EEOC v. BCI Coca-Cola Bottling Co. (10th Cir.) Reply brief June 6, 2005 Case No. 04-2220 IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff/Appellant, v. BCI COCA-COLA BOTTLING COMPANY OF LOS ANGELES, et al., Defendant/Appellee. On Appeal from the United States District Court for the District of New Mexico, No. CIV 02-1644 The Honorable James O. Browning, Presiding REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT ERIC S. DREIBAND General Counsel SUSAN R. OXFORD Attorney VINCENT J. BLACKWOOD EQUAL EMPLOYMENT Acting Associate General Counsel OPPORTUNITY COMMISSION 1801 L Street, N.W., Room 7010 LORRAINE C. DAVIS Washington, D.C. 20507 Assistant General Counsel (202) 663-4791 TABLE OF CONTENTS page TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . iii ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 THERE ARE DISPUTED MATERIAL FACTS IN THIS CASE . . . . . . . . . . . . . 2 A. The Parties Dispute What Occurred on Friday . . . . . . . . . . . . . 3 B. EEOC Presented Sufficient Evidence of Grado's Discriminatory Animus to Withstand Summary Judgment. . . . . . . . . . 12 C. Similarly-Situated Non-African American Employees Were Treated Better than Peters. . . . . . . . . . . . . . . . . . . . . . . 19 D. Grado's Discriminatory Animus Is Properly Imputed to BCI on These Facts. . . . . . . . . . . . . . . . . . . . . . . . . 22 E. A Reasonable Jury Could Infer from the False Representations in Edgar's Declaration that BCI Was Attempting to Cover-up Grado's Racially-Biased Actions After-the-Fact. . . . . . . . . . . . . 24 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . 30 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Federal Cases page Barto v. Armstrong World Indus., 923 F. Supp. 1442 (D.N.M. 1996) . . . . . . 18 Carter v. Duncan-Huggins Ltd., 727 F.2d 1225 (D.C. Cir. 1984) . . . . . 1, 3, 16 EEOC v. Flasher Co., Inc., 986 F.2d 1312 (10th Cir. 1992) . . . . . . . . . . 19 EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184 (10th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 English v. Colo. Dep't of Corr., 248 F.3d 1002 (10th Cir. 2001) . . . . . 22 Garrett v. Hewlett Packard Co., 305 F.3d 1210 (10th Cir. 2002) . . . . . . 18 Jones v. Bessemer Carraway Medical Cntr., 151 F.3d 1321 (11th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) . . . . . . . . . . . 2 Randle v. City of Aurora, 69 F.3d 441 (10th Cir. 1995) . . . . . . . . . . . 18 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000) . . . . . . . 2, 16 United States v. Cook, 949 F.2d 289 (10th Cir. 1991) . . . . . . . . . . . . 17 U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711 (1983) . . . . 2 Federal Statutes Section 1981, Civil Rights Act of 1870 . . . . . . . . . . . . . . . . . . . 16 Federal Rules Fed. R. Evid. 602 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 ARGUMENT In urging this Court to affirm the district court's grant of summary judgment, BCI presents one possible interpretation of the facts. Under BCI's view, Stephen Peters was terminated solely for being insubordinate to his supervisor on Friday afternoon, and the decision was untainted by discriminatory bias. See BCI Brf. 32- 34, 36. Although a jury could reach this conclusion, if the jury resolved all factual differences and drew all inferences in BCI's favor, such a result is certainly not compelled on this record. If the jury credits the Commission's witnesses and draws all reasonable inferences in the Commission's favor (as the district court was required to do on summary judgment), the jury could and, in fact, should conclude that Peters was discharged "because of" his supervisor's racial bias, in violation of Title VII. BCI is entitled to argue its view of the facts to the jury. Since a reasonable jury could reject BCI's view and accept EEOC's interpretation, however, this Court should reverse the district court's grant of summary judgment and permit a jury to resolve the disputed facts and then decide which of the two competing interpretations of events to believe. Cf. Carter v. Duncan-Huggins Ltd., 727 F.2d 1225, 1234 (D.C. Cir. 1984) (company's articulation of different version of the facts not sufficient reason for court to grant judgment as a matter of law because weighing of conflicting evidence and evaluation of witness credibility is exclusively within jury's province). THERE ARE DISPUTED MATERIAL FACTS IN THIS CASE. As is true here, employment discrimination is rarely accompanied by a decisionmaker's admission or any other overt, tangible evidence of discriminatory motivation. Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 141 (2000) ("[t]here will seldom be ‘eyewitness' testimony as to the employer's mental processes") (quoting U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983)). Recognizing this, the Supreme Court has held that the plaintiff in an employment discrimination lawsuit "may prove his case by . . . circumstantial evidence," and "[t]he trier of fact should consider all the evidence, giving it whatever weight and credence it deserves." Aikens, 460 U.S. at 714 n.3. Following the format set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the Commission here used a "pretext" method of proof based on circumstantial evidence. See EEOC Brf. 18-19 & n.8. As set forth in our opening brief, the Commission advances four general categories of circumstantial evidence to support our claim that BCI terminated Stephen Peters because of his race: (1) differences between what Peters says occurred on Friday afternoon and what his supervisor, Cesar Grado, related to the decisionmaker, Patricia Edgar; (2) Grado's less-favorable treatment of African American employees generally; (3) BCI's harsher discipline of Peters as compared to similarly-situated merchandisers who are non-African American; and (4) Edgar's false statement that she knew and took into account that Peters had called in sick and had been excused by Katt when she made the decision to terminate Peters. The Commission argued in our opening brief that this evidence was sufficient