No. 06-6327 ____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ____________________________________________ ARIA BREWER, Plaintiff-Appellant, v. CEDAR LAKE LODGE, INC., Defendant-Appellee. ____________________________________________ On Appeal from the United States District Court For the Western District of Kentucky (Louisville) No. 3:05-CV-00377-CRS-DW The Honorable Charles R. Simpson, III ____________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF- APPELLANT ARIA BREWER AND REVERSAL ____________________________________________ RONALD S. COOPER DORI K. BERNSTEIN General Counsel Attorney VINCENT BLACKWOOD U.S. EQUAL EMPLOYMENT Acting Associate General Counsel OPPORTUNITY COMMISSION Office of General Counsel CAROLYN L. WHEELER 1801 L Street, N.W., Room 7046 Assistant General Counsel Washington, D.C. 20507 (202) 663-4734 TABLE OF CONTENTS Page TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . .iii STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . .2 DISTRICT COURT DECISION. . . . . . . . . . . . . . . . . . . . 14 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Summary Judgment Was Improper Because Aria Brewer Presented Direct and Circumstantial Evidence that Race Was a Motivating Factor in Cedar Lake's Decision Not to Offer Her the ADP Aide Position.. . . . . . . . . . . . . . . . . . . . . . . . 17 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 28 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Page Anderson v. Liberty Lobby, 477 U.S. 242 (1962). . . . . . . . . . . . . . . . . . . . . 18 California Regents v. Bakke, 438 U.S. 265 (1978). . . . . . . . . . . . . . . . . . . . . 23 City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989). . . . . . . . . . . . . . . . . . . . . 23 Desert Palace v. Costa, 539 U.S. 90 (2003) . . . . . . . . . . . . . . . . . . . 17, 18 DiCarlo v. Potter, 358 F.3d 408 (6th Cir. 2004) . . . . . . . . . . . . . . 23, 24 Farmer v. Cleveland Public Power, 295 F.3d 593 (6th Cir. 2002) . . . . . . . . . . . . . . . . 25 Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). . . . . . . . . . . . . . . . . . . . . 28 Johnson v. Kroger Co., 319 F.3d 858 (6th Cir. 2003) . . . . . . . . . . . . . . . . 16 Lee v. Russell County Bd. of Educ., 684 F.2d 769 (11th Cir. 1982). . . . . . . . . . . . . . . . 22 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). . . . . . . . . . . . . . . . . 14, 25, 27 Nguyen v. City of Cleveland, 229 F.3d 559 (6th Cir. 2000) . . . . . . . . . . . . . . . . 25 Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). . . . . . . . . . . . . . . . . . . . . 19 Talley v. Bravo Pittino Restaurant, 61 F.3d 1241 (6th Cir. 1995) . . . . . . . . . . 18, 22, 24, 25 U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711 (1983). . . . . . . . . . . . . . . . . . . 17, 18 Weberg v. Franks, 229 F.3d 514 (6th Cir. 2000) . . . . . . . . . . . . . . . . 22 Wexler v. White's Fine Furniture, 317 F.3d 564 (6th Cir. 2003) (en banc) . . . . . . . . . 18, 24 White v. Columbus Metropolitan Housing Authority, 429 F.3d 232 (6th Cir. 2005) . . . . . . . . . . . . . . . . 25 STATUTES Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. . . . . . . . . . . . . . . . . . .1 42 U.S.C. § 20003-2(m) . . . . . . . . . . . . . . . . . . . 17 42 U.S.C. § 2000e-5. . . . . . . . . . . . . . . . . . . . . .1 RULES AND REGULATIONS Fed.R.App.P. 29(a) . . . . . . . . . . . . . . . . . . . . . . .1 ADMINISTRATIVE GUIDANCE EEOC Compliance Manual, Section 15, "Race and Color Discrimination," No. 915.003 (April 19, 2006)21 STATEMENT OF INTEREST The Equal Employment Opportunity Commission (EEOC) is charged to administer and enforce Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, 42 U.S.C. §§ 2000e et seq., which prohibits racial discrimination in employment. See 42 U.S.C. § 2000e-5. As a federal agency, the EEOC is authorized to participate as amicus curiae on appeal. Fed.R.App.P. 29(a). Aria Brewer appeals from summary judgment against her claim that Cedar Lake Lodge did not offer her the position of Adult Day Program aide because of her race, African-American, in violation of Title VII. Notwithstanding highly probative evidence that Brewer's race played a role in the challenged employment decision, the district court questioned whether she could establish a prima facie case of discrimination and found insufficient proof that in rejecting Brewer, Cedar Lake was motivated, at least in part, by race. See R.26 (opinion).<1> Because this case offers a rare opportunity to address the significance of direct evidence that race was considered during a hiring process, and illustrates the critical importance of adhering to fundamental summary judgment principles in evaluating evidentiary sufficiency in employment discrimination cases, the EEOC offers its views as amicus curiae. STATEMENT OF FACTS Cedar Lake provides residential care and comprehensive support services for individuals with mental retardation at a facility located in LaGrange, Kentucky. R.14, exh.1 (Crouch Aff.) at 1 ¶ 1. Aria Brewer (African-American) began working as a full-time habilitation aide (HA) at Cedar Lake in January 2002. R.22, Brewer Dep. at 35-36, 57-58. As a member of the "direct care staff for the residents," Brewer accompanied residents in "their daily routine," assisting with such daily activities as "[g]etting up, meals, dressing, bathing, going to class, moving from one room to the next." Id. at 36-40. Brewer attended workshop classes with the residents, "working one-on-one" to help them complete assigned job tasks. Id. at 37-39. At the outset of her employment at Cedar Lake, Brewer received a full day of training in "Professional Crisis Management" (PCM), and learned various techniques to handle aggressive, abusive, or noncompliant behavior among residents. Id. at 46-52. Brewer was certified at "PCM level 2," the "highest" level available. Id. at 51-52. Cedar Lake offered a "leisure class" for residents, to teach such "daily living skills" as reading, math, "how