John D. Chapman v. Ai Transprt, AIG Aviation, Inc. Aig Claims Services, Inc. and American Inter. 97-8838 97-9086 97-9269 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT Nos. 97-8838, 97-9086 & 97-9269 JOHN D. CHAPMAN, Plaintiff-Appellant, v. AI TRANSPORT AIG AVIATION, INC. AIG CLAIMS SERVICES, INC., and AMERICAN INTERNATIONAL GROUP, INC., Defendants-Appellees. On Appeal from the United States District Court for the Northern District of Georgia Honorable Willis B. Hunt, Jr., Judge EN BANC BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel GEOFFREY L.J. CARTER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW Washington, D.C. 20507 (202) 663-4728 CERTIFICATE OF INTERESTED PERSONS Chapman v. AI Transport, et al., Nos. 97-8838, 97-9086 & 97-9269 (11th Cir.) Pursuant to Eleventh Circuit Rule 26, the undersigned counsel for amicus curiae Equal Employment Opportunity Commission certifies that the following persons have an interest in the outcome of this case: Judges: Honorable Willis B. Hunt, Jr. Honorable William L. Harper Parties: John D. Chapman (plaintiff-appellant) AI Transport AIG Aviation, Inc. AIG Claims Services, Inc. American International Group (defendants-appellees) Amicus Curiae: Equal Employment Opportunity Commission Other R. Lawrence Ashe, Jr. Interested Persons: Geoffrey L.J. Carter P. Kevin Connelly Michael W. Dubus Teresa A. Ferrante Martin Harris James J. Oh David N. Schaeffer Richard T. Seymour Philip B. Sklover C. Gregory Stewart Carolyn L. Wheeler Alison Zousmer-Stein Law Entities: Connelly, Sheehan & Moran Kidd & Vaughn Lawyers' Committee for Civil Rights Under Law Paul, Hastings, Janofsky & Walker, LLP Pursuant to Fed. R. App. P. 26.1, the Equal Employment Opportunity Commission, as a government agency, is not required to file a corporate disclosure statement. GEOFFREY L.J. CARTER Attorney Equal Employment Opportunity Commission Office of General Counsel 1801 L Street, NW., Room 7022 Washington, D.C. 20507 April 28, 2000 (202) 663-4728 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT . . . . . . . . . . . . . . . . . . . . C-1 TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . i TABLE OF CITATIONS . . . . . . . . . . . . . . . . . . . . . ii STATEMENT OF INTEREST 1 STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE ISSUE . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE 3 A. Nature of Case and Course of Proceedings . . . . . . 3 Statement of Facts . . . . . . . . . . . . . . . . . 4 C. Magistrate Judge Recommendation . . . . . . . . . . . 5 D. District Court Decision . . . . . . . . . . . . . . . 6 E. Panel Decision . . . . . . . . . . . . . . . . . . . 7 STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . 8 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . 8 ARGUMENT 9 THIS COURT SHOULD REVERSE THE DISTRICT COURT'S DECISION TO AWARD SUMMARY JUDGMENT TO AIGCS ON CHAPMAN'S CLAIMS UNDER THE ADEA . 9 A. The proposition that a plaintiff may cast doubt on an employer's subjective explanation for its employment decisions by presenting evidence that the employer's objective explanations may have been untruthful is consistent with this Court's precedent . . . . . . . 11 B. Because Chapman cast doubt on both of AIGCS's proffered reasons for its actions, he should be allowed to present his ADEA claims against AIGCS to a jury . . . . . . . . . . . . . . . . . . . . . . . 19 CONCLUSION 20 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICETABLE OF CITATIONS CASES PAGE(S) *Aka v. Washington Hospital Ctr., 156 F.3d 1284 (D.C. Cir. 1998) . . . . . . . . . . . . . . . . . . . 18 Benson v. Tocco, Inc., 113 F.3d 1203 (11th Cir. 1997) . . . . 10 Bonner v. City of Prichard, Ala., 661 F.2d 1206 (11th Cir. 1981) . . . . . . . . . . . . . . . . . . . . 14 Bullington v. United Air Lines, Inc., 186 F.3d 1301 (10th Cir. 1999) . . . . . . . . . . . . . . . . . . . . 15 Burns v. AAF-McQuay, Inc., 96 F.3d 728 (4th Cir. 1996) . . . . 16 Carter v. Three Springs Residential Treatment, 132 F.3d 635 (11th Cir. 1998) . . . . . . . . . . . . . . 