to withstand summary judgment under this Court's standards. EEOC Brf. 21-22; see EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1200 (10th Cir. 2000); see also Carter, 727 F.2d at 1233. In its Answer Brief, BCI simply proffers its version of what this evidence means. Inasmuch as a reasonable factfinder could view the evidence differently, BCI's arguments are unavailing. A. The Parties Dispute What Occurred on Friday. BCI contends, incorrectly, that all of the material facts in this case are undisputed, BCI Brf. 9, 51, and that Grado had no influence on Peters' termination because Grado did nothing more than "relay[] accurate and undisputed information to Ms. Edgar regarding Mr. Peters' openly defiant conduct." BCI Brf. 28 (emphasis in original), 38 (same). This argument ignores, among other things, the significant differences in what Peters says happened Friday afternoon as compared to what Grado told Edgar, the putative decisionmaker in this case. BCI apparently maintains that these factual differences either are not material or are based entirely on Peters' subjective view that he was not insubordinate. BCI is wrong on both accounts. BCI invites this Court to make the same mistake the district court made – to ignore much of the content of the Peters/Grado telephone conversation and focus solely on the (undisputed) fact that Grado gave Peters an "insubordination warning" and Peters responded by telling Grado to "do what you have to do and I'll do what I have to do." See, e.g., BCI Brf. 18, 51; compare slip op. at 23-24 (Appx. 279-80). Certainly, this would be a different case if this were the only material evidence in the record, as BCI suggests. There is, however, more to the story, as BCI conceded below. See, e.g., Grado Decl. ¶ 9. The substance of several of the additional comments between Grado and Peters, as well as statements Grado claims Jeff Katt, the Account Manager who oversaw Peters' daily schedule, made when Grado spoke to Katt earlier that afternoon, were all hotly contested. A reasonable jury, accepting EEOC's version, could conclude that Grado misrepresented a number of critical facts and omitted others when he spoke to Edgar on Friday afternoon. A reasonable jury could further conclude that Grado's misrepresentations and omissions materially influenced Edgar's conclusion that Peters had been insubordinate. For instance, EEOC disputed Grado's claim that earlier in the week Peters had agreed to work on Sunday, September 30. See Peters Aff. ¶ 26 (Appx. 146). EEOC also disputed that Katt told Grado on Friday "that he believed Mr. Peters was not going to work on Sunday and might call in sick." Grado Decl. ¶ 7 (Appx. 35) (emphasis added); BCI Brf. 15. Peters never told Katt he might call in sick on Sunday, Peters Aff. ¶ 25 (Appx. 146), and Katt says only that he told Grado that Peters would likely not want to work two consecutive six-day weeks (having just worked the prior Sunday), and not that Peters might call in sick if directed to work. Katt Dep.I at 40 (Appx. 67). Thus, EEOC disputed BCI's claim, BCI Brf. 17, 51, that there was any factual basis for Grado to tell Edgar, in their first Friday conversation, that Peters might call in sick. See also Plaintiff's Statement of Disputed Facts ## 33, 44 (Appx. 134). EEOC also disputed BCI's contention that Grado "had no one left to bring in except Mr. Peters" after Damian Mirabal hurt himself on the job on Friday morning, leaving Grado short one merchandiser. BCI Brf. 16 (emphasis added); see also BCI Brf. 27. Peters attested that when Grado was short a merchandiser, the route was usually divided among the other merchandisers working that day, and he had frequently covered other merchandisers' routes on that basis. Peters Aff. ¶¶ 21-22, 27 (Appx. 145-46). Russell Kroger, a non-African American merchandiser who regularly worked Sundays, worked less than 8 hours on that particular day. See Appx. 40. Since merchandisers often worked longer than 8 hours a day, see id., a reasonable jury could conclude that Kroger was available to help cover Mirabal's route, if Grado had so directed him. Two other merchandisers working under Grado at the time – Joseph Rivera and Robert Espinosa, both non-African Americans – did not work that Sunday. See Appx. 40. Rivera, like Peters, was regularly off on Sundays. He had told Grado earlier that he had plans, and Grado chose to honor those plans rather than direct Rivera to work on his day off. Grado Decl. ¶ 7 (Appx. 34-35). Robert Espinosa worked extra hours on Saturday, September 29, to cover his regular Sunday route. See Appx. 40. As a result, Espinosa was available, on Sunday, to help cover Mirabal's route if Grado had chosen to contact him <1>. Most significantly, EEOC disputed the substance of Grado's telephone conversation with Peters. EEOC contends that Peters never "refused" to work on Sunday when he spoke to Grado. Contrary to BCI's assertion, BCI Brf. 33 and n.12, Peters said that Grado initially "asked," rather than "ordered," him to work on Sunday. Peters Dep. at 118:10-120:17 (Appx. 191). Peters responded to Grado's initial request by explaining that he "had plans" and was "not feeling well." Id. at 121:1-6 (Appx. 58). EEOC's evidence reflects that Grado did not inquire about Peters' plans or his illness (contrary to Edgar's instructions to find out why Peters could not work on Sunday, if Peters said he was unavailable, see BCI Brf. 17; Edgar Decl. ¶ 6 (Appx. 23)). Instead, Grado immediately launched into his "insubordination warning," never giving Peters a chance to explain either the nature of his plans or how sick he was feeling. Peters Aff. ¶ 28 (Appx. 146). Contrary to BCI's contention, BCI Brf. 18, at no point did Peters say he was refusing to work on Sunday, Peters Aff. ¶ 29 (Appx. 146), and Grado never told Peters that his behavior was insubordinate, id., only that "it could lead to insubordination" if he did not come to work on Sunday. Defendant's Statement of Facts #52 (Appx. 75). BCI presented a very different story to the district court