to take care of themselves, [and] how to behave appropriately." R.22, Goodloe dep. at 44-45. In 2002, Cedar Lake began an Adult Day Program (ADP), to provide similar training and services to nonresident adult clients living in the surrounding community. Id. at 43-46. Cedar Lake hired Frank Goodloe (African-American), who had previously worked at Cedar Lake as an aide and supervisory assistant, as ADP coordinator. Id. at 42-44. In that capacity, Goodloe was responsible for both the ADP and the leisure class. Id. at 44-46. About a month after he was hired, Goodloe and his direct supervisor, Toni Crouch (white), hired Leslie Sallee (white) as ADP assistant. Id. at 55. For several months, various HAs were assigned on a rotating basis to assist Goodloe and Sallee in working with clients and residents in the ADP and leisure classes. Id. at 62-66. Brewer was among the HAs who regularly worked in these classes, under Goodloe's supervision. Id. at 64. As the ADP program expanded and drew additional clients, Goodloe and Sallee approached Crouch and asked to hire an ADP aide to work in the program full-time "on a daily basis." Id. at 68-70. Instead of the rotational assignments where "one day it would be one person, the next day someone else, the next day someone else," Goodloe wanted "[s]omeone . . . regular, that . . . wouldn't be switched off." Id. at 69. According to Goodloe, "[w]e needed someone that was able to come in every day that we felt worked well with the clients and . . . residents of Cedar Lake . . . that the clients could get to know and would not have to have a new face every day." Id. at 69. Because "the clients didn't deal well with people that were new," Goodloe explained, he was looking for "someone [who] was familiar with the clients" and could "deal with behaviors in a very good way." Id. at 70. Goodloe and Sallee also wanted an aide who could "take over" and "run things" if they were otherwise occupied, "a hard worker, [who] was dependable, [and] intelligent enough to . . . handle things by themselves." Id. at 69-71. With the approval of Cedar Lake Facility Administrator Jason Squires, Crouch authorized Goodloe to prepare an internal job posting for an ADP aide. R.22, Crouch dep. at 15-16. To develop a position description, Cedar Lake "used the HA job description as the basis since it was basically an HA position assigned to the ADP area" and the job required the "same qualifications as HA." R.21, exh.3 (Crouch interview notes) at 2, #2. Crouch reviewed and approved Goodloe's job posting, R.22, Crouch dep. at 16, which listed the following functions: To assist in the development, implementation and monitoring of participants in the [ADP] activities program plan with the goals of maximizing each participants [sic] physical, emotional, social skills and abilities. Assistance with the coordination, planning and scheduling with various participant field trips, outings and special events, etc. … Attend Resident Services Staff meetings and individual meeting with supervisor as scheduled. To drive vehicles, as necessary, to provide transportation for activities. Enforce and maintain safety during all activities. Maintain compliance with all regulations, including, but not limited to ICF/MR regulations and Adult Day Health Program Regulations. Perform other related work as assigned. R.21, exh.2 (job posting). The top of the announcement read: Position in ADP Hours 8:00 am – 4:00 pm Monday – Friday Id. Cedar Lake posted the ADP position in August 2003. See R.14, exh. 1 (Crouch Aff.) at 2 ¶4. Crouch delegated to Goodloe the responsibility to interview applicants and make a hiring recommendation. R.22, Ragsdale dep. at 11; Goodloe dep. at 84. Crouch told Goodloe that he could conduct the interviews and "hire whom [he] would like to hire." R.22, Goodloe dep. at 86. At the same time, Goodloe understood that Crouch, who had ultimate hiring authority, "would want to go over everything with [him]" before extending an offer. Id. at 86-87. Brewer applied and was one of six applicants interviewed for the ADP job. See R.22, Goodloe dep., exh.1-6 (interview forms). During the interviews, Goodloe noted each candidate's responses to a set of prepared questions on a separate form. Id. Shortly after concluding the final interview, Goodloe met with Crouch to discuss the candidates. R.22, Goodloe dep. at 127. Goodloe gave Crouch the completed interview forms and they discussed each applicant in turn. Id. at 127-28. After "weed[ing] out" the other candidates for various reasons, the choice came down to Aria Brewer and Stacey Sharp (white). Id. Goodloe told Crouch that he "really liked Aria" because "[s]he was very confident, held herself very well in the interview . . . [and] in class." Id. at 129. Goodloe had "never had any problems with Aria" and "thought she was [the] best candidate for the job." Id. "All the clients seem to relate to her very well," he observed, and "[s]he worked well with each client." Id. Goodloe "had ranked [Brewer] as his number one candidate," he told Crouch, "because of the way she interviewed, his knowledge of her skills in interacting with clients and because Sharp's school schedule would cause her to be unavailable for work on Tuesday and half of Wednesdays, which were the days they had the most clients." R.21, exh.7 (EEOC Investigator Memo, 1/13/05) at 5-6. At that point, according to Goodloe, Crouch said, "‘You know if you hire Aria what people are going to think.'" R.22, Goodloe dep. at 129. Goodloe asked, "‘What do you mean? What are people going to think?'" Id. Crouch repeated, "‘You know what they're going to think.'" Id. Goodloe then asked, "‘Are you saying that I was hiring her because she was black?,'" and Crouch responded, "‘yes.'" Id. "‘That is a possibility,'" Goodloe acknowledged, "‘But that's not the reason why I'm hiring her. I'm hiring her because I feel she is the best person for the job.'"