_____________________________________________ No. 10-15796 ____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ____________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. BELL MICROPRODUCTS, INC., et al. Defendants-Appellees. ____________________________________________________________ On Appeal from the United States District Court for the Northern District of Alabama ___________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT ____________________________________________________________ P. DAVID LOPEZ General Counsel CAROLYN L. WHEELER Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel PAUL D. RAMSHAW Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St., NE, Room 5SW18K Washington, DC 20507 202-663-4737 CERTIFICATE OF INTERESTED PERSONS Avnet, Inc., successor in interest to defendant-appellee Bell Microproducts, Inc. Bean, Julie, attorney for EEOC Bell Microproducts, Inc., defendant-appellee Blackwood, Vincent J., attorney for EEOC Crook, Debra Hawes, attorney for EEOC Equal Employment Opportunity Commission, plaintiff-appellant Guerrier, Charles, attorney for EEOC Hancock, William K., attorney for defendants-appellees Johnson, Inge P., United States District Judge Lopez, P. David, EEOC General Counsel Miller, Gerald L., attorney for EEOC Morrow, Eunice H., attorney for EEOC New ProSys Corporation, defendant-appellee ProSys Information Solutions, Inc., defendant-appellee ProSys Information Systems, Inc., defendant-appellee Ramshaw, Paul D., attorney for EEOC Smith, C. Emanuel, attorney for EEOC Wheeler, Carolyn L., attorney for EEOC I hereby certify that this list names each person and entity that, as far as the EEOC knows, has an interest in this case and appeal. s/ Paul D. Ramshaw Paul D. Ramshaw February 23, 2011 STATEMENT REGARDING ORAL ARGUMENT The Equal Employment Opportunity Commission respectfully requests that the Court hear oral argument in this case. The Commission believes that oral argument will assist the Court in understanding the EEOC's contentions that the district court erred by drawing inferences against the Commission and in other ways failing to view the evidence and the inferences that can be drawn from the evidence in the light most favorable to the EEOC, and by ruling that a reasonable jury could not find that the defendants' articulated reasons for transferring and terminating the charging party were pretextual. TABLE OF CONTENTS STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . i TABLE OF CITATIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii TABLE OF RECORD REFERENCES IN THE BRIEF. . . . . . . . . . . . . . . . . . . . . . . . v STATEMENT OF THE ISSUE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Course of Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 District Court Decision. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 THERE IS SUFFICIENT EVIDENCE TO SUPPORT A FINDING THAT DEFENDANTS' EXPLANATION FOR REMOVING PURCELL FROM HIS SALES JOB AND THEN TERMINATING HIM IS A PRETEXT FOR AGE DISCRIMINATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27 CERTIFICATE OF COMPLIANCE WITH RULE 32(a). . . . . . . . . . . . . . . . . . . . . . . 28 CERTIFICATE OF SERVICE TABLE OF CITATIONS FEDERAL CASES Alvarez v. Royal Atlantic Developers, Inc., 610 F.3d 1253 (11th Cir. 2010). . . . . 13 Bechtel Construction Co. v. Secretary of Labor, 50 F.3d 926 (11th Cir. 1995). . . . .17 Brown v. Ill. Department of Natural Resource, 499 F.3d 675 (7th Cir. 2007). . . . . 16 Byrnie v. Town of Cromwell, Board of Education, 243 F.3d 93 (1st Cir. 2001). . . 17, 21 Chaney v. Plainfield Healthcare Ctr., 612 F.3d 908 (7th Cir. 2010). . . . . . . . . 17 Dingman v. Delta Health Group, Inc., 26 F. Supp. 2d 1349 (S.D. Fla. 1998). . . . . . 24 Edwards v. EPA, 456 F. Supp. 2d 72 (D.D.C. 2006). . . . . . . . . . . . . . . . . . 16 Elrod v. Sears, Roebuck & Co., 939 F.2d 1466 (11th Cir. 1991). . . . . . . . . . . . 25 * Filar v. Board of Education of City of Chicago, 526 F.3d 1054 (7th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21-22, 25 Hill v. Augusta County. Schl. Board, 636 F. Supp. 2d 492 (W.D. Va. 2009). . . . . . 16 Hinson v. Clinch County Board of Education, 231 F.3d 821 (11th Cir. 2000). . . . . . 19 Jones v. National America University, 608 F.3d 1039 (8th Cir. 2010). . . . . . . . . 17 Kadas v. MCI Systemhouse Corp., 255 F.3d 359 (7th Cir. 2001). . . . . . . . . . . . 26 Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289 (4th Cir. 2010). . . . . . 21 Miller v. Eby Realty Group LLC, 396 F.3d 1105 (10th Cir. 2005). . . . . . . . . . . .17 Oncale v. Sundowner Offshore Services, Inc., , 523 U.S. 75 (1998). . . . . . . . . 25 Proud v. Stone, 945 F.2d 796 (4th Cir. 1991). . . . . . . . . . . . . . . . . . 23-24 Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318 (11th Cir. 1998). . . . . . . . . 18 Tidwell v. Carter Products, 135 F.3d 1422 (11th Cir. 1998). . . . . . . . . . . . 18 Velez v. Thermo King de Puerto Rico, 585 F.3d 441 (1st Cir. 2009). . . . . . . . . 17 * Wexler v. White's Fine Furniture, Inc., 317 F.3d 564 (6th Cir. 2003) (en banc). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24-26 * Williams v. Vitro Services Corp., 144 F.3d 1438 (11th Cir. 1998). . . . . . 24-26 Zaben v. Air Products & Chemicals, Inc., 129 F.3d 1453 (11th Cir. 1997). . . . . . 18 FEDERAL STATUTES Age Discrimination in Employment Act (ADEA), 26 U.S.C. § 621 et seq,. . . . . . . . . 1 28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1331. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1343(a)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1345. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 TABLE OF RECORD REFERENCES IN THE BRIEF Brief Page # Docket # 1-2, 11-13, 24-25 Memorandum Opinion 90 1 Order 91 1 EEOC's Notice of Appeal 97 2 EEOC's Complaint 1 2, 11 EEOC's Second Amended Complaint 17 2 Deposition of Joe Fiorenza as New ProSys designee 68-7 2-3, 6-8, 10 Deposition of Scott Byers 66-6 2-3, 5, 7-9, 16, 20 Deposition of Keith Drummond 68-4 2-3, 5-10, 16, 20 Deposition of Joe Fiorenza as Bell Microproducts designee 68-5 2, 4-8, 10 Exhibits to Purcell Deposition 68-3 3 New Employee Data Record for Jim Gilliam 79-3 3, 6-7, 16 Exhibit to Fiorenza Deposition as Bell Microproducts designee 68-6 3-6, 8-10 Deposition of James Philip Purcell 68-1 3-6, 8, 10, 19 Deposition of James Philip Purcell, continued 68-2 6 Affidavit of James Philip Purcell 79-1 6, 8, 10-11, 16 Deposition of Lee Fulghum 68-9 6 Part of Charles Richard Shepherd's Application to ProSys 79-2 7 April 2007 Employee Change of Status Form for Purcell 79-4 16 Defendants' Brief for Summary Judgment 72 16 Defendants' Reply re Summary Judgment 86 STATEMENT OF JURISDICTION The Equal Employment Opportunity Commission brought this action to enforce the Age Discrimination in Employment Act (ADEA), 26 U.S.C. § 621 et seq., and the district court had subject matter jurisdiction under 28 U.S.C. §§ 1331 (federal question), 1343(a)(4) (civil rights action), and 1345 (federal agency as plaintiff). This Court has appellate jurisdiction under 28 U.S.C. § 1291 because the decision being appealed, R-90, resolved all claims as to all parties. The appeal is timely under the 60-day provision in Federal Rule of Appellate Procedure 4(a)(1)(B): the district court entered final judgment on October 4, 2010, R-91, and the EEOC filed a notice of appeal on November 29. R-97. STATEMENT OF THE ISSUE Whether there is sufficient evidence to support a finding that the defendants' stated explanation for taking adverse actions against James Purcell is a pretext for age discrimination. STATEMENT OF THE CASE Course of Proceedings This is an appeal from an order of the U.S. District Court for the Northern District of Alabama granting the defendants' motion for summary judgment. R-90. The EEOC filed a complaint on September 30, 2009, alleging that the defendants violated the ADEA by discriminating against James Purcell on the basis of his age and by retaliating against him because he complained about age-related comments. R-1, R-17. The defendants filed a motion for summary judgment on August 23, 2010, R-71, and the district court granted that motion in an order entered October 4. R-90. Statement of Facts ProSys Information Systems, Inc. ("Old ProSys"), based in Atlanta, sold computer equipment to large-volume clients. R-68-7 at 4-5. In 2002 Old ProSys hired Scott Byers as the head of sales for the Tennessee Valley region, which included Alabama. R-66-6 at 9-10, 47; R-68-4 at 5; R-68-5 at 32-33. Byers was based in Nashville. R-66-6 at 11. Old ProSys then had hardly any customers in Alabama and no sales representative based there. In the spring of 2005, Byers, then 31 years old, recruited James Purcell to work as the company's first sales representative in Alabama. R-66-6 at 2, R-68-3 at 5-6, R-68-5 at 37. Purcell was based in Birmingham. He was 56 years old and had 20 years of experience in computer sales, primarily in Alabama and Mississippi. R-68-3 at 4, 7, 9-10. In April 2006, Old ProSys hired Keith Drummond as a sales director to supervise the sales force in Byers' region. R-66-6 at 75, R-68-4 at 5-6, 24. Drummond reported to Byers and, like Byers, was based in Nashville. R-68-4 at 7, R-68-5 at 50. In May 2006, Jim Gilliam started working as Old ProSys's second account executive in Alabama. R-66-6 at 24, 69. Gilliam was nine years younger than Purcell, and he was based in Huntsville. R-79-3; R-68-6 at 27. On May 23, 2006, Byers and Drummond came to a meeting in Birmingham so that Purcell and Drummond (Purcell's new supervisor) could meet each other. R-68-1 at 27, 31, R-68-4 at 12. Chase Wilkinson, the lead engineer in Byers' region, also attended. Id. Old ProSys's engineers supported the account executives in designing, selling and servicing IT systems. Purcell testified that, while Byers was away from the meeting, Drummond described or addressed Purcell at least three times as "old" or "old guy." R-68-1 at 28-29, R-68-2 at 3. The next day, Purcell complained to Byers about Drummond's comments. R-68-1 at 34. He told Byers that Drummond had called him "old" several times in front of Wilkinson, that this was not right, and that Purcell was afraid that because Drummond had belittled him in this way, Wilkinson would not give him the engineering support he needed. R-68-2 at 6. According to Purcell, Byers did not offer to investigate; instead, Byers criticized Purcell for not being able to take a joke. Id. Joe Fiorenza, Old ProSys's HR director, testified, however, that Byers promptly relayed Purcell's complaint to him and that he informed Drummond of the complaint. R-68-5 at 44-45. On May 25, the day after Purcell complained to Byers about Drummond's comments, Byers transferred Colonial Bank, one of Purcell's more lucrative accounts, to the younger Gilliam. R-68-1 at 44. As a result of losing this account, Purcell lost the commissions on "hundreds and hundreds" of orders that the bank later placed with Old ProSys. R-68-1 at 35, R-68-2 at 5. Over the next few weeks, Byers and/or Drummond transferred 31 more of Purcell's 87 accounts to Gilliam. R-68-2 at 6-8, R-68-3 at 1-3. Byers had previously told Purcell that the company had a policy barring the transfer of accounts away from an account executive. R- 68-1 at 39, 44. In late August 2006, Wilkinson emailed Byers, Purcell and others his notes from interviewing three candidates for an engineer position. R-68-3 at 58-59. Wilkinson's notes about Matt Bynum, his top choice, started with the comment: "Younger (23)-Diverse