No. 07-16903 ________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT __________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. THE BOEING CO., Defendant-Appellee. _______________________________________________________ On Appeal from the United States District Court for the District of Arizona, No. 05-03034 _______________________________________________________ REPLY BRIEF OF PLAINTIFF-APPELLANT EQUAL EMPLOYMENT OPPORTUNITY COMMISSION _______________________________________________________ RONALD S. COOPER EQUAL EMPLOYMENT OPPORTUNITY General Counsel COMMISSION Office of General Counsel VINCENT J. BLACKWOOD 1801 L Street, N.W., Room 7042 Acting Associate General Counsel Washington, D.C. 20507 (202) 663-4724 LORRAINE C. DAVIS Assistant General Counsel ANNE NOEL OCCHIALINO Attorney TABLE OF CONTENTS TABLE OF AUTHORITIES ............... ........................................ ii ARGUMENT ..................................................................... 1 1. The Commission's discrimination claim as to Castron encompassed a separate claim for her transfer........................................4 2. The Commission properly represented the record as to Charlton's and Hobby's derogatory remarks about women, which, under this Court's precedent, constitute direct evidence of discrimination and were sufficient to establish a prima facie case of sex discrimination and a factual question as to pretext........................................ 5 3. Castron's transfer constituted an adverse action and the Commission met its minimal burden of establishing a prima facie case that her transfer was discriminatory............................................................ 16 4. Circumstantial evidence would allow a reasonable jury to conclude that the reasons given for Castron's transfer and termination were a pretext for sex discrimination............................................. 18 5. The evidence would allow a reasonable jury to find that the transfer and termination were retaliatory.................................................. 24 6. The evidence was sufficient to create a jury question as to whether Wrede's layoff was due to sex discrimination. ................................ 27 CONCLUSION ................................................................... 31 ADDENDUM CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Bahri v. Home Depot, USA, Inc., 242 F. Supp. 2d 922 (D. Or. 2002)............ 15 Chuang v. Univ. of California Davis, 225 F.3d 1115 (9th Cir. 2000).........passim Coghlan v. Am. Seafoods Co., 413 F.3d 1090 (9th Cir. 2005).....................12 Cordova v. State Farm Ins., 124 F.3d 1145 (9th Cir. 1997)................. 11, 13 Coward v. ADT Sec. Sys., 140 F.3d 271 (D.C. Cir. 1998)........................ 18 Davis v. Team, 580 F.3d 1080 (9th Cir. 2008)............................... 4, 19 Davis v. Widnall, No. 97-15313, 1998 WL 856505 (9th Cir. Nov. 19, 1998)....... 31 Dominguez-Curry v. Nevada Transp. Dep't, 424 F.3d 1027 (9th Cir. 2005)............................................. 10, 12, 13 Ecological Rights Foundation v. Pacific Lumber Co., 230 F.3d 1141 (9th Cir. 2000).......................................................... 4 Hernandez v. City of Vancouver, 2008 WL 1741492 (9th Cir. April 14, 2008)..... 30 Hilao v. Estate of Marcos, 103 F.2d 767 (9th Cir. 1996)....................... 25 Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133 (2000)................ 29 Swenson v. Potter, 281 F.3d 1184 (9th Cir. 2001)............................. 25 Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054 (9th Cir. 2002)....28, 29, 30 Vincent v. Brewer Co., 514 F.3d 489 (6th Cir. 2007)........................30, 31 ARGUMENT In its opening brief, the Commission argued that the district court erred in granting summary judgment on the EEOC's claims of sex discrimination and retaliation as to Antonia Castron and Renee Wrede. As to Castron, the Commission argued that it had established a prima facie case of discriminatory transfer and that Charlton's derogatory comments about women and other circumstantial evidence would support a jury's finding that the reasons given for the transfer were pretextual. The Commission also argued that a reasonable jury could find that Castron's termination was the product of sex discrimination based on Hobby's and Charlton's sexist remarks, which constituted direct evidence of discrimination, and on other circumstantial evidence casting doubt on whether the reasons given for Castron's layoff were pretextual. As for Castron's retaliatory transfer and termination, the Commission first argued that the district court properly held that the transfer constituted an adverse action because it made her more vulnerable to layoff. The Commission also argued that the six-day gap between Castron's complaint to Charlton about working in a hostile work environment and her transfer to Structures Mod was sufficient to establish causation and was also probative of whether the reasons given for her transfer were a pretext for retaliation. The Commission further contended that other circumstantial evidence would allow a reasonable jury to find that the reasons given for Castron's transfer and layoff were pretextual. As to Wrede, the Commission argued that the court erred in concluding that no reasonable jury could find that the reasons given for her layoff were a pretext for sex discrimination. Specifically, the Commission pointed to circumstantial evidence, including testimony from Wrede, Wright, Dave Eroh (Wrede's co- worker), and statements from Wrede's former and then-current managers, from which a jury could find that her scores were not credible and therefore infer discrimination. The Commission also pointed to evidence that Feuerstein helped two men identified for layoff, but not Wrede, find new positions. Boeing argues that the Commission never claimed that Castron's transfer was based on unlawful sex discrimination. Boeing also argues that the Commission misrepresented the record as to Charlton's and Hobby's derogatory statements about women and, notwithstanding its concession that this Circuit's precedent is to the contrary, insists that the comments do not amount