<2> Id. at 129-30. Crouch and Goodloe then proceeded to discuss the remaining candidate, Stacey Sharp. Id. at 130. Sharp had worked as an HA at Cedar Lake since June 2000, and had been designated as a Behavior Technician (B Tech) since March 31, 2002.<3> See R.14, exh.A at 1-2 (employee status reports). Like Brewer, Sharp had worked regular rotational assignments in the ADP and leisure classes. See R.22, Goodloe dep. at 62-64. Goodloe noted on Sharp's interview form that she required "Tuesday off," as well as "1/2 day on Wednesday." R.22, Goodloe dep., exh.3 (Sharp interview form) at 2. Goodloe told Crouch he thought Sharp "was good," but "[s]he didn't blow [him] away." R.22, Goodloe dep. at 130-31. "From times that I observed her in class with some of the clients," Goodloe explained, "I did not feel that she worked as well with the clients as I felt Aria did." Id. at 131. While Goodloe did not feel Sharp "was the worst" candidate, he "did not feel that she was the best for the position." Id. Crouch pointed out that "Stacey had seniority over Aria and . . . had applied for other positions there and had been turned down." Id. at 131-32. According to Goodloe, Crouch "felt that we should give [the job] to Stacey" based on seniority, because "she had been with Cedar Lake longer." Id. at 132. During their discussion, Goodloe recalled, Crouch mentioned Sharp's "B Tech experience," but did not cite it as a reason to offer her the job. Id. at 133. Sharp had also applied for an opening as a physical therapy aide, Goodloe testified, and Crouch suggested that if Sharp were selected for that position, Goodloe could offer the ADP job to Brewer. Id. at 132-35. "‘If Stacey does not get the physical aide job,'" Crouch told him, "‘then you should hire her [for] your job because she's applied for several different jobs and has not gotten them.'" Id. at 135. Within "a couple of days" of his conversation with Crouch, Goodloe spoke with Cedar Lake's physical therapist, who informed him "that she couldn't hire Stacey due to the fact that she had to have several days off because Stacey was . . . going to college in Carrollton." Id. at 138. Goodloe shared the same concern about selecting Sharp, noting that she "does have to have some days off" and the ADP required "a full-time person [who] can be here every day." Id. Goodloe relayed this information to Crouch, id. at 141, and the two met again in Crouch's office. Id. at 142. Facility Administrator Jason Squires joined their discussion and, after hearing Crouch and Goodloe state their preferences, agreed with Crouch that they should select Sharp because of her seniority. See id. at 142-46. At that point, Goodloe testified, he "gave up" because he "knew [he] was not going to get [to hire] Aria," and said, "‘All right. Go ahead, we'll hire Stacey.'" Id. at 143-44. Cedar Lake offered the ADP aide position to Sharp, who transferred to the job effective September 22, 2003, R.21, exh.6 (Ragsdale investigation report) at 1, two weeks after giving "notice to Habilitation."<4> R.21, exh.3 (Crouch interview notes) at 3. Sharp was "not working a full 40 hours a week" in the new position "because she [was] in school." Id. On September 8, 2003, Goodloe announced his resignation, effective September 29, 2003. R.22, Goodloe dep., exh.7 (Goodloe resignation letter). On October 13, 2003, Brewer met with Squires and two other members of Cedar Lake's administrative staff, to tell them she had learned from a coworker that she was Goodloe's "first choice for the ADP/HA position," but Crouch told him "he could not hire her" because Sharp had been rejected for other openings and should not be passed over again, and because Crouch "was concerned about the appearance of Frank hiring a black person." R.21, exh.5 (Squires memo). Squires told Brewer that in his discussion with Crouch and Goodloe, they had "agree[d] that Stacey and Aria were equally qualified, and so we selected Stacey based on length of employment," but he promised to "look into it." Id. Later that day, Squires asked Sallee, Goodloe's assistant, "what she knew" about the ADP selection process. R.22, Squires dep., exh.3 (Squires memo). Sallee confirmed that Goodloe told her Crouch had decided to hire Sharp and had "discouraged" Goodloe when he "informed Toni that Aria was his first choice," telling him "that people might perceive it as a ‘black issue'" and asking him "to consider it from that viewpoint." Id. Although Goodloe "did not see that as an issue and still preferred Aria for the position," he "felt that Stacey was going to get the job, no matter what his preference was, because Toni had already made up her mind." Id. Squires notified Diana Ragsdale, Cedar Lake's Human Resources Director, of Brewer's "concern . . . that race was brought up in the selection process." R.22, Ragsdale dep. at 13; Squires dep. at 34-35. Ragsdale immediately began an investigation and interviewed Crouch, Brewer, and Sallee, in person, and Goodloe by telephone. R.22, Ragsdale dep. at 14-15. During her interview with Crouch, on October 14, 2003, Ragsdale explained that she was "conducting a formal investigation of the . . . selection of the ADP" aide, but initially did not disclose "the nature of the complaint" that sparked the investigation. R.21, exh.3 (Crouch interview notes) at 1-2. According to Ragsdale's notes of the interview, Crouch stated that the ADP aide position was developed because "an extra person was needed to help out due to the increased number of ADP clients; to provide staffing in the area at all times; to increase consistency of program; [and] to work in the Leisure Room." R.21, exh.3 (Crouch interview notes) at 2, #1. In developing a description for the new position, Crouch told Ragsdale, "they used the HA job description as the basis since it was basically an HA position assigned to the ADP area; responsibilities were relatively the same with some to be added;" and the job required the "same qualifications as HA." Id., #2. Crouch explained that Goodloe, who was responsible to select qualified applicants, "narrowed