skill set for that age." Id. Purcell forwarded this email from Wilkinson to Byers with the comment: "Younger ?????" Id. Byers answered that Wilkinson meant that Bynum was "younger than the other 2 and very knowledgeable for his lack of experience." Id. When Purcell raised the matter in a subsequent phone conversation, Byers told Purcell that he should stop worrying about these comments and focus on selling. R-68-2 at 9. On September 14, when Byers came to Birmingham for a conference, Purcell again expressed his concern to Byers about the age comments. R-68-2 at 10-11. Within a few days of this conversation, Byers told Purcell that he was changing Purcell's compensation structure and taking more accounts away from him. R-68-1 at 45, R-68-2 at 11-12. Purcell had been earning 22% commissions with a monthly $8,000 draw on those commissions. R-68-3 at 5. The new package was an annual salary of $96,000 plus 10% commissions on sales. R-68-3 at 47. Purcell believes that, if he had not had accounts taken away from him, he would have earned more money under the original package than under the new one, but he was unable to say how this change in compensation structure affected his actual income. R-68-1 at 12. Byers also took another 38 accounts away from Purcell and gave them to Gilliam, and he announced that all new customer leads in Alabama should be directed to Gilliam. R-68-2 at 11-13, R-68-3 at 1-3. Byers' confirming email (dated September 22) stated that as a result of these account transfers, Purcell would be left with only six accounts or categories of accounts. R-68-2 at 12, R-68-3 at 47. This was such a short list that Drummond, Purcell's direct supervisor, doubted that it could be a complete list of his accounts. R-68-4 at 18. Effective October 1, 2006, Bell Microproducts Inc. ("Bell Micro") acquired an interest in Old ProSys and formed a wholly owned subsidiary called ProSys Information Solutions, Inc., doing business as New ProSys Corporation ("New ProSys"). R-68-5 at 25. Almost all of Old ProSys's 300 or so employees (including Purcell and all of the Old ProSys employees mentioned supra) became employees of New ProSys and/or Bell Micro. Id. Byers testified that the company transferred most of Purcell's accounts to Gilliam in September because Don Bell, Bell Micro's CEO, told New ProSys to assign an account executive full time to the Retirement Systems of Alabama ("RSA"), which had helped fund Bell Micro's acquisition of Old ProSys. R-66-6 at 34-35. According to Byers, Purcell was selected as that dedicated agent, and, for that reason, most of Purcell's accounts were transferred to Gilliam. Id. The record contains no contemporary documents supporting this explanation, and Purcell testified that he was never instructed to focus his activities on RSA. R-79-1 at 2-3. In March 2007, Purcell had a telephone conversation with Byers in which he again mentioned Drummond's age-related remarks. R-68-1 at 22, 45. In April 2007, about three weeks after that telephone conversation, Purcell was transferred from being an account executive to being New ProSys's HP practice manager. R- 68-1 at 45. His principal duties were to stimulate sales of HP equipment and ensure that New ProSys's account executives took full advantage of HP's sales incentives programs. R-68-6 at 28; R-68-9 at 10. All of his remaining accounts were taken away from him, with most going to Richard Shepherd. R-68-1 at 59, R-68-3 at 1-3, 60. Shepherd was about 43 years old, R-79-2 at 1, had been working for New ProSys as an engineer, had no sales experience, and had become an account executive only the previous month. R-68-2 at 2, R-68-5 at 49. Purcell's new compensation package was an annual salary of $96,000, as before, but now with no provision for supplementing that salary with commissions on sales. R-68-5 at 54-55 (pp. 216-17), R-79-4 at 1. During the EEOC's investigation, the defendants stated that they took accounts away from Purcell because of his poor sales performance and because of several complaints they had received about him, and then transferred him out of sales because he was not "as effective as he should be in a direct sales role." R-68- 6 at 27-28. There is conflicting evidence about Purcell's performance as a salesperson. Drummond testified that Purcell's sales figures were below average for Old ProSys's account executives, R-68-4 at 15, but in email messages listing the gross profits attributable to each account executive in the region between February and July of 2006, Purcell ranked below the mean only once in six months, and in three of the six months he ranked number two or three out of a dozen or so account executives. R-68-3 at 39-44. Purcell's sales did decline after September 2006, compared to earlier periods, but this was after the defendants had transferred most of his accounts to Gilliam. R-66-6 at 71-73. Even then, however, his sales ranked above the mean for account executives in Byers' division as often as they did below it. Id. During discovery, however, the defendants' witnesses did not rely on Purcell's performance or on alleged complaints about him to justify their decision to remove him from a direct sales role. Instead, they testified that they created the new position because HP was lobbying them to do so, it was common for ProSys to have such positions for large manufacturers, and they believed that an HP practice manager would increase sales and commissions. R-68-4 at 19; R-68-5 at 41; R-68-9 at 10. In his new position Purcell reported to Lee Fulghum in Atlanta, who had overall responsibility for New ProSys's relations with HP. R-66-6 at 35; R-68-9 at 9-10. Byers testified that Purcell was chosen to fill the new position because he had worked with Fulghum at HP before coming to ProSys and had special expertise in HP's "blade servers." R-66-6 at 36, 75. Purcell testified that Byers tried to convince him that the new position was desirable, but did not give him the option to reject it. R-68-2 at 3. The defendants characterized this transfer during discovery as a promotion, R-68-4 at 19, but they offered no evidence to justify that characterization, aside from Purcell's alleged admissions.