, 885 n.5 (9th Cir. 2007) (noting that whether employees are similarly situated is a question of fact for the jury); Vasquez v. County of Los Angeles, 349 F.3d 634, 641 (9th Cir. 2004) (observing that "similarly situated" may be satisfied by, inter alia, evidence that employees engaged in "problematic conduct of comparable seriousness"). Sewere had seven occurrences within the six months prior to December 2005. ER-II at 82, 95. This was a terminable offense. ER-II at 92.<5> The Rosaleses allegedly incurred several consecutive no calls/no shows, and this too was a terminable offense. ER-II at 90 (¶ III.E.1). The fact that Banner's policy calls for the same level of discipline for these two attendance policy violations is sufficient for a reasonable jury to find that the Rosaleses and Sewere engaged in conduct of comparable seriousness. See Graham v. Long Island R.R., 230 F.3d 34, 43 (2d Cir. 2000) (holding that even though employees engaged in different conduct—absenteeism vs. alcohol use—they were similarly situated because they were subject to the same penalty pursuant to last chance waiver). Despite the fact that, according to Banner's policy, Sewere's attendance violations and the Rosaleses' alleged violations were of comparable seriousness, Armstrong treated them very differently. Armstrong only gave Sewere an "initial reminder" for her terminable offense. ER-II at 83, 96. In essence, he gave her a slap on the wrist. By contrast, Armstrong terminated the Rosaleses, which is in essence economic capital punishment. See Dep't of Veterans Affairs Med. Ctr. v. Fed. Labor Rel. Auth., 16 F.3d 1526, 1530 (9th Cir. 1994) ("An employee who is fired from his or her job is subjected to economic capital punishment. The discharged employee may have to explain to a second employer that a first employer found him undesirable. His chances of finding work again are problematic, especially where, as here, he performs unskilled or semi-skilled labor."). Underscoring the disparate treatment of Sewere and the Rosaleses is the fact that the Rosaleses were longtime employees who never had any absenteeism problems under Armstrong, with Fernando Rosales's attendance even having been recognized as a model shortly before their termination. ER-II at 28-29, 42, 66-68. Under Banner's attendance policy, Armstrong should have taken into account the Rosaleses' "length of service, previous attendance, and performance record" in formulating the level of discipline (ER-II at 93), but it is clear that Armstrong did not do so. The fact that Armstrong, contrary to company policy, failed to give the Rosaleses any consideration for their long tenure and demonstrated good performance is itself suspect and gives rise to an inference of irregular motivation. See Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979) (although an employer is entitled to make its own business judgments, "[t]he reasonableness of the employer's reasons may of course be probative"). Accordingly, viewing the evidence in the light most favorable to the EEOC and drawing all reasonable inferences in its favor, the district court erred by failing to hold that the EEOC's evidence is sufficient to find a prima facie case of discrimination. 2. Pretext The EEOC's evidence is also sufficient for a reasonable jury to find that Banner's reason for terminating the Rosaleses was a pretext for discrimination. Viewing the evidence in the light most favorable to the EEOC, a reasonable jury could find Banner's reason for terminating the Rosaleses is unworthy of credence. See Reeves, 530 U.S. at 143 (pretext for discrimination can be shown with evidence employer's explanation is unworthy of credence); Davis v. Team Elec. Co., 520 F.3d 1080, 1091 (9th Cir. 2008) (same). Directly contradicting Banner's explanation that it terminated the Rosaleses for three consecutive no calls/no shows, the EEOC has offered the testimony of the Rosaleses, who state that Armstrong orally granted them permission to take the at-issue leave. While Armstrong denies orally giving the Rosaleses permission, it must be assumed, for the sake of summary judgment, that the Rosaleses' version of the events is true. See, e.g., Reeves, 530 U.S. at 151 (the court must "disregard all evidence favorable to the moving party that the jury is not required to believe"); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th Cir. 1987) ("The nonmoving party's evidence must be taken as true."). Thus, a reasonable jury could easily find that Banner's version of events is false, and that it is a pretext for discrimination. As the Supreme Court stated in Reeves, [p]roof that the defendant's explanation is unworthy of credence . . . may be quite persuasive. Proving the employer's reason false becomes part of (and often considerably assists) the greater enterprise of proving that the real reason was intentional discrimination. In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. Reeves, 530 U.S. at 147. The district court erred in failing to recognize that the Rosaleses' testimony directly contradicting Armstrong is itself evidence of pretext. Moreover, the inference of pretext is most strong when the falsity of the employer's reason is accompanied by mendacity. Id. There is evidence of mendacity on Armstrong's part in addition to the Rosaleses' testimony. For example, the EEOC's evidence includes a copy of Fernando Rosales's PTO request which Armstrong admitted he marked as "granted" and later whited out. ER-II at 73. Given that this form and Maria Rosales's unmarked form are the only PTO forms in the record, ER-II at 126, these forms directly impeach Armstrong's testimony that he marked "disapproved" on the Rosaleses' PTO forms. ER-II at 72. Looking at this evidence in the light most favorable to the EEOC's case, a reasonable inference can be drawn that Armstrong marked "granted" because he had, in fact, orally granted the request, and Armstrong's later white-out of "granted" could be viewed as an attempt to cover up his prior approval. Armstrong's contrary testimony that it was simply a "mistake" (ER-II at 73) should not be credited at the summary judgment stage. See Reeves, 530 U.S. at 151; T.W. Elec., 809 F.2d at 631. The fact that Banner may have an "official policy" to return approved PTO forms is not dispositive evidence that Armstrong did not orally approve the Rosaleses' leave. Armstrong admits he did not always return approved forms – indeed, prior to Thanksgiving 2005 Armstrong granted the Rosaleses' PTO orally without requiring a PTO form at all. ER-II at 6-7, 29, 105a. Moreover, Maria Rosales testified that Armstrong specifically told her that they did not need a copy of their PTO forms to take their December 2005 leave. ER-II at 18-19. Accordingly, the Rosaleses' letter stating that they "completely understand that it is our fault for not obtaining the written document with the approval, and although not an excuse can honestly tell you that we thought it was okay based on past situations" (ER-II at 57) must be read in context and in the light most favorable to the EEOC's case. Read in that light, the Rosaleses simply showed remorse for trusting in Armstrong's oral approval of their PTO requests and trusting that Armstrong's assurance that not getting a copy of the approved PTO forms would be okay. Finally, the EEOC's evidence establishing a prima facie case should be considered in conjunction with the evidence of pretext. See Reeves, 530 U.S. at 148. Viewing all the evidence in the light most favorable to the EEOC, and drawing all reasonable inferences in the EEOC's favor, this case is not appropriate for summary judgment. Rather, it is "one that can only be resolved through a searching inquiry – one that is most appropriately conducted by the factfinder, upon a full record." Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406, 1410 (9th Cir. 1996) (internal quotation and citation omitted). The district court's decision erroneously usurped the jury's fact-finding role. CONCLUSION For the foregoing reasons, the EEOC respectfully requests that this Court reverse the district court's order granting Banner's motion for summary judgment. Respectfully submitted, JAMES L. LEE Deputy General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel /s/ Corbett L. Anderson______ CORBETT L. ANDERSON Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., 5th Floor Washington, D.C. 20507 (202) 663-4579 (phone)/ (202) 663-7090 (fax) corbett.anderson@eeoc.gov STATEMENT OF RELATED CASES The only case related to this appeal of which Plaintiff-Appellant U.S. Equal Employment Opportunity Commission is aware is Appeal No. 09-16769, currently pending in this Court, in which Banner seeks a reversal of the district court's denial of its motion for attorney's fees and non-taxable costs. See Circuit Rule 28- 2.6(a). CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because, according to the word-count function of Microsoft Word 2003, the brief contains 6,293 words excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). I further certify that this brief has been prepared in a proportionally spaced typeface, Times New Roman, in 14-point font. _/s/_Corbett L. Anderson_________ CORBETT L. ANDERSON Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., 5th Floor Washington, D.C. 20507 (202) 663-4579 (phone) (202) 663-7090 (fax) corbett.anderson@eeoc.gov CERTIFICATE OF SERVICE I hereby certify that on September 23, 2009: (1) I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system; (2) I have determined that attorneys for Defendant-Appellee, Stephanie Quincy, Elizabeth Call, and Robert Vaught, are registered appellate CM/ECF users and that service of the foregoing document will be accomplished by that system; (3) I dispatched to Federal Express four paper copies of Volumes I and II of the EEOC's Excerpts of Record to Federal Express for overnight delivery to the Clerk of Court; and (4) I dispatched to Federal Express a copy of Volume I and Volume II of the EEOC's Excerpts of Record for overnight delivery to Stephanie Quincy, 201 E. Washington Street, Suite 1600, Phoenix, AZ 85004-5299. _/s/ Corbett L. Anderson________ CORBETT L. ANDERSON Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., 5th Floor Washington, D.C. 20507 (202) 663-4579 (phone) (202) 663-7090 (fax) corbett.anderson@eeoc.gov *********************************************************************** <> <1> All references to "ER-I" and "ER-II" are, respectively, to the corresponding pages in Volumes I and II of the EEOC's Excerpts of Record. <2> Maria Rosales worked with EVS Tech I leads Sylvia Gonzales and Catalina Arenivar. ER-II at 59-60, 65a-65b. Fernando Rosales worked primarily under EVS Tech II lead Juan Jiminez. ER-II at 65b. In addition, Randy Gancas was Evening Shift Coordinator, responsible for coordinating the work of the housekeeping crew (EVS Tech I's), but he did not report to Armstrong. ER-II at 121-22. <3> Although the district court did not rule against EEOC on this ground, Banner also argued the EEOC failed to show the Rosaleses were performing their jobs satisfactorily. This contention is without merit. It is clear that prior to their alleged no calls/no shows, the Rosaleses consistently received good performance reviews and had satisfactory attendance records. ER-II at 66-68; Aragon v. Republic Silver State Disposal, Inc., 292 F.3d 654, 659-60 (9th Cir. 2002) (prima facie burden of showing qualifications is minimal). This showing is more than adequate to meet the prima facie burden. In addition, any argument that the EEOC cannot satisfy this element due to the Rosaleses' alleged no calls/no shows after Christmas 2005 improperly conflates the prima facie case with the pretext stage of the analysis. Id. at 659 (rejecting district court's conflation of prima facie stage with pretext stage). <4> See O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996) (fact that replacement is also in protected class is not relevant); Douglas v. Anderson, 656 F.2d 628, 533 (9th Cir. 1981) (replacement by person 5 years younger was sufficient). <5> Given that Banner's attendance policy specifically exempts FMLA leave as an absence for purposes of progressive discipline, ER-II at 89 ( III.A.6), these were not FMLA-qualifying absences, thus calling into question Armstrong's testimony that he gave Sewere such light discipline "because she was sick." ER-II at 83. A jury would not be required to believe Armstrong on this point.