the pool of applicants down to 2 top candidates based upon the interviews he conducted," and "then presented them" to Crouch. Id., #4. Asked to "[d]escribe all selection criteria used in selection of qualified applicants," Crouch replied that Goodloe "looked for interest, enthusiasm, and appearance of motivation based solely upon the interviews." Id., #5. Crouch identified Sharp and Brewer as "the top 2 candidates," and stated that Goodloe's "comparison was that they were equal." Id., #8. Crouch stated that "Stacey and Aria were basically equal," and "Stacey was selected based upon her seniority with all other factors considered equal." Id., #11. After Crouch answered a series of questions about the selection process, Ragsdale informed her "that race was at issue in this complaint" and asked, "‘[w]as race ever mentioned at any time during the selection process?'" R.21, exh.3 (Crouch interview notes) at 2. Crouch's "initial response was ‘Absolutely not.' ‘Never.'" Id. Following a "brief interruption" in the interview, Crouch disclosed to Ragsdale "a possible mention of race that had occurred." Id. According to Ragsdale's notes, Crouch "said that during a conversation that she had with Frank after selecting Stacey, Frank asked her if Aria had been selected over Stacey, would other candidates have seen that as reverse discrimination?" Id. (emphasis in original). "Just for clarification," Ragsdale offered her own "understand[ing]" of Crouch's "interpretation" of the remark, "that Frank probably would have enjoyed working with Aria but would be concerned that others may think he selected her because of her race," and Crouch agreed "that was what she was saying." Id. at 3. Crouch explained that Squires' "role was only to approve the selection that was made based upon the information provided to him – that both [candidates] were equal and the decision was based upon seniority." Id. In her investigation report, Ragsdale "determined that Aria's race was mentioned at some time in the selection process in discussion between Toni and Frank." R.21, exh.6 (Ragsdale report) at 1. Ragsdale reported "two different accounts of the nature and timing of the mention of race": Toni has indicated that Frank brought up the subject after they together selected Stacey because he was concerned that people may have thought he was selecting Aria because of her race. Frank indicated that Toni brought up the subject of race when he presented Aria as the top candidate for the position because she wanted to caution him that others may think he selected Aria because of her race. Id. Given this discrepancy, Ragsdale found it "inconclusive exactly when" race was mentioned, "what was said and by whom," but decided "that the subject was inappropriately introduced." Id. In conclusion, Ragsdale recommended that Cedar Lake "reverse the original selection for this position, reopen for review the candidates who originally applied . . . and select based upon the qualifications for the position." Id. at 2. Ragsdale further advised that the hiring decision "should be made by someone . . . who was not a party to the original selection." Id. Because "this second selection will be made based upon new information, interviews and selection criteria," Ragsdale maintained, "it will not have any bearing upon whether or not race was a factor in the original selection." Id. In accordance with Ragsdale's recommendation, "Cedar Lake voided Ms. Sharp's selection and began the process anew." R.14, exh.3 (Ragsdale Aff.) at 1-2 ¶4. Squires and Dennis Feaster, Cedar Lake's Director of Vocational Services, conducted "a second round of interviews" and "selected Billy Hayden, an African- American candidate, as the new [ADP] Aide." Id. at 2 ¶5. In a timely filed charge, Brewer alleged that Cedar Lake did not promote her to ADP aide in September 2003 because of her race. R.14, exh.6 (EEOC charge). The EEOC investigated the charge and found the evidence obtained "supports [Brewer's] allegations that [Cedar Lake] did not promote her because of her race," and issued a determination of "reasonable cause to believe that [Cedar Lake] has violated Title VII." R.21, exh.1 (EEOC determination) at 1. Based on interviews conducted during an onsite visit and a thorough review of evidence compiled in Ragsdale's internal investigation, the EEOC investigator determined that "inconsistencies" in Crouch's statements to Ragsdale and to the EEOC "support the conclusion that Crouch's testimony is not credible." See R.21, exh.7 (EEOC Investig. Memo) at 5. Citing Goodloe's consistent statements to Ragsdale and to the EEOC, the investigator credited "Goodloe's statement of the facts" and his "belief that [Brewer] was not selected because of her race." Id. at 6. Following the EEOC's unsuccessful effort to conciliate her charge, Brewer obtained a right to sue notice and filed suit. See R.1 (Complaint) at 3 ¶13. DISTRICT COURT DECISION The district court granted summary judgment for Cedar Lake. R.27 (order). Applying the evidentiary framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), as "subsequently modified by the Sixth Circuit to fit the specific discrimination alleged," the court decided that "Brewer has not been able to establish her prima facie case" of racial discrimination. R.26 (opinion) at 4-5. Brewer met the first three factors of a prima facie case with undisputed evidence that she belongs to a protected group, applied and was qualified for the ADP aide opening, and was rejected despite her qualifications. See id. at 4. The court determined that she could not satisfy "the fourth factor," however, because she "admits that Sharp was at least equally qualified, and the facts demonstrate that Sharp had twice as much seniority as Brewer, plus sixteen months of experience as a [B Tech], while Brewer had none." Id. at 5. In the court's view, "Cedar Lake hired an applicant who was more qualified, at least on some aspects, than Brewer," and "neither [Supreme Court precedent nor Title VII] require[s] that preference be given to a racial minority." Id. Even assuming Brewer could establish a prima facie case with evidence "she and Sharp were ‘equally qualified'," the court continued, Cedar Lake "articulated a legitimate, non-discriminatory reason for hiring Sharp over Brewer: Sharp had more seniority." Id. at 5-6. The court then recited the following "circumstantial evidence presented by Brewer": 1. Crouch's statement allegedly made prior to selecting Sharp that promoting Brewer would cause others to think that she was promoted because she was black. 