<1> The Commission challenged this characterization because Purcell's compensation package went down instead of up: from $96,000 salary plus 10% commission on sales to $96,000 salary with no commissions on sales. In the new position Purcell had no accounts and was not supposed to make any sales, R-68-1 at 59; R-68-5 at 54-55 (pp. 216-17), so could not earn commissions, but he did not receive a raise to compensate for this loss of commission income. Moreover, the new position was less secure than his former position had been. Drummond testified, for example, that ProSys rarely laid off salespeople because they are the "revenue generating team," and was more likely to lay off people in "engineering, overhead [or] overlay" positions, such as Purcell's practice manager job. R-68-4 at 20 (HP practice manager was an overlay position), 22. Fiorenza agreed, testifying that "nonproducers and overhead-type positions naturally are two areas that you would look at first" in deciding whom to RIF. R-68-5 at 33. Drummond also testified that if the engineers were doing their job properly, the account executives had little need of a practice manager. R-68-4 at 20. The defendants' witnesses also conceded that RIFs are endemic in computer sales and occurred regularly at ProSys after the acquisition by Bell Microproducts. Drummond testified that RIFs are "somewhat normal in our industry depending on how the industry is performing," and "there had been several force reductions after Bell Micro purchased ProSys." R-68-4 at 21. According to Drummond, he already knew that New ProSys was "getting ready to go through a force reduction" when he learned that Purcell was going to be terminated. Id. Byers testified that there were "many rounds" of RIFs at New ProSys, starting "right after Bell acquired us." R-66-6 at 38. "After Bell came in," he testified, "it seemed like to me every quarter, Bell came out with a program" requiring a head-count reduction, and "that happened over, and over, and over again." Id. Purcell started working in his new position in the middle of April 2007. Two months later, on June 15, Purcell was informed that his new position was being eliminated and he would be terminated. R-68-1 at 8, R-68-3 at 4, R-68-9 at 18. Purcell asked if he could return to his former position as account executive, but Byers responded that his returning to sales was not an option. R-68-1 at 19, R- 68-2 at 2. According to the defendants' witnesses, Purcell's termination had nothing to do with his performance as HP practice manager; rather, his position was eliminated in a RIF. R-68-9 at 13. Fiorenza testified that he first heard about the RIF in late May or early June, and that the order to reduce New ProSys's headcount by five percent was issued by Bell Micro on June 8. R-68-5 at 31-32. Fulghum testified that he was told to cut two people, he recommended eliminating Purcell's practice-manager position and terminating an employee in his 30s (because eliminating those two people would have the least business impact on his team), and Byers approved those recommendations. R-68-9 at 14-17. The Commission alleged in its complaint that all of the adverse actions recited above were retaliatory and that the 2007 demotion and termination were motivated by age animus. R-17 at 4-5. District Court Decision The district court stated that, to prevail on its age discrimination claim, the Commission "must demonstrate that but for his age, Purcell would not have been selected for the reduction in force." According to the court, the Commission "failed to provide any evidence from which a reasonable finder of fact could reach this conclusion." R-90 at 18. The court stated that "the defendant asserts that at the time Purcell was promoted into the HP practice position, the reduction in force had not been announced." Id. at 20. The court added that "the defendants have provided testimony both that HP wanted such a position created, and that HP had all sorts of incentives that could be obtained if a person was dedicated to HP." Id. The court stated, "Because the defendant had legitimate, nondiscriminatory reasons for its actions, the presumption of discrimination is eliminated and the plaintiff has the opportunity to come forward with evidence, including the previously produced evidence establishing the prima facie case, sufficient to permit a reasonable factfinder to conclude the reasons given by the employer were not the real reasons for the adverse employment decision." Id. (internal quotation omitted). According to the court, the Commission "failed to demonstrate Purcell was selected for the reduction in force, or in any other way, treated differently because of his age." R-90 at 21. The court reasoned that the Commission was required to offer a greater quantum of evidence of discrimination and pretext than normal because: (a) the evidence showed that Byers was not involved in selecting Purcell's practice-manager position for elimination in June 2007; (b) Drummond and Fulghum were both themselves in their 50s; and (c) Purcell was already in his late 50s when ProSys hired him in 2005. Id. at 21-22. The court concluded that it was "left with no more than the plaintiff's assertion that Purcell really was terminated because of his age, in spite of the lack of evidence to establish such a fact." Id. at 23 (footnote omitted). In dismissing