below. According to BCI, Grado told Edgar the following: Grado called Peters and said he needed him to work that weekend, and Peters said he could not because he had plans. Grado then asked Peters what his plans were and offered to let him work Saturday instead of Sunday, but Peters responded that his plans were none of Grado's business "and again refused to come in to work at all that weekend." Grado Decl. ¶ 9 (Appx. 35-36) (emphasis added); Edgar Decl. ¶ 7 (Appx. 23-24) (Grado told Edgar "Peters had in fact refused to come in to work that weekend" and said he "had plans" but "refused to tell him what the plans were," at one point telling Grado "it was none of his business") <2>. EEOC's dispute with BCI concerning these facts is not based on Peters' subjective interpretation of the events leading to his termination, as BCI wrongly suggests. BCI Brf. 9. Nor is it based on Peters' perception of what is or is not insubordination. These disputed facts are based entirely on objective differences concerning what Katt said to Grado and what Peters and Grado said to each other on Friday afternoon. The disputes are material to this case because Edgar claims she terminated Peters for insubordination based, primarily, on Grado's account of his conversation with Peters (undoubtedly colored by Grado's account of his earlier conversation with Katt the same afternoon). See Edgar Decl. ¶ 13 (Appx. 26). The import of these factual differences can be illustrated if we assume, for purposes of this argument, that Grado reported back to Edgar the same conversation that Peters says took place. If, instead of telling Edgar that Peters had "refused" repeatedly to work that weekend, Grado had told Edgar that Peters said he could not work on Sunday because he had plans and was not feeling well, Edgar likely would have asked Grado what kind of plans Peters had (given she had asked Grado that question earlier, and had expressly directed Grado to find out why Peters was unavailable, if Peters said he couldn't work). Grado would have had to tell Edgar he didn't know, because (according to Peters) Grado never asked about his plans nor gave him a chance to explain. Edgar also likely would have asked Grado how sick Peters was feeling. Again, Grado would have had to respond that he didn't know, because Grado never asked Peters about his illness and never gave Peters a chance to explain. Instead, according to Peters, Grado jumped straight into the insubordination warning. A reasonable jury could conclude that the inaccuracies and omissions in Grado's account inevitably led Edgar to conclude that Peters was defying a direct order from his supervisor, and that Edgar would not have reached that conclusion if Grado had reported his conversation with Peters accurately. BCI characterizes Peters' admitted response to Grado ("you do what you have to do and I'll do what I have to do") as an "overt expression of defiance," BCI Brf. 34, amounting to "basically drawing a line in the sand and daring Mr. Grado to cross it." BCI Brf. 33. To the contrary, given the context, a reasonable jury could just as readily accept Peters' explanation that he was trying to end the conversation before it escalated into a confrontation. Peters Aff. ¶ 6 (Appx. 144). EEOC does not claim, as BCI wrongly asserts, that Grado should have never even asked Peters to work that weekend and that the mere request was, in and of itself, discriminatory. See BCI Brf. 35. Rather, EEOC maintains that a jury could, and should, infer Grado acted out of discriminatory animus when, after Peters said he did not feel well, Grado responded by giving Peters an insubordination warning. As a matter of company policy and practice, BCI does not force sick employees to work. The company has a formal sick-leave policy that permits employees who are ill to be excused from working. See Appx. 51. It is undisputed that Grado did not ask Peters how ill he felt or whether his symptoms might respond favorably to medication by Sunday morning, nor did he ask Peters if he had already seen a doctor or was planning to see a doctor. Grado did not elicit any information about the nature of Peters' illness; indeed, Grado does not even acknowledge that Peters said he felt ill. Instead, according to Peters, Grado launched directly into an insubordination warning. In contrast, when Peters, following standard company practice, see EEOC Brf. 3, 7, called Katt on Saturday evening to let him know he had just seen a doctor and felt too sick to work the next day, Katt excused Peters from work on that basis, asking Peters just to let him know Sunday morning if he felt well enough to work, but saying otherwise not to worry. <3> If Grado had reported back to Edgar that Peters was feeling too ill to work that weekend, Edgar undoubtedly would have sought additional clarification on the subject. Edgar did not make any such inquiry, however, because, according to the Commission's facts, Grado hid this information from Edgar. Instead, through factual embellishments, omissions, and misstatements, Grado painted Edgar a picture of an openly defiant worker. EEOC maintains that Grado (1) misrepresented that he asked Peters what his plans were, (2) fabricated that Peters responded rudely by saying his plans were none of Grado's business, (3) incorrectly stated that Peters "refused" repeatedly to work on Sunday, and (4) omitted any mention that Peters felt unwell. A jury could readily determine that the cumulative effect of this misinformation would lead Edgar to conclude that Peters was being insubordinate. Thus, EEOC vigorously disputes the truthfulness of what Grado related to Edgar concerning his Friday afternoon conversation with Peters, and the district court erred when it found "no evidence that the information Grado communicated to Edgar, and on which Edgar relied to make her decision, was false." Slip op. at 34 (Appx. 290). Based on Peters' response that he had plans and was not feeling well, BCI argues that Edgar "reasonably" concluded "that Mr. Peters actually had no compelling