to direct evidence of discrimination because they did not relate to Castron or the decision- making process. Boeing also argues that the evidence was insufficient to allow a jury to find that Castron's transfer or termination was discriminatory. Boeing similarly argues that the evidence was insufficient to allow a jury to infer that the reasons given for either Castron's transfer or termination, which occurred, respectively, within six days and two months of her protected activity, were a pretext for retaliation. Boeing further argues that the Commission failed to establish a factual question as to whether the reasons given for Wrede's layoff were a pretext for sex discrimination, dismissing as irrelevant evidence from Wrede's co-worker and then-current and former managers that would allow a reasonable jury to find that her RIF assessment scores were unworthy of belief. Contrary to Boeing's assertions, the district court properly recognized that the Commission's discrimination claim as to Castron encompassed separate claims for her discriminatory transfer and termination; in any event, the transfer was an integral part of the Commission's discriminatory termination claim. The Commission also accurately represented the record as to the content and quantity of Charlton's and Hobby's sexist remarks, which, under the law of this Circuit, constituted direct evidence. The Commission also pointed to evidence in the record that, when viewed as a whole and in the light most favorable to the Commission, as it must be, was more than sufficient to overcome Boeing's motion for summary judgment. See, e.g., Chuang v. Univ. of California Davis, 225 F.3d 1115, 1124 (9th Cir. 2000) ("As a general matter, the plaintiff in an employment discrimination action need produce very little evidence . . . to overcome an employer's motion for summary judgment."). Even if this case could be construed as a "close case," which the Commission disputes, this Court has repeatedly said that "uncertainty at the summary judgment stage must be resolved in favor of the plaintiff." Davis v. Team Elec. Co., 520 F.3d 1080, -- , 2008 WL 819885, at *9 (9th Cir. March 28, 2008) (internal quotations and citation omitted). Therefore, this case should be be remanded for trial. 1. The Commission's discrimination claim as to Castron encompassed a separate claim for her transfer. As Boeing acknowledges, the district court understood the EEOC's discrimination claim on behalf of Castron to include a claim that her transfer was due to sex discrimination. Resp. at 29. Relying on Ecological Rights Foundation v. Pacific Lumber, 230 F.3d 1141, 1154 (9th Cir. 2000), Boeing contends that the district court's "unilateral discussion of the issue does not permit EEOC to raise the issue for the first time on appeal." Resp. at 29. That case, however, does not support Boeing's argument because there this Court declined to consider an argument made on appeal for the first time where the district court had not considered it. Here, in contrast, Boeing concedes that the district court considered whether Castron's transfer was the result of sex discrimination. The EEOC's response to Boeing's motion for summary judgment also supports the district court's belief that the EEOC had raised a claim of discriminatory transfer. See Resp. at 12 (criticizing Boeing for "ignor[ing] glaring direct evidence that unequivocally shows that . . . Charlton . . . [the] ultimate decision-maker about Castron's transfer and subsequent termination, harbored discriminatory animus") (emphasis added) (attached). In any event, because a jury could find that the transfer caused Castron's termination, all of the evidence surrounding the transfer should be considered when evaluating the Commission's termination claim. 2. The Commission properly represented the record as to Charlton's and Hobby's derogatory remarks about women, which, under this Court's precedent, constitute direct evidence of discrimination and were sufficient to establish a prima facie case of sex discrimination and a factual question as to pretext. Boeing accuses the Commission of making a number of factual misrepresentations concerning the content and quantity of Charlton's derogatory comments about women. In every instance, however, a review of the record pages cited by the Commission - and by Boeing - supports the Commission's representation of the record. Boeing first contends that the Commission misrepresented the record by asserting that Charlton's comments that women lacked sufficient training and that he did not have time to train women were made with respect to the consideration of Christine Hunter's application to be a production engineer. Resp. at 8; Br. at 4 (citing RE106, RE107). According to Boeing, "Foster specifically testified" that these statements "were not made by Charlton in connection with Hunter's evaluation." Resp. at 8 (citing RE98-99, RE104-07) (emphasis added). A review of the pages cited by Boeing and the Commission, however, shows exactly the opposite. At pages 57-58 and 66 of his deposition, Foster testified that Charlton did not make any sexist comments at the management meeting in which they discussed Hunter's application because manager "Debbie Burns was in the room." RE98-99, RE106. In response to a question asking Foster whether he recalled Charlton "saying anything about the value of women with respect to that production engineering position," however, Foster testified, "Back to the earlier comment . . . that [Charlton] didn't have the time, felt like [women] weren't up to speed because they didn't have the time in job and . . . they kind of should come to him all trained . . ." RE106 (emphasis added). Boeing also asserts that "there is no evidence to support Foster's assumption that" Charlton's comments about lacking time to train employees concerned women, as the Commission represented. Resp. at 9 (citing RE103-04). This is meritless because Foster's testimony is evidence of this. Br. at 4 (citing RE106, RE107). When Foster was asked whether Charlton said "anything about the value of women with respect to the production engineering position," Foster said "yes" and detailed Charlton's comments about women