2. Crouch's allegedly inconsistent statements, where prior to the lawsuit she said that Brewer and Sharp were "basically equal", but later claimed Sharp had more experience and seniority. 3. Cedar Lake's posting for the position, which did not specifically state that experience as a [B Tech] was required. 4. Goodloe's deposition testimony that he believed Brewer was the best candidate. 5. A letter written by Goodloe documenting his involvement in the hiring process, in which he states that he did not want to hire Sharp for the position. 6. Sharp's school schedule, which prevented her from working, Monday thru Friday, 8 am to 4 pm. Id. at 6-7 (emphasis in original). "[E]ven upon viewing this evidence in a light most favorable to Brewer," however, the court was not persuaded "that Cedar Lake's explanation was ‘more likely than not' pretextual." Id. at 7. The court acknowledged the "disagreement about whether Crouch mentioned Brewer's race prior to or following Sharp's selection," but found "timing is irrelevant, since Crouch's statement regarding reverse discrimination is not necessarily indicative of racial discrimination." Id. The court gave no further consideration to Crouch's remark concerning Brewer's race, except to quote this Court's "state[ment] that isolated statements are ‘too abstract' and ‘cannot support a finding of racial discrimination.'" Id. (quoting Johnson v. Kroger Co., 319 F.3d 858, 868 (6th Cir. 2003)). The court found no inconsistency in evidence that Crouch considered Brewer and Sharp were "basically equal" in qualifications at the time of the decision, but later claimed Sharp was better qualified based on seniority and experience. "It could be," the court suggested, "that Sharp and Brewer were equally qualified, with Sharp's qualification based more on her experience and seniority and Brewer's qualification based more on her dealings with clients and personality." Id. The court similarly discounted the probative value of the remaining circumstantial evidence on which Brewer relied. Although the ADP job posting did not mention B Tech experience as a requirement, the court cited Goodloe's testimony that "familiarity with the [B Tech] position was advantageous," and was not inclined to "question the criteria utilized by an employer for its promotions, unless that criteria is somehow illegal." Id. at 8. While acknowledging Goodloe's testimony that "he believed Brewer to be the best candidate" and "did not want to hire Sharp," the court pointed out that "he also testified . . . that Sharp was more qualified by experience." Id. The court believed Brewer was "unable to show that the position required a regular work schedule, while Cedar Lake has shown that it encouraged its employees to further their education." Id. Finally, the court noted that "Cedar Lake promoted Mr. Hayden, an African-American man, to the [ADP] position after it reopened the position and reconducted interviews." Id. ARGUMENT Summary Judgment Was Improper Because Aria Brewer Presented Direct and Circumstantial Evidence that Race Was a Motivating Factor in Cedar Lake's Decision Not to Offer Her the ADP Aide Position. Title VII, as amended by the Civil Rights Act of 1991, provides that "an unlawful employment practice is established when the complaining party demonstrates that race . . . was a motivating factor for any employment practice." 42 U.S.C. § 2000e-2(m). The Supreme Court in Desert Palace v. Costa, 539 U.S. 90 (2003), ruled that this "statutory text . . . unambiguously states that a plaintiff need only ‘demonstrat[e]' that an employer used a forbidden consideration with respect to ‘any employment practice.'" Id. at 98. "As in any lawsuit," the Court has emphasized, the plaintiff claiming employment discrimination "may prove his case by direct or circumstantial evidence," and the "trier of fact should consider all the evidence, giving it whatever weight and credence it deserves." U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714 n.3 (1983); see also Desert Palace, 539 U.S. at 99-100 ("conventional rule of civil litigation" that "requires a plaintiff to prove his case by a preponderance of the evidence, using direct or circumstantial evidence, applies in Title VII cases") (internal citations omitted). In granting summary judgment to Cedar Lake, the district court usurped the role of the jury, as trier of fact, to weigh the evidence, make credibility determinations, and draw legitimate inferences. See Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1962) ("Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge."). Fundamental principles governing summary judgment required the court to "view the evidence and draw all reasonable inferences in favor of [Brewer]," and determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one- sided that [Cedar Lake] must prevail as a matter of law." Wexler v. White's Fine Furniture, 317 F.3d 564, 570 (6th Cir. 2003) (en banc) (internal citations omitted). "The role of the judge at the summary judgment stage is not to weigh the evidence, but to determine whether there is a genuine issue for trial." Talley v. Bravo Pittino Restaurant, 61 F.3d 1241, 1245 (6th Cir. 1995). "Thus, although the court should review the record as a whole, it must disregard all evidence favorable to [Cedar Lake] that the jury is not required to believe." Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 151 (2000). The district court departed from these principles in numerous instances, refusing to draw reasonable inferences favorable to Brewer, discounting the probative weight of evidence supporting her claim, and crediting evidence produced by Cedar Lake that a jury could choose not to believe. Brewer presented both direct and circumstantial evidence that race was a motivating factor in Cedar Lake's decision not to offer her the position of ADP aide in September 2003. Because this evidence, viewed most favorably to Brewer, is sufficient to demonstrate an unlawful employment practice under Title VII, summary judgment was improper. First and foremost, the district court erred in failing to recognize the probative significance of undisputed evidence that Toni Crouch, the Cedar Lake official with ultimate authority to hire the new ADP aide, questioned whether selecting "Brewer would cause others to think that she was promoted because she was black." See R.26 (opinion) at 7. The court considered Crouch's expression of concern that others might perceive Brewer's selection as "reverse discrimination" to be "circumstantial evidence" akin to "isolated statements" this Court has found "‘too abstract'" to "‘support a finding of racial discrimination.'" Id. at 7 (citation omitted). Crouch's remark, made during a discussion with Frank Goodloe about which candidate to select and directly referencing Brewer's race, was neither "isolated" from the challenged employment decision nor "too abstract" to permit a finding that Brewer's race was a motivating factor in the decision not to offer her the ADP job. Whether categorized as "direct" or "circumstantial" evidence of discriminatory intent, Crouch's comment, considered in the context of the entire record, precludes summary judgment on Brewer's Title VII claim. Frank Goodloe testified that when he told Crouch he thought Brewer was the "best candidate for the job," based on the strength of her interview and her demonstrated ability to interact effectively with ADP clients, Crouch suggested that "‘if you hire Aria . . . people are going to think'" she was selected "‘because she was black.'" R.22, Goodloe dep. at 129. Crouch admits that during her discussion with Goodloe about which candidate to hire, she raised her concern that, if Cedar Lake followed his recommendation and hired Brewer, people would think she was selected because of her race. According to Crouch, she questioned whether Brewer's selection would have been perceived as racial preference after Goodloe had agreed to hire Sharp based on seniority. Crouch testified: "After the selection had already been made" and "we agreed that Stacey Sharp was the most appropriate candidates [sic] for the position based on experience and seniority . . . I made the statement that, you know, what do you think people would say if we'd hired Aria over Stacey." R.22, Crouch dep. at 22-23. By that statement, Crouch explained, she meant that "people would question why he hired someone with less experience and less qualifications over someone with more experience and more qualifications . . . people would ask questions . . . [i]f we had hired her based on the fact that she was African-American. Because, to me, that's how it would appear." Id. at 23. See also R.14, exh.1 (Crouch Aff.) at 2-3 ¶7 ("After we agreed on Sharp, I made a comment to Mr. Goodloe to the effect of ‘what would others have thought had we selected Brewer.' Mr. Goodloe responded that they would think it was because Ms. Brewer was African-American, and I agreed. By making this comment, I was raising the possibility that given Sharp's superior experience and qualifications, others might perceive that she was the victim of reverse discrimination had we selected Brewer."). Given the context of Crouch's remark, a jury could find that she was motivated to reject Goodloe's recommendation to hire Brewer out of concern that others would believe Brewer was selected based on her race. Because "Title VII . . . does not permit racially motivated decisions driven by . . . concerns about the effect on employee relations, or the negative reaction of clients or customers," EEOC Compliance Manual, Section 15, "Race and Color Discrimination," No. 915.003 at 15-11 (April 19, 2006) (footnotes omitted) (emphasis added), Crouch's remark is direct evidence of race discrimination. In accord with this principle, this Court has "adopt[ed] the reasoning" of the Eleventh Circuit, holding "that statements by a principal about his concern that a ‘white presence' be maintained among the faculty at a newly integrated school in order to avoid ‘white flight' constituted direct evidence that the school board acted with a discriminatory motivation in firing a black teacher." Talley, 61 F.3d 1241 (citing Lee v. Russell County Bd. of Educ., 684 F.2d 769, 774-75 (11th Cir. 1982)); see also Weberg v. Franks, 229 F.3d 514, 523-26 (6th Cir. 2000) (prison warden's disciplinary report recommending demotion of white guard because altercation between "‘three white employees and one black inmate" would send "[t]he wrong message . . . to other inmates in the [predominantly black] unit who are watching the incident," and testimony that he would terminate a white employee "simply because of the ‘perceptions of [black] inmates'" "easily satisfy" standard for direct evidence of unlawful discrimination"). Needless to say, had Brewer been white, Crouch would not have questioned whether others would perceive a decision to hire her as "reverse discrimination." Crouch explained in her deposition that if Cedar Lake had "hired Aria over Stacey," she thought "people would question . . . [i]f we had hired her based on the fact that she was African-American. Because, to me, that's how it would appear." R.22, Crouch dep. at 22-23. Crouch thus confirmed her own belief that the reason Goodloe had recommended hiring Brewer was because of her race. Crouch's assumption that Brewer, as an African American, is "‘unable to achieve success without