reason for refusing to work, and that he simply did not wish to come in Sunday." BCI Brf. 36-37. Edgar did not say this in her declaration, however, see Edgar Decl. ¶ 14 (Appx. 26-27), nor could she, since Grado never told Edgar that Peters felt ill. See Edgar Decl. ¶ 7 (Appx. 23-24); Grado Decl. ¶¶ 9-10 (Appx. 35-36). Thus, Peters' Friday afternoon statement that he felt too ill to work on Sunday, either alone or in combination with his statement that he also had plans, formed no part of Edgar's reasoning, since she did not know about it at the time. Finally, Peters' statement that he had plans and felt ill is not, as BCI contends, "inherently contradictory and suspicious." See BCI Brf. 36. Indeed, as Peters explained in his deposition, originally he and his cousin had planned to go out of town for the weekend and meet up with other friends. Because he felt ill, however, Peters cancelled his weekend travel, went to the doctor on Saturday, and spent the rest of the weekend recuperating from his diagnosed sinus infection. Peters Dep. at 122-24, 145-52 (Appx. 58, 194-95). Contrary to BCI's assertion that "reasonable minds cannot differ," BCI Brf. 37, a reasonable jury could conclude that Peters, asked by his supervisor on a Friday afternoon to work on Sunday, might mention he had prior plans and then go on to inform his supervisor that he was also not feeling well. Although BCI could certainly argue to the jury, as it argues to this Court, that Peters' illness did not excuse his absence from work on Sunday because "even if he [had] started feeling better, he still had his ‘plans' to attend to," BCI Brf. 37, a reasonable jury would not be compelled to agree with BCI. B. EEOC Presented Sufficient Evidence of Grado's Discriminatory Animus to Withstand Summary Judgment. The district court correctly concluded that "EEOC created a genuine issue of fact whether Grado was biased against African Americans." Slip op. at 34 (Appx. 290); see also id. at 37 (Appx. 293) ("there is evidence in the record that Grado may have harbored racial bias against African Americans"). This evidence of Grado's racial bias, combined with the other circumstantial evidence EEOC presented below, was sufficient to defeat summary judgment. EEOC was not required to offer, in addition, concrete or tangible evidence that "Mr. Grado harbored any specific ill will towards Mr. Peters, or wanted to get Mr. Peters fired," as BCI wrongly asserts. BCI Brf. 28, 38-42. EEOC's evidence of Grado's less favorable treatment of African American employees, along with the other circumstantial evidence EEOC presented below, provides a sufficient basis for a jury to infer that Grado was motivated by racial animus when he chose to involve the Human Resources ("HR") Department and then misinformed Edgar about the substance of his conversations with Katt and Peters. The affidavits of James Young, Bryan Esquibel, and Michael Wilson, Appx. 180-86, are not "merely conclusory," and BCI ultimately acknowledges as much. BCI Brf. 39 (conceding that Young and Wilson elaborated on their general statements that Grado treated African Americans worse than other employees). Each affidavit is based on personal observations made while working under Grado's supervision, and each affiant provides specific examples to support the Commission's assertions that Grado treated African American employees worse than non-African American employees. For instance, James Young said he personally observed Grado's disparate treatment of African American employees and left BCI because of Grado. Young attested that Grado "nit-picked" his work and "constantly threatened to change [his] days off and . . . route." Appx. 181. Young further stated that one time Grado made this threat because Young had left a store's back room a bit messy during a particularly busy period, but Young witnessed Damien Mirabal (a non-African American merchandiser under Grado's supervision) leave similar back room conditions many times without repercussions. Id. Although BCI argues that Mirabal was eventually terminated for attendance and performance-related problems, BCI Brf. 40, a jury could conclude that Grado tolerated more extensive performance deficiencies from Mirabal before taking action, in contrast to Grado's "constant" threats to Young for less egregious performance deficiencies. Michael Wilson attested that Grado made many race-based jokes and remarks, providing three specific examples. Appx. 184-85. Wilson further stated that Grado treated Hispanic merchandisers with respect while continually demeaning Wilson and threatening to replace him. Appx. 185. Wilson related that Grado often called him and the two other African American merchandisers back to a store to redo some minor detail, in contrast to Hispanic merchandisers who were not subjected to this same level of scrutiny. Id. Wilson attested that he left BCI in part because of Grado's race-based remarks, constant threats to fire him, and "unusually high level of scrutiny regarding [his] work to which Hispanic Merchandisers were not subjected." Appx. 185-86. Bryan Esquibel also personally observed Grado treat African American employees worse than Grado treated non-African American employees, supporting this general statement with the names of six BCI employees (all with Hispanic names) who were not fired even though they did not follow directives. Appx. 182–83. And although BCI argues that Peters "fails to describe even a single example of this alleged discriminatory treatment," BCI Brf. 41-42, the incident leading to Peters' discharge is just such an example supporting Peters' more general statement (Appx. 145) that he perceived Grado treated him worse than non-African American employees. BCI challenges EEOC's assertion that Grado over-scrutinized African American employees, arguing there is no evidence that Grado brought any performance issues to the attention of the HR Department or that any other African American employee was terminated while working under Grado's supervision. BCI Brf. 40. Involvement