the retaliation claim, the district court noted that in order to show protected opposition activity, the Commission had to show that Purcell believed the conduct he opposed violated the ADEA and that his belief was objectively reasonable. R-90 at 13-14. According to the court, the Commission "has wholly failed to address the subjective or objective reasonableness of Purcell's belief that his employer was engaged in unlawful employment practices." Id. at 14. The court stated that "Purcell does not even state that his employer was engaged in unlawful practices, but only that he did not like being referred to as 'old guy.'" Id. at 14-15. The court also ruled that the EEOC failed to prove a causal connection between Purcell's complaints and the adverse actions because, "each time accounts were shifted from Purcell, defendant have [sic] demonstrated a pre- existing legitimate reason for such actions." Id. at 16. STANDARD OF REVIEW This Court reviews a district court decision granting summary judgment de novo, viewing the evidence and all reasonable inferences in the light most favorable to the non-moving party. Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1263-64 (11th Cir. 2010). SUMMARY OF ARGUMENT The district court erred in ruling that the EEOC failed to offer sufficient evidence of pretext. In their motion for summary judgment, the defendants argued that the April 2006 transfer to the practice-manager position was not an adverse action because it was a promotion. The Commission submitted substantial evidence that this characterization of the transfer was pretextual. It represented a significant change in the defendants' story because, during the EEOC's investigation of Purcell's charge, the defendants justified the transfer by pointing to Purcell's allegedly poor performance and to complaints they had purportedly received about him, clearly implying that the transfer was a demotion. Purcell testified he was not given the option of declining the transfer. Moreover, his compensation package decreased, and his new position was less secure (i.e., more susceptible to elimination in a RIF). In addition, it is inherently improbable that an employer would take away most of a salesperson's accounts so he could serve as the dedicated agent for a large institutional client, about seven months later remove him from sales altogether because it was important to have an HP practice manager, and then two months later decide that the new position should be one of the first to be eliminated in a RIF. Further evidence of pretext and age discrimination included the ageist comments by Purcell's new supervisor and the fact that three times in a row the defendants took away a substantial segment of Purcell's accounts and transferred them to co-workers who were significantly younger, in the process completely removing him from their sales force. The district court found insufficient evidence of pretext in part because it relied on the same-actor and same-group inferences, but the court erred in drawing these inferences on summary judgment against the Commission, the non-moving party. ARGUMENT THERE IS SUFFICIENT EVIDENCE TO SUPPORT A FINDING THAT DEFENDANTS' EXPLANATION FOR REMOVING PURCELL FROM HIS SALES JOB AND THEN TERMINATING HIM IS A PRETEXT FOR AGE DISCRIMINATION. The defendants asserted in the district court that they transferred Purcell from his sales job to the practice-manager position because there were compelling business reasons to create the practice manager position and he was considered the best qualified for the job. They also asserted that Purcell was terminated two months later because that same position was considered the most expendable when they were required to reduce their workforce. The district court ruled that the Commission failed to offer evidence that those reasons were pretextual and accordingly granted summary judgment. This was error. The explanations that the defendants gave for their actions during discovery were inconsistent with the reasons they gave during the EEOC's investigation, and the story they told during discovery conflicted with the evidence and was inherently improbable. This evidence, when considered together with the additional background evidence of age discrimination, is sufficient to support a finding of pretext, and the district court should have denied summary judgment. During the Commission's investigation, the defendants stated that they took accounts away from Purcell because of his poor sales performance and because of complaints they had received about him, and then transferred him out of sales because he was comparatively ineffective in direct sales. R-68-6 at 27-28. The fact that the defendants cited a negative factor to explain the transfer shows that they viewed the transfer as a demotion, or at most a lateral transfer. One would ordinarily not cite poor performance to justify a promotion. Compare, e.g., Brown v. Ill. Dep't of Natural Res., 499 F.3d 675, 683 (7th Cir. 2007) (poor performance evaluations and client complaints about plaintiff's performance "presented a compelling nondiscriminatory explanation" for defendant's decision not to promote him); Hill v. Augusta County. Schl. Bd., 636 F. Supp. 2d 492, 496 (W.D. Va. 2009) (principal's poor performance justified school board's decision not to promote him); Edwards v. EPA, 456 F. Supp. 2d 72, 91 (D.D.C. 2006) ("[a]n employee's poor job performance is a well-established nondiscriminatory justification for an adverse employment action"). When moving for summary judgment, however, the defendants did not rely at all on poor performance to justify the transfer, nor did they concede it was a demotion. Instead, they argued that the transfer was a promotion. R-72 at 17; R-86 at 8-9. Their