11 Chapman v. AI Transport, 180 F.3d 1244 (11th Cir. 1999), opinion vacated and reh'g en banc granted, ___ F.3d ___, 2000 WL 345758 (11th Cir. April 3, 2000) . . . . . . . . . . . . . . 3, 7, 16, 19 Chapman v. AI Transport, ___ F.3d ___, 2000 WL 345758 (11th Cir. April 3, 2000) . . . . . . . . . . . . . . . . 4 *Combs v. Plantation Patterns, 106 F.3d 1519 (11th Cir. 1997) . . . . . . . . . . . . . . . . . . . 9, 10, 11, 12, 15, 16, 17 Conner v. Fort Gordon Bus Co., 761 F.2d 1495 (11th Cir. 1985) . . . . . . . . . . . . . . . . . . . . 12 Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354 (11th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . 8 Driscoll v. Adams, 181 F.3d 1285 (11th Cir. 1999) . . . . . . . 8 *Fowler v. Blue Bell, Inc., 737 F.2d 1007 (11th Cir. 1984) . . . . . . . . . . . . . . . . . . 13, 15 Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994) . . . . . . . . 18 Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978) . . . 17 Giacoletto v. Amax Zinc Co., Inc., 954 F.2d 424 (7th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . 19 Harris v. Birmingham Board of Education, 712 F.2d 1377 (11th Cir. 1983) . . . . . . . . . . . . . . . . . . . . 13 Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993) . . . . . . . 9 *St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993) . . 10, 14 16 *Lee v. Conecuh County Board of Education, 634 F.2d 959 (5th Cir. 1981) . . . . . . . . . . . . . . . . . . . . . 14 Lee v. Russell County Board of Education, 684 F.2d 769 (11th Cir. 1982) . . . . . . . . . . . . . . . . . . . . 14 *Miles v. M.N.C. Corp., 750 F.2d 867 (11th Cir. 1985) . . . 12, 13 18 Reeves v. Sanderson Plumbing Products, Inc., No. 99-536, 120 S. Ct. 444 (1999) . . . . . . . . . . . . . . . . . . 10 *Robbins v. White-Wilson Medical Clinic, Inc., 660 F.2d 1064 (5th Cir. Unit B 1981) . . . . . . . . . . 18 *Stallworth v. Shuler, 777 F.2d 1431 (11th Cir. 1985) . . . . 15 Thomas v. Denny's, Inc., 111 F.3d 1506 (10th Cir. 1997) . . . 12 *Widoe v. District No. 111 Otoe County School, 147 F.2d 726 (8th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . 18 STATUTES Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., . . . . . . . . . . . . . . . . . 1 OTHER AUTHORITIES 2 John H. Wigmore, Evidence in Trials at Common Law § 278(2), at 133 (Chadbourn rev. 1979) . . . . . . . . . . . . . . 17 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT Nos. 97-8838, 97-9086 & 97-9269 JOHN D. CHAPMAN, Plaintiff-Appellant, v. AI TRANSPORT AIG AVIATION, INC. AIG CLAIMS SERVICES, INC., and AMERICAN INTERNATIONAL GROUP, INC., Defendants-Appellees. On Appeal from the United States District Court for the Northern District of Georgia Honorable Willis B. Hunt, Jr., Judge EN BANC BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE STATEMENT OF INTEREST The Equal Employment Opportunity Commission ("Commission") is the agency charged with the enforcement of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and other federal anti-discrimination statutes. This appeal raises an important question concerning the type of evidence a plaintiff may use to discredit or cast doubt on a subjective reason an employer provides for one of its employment decisions. Specifically, this appeal raises the question of whether a plaintiff who successfully casts doubt on the objective reason an employer provides for its actions may proceed to trial because, in discrediting the objective reason, the plaintiff also casts sufficient doubt on the employer's overall credibility to permit a reasonable factfinder to disbelieve the employer's subjective reason as well. Because of the importance of the question raised in this appeal to the effective enforcement of the ADEA and the other federal anti-discrimination statutes, the Commission offers its views to the Court. STATEMENT OF JURISDICTION The Commission defers to the jurisdictional statements of the parties. STATEMENT OF THE ISSUE<1> Whether this Court should reverse the district court's decision to award summary judgment to AIG Claims Services ("AIGCS") and American International Group ("AIG")<2> on plaintiff John Chapman's ("Chapman") ADEA claims where Chapman discredited the defendants' objective reason for its decision not to hire him, thereby providing grounds for a reasonable factfinder also to determine that, because of the damage to defendants' overall credibility, defendants' subjective reason for its decision was not worthy of belief. STATEMENT OF THE CASE A. Nature of the Case and Course of Proceedings On June 24, 1994, Chapman filed this action in federal district court, alleging (among other things) that AIGCS discriminated against him in violation of the ADEA by failing to hire him for or transfer him to vacant positions for which he applied. R1-1. AIGCS filed a motion for summary judgment on April 30, 1996. R6-72. AIGCS's motion for summary judgment was referred to a magistrate judge, and on August 22, 1996, the magistrate judge recommended that AIGCS's motion for summary judgment be denied as to Chapman's ADEA claims. R9-95 at 39-40. On March 5, 1997, the district court rejected the magistrate judge's recommendation on Chapman's ADEA claims against AIGCS, instead awarding summary judgment to AIGCS. R12-109 at 20-22. On July 2, 1997, Chapman filed a motion asking the district court to reconsider its decision to award summary judgment to AIGCS on Chapman's ADEA claims. R16-190. The district court denied Chapman's motion on September 3, 1997, and Chapman appealed that decision on September 24, 1997. R17-204; R17-209. On July 13, 1999, a panel of this Court reversed the district court's decision to award summary judgment to AIGCS, holding that Chapman was entitled to present his ADEA claim to a jury. Chapman v. AI Transport, 180 F.3d 1244, 1249-50 (11th Cir. 1999), opinion vacated and reh'g en banc granted, ___ F.3d ___, 2000 WL 345758 (11th Cir. April 3, 2000). On April 3, 2000, this Court vacated the panel's opinion and scheduled this case for rehearing en banc. Chapman v. AI Transport, ___ F.3d ___, 2000 WL 345758 (11th Cir. April 3, 2000). B. Statement of Facts<3> In 1988, plaintiff John Chapman began working for defendant AI Transport as a Senior Claims Representative. R23-102 to 103. Shortly thereafter, Chapman was promoted to Claims Supervisor. R21-67; R23-111 to 112. Throughout his employment with AI Transport, Chapman received positive performance appraisals and was viewed by AI Transport vice-president William O'Brien as a "truly excellent Senior Claims Representative." R21-59 to 63; R25-20 to 21. In the Fall of 1992, when he was 61 years old (R23-96), Chapman sought a transfer to a position at AIGCS, a sister company of AI Transport. R23-204 to 205. Chapman submitted his resume to AIGCS vice-president James Wogsland, and did not limit his transfer request to any particular job. R23-207; R22-168, 180 to 181. Wogsland and Ward Turnquist (another AIGCS vice-president) interviewed Chapman for the position of casualty claims manager, but offered the position to Graham Wiggins, who was younger than Chapman. R22-177, 180; R23-47; PX-143. AIGCS offered two reasons for its decision not to hire Chapman as casualty claims manager: (1) Chapman had an unstable job history, as indicated by his recent "job skipping" (i.e., changing jobs frequently); and (2) Chapman had "interviewed poorly."<4> R22-178; R23-81. AIGCS did not document its impression about Chapman's interview. R22-177 to 178; PX-54A. Although it had received Chapman's resume and transfer request, AIGCS did not consider Chapman for three other vacancies for which he was qualified. R22-180; R23-15 to 18, 20. Instead, AIGCS gave those positions to three of Chapman's co-workers at AI Transport, all of whom were younger and had less experience and job-related education. R21-60; PX292, 308, 316. None of the three individuals had better performance appraisals than Chapman. See id. In addition, two of the individuals hired by AIGCS previously had held almost as many jobs as Chapman (and had held these jobs over a substantially shorter time period), and one had interviewed poorly. R23-32, 72, 82 to 85; R22-218. Last, while AIGCS considered Chapman for only one job (despite the fact that he did not