by the HR Department does not necessarily follow from excessive scrutiny, however, so the fact that Grado did not involve the HR Department does not disprove that Grado was more demanding of African American employees than non-African American employees. In any event, the only African American employees who worked for Grado around this time, other than Peters, both attested that they left BCI, at least in part, because of Grado's mistreatment. Appx. 181, 185-86. BCI errs in arguing that Grado's racial jokes and comments to another employee are not probative of whether Peters' termination was motivated by racial bias. See BCI Brf. 40-41. Although the decision to discharge Peters was made by Edgar, she relied entirely on information supplied by Grado in deciding Peters had been insubordinate on September 28, 2001. Thus, any racial animus on Grado's part is relevant to whether Peters' discharge was "because of" his race. It does not matter that Grado made the racially-disparaging jokes and comments to another merchandiser and in a context unrelated to Peters' discharge. Statements "not amounting to direct evidence, but showing some racial animus, may be significant evidence of pretext once a plaintiff has set out the prima facie case." Jones v. Bessemer Carraway Medical Cntr., 151 F.3d 1321, 1323 n.11 (11th Cir. 1998) (per curiam); see also cases cited in EEOC Brf. 35-36; cf. Reeves, 530 U.S. at 151-52 (evidence of age-based differential treatment and ageist comments by person who substantially influenced decision relevant to age discrimination claim) . In particular, racially-derogatory jokes and comments, along with evidence of general differential treatment based on race, are the type of circumstantial evidence that can support a jury's finding that an employment action was motivated by intentional race discrimination. See, e.g., Carter, 727 F.2d at 1230-33, 1235-36 (applying "analogous" Title VII standards to case arising under section 1981 of the Civil Rights Act of 1870, and holding that a single racial joke was properly submitted to jury as one piece of plaintiff's circumstantial evidence of intentional race discrimination). Although we agree that "[i]solated comments unrelated to the challenged action are insufficient to show discriminatory animus," see BCI Brf. 40 n.16, the comments EEOC relies on here are related to the challenged action because they were made by someone directly involved in the decisionmaking process. Indeed, Grado was Edgar's sole source of information for the incident on which she relied "first and foremost" in deciding to discharge Peters. See Edgar Decl. ¶ 13 (Appx. 26). Since a jury could conclude, from Grado's racial comments, that Grado harbored general animus toward African Americans, and since a jury could infer that Grado acted out of that animus when he treated African American employees less favorably than non-African American employees, the requisite "nexus" is established here between Grado's racial comments and Peters' termination. To the extent BCI challenges EEOC's evidence based on alleged inconsistencies with other evidence, those arguments are properly presented to a jury. If BCI questions how Young, Esquibel and Wilson knew some of the information to which they attest, see BCI Brf. 39, BCI can ask these witnesses at trial, on cross examination. Likewise, that Jeff Katt expressed some uncertainty about his recollection concerning Grado's use of the word "nigger" (or something similar) to refer to Peters, see EEOC Brf. 13, does not make the statement inadmissible, as BCI argues. BCI Brf. 41 n.17. Since each of these witnesses attests that his testimony comes from personal knowledge, it is admissible at trial. Fed. R. Evid. 602. Any inconsistencies or uncertainty in witness knowledge or recollection can be explored on cross-examination and weighed by the jury. See United States v. Cook, 949 F.2d 289, 293-94 (10th Cir. 1991) (even internally contradictory testimony is admissible if within witness' personal knowledge; jury properly determines which version is true); Barto v. Armstrong World Indus., 923 F. Supp. 1442, 1445 (D.N.M. 1996) ("Absolute certainty . . . of observation or . . . recollection is not required to establish personal knowledge . . . . [only] opportunity to observe and a belief that what is related depicts the perception.") (citation omitted). In sum, EEOC's arguments are not based on "mere speculation and conjecture," as BCI asserts, BCI Brf. 28, but on the kind of circumstantial proof of discriminatory animus accepted by this Court and other circuits in employment discrimination cases. A jury is entitled to infer racial motivation from facts such as this, as the district court properly concluded. See Garrett v. Hewlett Packard Co., 305 F.3d 1210, 1219 n.5, 1220 (10th Cir. 2002) (plaintiff may prove intentional discrimination with circumstantial evidence; "viewed in the aggregate," evidence sufficient to raise genuine doubt about defendant's motivation); Randle v. City of Aurora, 69 F.3d 441, 455 (10th Cir. 1995) (same). C. Similarly-Situated Non-African American Employees Were Treated Better than Peters. EEOC presented evidence below that BCI treated similarly-situated, non-African American merchandisers more favorably than Peters for similar infractions. EEOC Brf. 23-27. BCI argues that, as a matter of law, each of the employees mentioned is sufficiently dissimilar to Peters to defeat an inference of race discrimination. See BCI Brf. 43-49. BCI is free to argue these "differences" to the jury, but BCI is wrong that this Court should reach this conclusion as a matter of law. As this Court has stated, "[t]he infractions giving rise to the comparison need not involve exactly the same offenses; they need only be of comparable seriousness." EEOC v. Flasher Co., Inc., 986 F.2d 1312, 1316 (10th Cir. 1992). Each of the proffered comparisons identified by EEOC are sufficiently similar to warrant a jury's determination of whether Peters' termination was tainted by Grado's racial animus. The first