witnesses testified that they decided to create the new practice-manager position to keep HP happy and improve their HP sales and that they chose Purcell for the position because of his experience at HP, his relationship with Fulghum, and his expertise with respect to HP's blade servers. R-68-4 at 19; R-68-5 at 41; R-68-9 at 10. A reasonable jury could view this significant change in the defendants' explanations as evidence that the new story they told during discovery was pretextual. See, e.g., Bechtel Constr. Co. v. Secretary of Labor, 50 F.3d 926, 935 (11th Cir. 1995) (change in employer's explanation for challenged action can show pretext); Chaney v. Plainfield Healthcare Ctr., 612 F.3d 908, 916 (7th Cir. 2010) ("[a] shifting justification for an employment action can itself be circumstantial evidence of an unlawful motive"); Velez v. Thermo King de Puerto Rico, 585 F.3d 441, 449 (1st Cir. 2009) ("[t]he fact that the employer gave different reasons at different times for its action surely supports a finding that the reason it ultimately settled on was fabricated"). Sometimes this change in explanations is shown by contrasting the reasons the defendant gave at the time of the adverse action with the reasons it gave in discovery. See, e.g., Chaney, 612 F.3d at 916 (difference between reason given at termination and reasons given during discovery). Other times, as here, the contrast is between the employer's story during an EEOC or state-agency investigation and its story during discovery. Jones v. Nat'l Am. Univ., 608 F.3d 1039, 1047 (8th Cir. 2010) (pretext shown in part by difference between reasons employer gave during EEOC investigation and reasons it gave during discovery); Miller v. Eby Realty Group LLC, 396 F.3d 1105, 1112 (10th Cir. 2005) (pretext shown in part by employer's admission that explanation it gave EEOC was false); Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 105-06 (1st Cir. 2001) (finding sufficient evidence of pretext, relying in part on difference between explanation defendant gave in administrative proceeding and explanation it gave during discovery). This Court has held that an employer's articulation of new reasons for the challenged action does not show pretext if the old reasons and the new ones are compatible. For example, in Tidwell v. Carter Products, 135 F.3d 1422 (11th Cir. 1998), the defendant fired the plaintiff, a sales manager, but retained a younger comparator. The defendant explained that the decision was based not on performance but on the relative importance of the two positions to the company. The plaintiff offered as evidence of pretext a contemporaneous memo describing him as having a "[p]erformance issue," but the court of appeals ruled that this memo was insufficient to show pretext because at most it showed that the defendant relied on Tidwell's performance as "an additional, but undisclosed, reason for the decision," a reason that was itself also non-discriminatory. Id. at 1428. See also Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1332 (11th Cir. 1998) (articulation of new reasons insufficient to show pretext where new reasons are merely amplifications of earlier reason: e.g., giving examples or more details); Zaben v. Air Prods. & Chems., Inc., 129 F.3d 1453, 1458-59 (11th Cir. 1997) (where plaintiff electrician was terminated in a RIF whose general guidelines were to eliminate positions on the basis of relative performance and not seniority, and decision-maker testified that he viewed the plant's electricians as equally skilled and selected plaintiff for termination on the basis of seniority, these "differing explanations" did not show pretext because they were not "necessarily inconsistent": having general rule of relying on relative performance does not rule out relying on seniority when relative performance is insufficient). Here, however, the story that the defendants told during the EEOC's investigation is not compatible with the story they told during discovery. It cannot be the case that transferring Purcell to the practice-manager position was both an adverse employment action (that the defendants needed to justify by citing a negative factor, like poor sales performance) and at the same time a promotion justified by his special expertise. More important, the change in stories here is more probative of pretext than it was in Tidwell and Zaben because the story that the defendants told during discovery is contradicted by the evidence and inherently improbable. For example, the defendants' witnesses testified that the April 2007 transfer was a promotion, but the evidence shows it was not. Purcell's compensation package went down instead of up because he could no longer earn commissions to supplement his salary, which remained unchanged. See Hinson v. Clinch County Bd. of Educ., 231 F.3d 821, 829 (11th Cir. 2000) ("[t]ransferring an employee to a job with lower pay is an adverse employment action"). Purcell testified that he was not even given the option of turning the new position down. R-68-2 at 3. The new position was also less secure because it was more susceptible to elimination during a RIF. R-68-4 at 22, R-68-5 at 33. His new job title contained the word "manager," but there is no evidence that Purcell supervised or managed anybody in that position. Indeed, Drummond testified that, if the engineers were doing their job, as they were in his region, the account executives had hardly any need for a practice manager. R-68-4 at 20. In addition, the defendants' witnesses testified that they created the new position because HP lobbied them to do it and because they believed that having a practice manager would increase their sales and commissions. Their testimony implied that these rationales were important