limit his application to one position), AIGCS hired one of the other individuals into a position different from the one for which he had applied. R23-53-55; R24-154. C. Magistrate Judge Recommendation On August 22, 1996, the magistrate judge recommended that Chapman be allowed to proceed to trial on his ADEA claims against AIGCS. See R9-95 at 45. The magistrate judge noted that AIGCS, in response to Chapman's showing of a prima facie case of age discrimination, proffered legitimate, nondiscriminatory reasons for not hiring Chapman when it claimed Chapman was not hired because he did not interview well and because he had an unstable job history. Id. at 38-39. In the magistrate judge's view, however, Chapman met his burden to show AIGCS's reasons were pretextual. Id. at 39. Chapman presented evidence that his job history was "actually very stable," and the magistrate judge agreed that because AIGCS's subjective reason that Chapman interviewed poorly was a matter of credibility, it was "inappropriate evidence on which to base summary judgment." Id. at 39-40. D. District Court Decision The district court reviewed the magistrate judge's recommendation, and rejected the magistrate judge's recommendation on Chapman's ADEA claim against AIGCS, deciding instead to grant AIGCS's motion for summary judgment. R12-109 at 22. In the district court's view, Chapman did not present evidence that "counter[ed] the nondiscriminatory reason that [he] did not interview well." Id. at 21. Specifically, although Chapman presented evidence regarding the employment record of other employees, his relatively constant employment and his lengthy employment relationships, the district court did not believe he presented evidence that would permit a reasonable jury to disbelieve AIGCS's explanation that Chapman did not interview well. Id. E. Panel Decision A panel of this Court reversed the district court's decision to award summary judgment to AIGCS on Chapman's claims under the ADEA. See Chapman, 180 F.3d at 1250-51. Reviewing the district court's analysis of Chapman's case, the panel observed that Chapman established a prima facie case of an ADEA violation, and that AIGCS met its burden of production when it proffered two legitimate, non-discriminatory reasons for not hiring Chapman -- Chapman's recent history of "job skipping" and AIGCS's view that Chapman did not interview well. Chapman, 180 F.3d at 1249. The panel, however, disagreed with the district court's determination that Chapman failed to demonstrate a disputed issue of fact on whether AIGCS's reasons were pretexts for discrimination. Id. Specifically, the panel held that the district court erred when it awarded summary judgment to AIGCS on the ground that Chapman did not disprove the company's assertion that he did not interview well. Id. at 1250. In the panel's view, the district court improperly required Chapman "to meet an insurmountable standard that runs counter to [the Eleventh Circuit's] cautious treatment of purely subjective justifications for adverse employment decisions." Id. The panel explained that the district court should have analyzed whether Chapman cast sufficient doubt "on the overall credibility of AIGCS's explanation." Id. Applying that approach, the panel held that Chapman did cast sufficient doubt, because in rebutting AIGCS's proffered objective reason for its decision (Chapman's supposed history of "job skipping"), Chapman also cast doubt on AIGCS's subjective reason sufficient to survive summary judgment. Id. STANDARD OF REVIEW The Commission's brief addresses a question of law that this Court reviews de novo. Driscoll v. Adams, 181 F.3d 1285, 1287 (11th Cir. 1999). This Court also reviews de novo a district court's decision to grant a motion for summary judgment. Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1357 (11th Cir. 1999). Summary judgment is not appropriate if "'the evidence is such that a reasonable jury could return a verdict for the non-moving party.'" Id. at 1358 (citation omitted). SUMMARY OF ARGUMENT The district court erred when it held that AIGCS was entitled to summary judgment on Chapman's ADEA claim. In particular, the district court erred when it held that Chapman failed to present enough evidence to cast doubt on the subjective explanation AIGCS proffered for its hiring decision. The district court should have recognized (as the panel did) that in casting doubt on AIGCS's proffered objective explanation for its actions, Chapman also cast doubt on AIGCS's overall credibility and truthfulness to preclude summary judgment based on AIGCS's subjective explanation that Chapman did not interview well. This Court already has recognized that subjective explanations readily may be used to mask discrimination. In light of the unique problems that subjective explanations pose in the employment discrimination context (particularly within the McDonnell Douglas/Burdine framework), this Court has indicated that at least two rules are necessary to ensure that a plaintiff has a fair opportunity to rebut an employer's subjective explanations and present their claims to a trier of fact: (1) an employer relying on subjective criteria for its employment decisions must satisfy a heavier burden of production when rebutting a plaintiff's prima facie case; and (2) a plaintiff may rebut the subjective reasons an employer provides for its employment decisions by presenting any evidence that would allow the factfinder to question the truthfulness of the employer's subjective explanation. Consistent with the second rule, the Commission urges this Court to hold that when a plaintiff successfully casts doubt on the employer's objective reasons for its actions, the plaintiff also casts doubt on the employer's subjective reasons because, based on the evidence that the employer's objective reasons may have been untruthful, a reasonable factfinder also could hold that the employer's subjective reasons are not worthy of belief. ARGUMENT THIS COURT SHOULD REVERSE THE DISTRICT COURT'S DECISION TO AWARD SUMMARY JUDGMENT TO AIGCS ON CHAPMAN'S CLAIMS UNDER THE ADEA The Supreme Court's proof framework for evaluating (at the summary judgment stage) a claim of disparate treatment based on circumstantial, non-direct, evidence is "now-familiar." Combs v. Plantation Patterns, 106 F.3d 1519, 1527 (11th Cir. 1997) (explaining the framework created in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981)). See also Hazen Paper Co. v. Biggins, 507 U.S. 604, 612 (1993) (observing that the framework applies to ADEA claims); Benson v. Tocco, Inc., 113 F.3d 1203, 1207-08 (11th Cir. 1997) (same). "Under that framework, the plaintiff has the initial burden of establishing a prima facie case of discrimination." Combs, 106 F.3d at 1527-28. Once that burden is met, an initial presumption of discrimination is established and the employer faces "the burden of producing legitimate, nondiscriminatory reasons for the challenged employment action." Id. at 1528. If the employer satisfies its burden of production, the presumption of discrimination is eliminated, but "the plaintiff has the opportunity to come forward with evidence . . . sufficient to permit a reasonable factfinder to conclude that the reasons given by the employer were not the real reasons for the adverse employment decision." Id. As this Court has held, "disbelief of the employer's proffered reasons, . . . in tandem with the plaintiff's prima facie case, is sufficient to permit the factfinder to infer discrimination." Id. (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993)). See also Combs, 106 F.3d at 1536-38 (explaining the reasons for this rule).