special protection based on a factor having no relation to individual worth'" reflects "‘common stereotypes'" the Supreme Court has identified as an unfortunate potential consequence of "‘preferential programs.'" See City of Richmond v. J.A. Croson Co., 488 U.S. 469, 494 (1989) (quoting University of California Regents v. Bakke, 438 U.S. 265, 298 (1978)). Had Brewer been white, perhaps Crouch would have credited Goodloe's determination that Brewer was "the best candidate for the job" because she had the strongest interview, displayed better interaction with ADP clients than Sharp, and, unlike Sharp, was available to work every day during the hours of the ADP's operation. Due to Brewer's race, however, Crouch apparently could conceive of no other reason why Goodloe, also African-American, would select her. Pursuant to the standards applied in this Circuit, Brewer has presented "direct evidence" of discrimination. Under this Court's precedent, evidence that a person with authority to make or influence a challenged employment decision harbored a bias or stereotype about a protected trait (e.g., race, ethnicity, age), or considered such a trait in making the challenged decision, is "direct evidence" of discrimination. See, e.g., DiCarlo v. Potter, 358 F.3d 408, 415-16 (6th Cir. 2004) (remarks by "an individual with decision-making authority" who recommended plaintiff's termination, calling plaintiff "dirty wop" and complaining "of there being too many ‘dirty wops' working at the postal facility," "constitute direct evidence of the requisite discriminatory animus," and raised triable question whether "decision to terminate [plaintiff] was based on his predisposition to discriminate on the basis of national origin" because "they specifically negatively and derogatorily referenced [plaintiff's] Italian-American heritage" and "occurred three weeks prior to [plaintiff's] termination"); DiCarlo, 358 F.3d at 417-18 (comments that plaintiff "was ‘no spring chicken' and that he would never be a supervisor at the postal facility because of his age," made by a decision-maker in close proximity to plaintiff's termination, "demonstrated through direct evidence a prima facie case of age discrimination"); Wexler, 317 F.3d at 570-72 (remarks by company president, while informing plaintiff of demotion from management and announcing demotion to employees, that mentioned plaintiff's age and length of service, stated plaintiff did not "need the aggravation, stress of management problems," and referenced youth of plaintiff's replacement, and numerous prior remarks by vice president describing plaintiff as "a bearded, grumpy old man" and calling him "pops" and "old man," "indicate that age was at least a factor in their decision to demote [plaintiff]" and were "direct evidence of stereotyping from which a discriminatory intent could be proven"); Talley, 61 F.3d at 1248-50 (evidence restaurant's manager and co-owner made racist comments about African-Americans, although statements were not made concerning African- American plaintiff or in connection with decision to fire him, "constitute direct evidence that plaintiff's termination may have been racially motivated"). Because Brewer produced direct (and undisputed) evidence that Crouch, the manager with hiring authority, cited her race as a consideration that weighed against her selection as ADP aide, the district court erred in evaluating her discrimination claim under the McDonnell Douglas framework. See Talley, 61 F.3d at 1248 ("The McDonnell Douglas formula is inapplicable to cases in which the Title VII plaintiff presents credible direct evidence of discriminatory animus."). The court further erred in evaluating Brewer's circumstantial evidence of discrimination. In finding that Brewer had failed to present a prima facie case, the district court applied a legal standard this Court has repudiated. See R.26 at 4-5 (requiring Brewer to show job "went to a less qualified applicant who was not a member of the protected group" to demonstrate prima facie case and finding as a matter of law Sharp "was more qualified" because she had greater seniority and B Tech experience) (citing Farmer v. Cleveland Public Power, 295 F.3d 593, 603 (6th Cir. 2002)). This Court in White v. Columbus Metropolitan Housing Authority, 429 F.3d 232, 240 (6th Cir. 2005), unequivocally held "that the test employed in Farmer . . . deviates from prior precedent and therefore should not be used," and that "the proper standard" was previously announced in Nguyen v. City of Cleveland, 229 F.3d 559, 562-63 (6th Cir. 2000), which held that the fourth prong of prima facie case challenging a promotion decision requires the plaintiff to show that "an individual of similar qualifications who was not a member of the protected class received the job at the time plaintiff's request for the promotion was denied." Further, in evaluating the summary judgment record, the district court ignored evidence favorable to Brewer and drew questionable inferences in favor of Cedar Lake. While the court determined that "Cedar Lake hired an applicant who was more qualified, at least on some aspects, than Brewer," R.26 (opinion) at 5, a jury could find that Brewer was in fact a better candidate for the ADP job. Documents prepared within weeks of the hiring decision demonstrate that both Crouch and Squires considered Brewer and Sharp equally qualified, and Goodloe consistently maintained that he considered Brewer better qualified because of her superior skill in working with ADP clients. Goodloe had observed both Sharp and Brewer perform as aides in the ADP and leisure classes during their rotational assignments, and testified that Brewer "worked better with the residents" and "the clients responded to her better." R.22, Goodloe dep. at 143. Thus, while Sharp indisputably had more seniority than Brewer, a jury could find that Brewer was better qualified by virtue of her superior performance and skill in working with ADP clients. Goodloe