enough to justify creating the new position even though the decision-makers had reason to believe they would soon need to reduce their head count, and even though transferring Purcell would mean losing the dedicated RSA agent that Don Bell had directed them to put in place only six months earlier. Moreover, their testimony justifying the creation of the new position is belied by the fact that two months later they decided that the new position was one of the first they should eliminate in a RIF. In late September 2006 it was allegedly important enough to have a dedicated RSA agent that they took most of Purcell's remaining accounts away from him. In March-April 2007 it was purportedly important enough to have an HP practice manager that they removed him from that dedicated-agent position. Then in June they decided to eliminate that important new practice-manager position. The Commission submits that it is so unlikely that a company would take these decisions for these reasons that the jury could find the defendants' explanations for the transfer and the termination pretextual. See, e.g., Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289, 296 (4th Cir. 2010) (defendant's assertion that it fired truck driver after she recovered from an ankle injury because she failed a general physical ability test was so inherently improbable-because test did not examine plaintiff's ankle and plaintiff's difficulties with test were not ankle-related-that a jury could find it pretextual); Byrnie, 243 F.3d at 105 (defendant's articulated reason-that plaintiff was unfamiliar with "the basic competencies necessary for effective teaching"- "strains credulity," given his 21 years of experience and a glowing recommendation he had received). The facts in Filar v. Board of Education of City of Chicago, 526 F.3d 1054 (7th Cir. 2008), are similar to the facts here in several important respects. Filar was an untenured full-time teacher in a bilingual program in a public high school. When declining enrollment and funding led the principal to remove one teacher from the program, he removed Filar, rather than either of her two younger colleagues, explaining that he chose her on the basis of seniority: her two colleagues were tenured and she was not. Id. at 1058-59. The court of appeals reversed the order granting summary judgment on Filar's age-discrimination claim, holding that Filar offered sufficient evidence for a jury to find pretext. Id. at 1063- 65. Filar offered evidence that the principal had created the very situation he relied on to explain the demotion. In a series of personnel actions over a short period, he altered Filar's status from being the senior of three untenured colleagues to being the only untenured one. Id. at 1064. The principal also consistently treated Filar's younger colleagues more favorably, granting them tenure right after they completed their certification. Id. Similarly here, the adverse actions that the defendants took against Purcell consistently favored his younger colleagues. The accounts that the defendants took away from Purcell in May-June and in September 2006 were given to Gilliam, who was nine years younger. The accounts they took away from him in April 2007 were given to Shepherd, who was more than twelve years younger. Then the defendants transferred Purcell to a position more likely to be eliminated in a RIF. Then they terminated him (without comparing him to those two younger colleagues who had been given all his accounts), allegedly because his new position was less important to the company-a position they had put him in only two months earlier because it was important to the company. Thus here, as in Filar, a jury could find that the reasons that the defendants gave for transferring Purcell to the practice-manager position and then terminating him were pretextual and that the defendants' real motivation was to get him out of sales (and out of the company) because of his age. Moreover, the Commission offered additional background evidence of age discrimination here to supplement the evidence discrediting the defendants' articulated reasons. Purcell's direct supervisor for his last 11 months as account executive was Drummond, and the first time Drummond met Purcell, he made several comments questioning Purcell's abilities because of his age. Right after those comments, Drummond and Byers started transferring large swaths of Purcell's accounts to the younger Gilliam. They gave Gilliam 32 of Purcell's 87 accounts in May-June 2006, and another 38 accounts in September. The few accounts Purcell had left Byers gave to the even younger Shepherd in April 2007. This background evidence supported the EEOC's claim that the April transfer was motivated by age discrimination. The district court's erroneous ruling on the sufficiency of the Commission's pretext evidence may well in turn have been based in significant part on the court's erroneous reliance on the same-actor and same-group inferences. The district court erred in relying on these inferences in granting the defendants summary judgment. The same-actor inference allows a fact-finder to infer that age discrimination is unlikely when a person employed for only a short period was hired and fired by the same manager. See, e.g., Proud v. Stone, 945 F.2d 796, 797-98 (4th Cir. 1991) (age discrimination unlikely when "the hirer and the firer are the same individual and the termination of employment occurs within a relatively short time span following the hiring"). The district court stated that the court in Dingman v. Delta Health Group, Inc., 26 F. Supp. 2d 1349 (S.D. Fla. 1998), faced a fact pattern "strikingly similar" to the one here, R-90 at 21 n.12, but in Dingman the same person who had hired the plaintiff at age 63 