comparator, Monica Lovato, was not one of Grado's merchandisers when Peters was terminated, see Appx. 40 (listing merchandisers Grado supervised as of 9/30/01), but she was on Grado's team two months later. See Appx. 232 (listing merchandisers Grado supervised as of 11/25/01). Grado asked Lovato to work one of her days off on a weekend when she already had plans (she was celebrating her birthday). Lovato reluctantly agreed to work, and then just didn't show up. Although she did not call in sick or offer any reason for not working, she received no discipline, and Grado did not refer the matter to the HR Department. See EEOC Brf. 13-14, 24. Two things are significant about this situation, as compared to Grado's treatment of Peters. First, although BCI emphasizes that not showing up for work without calling in results in a lesser penalty than for "insubordination," BCI Brf. 45; see Appx. 52 (1 day "no call, no show" subject to written warning), Lovato was not disciplined even under this lesser scale. Indeed, Lovato never received any kind of discipline or warning, formal or informal, for ignoring her assigned weekend overtime. Compare "Attendance Policy" ("Failure to call or notify . . . supervisor may result in immediate disciplinary action.") (Appx. 51) with Pedersen Decl. ¶ 14 (Lovato never disciplined during her employment with BCI) (Appx. 46). Second, Grado responded to Lovato's unexcused absence by stating, "You can't make an employee work on their day off." Id. If Grado had not made this statement, and if BCI had disciplined Lovato pursuant to the company's progressive discipline policy, BCI's argument that the cases are too dissimilar to support an inference of race discrimination might have more sway. As it is, however, Grado's indulgent response to Lovato's refusal to work cannot be reconciled with his decision to give Peters an insubordination warning when Peters said he had plans and wasn't feeling well. At a minimum, it suggests Grado applied a double standard, presenting a question for the jury for decide. BCI emphasizes that the main difference between Lovato's infraction and Peters' is the element of "insubordination" – defying a superior's direct order, regardless of what the order is. BCI Brf. 45. If this were actually true, however, Grado would not have ignored Arturo Lopez's blatant defiance of Grado's direct order to call him when Lopez was working one of his stores. See EEOC Brf. 14, 25-26. BCI argues that Grado had no reason to contact the HR Department because Lopez never returned to work and was eventually deemed to have left his job. BCI Brf. 46-47; Appx. 48 (absence of three consecutive work days without notifying company is subject to immediate discharge). At the time, however, Grado did not know that Lopez would not show up for work. In contrast to the speed with which Grado acted following his conversation with Peters – calling Edgar back on Friday afternoon, without even waiting to see if Peters would heed the insubordination warning and show up for work on Sunday – Grado never contacted the HR Department in response to Lopez's defiance. Pedersen Decl. ¶ 12 (Appx. 45). What is clear from the evidence is that irrespective of the particular context in which it occurred, Grado treated employee "defiance" differently depending on whether the offending party was Hispanic or African American. He tolerated such behavior from Hispanic employees but not African American employees. BCI also argues that Brian Esquibel is not a proper comparator because Grado was not Esquibel's supervisor. BCI Brf. 48-49. EEOC cited this example, however, because it highlights that BCI did not apply its personnel policies in an even-handed manner. One would ordinarily expect a company to hear both sides of the story before terminating an employee for alleged insubordination. Indeed, this is exactly what BCI did when Esquibel's supervisor reported that he had defied a direct order, even though Esquibel had challenged his supervisor to "[g]o ahead and fire me." Appx. 55; EEOC Brf. 14-15, 27. Peters was never given a similar chance, before being discharged by BCI, to explain why he did not work on Sunday. D. Grado's Discriminatory Animus Is Properly Imputed to BCI on These Facts. BCI errs when it argues that Peters' termination could not have been motivated by race discrimination because Edgar, who had sole authority to terminate Peters, did not know Peters was African American when she made her decision. EEOC agrees that if Edgar was simply mistaken in her belief that Peters had no compelling reason not to work on Sunday, this would not demonstrate pretext. See BCI Brf. 37 n.14. Edgar was not merely "mistaken," however, and EEOC is not asking this Court to "second guess the business judgment of an employer," as BCI further suggests. BCI Brf. 54 n.22. Rather, EEOC contends that Grado, motivated by racial animus, misled Edgar by his intentional misrepresentations of the facts, and that BCI is liable for the resulting adverse treatment under the "cat's paw" theory this Court expressly recognized in English v. Colorado Department of Corrections, 248 F.3d 1002 (10th Cir. 2001) (employer liable where biased subordinate influences decision and decisionmaker does not independently investigate complaint against employee). Contrary to BCI's arguments, BCI Brf. 53, the "cat's paw" theory is properly applied in this case. As noted above and in EEOC's opening brief, in a number of critical respects, the information Grado conveyed to Edgar on Friday afternoon, on which Edgar says she primarily based her termination decision, was neither "accurate" nor "undisputed." What is undisputed, however, is that Edgar conducted no independent investigation of these critical events. Thus, even if Grado made no express recommendation concerning Peters, he plainly had a substantial influence over BCI's decision to terminate Peters because the information he supplied to Edgar provided the entire basis for her conclusion that Peters was insubordinate. BCI's argument that Edgar independently