lacking sufficient training. RE106 (emphasis added). When Foster was asked whether he had ever heard Charlton "express the same expectation with respect to men," he testified "no." RE107. Additionally, when Foster was asked what he recalled about "Charlton and females and whether they need to be trained," Foster said he heard Charlton say, "he just didn't have time [to train them]." RE103 (emphasis added). When asked whether the comment was made about a specific woman, Foster testified that he did not recall if "it was one particular woman" but agreed that he perceived Charlton as saying that he did not "have time to train women." RE103-04 (emphasis added). Finally, when Foster was asked whether he heard Charlton state in any meetings, "I'm not training a fucking woman," Foster responded, "I've heard that he said that. He's said similar things, but not that exact verbiage." RE102 (emphasis added). Thus, a reasonable jury could find that although Foster did not hear Charlton say "I'm not training a fucking woman," Foster heard Charlton make "similar" comments, which would certainly support a jury's conclusion that Charlton's training comments pertained to women. Next, Boeing contends that the Commission's assertion that Charlton said "things like 'he [Charlton] didn't want any more women and that women were not worth a shit'" was misleading because Foster really said only that Charlton made comments "similar" to "women were not worth a shit." Resp. at 8; Br. at 4. Boeing's criticism on this point seems to be designed to distract from the derogatory nature of the comment itself. The Commission's use of the term "things like" instead of "similar to" cannot be construed as misleading; the dictionary itself lists "like" as a synonym for "similar." American Heritage Dictionary 1622 (Houghton Mifflin Co.) (4th ed. 2000). Boeing further argues that the Commission misrepresented the record by asserting that "Foster believed the difficulties" Charlton was having with a female engineer, which Foster reported to HR, "were based on her gender." Br. at 4; Resp. at 9 (citing RE108-10). The record again supports the Commission's representation of it. Foster was explicitly asked whether "he perceived those difficulties as [being] based on her gender, female," to which he responded, "yes." RE110. Thus, a jury could find based on Foster's testimony that Charlton had trouble with the engineer because of her gender. Next, Boeing contends that Charlton's negative comments about women were made no more than five times over twenty-four years and were all made "many years before Castron was either transferred . . . or selected for RIF." Resp. at 9 (citing RE101-02). On the cited deposition pages, Foster testified that Charlton's comments "about not having good luck with females, and [women] not being around long enough to his satisfaction" were made between one and five times over the course of twenty-four years. RE101-02 (emphasis added). Nothing on the cited pages supports Boeing's assertion that the comments were made "many years before" Castron's transfer or termination. To the contrary, although Foster said he did not "remember the dates," RE101, his testimony suggests that Charlton's anti-female comments were made in temporal proximity to Castron's termination. Foster testified that in a "recent discussion" with Boeing's HR department about being subpoenaed in relation to Castron's termination, he brought up some of Charlton's comments about women because he "pinpointed that [the subpoena] was probably because of Bill." RE107-08. As for the quantity of comments, the Commission cited in its opening brief to Foster's testimony that he heard Charlton make "a lot" of negative comments about women "over the years going back to his ex-wife." Br. at 3. Thus, a reasonable jury could find that although Charlton made fewer than five comments about his luck with women and training, he made additional negative comments about women. In its opening brief, the Commission argued that the district court erred by relying on out-of-circuit cases to conclude that these comments were not direct evidence because they were unrelated to Castron's adverse actions. Br. at 41. While Boeing calls this argument "frivolous[ ]," Resp. at 23, n.6, Boeing itself concedes that this Court has held that comments evincing discriminatory animus can constitute direct evidence, even if those comments were "not made in connection with any decision directly relating to the plaintiffs." Resp. at 27 (citing Chuang, 225 F.3d 1115). Boeing nevertheless insists that "Charlton's comments . . . do not amount to direct evidence of discrimination" because they do not "relate[] to any decision-making process, let alone any decision that implicated Castron," and because his comments "do not amount to an admission that he decided to transfer or terminate Castron because of her gender." Resp. at 29. This argument is meritless. In Chuang, the plaintiffs claimed they had been discriminated against based on their race and national origin by being denied a tenured position and by having their laboratory forcibly relocated. This Court held that a decisionmaker's comment that "'two Chinks'" in the pharmacology department were "'more than enough'" "establishes discriminatory intent even though" the comment "was uttered during consideration of a different Asian-American's potential employment." Chuang, 225 F.3d at 1128 (emphasis added); see also Dominguez- Curry v. Nevada Transp. Dep't, 424 F.3d 1027, 1038 (9th Cir. 2005) ("Stacey's sexist remarks are probative of his discriminatory intent even if he directed them to other women . . . .") (emphasis added). While Boeing argues that the "two Chinks" comment in Chuang "implicated the plaintiffs and future decisions that the department would take relating to their employment," nothing in the opinion suggests that this was the basis for this Court's reasoning, and other decisions of this Court refute Boeing's argument. In Cordova v. State Farm Insurance Companies, 124 F.3d 1145 (9th Cir. 1997), which the Commission cited, this Court held that the decisionmaker's comments that another employee was a "dumb Mexican" and hired only because he was