fired him eight months later. See also Proud, 945 F.2d at 797 (same person hired plaintiff at age 68 and then fired him six months later). The district court's invocation of the same-actor inference was inappropriate as a factual matter because under the district court's view of the facts the decisions to hire and fire Purcell were made by different persons. More important, even if the same-actor inference were appropriate factually here, the district court erred as a matter of law in relying on it in granting summary judgment. As this Court held in Williams v. Vitro Services Corp., 144 F.3d 1438, 1443 (1998), the inference is "a permissible-not a mandatory-inference." A jury may choose to draw the inference, but a district court is not permitted to rely on it in granting summary judgment. Id. This rule is merely a specific instance of the general rule that "in considering a motion for summary judgment, the court must view the evidence and draw all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)." Wexler v. White's Fine Furniture, Inc., 317 F.3d 564, 573 (6th Cir. 2003) (en banc); id. at 574 (same-actor inference "is insufficient to warrant summary judgment"); Filar, 526 F.3d at 1065 n.4 ("a jury is not required" to draw the same-actor inference, and district court should therefore not grant summary judgment on the basis of a same-actor inference drawn "in favor of the party moving for summary judgment"). Indeed, a district court is barred not only from granting summary judgment on the basis of the same-actor inference; it is also barred from requiring a plaintiff to submit additional evidence of pretext to overcome the inference, Williams, 144 F.3d at 1443 n.4, as the district court appears to have done here. R-90 at 21 (stating that the EEOC faces a "difficult burden" in showing pretext here, and then relying in note 12 on the "strikingly similar fact pattern" in Dingman). The district court also erred in relying on the same-group inference. The same-group inference allows a fact-finder to infer that age discrimination is unlikely if the decision-maker was a member of the same protected group. See, e.g., Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1471 (11th Cir. 1991) (manager fired for sexual harassment faced "difficult burden" showing age discrimination because the three managers involved in the decision to terminate him were all "well over age forty"). Some courts have rejected the rationale underlying this inference. See, e.g., Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998) ("it would be unwise to presume as a matter of law that human beings of one definable group will not discriminate against other members of their group") (internal quotation marks omitted); Kadas v. MCI Systemhouse Corp., 255 F.3d 359, 361 (7th Cir. 2001) (court's prior "emphatic[ ]" rejection of same-group inference in race-discrimination case "applies with equal force to proof of age discrimination"); Wexler, 317 F.3d at 574 (citing Oncale and Kadas). But even if the same-group inference survives in this circuit, it is surely, like the same-actor inference, a permissible and not a mandatory inference, and a district court is not allowed to grant summary judgment by drawing a permissible inference against the non-movant. Williams, 144 F.3d at 1443 ("it is the province of the jury rather than the court" to weigh and balance the competing inferences that can be drawn from the evidence); Wexler, 317 F.3d at 574 ("the district court erred when it invoked the same-group inference at the summary judgment stage"). CONCLUSION For these reasons, the Commission respectfully asks this Court to reverse the district court's summary judgment order. Respectfully submitted, P. DAVID LOPEZ General Counsel CAROLYN L. WHEELER Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel s/ Paul D. Ramshaw PAUL D. RAMSHAW Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St., NE, Room 5SW18K Washington, DC 20507 CERTIFICATE OF COMPLIANCE WITH RULE 32(a) I certify that this brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it does not exceed 30 pages and because it contains 6,300 words (as counted by MS Word 2003), excluding the parts of the brief exempted by Rule 32(a)(7)(B)(iii). The brief complies with the typeface requirements of Rule 32(a)(5) because it has been prepared in a proportionally spaced typeface using Times New Roman 14-point type. s/ Paul D. Ramshaw Paul D. Ramshaw February 23, 2011 CERTIFICATE OF SERVICE I certify that one copy of this brief has been served by mailing it today first class to: William K. Hancock Adams and Reese LLP 2100 3rd Ave. N., Ste. 1100 Birmingham, AL 35203 s/ Paul D. Ramshaw Paul D. Ramshaw February 23, 2011 ********************************************************************************** <> <1> Purcell characterized the transfer as a promotion in the job application he submitted to Logista in September 2007. R-68-3 at 18. Several questions at his deposition assumed the transfer was a promotion but focused on other issues. See, e.g., R-68-1 at 10 (p. 35, ll. 10-19, focus on previous job title; p. 36, ll. 20-23, date of transfer), 72 (p. 282, ll. 13-23, meaning of specific paragraph in complaint). When asked directly whether he viewed the transfer as a promotion, Purcell testified that the defendants had told him it was a promotion, but he did not know whether it was one or not. See, e.g., R-68-1 at 22 (p. 83, ll. 1-2, "...I was told it was a promotion"; ll. 11-12, "I never tried to analyze it."), 23 (p. 87, ll. 9-12, "I do not have access to all of the Prosys or Bell Microproducts personnel records as to what is a promotion and what isn't a promotion"; ll. 20-22, "I don't know. But I have no reason to believe it is, and I have no reason to disbelieve it wasn't.").