investigated the situation before taking any action by asking Pedersen to pull Peters' personnel file, BCI Brf. 54, is completely beside the point, as it goes only to the single past disciplinary action that Edgar took into account incidentally. BCI misrepresents the record when it argues that Peters' "prior history of insubordination . . . played a significant role" in Edgar's decision to fire Peters. BCI Brf. 52 (emphasis added). Edgar says she based her decision to fire Peters "[f]irst and foremost" on his alleged conversation with Grado. With respect to the prior incidence of insubordination, Edgar states only that it "also contributed to my decision." Edgar Decl. ¶ 13 (Appx. 26). Thus, the information Pedersen supplied did not play a significant role in Edgar's decision. <4> BCI attempts, unsuccessfully, to distinguish the cases from other circuits cited in EEOC's opening brief. See BCI Brf. 53-54 and n.21. Grado's influence in this case may have taken a slightly different form, given the absence of an express recommendation, but it had no less of an impact, in practical terms. Since Edgar concedes that she conducted no independent investigation of the critical facts here, the "cat's paw" analysis of English is properly applied in this context, as we explained fully in the Commission's opening brief. See EEOC Brf. 30-36. E. A Reasonable Jury Could Infer from the False Representations in Edgar's Declaration that BCI Was Attempting to Cover-Up Grado's Racially- Biased Actions After-the-Fact. BCI argues that any misrepresentations in Edgar's declaration are immaterial because her motivation is not at issue here, since she allegedly did not know Peters' race when she decided to terminate him. BCI's argument misses the point. EEOC does not rely on Edgar's misrepresentation as evidence that Edgar harbored any racial bias at the time of her decision. As explained above and in the Commission's opening brief, the alleged bias derives from Grado. Grado's bias is properly imputed to BCI, we assert, because Grado was Edgar's sole source of information concerning the events immediately preceding Peters' termination. Edgar's misrepresentations are at issue, however, because they are contained in sworn statements BCI offered in defense of this lawsuit. For Edgar to assert affirmatively that she took something into account (Peters' Saturday evening sick-call to Katt) that she could not have known when she made her decision suggests BCI was trying, after the fact, to cover up the real course of events – that in delivering an "insubordination" warning to Peters and then reporting a skewed version of the telephone call to Edgar, Grado treated Peters more harshly than similarly-situated employees, because of Peters' race, and used Edgar to effectuate his discriminatory intentions. That Edgar terminated Peters without knowing he had called in sick would not be evidence of race discrimination, in and of itself. Such a course of events could be nothing more than poor business judgment or inept personnel decisionmaking. But trying to cover it up after-the-fact – attempting to lead the district court to believe Edgar made her decision with knowledge of Peters' sick call, when it is clear (if EEOC's witness is believed) that Edgar could not have known this until later – suggests strongly that BCI is trying to hide something. A reasonable jury would be entitled to infer that BCI is trying to hide Grado's discriminatory animus. Thus, BCI is simply wrong when it argues that it does not matter at this point whether Edgar learned about Peters' sick-call to Katt before or after she made her decision. BCI Brf. 56. Edgar's false assertion that she knew about the sick call and took it into account when she made her decision, Edgar Decl. ¶ 14 (Appx. 26-27), is sufficient to permit a reasonable jury to infer BCI is trying to cover up Grado's discriminatory intent. In the alternative, BCI asserts that Edgar's statements are consistent with Katt's testimony concerning when he first told Grado that Peters had called in sick. BCI Brf. 57. The record does not support this claim. First, BCI misquotes Edgar when it states that she said she made her decision "at the end of the day" on Monday. BCI Brf. 57. Edgar says, initially, that she made her decision "[b]y the end of the day [on] Monday," see Edgar Decl. ¶ 13 (Appx. 26) (emphasis added), and then later clarifies: "[o]n Monday afternoon, I instructed Mr. Grado and Ms. Pedersen to meet with Mr. Peters on Tuesday morning and tell him he was being terminated . . . ." Edgar Decl. ¶ 17 (Appx. 17) (emphasis added). The latter time frame is consistent with Pedersen's recollection. See Pedersen Decl. ¶ 7 (Appx. 44) ("On Monday afternoon" Edgar told Grado and Pedersen that Peters would be terminated for insubordination). This places the termination decision well before Katt informed Grado for the first time, on Monday evening, that Peters had called in sick and was excused on Saturday. Second, Katt's recollection of the time and date of his telephone conversation with Grado is not as uncertain as BCI represents. BCI is correct that Katt initially said he did not remember exactly when he told Grado that Peters had called in sick over the weekend. BCI Brf. 58. Katt was absolutely certain, however, that the conversation took place the night before Peters' termination. Katt Dep.I at 64:16-21 (Appx. 203) ("I can't remember if it was Sunday or Monday night . . . . I believe it was Monday night that [Grado] told me that Steve was going to be terminated. And if I just know the date Steve was let go, that's – it was the night before, whether that would be Sunday or Monday."). Even more telling is the context in which the topic came up – as Katt and Grado were planning the next day's assignments. Katt asked Grado why he was assigning someone else to cover Peters' route, and Grado said: "I think I'm going to terminate him," or something to that effect. Id. at 65:8-16 (Appx. 203). Since BCI maintains that Grado had no authority to discipline or discharge employees