a minority constituted direct evidence of discrimination as to the plaintiff's promotion claim. While Boeing argues that the "dumb Mexican" remark "related to the supervisor's dislike of a minority focus in hiring decisions," a review of this Court's opinion shows that these were two separate comments that each, on their own, constituted direct evidence. Id. at 1147 (recounting evidence that employee heard supervisor make "dumb Mexican" remark and "also recalls [the supervisor] stating that he" had to hire him because he was a minority) (emphasis added), at 1149 (explaining that "calling someone a 'dumb Mexican' is an egregious and bigoted insult, one that constitutes strong evidence of discriminatory animus"). Thus, the law of this Circuit simply does not support Boeing's contention that to be considered direct evidence, discriminatory comments must implicate the plaintiffs and future decisions relating to them. Resp. at 27. Boeing similarly asserts that Charlton's comments "do not amount to direct evidence of discrimination" because substantial inference is needed to infer discrimination since Charlton's comments were not about women, infrequent, and unrelated to Castron or her transfer or termination. Resp. at 26. As already discussed, Charlton's comments were about women and they need not have been related (even impliedly) to Castron or any decisionmaking process related to her. As this Court has explained, "[w]here a decisionmaker makes a discriminatory remark against a member of the plaintiff's class, a reasonable factfinder may conclude that discriminatory animus played a role in the challenged decision." Dominguez-Curry, 424 F.3d at 1038; see also Coghlan v. Am. Seafoods., 413 F.3d at 1090, 1095 n.6 (9th Cir. 2005) (stating that "when the evidence in question is of an employer's statements that do not directly concern the plaintiff, it is true that some inference is necessary to establish discrimination with regard to the plaintiff," but holding that "when evidence establishes the employer's animus toward the class to which the plaintiff belongs, the inference to the fact of discrimination against the plaintiff is sufficiently small that we have treated the evidence as direct"). Here, a reasonable jury could conclude that Charlton's comments "similar" to "women were not worth a shit" and "I'm not training a fucking woman," women lacked sufficient training, and he did not have luck with women and they had not been around long enough "overtly exhibit[ed] his hostility to women in the workplace" and therefore constituted direct evidence. Dominguez-Curry, 424 F.3d at 1038 (holding that sexist comments including "if you girls were men, you would know that," constituted direct evidence); see also Cordova, 124 F.3d at 1149 (holding that "dumb Mexican" comment constituted direct evidence and that if the decisionmaker "has any animus towards Mexicans, it likely would have affected his trainee agent decision as well"). As for the timing and quantity of Charlton's remarks, this Court has held that "a plaintiff need not recite precise dates of an employer's discriminatory conduct . . . . While a factfinder is free to conclude at trial that the plaintiff's account is insufficiently detailed to be believable, the district court must refrain from making such credibility assessments on summary judgment." Dominguez-Curry, 424 F.3d at 1039. Boeing also argues that the same-actor inference applies here and precludes the EEOC from establishing its claims because Charlton approved Castron's positive annual evaluations and nominated her for the Rotary Club. Resp. at 32- 33. Boeing has failed to address, however, the Commission's argument that this Court has held that the same-actor inference does not even apply where, as here, there is direct evidence of discrimination. Br. at 39, n.11. Accordingly, even if Charlton's prior treatment of Castron can be characterized as favorable and relevant, the inference does not operate in this case, much less warrant granting summary judgment. Boeing further contends that Hobby's "little girl" comments do not constitute direct evidence because they were unconnected to Castron's layoff. Resp. at 13, 36. As discussed above, this is incorrect. Boeing also argues that the Commission "mischaracterize[d]" Hobby's comments, which "were both admittedly made in jest," and asserts that "there is no evidence that Hobby refused to speak to" Castron after she confronted him about them. Resp. at 13 (citing SER146; SER223); see also RE19, n.11 (slip opinion) (seeming to discount Hobby's comments because he intended them to be humorous). This evidence is disputed. Castron testified that the comments were offensive and that Hobby "stormed off" when she confronted him and never spoke to her again until he became her boss. RE126-28. When confronted with conflicting evidence on a motion for summary judgment, it is inappropriate for "a court to spin such evidence in an employer's favor . . . . To the contrary, all inferences must be drawn in favor of the non-moving party." Chuang, 225 F.3d at 1129 (holding that the district court erred in concluding that comment to plaintiffs that they "should pray to [their] Buddha for help" was intended to be humorous, and holding that this evidence was probative of pretext). Citing Bahri v. Home Depot USA., 242 F. Supp. 2d 922, 951 (D. Or. 2002), Boeing also contends that "girl" is not an overtly sex-based comment and therefore is not probative of whether Castron's layoff was discriminatory. Boeing's argument is unpersuasive. On the cited page of Bahri, the court was analyzing the plaintiff's hostile work environment claim and in this context stated that "missy" and "girl" were not "overtly sex-based comments" and concluded that the harassment was not actionable. Id.<1> As the Commission's opening brief states, however, the Bahri court also stated that "girl" is a "demeaning comment[] which clearly ha[s] a gender component." Br. at 42 (citing Bahri, 242 F. Supp. 2d at 956). Accordingly, a reasonable jury could find that Hobby's comments, which were directed at Castron, exhibited his animus towards women. Finally, while Hobby's comments were made two years before Castron's layoff, this is just another piece of evidence for a jury to weigh. Thus, contrary to Boeing's arguments, Charlton's and Hobby's comments constitute direct evidence of discrimination and therefore were sufficient to establish a prima facie case of discriminatory transfer and to establish a jury question as to whether Castron's transfer and layoff were discriminatory. Br. at 34-35, 39-42.