further testified that he requested authority to hire a permanent ADP aide to avoid the disruption of rotating staff assignments, better serve the clients, and ensure there was a dependable aide who could handle the program in the event he or his assistant, Sallee, were unavailable. The hours of the ADP's operation, Monday through Friday, 8 a.m. to 4 p.m., were accordingly prominently displayed at the top of the job posting drafted by Goodloe and approved by Crouch. R.21, exh.2 (job posting). The district court simply ignored this undisputed evidence favoring Brewer and found she was "unable to show that the position required a regular work schedule." R.26 at 8. Given the stated objectives in creating the ADP aide position, a jury could find that Sharp's conflicting school schedule, which required her to take off Tuesday and half of Wednesday, made her a less suitable candidate for the ADP position than Brewer. While the district court cited Sharp's B Tech experience as a reason she was better qualified, the ADP job posting does not even mention B Tech designation or experience as a required or even desirable qualification. Notes of Ragsdale's interview with Crouch, moreover, confirm that the job description was based on the HA position, and B Tech experience was not required. From this evidence, a jury could find that Sharp's B Tech experience did not make her better qualified than Brewer to be an ADP aide and was not a reason for her selection. Finally, the district court cited Cedar Lake's selection of Billy Hayden, who is African-American, after the original hiring process was voided and Sharp was removed, to further support its conclusion that "Brewer has failed to meet her burden under the McDonnell Douglas framework." R.26 at 8. In general, while the racial composition of an employer's workforce "is not wholly irrelevant on the issue of [discriminatory] intent," such evidence "neither [is] nor could [be] sufficient to conclusively demonstrate that [the challenged employment] actions were not discriminatorily motivated." Furnco Constr. Corp. v. Waters, 438 U.S. 567, 580 (1978) (emphasis in original). Given the circumstances in this case, however, Cedar Lake's selection of an African-American candidate after Brewer had complained of race discrimination and an internal investigation disclosed that "at some time in the selection process [her] race . . . was inappropriately introduced," hardly raises a reasonable inference that race was not a factor in the initial selection process. CONCLUSION Because the evidence is sufficient for a jury to find that Aria Brewer's race was a motivating factor in the decision not to offer her the position of ADP aide, the EEOC urges this Court to reverse the summary judgment and remand for trial on the merits of her Title VII claim. Respectfully submitted, __________________________ RONALD S. COOPER DORI K. BERNSTEIN General Counsel Attorney VINCENT BLACKWOOD U.S. EQUAL EMPLOYMENT Acting Associate General Counsel OPPORTUNITY COMMISSION Office of General Counsel CAROLYN L. WHEELER 1801 L Street, N.W., Room 7046 Assistant General Counsel Washington, D.C. 20507 CERTIFICATE OF COMPLIANCE WITH F.R.A.P. RULE 32(a)(7) The undersigned, counsel of record for the plaintiff-appellant, Equal Employment Opportunity Commission, furnishes the following in compliance with F.R.A.P. 32(a)(7): I hereby certify that this brief conforms to the rules contained in F.R.A.P. 32(a)(7) for a brief produces with a proportionally spaced font. The length of this brief is 6,909 words. Dated: December 6, 2006 ____________________________ Dori K. Bernstein Attorney U.S. Equal Employment Opportunity Commission Office of General Counsel 1801 L Street, N.W., Room 7044 Washington, D.C. 20507 (202) 663-4734 CERTIFICATE OF SERVICE I, Dori K. Bernstein, hereby certify that on the 6th day of December, 2006, I caused two copies of the attached Brief of the Equal Employment Opportunity Commission as Amicus Curiae in Support of Plaintiff-Appellant Aria Brewer and Reversal to be sent via Federal Express Next Day Air Delivery to: Charles W. Miller Rheanne D. Falkner Miller & Falkner Waterfront Plaza, Suite 2104 325 West Main Street Louisville, Kentucky 40202 David Domene Blackburn, Jundley & Domene PLLC 614 West Main Street, Suite 3000 Louisville, Kentucky 40202 _________________________________ DORI K. BERNSTEIN Attorney Connecticut State Bar No. 302667 District of Columbia Bar No. 415827 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7046 Washington, D.C. 20507 (202)663-4734 Dori.Bernstein@EEOC.gov Date: December 6, 2006 *********************************************************************** <> <1> Record references, designated “R.___,” correspond to numbered entries on the district court docket sheet. <2> Goodloe recognized the possibility that people might think he had selected Brewer because of her race, he explained, due to the “[m]entality of some of the people” at Cedar Lake, which he described as “very closed minded.” R.22, Goodloe dep. at 130. <3> Cedar Lake designates some HAs as B Techs, who are assigned to work in the office and respond to pages from staff throughout the facility to assist in handling residents with particularly challenging behaviors. See R.22, Brewer dep. at 35-36, 40-49, 176-86. During the relevant time period, HAs with B Tech designation were scheduled on a rotating basis to work several shifts per week as a B Tech. Id. Effective January 2005, Cedar Lake maintained “four permanent B Tech positions.” Id. at 179. <4> In September 2003, when Sharp’s transfer to the ADP aide position “created a vacancy for a B Tech,” Cedar Lake offered B Tech designation to Brewer, which she accepted. Id. at 175; see also R.21, exh.3 (Crouch interview notes) at 2, #11 (“Aria is now a B-Tech after taking the position of B-Tech vacated when Stacey took the ADP [aide] position.”). Brewer “was already PCM certified” and received “no additional training to be a B Tech.” R.22, Brewer dep. at 176-77.