and that the decision to terminate Peters was made solely by Edgar, BCI Brf. 12, 23, a reasonable jury could infer from the fact that Grado was arranging for someone else to take over Peters' route that Edgar had made her decision at that point. It was after that exchange that Katt informed Grado, for the first time, that Peters had called in sick on Saturday evening. Id. at 66:1-67:10 (Appx. 204). BCI's attempt to suggest that due to time zone differences Edgar might have known of Katt's conversation with Grado prior to making the discharge decision, BCI Brf. 57, is disingenuous. The only reasonable inference from this evidence is that prior to her decision, Edgar could not have known that Peters had called in sick, regardless of what time zone she was in. In sum, as we explained in our opening brief and as we further clarify in this Reply, the record in this case contains numerous disputed issues of material fact. Crediting EEOC's witnesses on these disputed facts, a reasonable jury could conclude that Cesar Grado, Stephen Peters' manager, acted out of racial animus when he gave Peters an insubordination warning instead of asking Peters about his weekend plans or trying to accommodate his illness. A reasonable jury could further conclude that Grado was motivated by racial animus when he gave the decisionmaker, Patricia Edgar, a distorted description of his conversation with Peters, and that Edgar's decision to fire Peters flowed directly from Grado's misleading description of events. Viewed in the aggregate, this evidence is more than adequate to permit a reasonable jury to conclude that Peters' termination was "because of" his race in violation of Title VII. The district court erred in granting summary judgment to BCI. CONCLUSION For all of the foregoing reasons, EEOC respectfully urges this Court to reverse the district court's grant of summary judgment in favor of BCI and to remand this matter for a jury trial. Respectfully submitted, ERIC S. DREIBAND General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel SUSAN R. OXFORD, Attorney U.S. Equal Employment Opportunity Commission 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4791 Dated: June 6, 2005 CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation set forth in Fed. R. App. P. 32(a)(7)(B). This brief contains 7,000 words. See Fed. R. App. P. 32(a)(7)(B)(i). The brief was prepared using the WordPerfect 9 word processing system, in 14-point proportionally-spaced type for text and 14-point type for footnotes. See Fed. R. App. P. 32(a)(5). June 6, 2005 Susan R. Oxford CERTIFICATE OF SERVICE I, Susan R. Oxford, hereby certify that on this 6th day of June, 2005, I caused two copies of the attached brief to be sent by regular mail, postage prepaid, to counsel for BCI Coca-Cola Bottling Company of Los Angeles at the following address: E. Todd Presnell, Esq. MILLER & MARTIN LLP 1200 One Nashville Place 150 Fourth Avenue North Nashville, Tennessee 37219 tpresnell@millermartin.com On this same date, I am also e-mailing a copy of this brief to the U.S. Court of Appeals for the Tenth Circuit at esubmission@ca10.uscourts.gov and to counsel for BCI at the e-mail address noted above. The document that I am filing and serving electronically is an exact copy of the written document filed with the Court and served on counsel for BCI today. Prior to e-mailing this brief to the Court and counsel, I scanned the document using the Symantec AntiVirus program version 8.00.9374 on June 6, 2005, at approximately 3:00 p.m. No viruses were found. No privacy redactions were required before filing and serving this brief electronically. Susan R. Oxford EEOC / Office of General Counsel 1801 L Street, N.W., Room 7010 Washington, D.C. 20507 Tel. (202) 663-4791 June 6, 2005 Fax. (202) 663-7090 susan.oxford@eeoc.gov ***************** <1> EEOC recognizes that it is not the Commission’s role to dictate to employers how to run their businesses. In this instance, however, it is EEOC’s contention that Grado was motivated by racial animus when he ordered Peters to work even though Peters said he felt ill, instead of asking the other available merchandisers to split Mirabal’s route as was normally done when coverage was needed. <2> Peters disputed Grado’s contention that he offered Peters the chance to work Saturday instead of Sunday. See Peters Aff. ¶¶ 23-24 (Appx. 145). If the jury believes Peters’ testimony, this difference in accounts would provide additional support for a jury to find that Grado lied in his declaration. <3> Contrary to BCI’s claim that the company’s sick-leave policy permits an employee to call in sick only on the morning he or she is supposed to be working, BCI Brf. 51-52; Edgar Decl. ¶ 5 (Appx. 23), the policy merely requires that the employee call in “at least one-half hour prior to their regular starting time” and “at the beginning of each day of an absence . . . unless other arrangements are made with their supervisor . . . .” Appx. 51. Merchandisers start working around 5:00 a.m. Katt Dep.I at 91:5-7 (Appx. 208). If a merchandiser knows the night before he will be too sick to work the next morning, nothing in BCI’s sick-leave policy prevents the employee from giving his supervisor additional time to make other arrangements. <4> BCI also argues that Grado could not have “orchestrated” Peters’ termination because he was unaware that Peters had received a 1999 warning for insubordination and, therefore, could not have anticipated that the incident he reported to Edgar would be viewed more seriously as a second infraction. BCI Brf. 52-53; see also BCI Brf. 49-51. It is immaterial that Grado could not have predicted exactly what disciplinary outcome his report to Edgar would generate. Indeed, it is entirely possible that Grado did not set out consciously to have Peters terminated; he may have envisioned that his contacts with Edgar would result in some lesser disciplinary consequence. The point is simply that EEOC’s evidence shows that Grado invoked the disciplinary process “because of” Peters’ race.