<2> 3. Castron's transfer constituted an adverse action and the Commission met its minimal burden of establishing a prima facie case that her transfer was discriminatory. The Commission argued that the district court properly held that Castron's transfer constituted an adverse action. Br. at 34. Although Boeing acknowledges that a lateral transfer can constitute an adverse action, Boeing contends that Castron's transfer did not because "it is undisputed that . . . Charlton did not know that there was an upcoming RIF in [Castron's] skill code." Resp. at 54; see also id. at 57 (asserting that the Commission failed to establish pretext as to its retaliation claim because the "EEOC has presented no evidence disputing that Charlton did not know" of the RIF until September 2002). As discussed in the Commission's opening brief, however, this point is disputed since Charlton himself testified that he knew as of early 2002 that "there was going to be a reduction," Castron stated that it had been announced as of August 2002 a RIF was coming, and Charlton assured Castron when he transferred her that she would not be affected by any upcoming RIF, suggesting that he knew one was coming. Br. at 46. Boeing's argument that the transfer was not adverse also fails to address the Commission's argument, which the district court agreed with, that the transfer was adverse because Structures Mod did not match Castron's skill set and made her more vulnerable to layoff. Br. at 44-45. Although Boeing contends that no evidence shows that Castron would have avoided layoff by staying in PSA, Resp. at 54, n.17, the Commission's opening brief pointed to contrary evidence. Br. at 12. Finally, Boeing argues that the transfer was not adverse because Castron had requested a transfer from PSA and was happy working with Hartoog. But Castron had repeatedly requested a transfer to Final Assembly and was undeniably unhappy with the consequence of her transfer to Structures Mod - her termination. Additionally, Charlton himself stated that Castron was initially reluctant to accept the transfer and asked why Cottone could not be moved instead. RE224. In its opening brief, the Commission also argued that even if Charlton's comments did not constitute direct evidence, the court erred in concluding that the Commission had failed to establish the fourth prong of the prima facie case because Charlton's comments gave rise to an inference of discrimination. Br. at 37. Significantly, Boeing failed to respond to this argument. The Commission also argued that it had established the fourth prong by pointing to evidence that Joe Cottone was similarly situated to Castron because Charlton believed that he and Castron had a "personality conflict" and that Charlton treated him more favorably by transferring Castron to Structures Mod, where she was more vulnerable to layoff. Br. at 36-37. Boeing admits that Cottone was not transferred, but argues, without citation to any authority, that he was not similarly situated or treated more favorably because "shortly before Castron was transferred, Charlton transferred a male employee out of PSA." Resp. at 30. Boeing's argument is legally unsupportable; the Commission "need not show that all similarly situated [male] employees receive better treatment. Identifying some similarly situated employees - even one - establishes a prima facie case." Coward v. ADT Sec. Sys., 140 F.3d 271, 276 (D.C. Cir. 1998). Boeing's argument is also factually unsupportable, as the Commission pointed to evidence that the male who was transferred out of PSA was transferred to Final Assembly, where Castron had repeatedly asked to be transferred, not Structures Mod, which was a poor match for her and made her vulnerable to layoff. 4. Circumstantial evidence would allow a reasonable jury to conclude that the reasons given for Castron's transfer and termination were a pretext for sex discrimination. Boeing argues not only that Charlton's and Hobby's comments were insufficient to constitute direct evidence of discrimination but also that they provided "at most[,] weak circumstantial evidence." Resp. at 32. Even assuming, arguendo, that the comments and conduct were not "direct" evidence, and that the Commission therefore had to show that its circumstantial evidence was sufficiently "specific and substantial" to defeat Boeing's motion for summary judgment, both the comments and the other circumstantial evidence the Commission pointed to in its opening brief satisfied this burden. See Br. at 40, 42-43. Boeing argues to the contrary, first contending that both Charlton's approval of Castron's annual evaluations and his nomination of her to the Rotary Club and Hobby's "welcome" note to Castron when she transferred to Structures Mod defeat a finding of discrimination. Resp. at 32, 37. As discussed supra at 13-14, the same-actor inference does not apply here because the Commission had direct evidence of discrimination. But assuming, once again, that the Commission's evidence was only circumstantial, Boeing's argument still fails because this Court has held that an employer's favorable treatment of an employee is an insufficient basis for granting summary judgment. Davis, 520 F.3d at -- , 2008 WL 819885, at *9 (noting that the employer had done "a number of helpful things" for the plaintiff and had responded to many of her grievances, but concluding that "even if we were to take [these] responses . . . as counterweights to [plaintiff's] proffer of specific and substantial evidence of discriminatory motive, a counterweight is not enough to eliminate the need for a fact-finder to weigh the facts on both sides"). Boeing also calls it "undisputed" that Charlton transferred Castron at her request and because he thought it would be better for her to start with a new group of people. Resp. at 31. Charlton's derogatory comments about women, as well as evidence surrounding Castron's transfer, make this a disputed question for a jury to resolve. Br. at 40. Specifically, the Commission argued that a jury could disbelieve the proffered reasons for Castron's transfer based on evidence that Charlton ignored her repeated requests to be transferred to Final Assembly, which matched her skills, but transferred her to Structures Mod despite knowing that a RIF was imminent and that she was likely to be laid off. Id. While Boeing contends that this evidence is "irrelevant" because there was no evidence of an opening in Final Assembly in August 2002, the Commission cited in its opening brief to evidence that Charlton transferred a male engineer from PSA to Final Assembly during the time when Castron was repeatedly requesting, and Charlton was repeatedly denying, her requests to move to Final Assembly. Br. at 37 (citing RE137-38). A reasonable jury could therefore find Boeing's assertion that it transferred Castron to Structures Mod because she requested it and to advance her career lacking any credibility. Resp. at 31. Additionally, there is no evidence in the record that there were any openings in Structures Mod in August 2002. To the contrary, Hartoog testified that Charlton simply asked him if he could take Castron "under [his] wing." RE154. Additionally, the Commission identified in its opening brief undisputed evidence that in the previous four years leading up to Castron's transfer to Structures Mod, not a single engineer had transferred from PSA to Structures Mod and that it would have taken years for Castron to be fully trained. Br. at 40. Based on all of this evidence, a reasonable jury could discredit Boeing's proffered reasons for Castron's transfer and infer that Charlton acted out of discriminatory animus in transferring her to Structures Mod knowing that she would be laid off. As for Castron's layoff, Boeing first contends that any discriminatory animus Charlton harbored is irrelevant because he "was not the decisionmaker" and, since he did not change any RIF scores, did not influence Castron's layoff. Resp. at 35-36. There are several problems with this argument. First, as discussed above and in the Commission's opening brief, a jury could find that Charlton's decision to transfer Castron to Structures Mod was motivated by discriminatory animus and caused her layoff. Br. at 40. Second, although Hobby assigned Castron's RIF scores, Charlton testified that both he and Hobby were involved in the "ability to perform remaining work" and "past performance" assessments and that he reviewed the scores Hobby assigned Castron to ensure that the scores were consistent with another manager's scores. SER184-85 (Charlton Depo.95-97); SER186 (Charlton Depo.109, 111); SER187 (Charlton Depo.113). Charlton is also listed on both evaluation sheets as an evaluator. RE229, 231. Thus, a reasonable jury could find that Charlton was a decisionmaker and/or that the scores originally assigned by Hobby were the product of sex discrimination and that Charlton approved them due to his own discriminatory and/or retaliatory animus. Finally, Boeing's claim that Charlton was not a decisionmaker because he only approved the RIF is disingenuous in light of its argument that the same-actor inference applies merely because Charlton approved Castron's positive annual evaluations. Boeing also argues that the Commission contradicted itself by arguing both that Castron should have been excluded from the RIF (as Charlton promised she would be) and that her RIF assessment scores should have been higher. Resp. at 37. These arguments are not contradictory. Based on evidence that Charlton reneged on his promise to exclude Castron from the RIF and that Boeing allowed recently transferred employees to be excluded, a jury could infer that Charlton's approval of Castron's layoff was based on either discriminatory or retaliatory animus. See Br. at 13, 48 (making this argument as to retaliation claim). A reasonable jury could also find that Hobby harbored his own discriminatory animus against Castron based on her sex and that this motivated him to give her low, and inaccurate, RIF assessment scores. As set out in the Commission's opening brief, Hartoog's testimony would support this conclusion, as would evidence that Hobby had no basis for judging Castron's performance because he visited her twice and never sought Hartoog's input about her performance. Br. at 42-43. Boeing argues, however, that Hobby was "clearly . . . in a position to have information about Castron's work performance" and that it is "undisputed that Hobby got feedback from Hartoog regarding Castron's work performance." Resp. at 37-38. But in its opening brief, the Commission cited evidence showing that Hobby checked on Castron only twice in the two months preceding her evaluation and that Hartoog was the only one who trained Castron and the only one with knowledge of her performance but that neither Hobby nor Charlton ever asked him about Castron's performance. Br. at 10, 42. Although Boeing asserts that "Hartoog did not testify that he never spoke with Hobby about Castron's work performance," Resp. at 15 (citing RE155), Hartoog actually testified on the cited page "no" and "I don't believe so" when asked if Hobby inquired about Castron's performance, and, as cited in the Commission's opening brief, Hartoog testified unequivocally on pages 82-83 of his deposition that neither Charlton nor Hobby asked him about Castron's performance. Br. at 42 (citing RE158-59). Thus, a jury could easily disbelieve Hobby's testimony that he received feedback regarding Castron's performance from the engineers with whom Castron worked and could therefore infer that Castron's low scores were a pretext for sex discrimination. See Br. at 42-43. Finally, Boeing claims that the Commission's assertion that a reasonable jury could infer discrimination based on evidence that three engineers in the D32 skill code were excluded from the RIF assessment, which is permissible under Boeing's policy, is "misleading" and "irrelevant" because those engineers were in a different skill code. Resp. at 16; Br. at 13. There was nothing misleading about the Commission's representation or its argument. The Commission's opening brief clearly states that the excluded engineers were in the D32 skill code under Feuerstein and Wright, and in no way suggests that they were in skill code 62E, as was Castron. The Commission's point was merely that a jury could find that, as Charlton had promised Castron, it was entirely possible to exclude recently transferred employees from a RIF assessment. 5. The evidence would allow a reasonable jury to find that the transfer and termination were retaliatory. Boeing argues in a footnote that Castron did not engage in protected activity because she complained to Charlton about only a "hostile environment," not gender discrimination. "The summary mention of an issue in a footnote, without reasoning in support of the appellant's argument," however, "is insufficient to raise the issue on appeal." Hilao v. Estate of Marcos, 103 F.3d 767, 778 n.4 (9th Cir. 1996). Moreover, Castron's complaint constituted protected activity. Br. at 44. As for pretext, Boeing asserts that the clear temporal proximity between Castron's complaint to Charlton and her transfer is not probative of pretext because Boeing admits that Castron's transfer was due to her complaint. Resp. at 56 n.19. By raising this only in an undeveloped footnote, Boeing has conceded the Commission's point about the probative nature of the temporal proximity between the complaint and transfer. Hilao, 103 F.3d at 778 n.4; Br. at 45-46. In any event, this is an absurd proposition. If this Court endorsed it, employers would be free to transfer employees who complained of discrimination with impunity, no matter how adverse the transfer, so long as the employer admitted that the transfer was due to the complaint. Where, as here, evidence is presented that the transfer was adverse and retaliatory, a jury must decide whether to believe an employer's assertion it was acting appropriately to remedy a complaint of discrimination. See Swenson v. Potter, 281 F.3d 1184, 1194-95 (9th Cir. 2001) (stating that transferring an employee to a less desirable location does not satisfy an employer's remedial obligations but concluding that evidence did not support jury's finding that transfer was less desirable). Apparently recognizing the weakness of this argument, Boeing goes on to contend that Charlton's repeated denials of Castron's multiple requests to be transferred to Final Assembly are not probative of pretext because until August 2002 she never complained about a hostile work environment and, once she did, Charlton immediately transferred her to Structures Mod. Resp. at 54-55. As discussed in the Commission's opening brief, however, a jury could easily find it suspicious that Boeing repeatedly denied Castron's requests to transfer to Final Assembly but, once she complained, immediately transferred her to Structures Mod, where she was "set up to fail." RE171; see Br. at 45-46. As for the retaliatory termination claim, Boeing admits the Commission established a prima facie case but again argues that the Commission offered "no evidence" of pretext. Resp. at 58. Boeing fails to respond, however, to the Commission's argument that the close temporal proximity between Castron's protected activity and her layoff - just two months - is probative of pretext. Br. at 48. Boeing argues that Hobby was the sole decisionmaker, but, as discussed, supra at 21-22, a reasonable jury could find that Charlton was a decisionmaker. Boeing also argues that Hobby did not know of Castron's protected conduct, Resp. at 59- 60, but this is a strawman argument, as the Commission expressly disclaimed this argument. Br. at 47, n.12. 6. The evidence was sufficient to create a jury question as to whether Wrede's layoff was due to sex discrimination. Boeing first suggests that Wrede's concession that she does not have any direct evidence of Wright's discriminatory animus would preclude a jury from finding discrimination. Resp. at 42. This is incorrect, of course, as the Supreme Court and this Court have held that a plaintiff's prima facie case and evidence allowing a jury to disbelieve an employer's proffered reasons may allow a jury to find discrimination. Br. at 49-50. Although Boeing contends to the contrary, Resp. at 46-47, the Commission's evidence showing that the scores Wrede received in the RIF assessment were not just wrong but were not even credible, combined with other circumstantial evidence, would allow a jury to infer that the real reason for her layoff was sex discrimination. See generally Br. at 49-60. Boeing also suggests that the Commission argued that the use of subjective criteria establishes pretext. Resp. at 43-44. It did not. Instead, the Commission argued that careful analysis of subjective evaluations is required because such evaluations are particularly susceptible to abuse and more likely to mask pretext. Br. at 52 (citing authority). The mere fact that neither Wright nor Feuerstein made up the assessment forms does not change this analysis, as it is the use of such subjective evaluations that makes them more likely to mask pretext. As for Wrede's scores, Boeing concedes that Wrede's unigraphics score was inaccurate and fails to rebut the Commission's point that the "0" she received for product vision was implausible since Wright's own 2001 evaluation of Wrede stated that she had continued her personal development with product vision. Br. at 51. Boeing also asserts that Wright lowered Wrede's communication/leadership score on the "ability to perform future work" scoresheet "precisely because . . . she [ ] failed to improve her ability to delegate work." Resp. at 46 (citing RE55-56). Nowhere on either of the cited pages, however, did Wright testify that he lowered Wrede's "communication/leadership" score (which consisted of four subcategories) for this deficiency. Boeing also fails to give any support for its assertion that Wrede's inability to delegate was the cause of her low score for the entire category of "past performance." Resp. at 46. As the Commission's opening brief points out, and Boeing fails to dispute, Wright actually failed to supply any reason for Wrede's low score in this category. Br. at 57. Finally, the idea that Wrede's scores for "ability to perform future work" and/or "past performance" dropped between the April and October assessments because of Wrede's difficulty in delegating work - which Wright called a "positive flaw" on Wrede's 2001 evaluation - is undermined by evidence showing that this was a concern before the April assessment, if it ever really was a concern at all. RE65. Citing Villiarimo v. Aloha Island Air, 281 F.3d 1054, 1062 (9th Cir. 2002), Boeing also contends that Wrede's own assessment of her skills is irrelevant because her testimony is "uncorroborated" and "self-serving." Resp. at 45. Nothing on the cited page of Villiarimo, however, supports Boeing's assertion, and the Commission cited contrary persuasive authority on this point that Boeing fails to acknowledge. Br. at 51. See also Reeves v. Sanderson Plumbing Prod., 530 U.S. 133, 144 (2000) (holding that the plaintiff "made a substantial showing that" the reason given for his termination "was false" and citing the plaintiff's testimony that he had properly maintained attendance records). Boeing also contends that Eroh's assessment of Wrede's abilities is irrelevant because Eroh "judged Wrede in isolation" and because his testimony fails to show that the scores she received were inaccurate. As the Commission stated, however, Eroh did not judge Wrede in isolation but against his own RIF assessment scores. Br. at 55. Boeing also takes issue with the Commission's citation to a Tenth Circuit case to support the relevance of Eroh's assessment of Wrede, but that case is fully consistent with this Court's holding that co-worker assessments of the validity of an employee's evaluation can create a genuine issue of material fact. Hernandez v. City of Vancouver, 2008 WL 1741492, at *2 (9th Cir. April 14, 2008) (in disparate treatment case, holding that co-workers' testimony that the plaintiff's work "was scrutinized more heavily because of his race" "was more than adequate to raise a disputed issue of act as to [the plaintiff's] job performance"). See also Vincent v. Brewer Co., 514 F.3d 489, 499 (6th Cir. 2007) (holding that co-worker assessments of plaintiff's performance were probative of pretext). Boeing also argues that because the EEOC did not offer direct testimony from Wrede's then-current or past managers as to Wrede's performance, but instead relied on Wrede's affidavit as to what the managers said, "the statements are entitled to no weight." Resp. at 49 (citing Villiarimo, 281 F.3d at 1062). Nothing on the cited page of Villiarimo remotely suggests that the EEOC had to supply corroborating evidence from the managers themselves and, most significantly, Boeing does not contest that Wrede's affidavit constitutes admissible evidence. Resp. at 49. Boeing also contends that the managers' views as to Wrede's performance "are irrelevant" because the managers failed to compare Wrede's performance to her co-workers' performances. Resp. at 48. Boeing fails to cite any authority for this proposition, however, and this Court has suggested that such a comparison is unnecessary to establish a factual question as to the plaintiff's performance. See Davis v. Widnall, No. 97-15313, 1998 WL 856505, at *1 (9th Cir. Nov. 19, 1998) (concluding that the plaintiff established pretext based on the testimony of prior supervising officers as to the plaintiff's performance, without any mention of the officers having compared the plaintiff's performance to his co-workers'). See also Vincent, 514 F.3d at 499 (former managers' testimony that plaintiff's performance was "above average" - without comparison to her co- workers' performance - was probative of pretext where employer argued there was a RIF). Moreover, some of the managers did compare Wrede's performance to other co-workers in the RIF. Br. at 58-59. Finally, Boeing again ignores the standard for summary judgment by claiming that none of the other men identified for the RIF received assistance from Feuerstein in finding their new jobs. Resp. at 52. The Commission pointed to Johnson's and York's EEOC interviews as evidence that Feuerstein offered them assistance, which was how York found his new position. Br. at 59-60. While both men denied in their affidavits that Feuerstein assisted them, their denials simply create a disputed factual issue that a jury must resolve. CONCLUSION For the reasons set forth above and in the Commission's opening brief, the Commission requests that this case be remanded for trial. Respectfully submitted, RONALD S. COOPER General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ___________________________ ANNE NOEL OCCHIALINO Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Rm. 7042 Washington, D.C. 20507 (202) 663-4724 May 1, 2008 CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with the type-volume limitations of Fed. R. App. P. 32(a)(7)(B)(i). The brief contains 6,999 words. ______________________________ Anne Noel Occhialino CERTIFICATE OF SERVICE I, Anne Noel Occhialino, hereby certify that I served two copies of the foregoing brief and one copy of the excerpts of record this 1st day of May, 2008, by overnight mail, postage pre-paid, to the following: Counsel for Defendant-Appellee Tibor Nagy Erika K. Rocush OGLETREE DEAKINS 6760 N. Oracle Rd., Ste. 200 Tucson, AZ 85704-5608 (520) 544-0300 _____________________ Anne Noel Occhialino Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Office of General Counsel 1801 L Street, N.W., Room 7042 Washington, D.C. 20507 (P)(202) 663-4724 (F)(202) 663-7090 ADDENDUM R. 111, EEOC's Response to Boeing's Motion for Summary Judgment at pg. 12 *********************************************************************** <> <1> The district court's suggestion in Bahri that only conduct that is overtly sex-based can rise to the level of an actionable hostile work environment is also incorrect; any conduct that is sufficiently severe or pervasive to alter the terms and conditions of the plaintiff's employment is actionable if it is based on the plaintiff's sex. <2> Boeing concedes that the Commission established a prima facie case of discrimination as to Castron's termination. Resp. at 34.