<5> Based on this case law, there is no dispute that a plaintiff in an ADEA case may withstand summary judgment if he or she establishes a prima facie case and presents evidence that would allow a factfinder to disbelieve the employer's explanations for its actions. See Combs, 106 F.3d at 1528 (factfinder may infer discrimination based on prima facie case and disbelief of employer's proffered reasons). This case raises an important question within that basic framework, because to resolve this case, this Court will have to determine the type of evidence that can suffice to cast doubt on a subjective explanation provided by the employer. The Commission believes that a plaintiff may cast doubt on an employer's subjective explanation for its actions by presenting any evidence that would allow a reasonable factfinder to question whether the employer may be using the proffered subjective explanation to mask discrimination. Chapman's evidence that AIGCS's objective explanation may have been untruthful is precisely the kind of evidence that would permit a reasonable factfinder to disbelieve AIGCS's subjective explanation, because it raises the possibility that AIGCS's subjective explanation also may have been untruthful and asserted to mask discrimination. A. The proposition that a plaintiff may cast doubt on an employer's subjective explanation for its employment decisions by presenting evidence that the employer's objective explanations may have been untruthful is consistent with this Court's precedent It is not a novel proposition that courts should treat subjective explanations with caution in the context of employment discrimination. As this Court has recognized, while an employer permissibly may rely on subjective criteria when making employment decisions, subjective criteria are problematic in that they provide a "ready mechanism for . . . discrimination." Carter v. Three Springs Residential Treatment, 132 F.3d 635, 644 (11th Cir. 1998) (quoting Miles v. M.N.C. Corp., 750 F.2d 867, 871 (11th Cir. 1985)). See also Thomas v. Denny's, Inc., 111 F.3d 1506, 1510 (10th Cir. 1997) (observing that "subjective criteria 'are particularly easy for an employer to invent in an effort to sabotage a plaintiff's prima facie case and mask discrimination'"). Indeed, because "acts of discrimination may be hidden or subtle," there seldom will be a written record of an employer's discriminatory motive, let alone "'eyewitness testimony as to the employer's mental processes.'" Combs, 106 F.3d at 1537 (quoting U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983)). To address the inherent problems that subjective explanations pose in employment discrimination cases, this Court has relied on at least two rules to ensure that plaintiffs have a fair opportunity to rebut an employer's subjective explanations and present their claims to a trier of fact. As this Court has held, one of these rules is that employers relying on subjective criteria for employment decisions face a heavier burden of production when rebutting a plaintiff's prima facie case. See Conner v. Fort Gordon Bus Co., 761 F.2d 1495, 1499 (11th Cir. 1985) (stating this rule, and noting that the burden is normally "exceedingly light"). See also AIGCS's Suggestion of Rehearing En Banc at 13 (acknowledging this rule). This Court requires employers to meet this heavier burden because plaintiffs must have a reasonable opportunity to rebut the employers' proffered reasons for their actions (see Conner, 761 F.2d at 1499; Miles, 750 F.2d at 871), and subjective explanations may leave plaintiffs with no "objective criteria to point to in order to show competence." Miles, 750 F.2d at 871. Contrary to AIGCS's assertion in its suggestion of rehearing en banc at pages 13-14, the heightened burden of production is not a complete solution to the problems that subjective explanations present in the McDonnell Douglas/Burdine framework. Instead, the requirement that employers must meet a heightened burden of production is only a partial solution, because the inquiry that occurs at the employer's rebuttal stage is limited to ensuring that the employer's proffered reason is clear and reasonably specific.<6> See Fowler v. Blue Bell, Inc., 737 F.2d 1007, 1011 (11th Cir. 1984) ("'The Supreme Court's requirement that the defendant's explanation of its legitimate reasons . . . be clear and reasonably specific, provides the plaintiff with some protection against the potential for discrimination inherent in a subjective selection process with subjective criteria.'") (quoting Robbins v. White-Wilson Med. Clinic, Inc., 660 F.2d 1064, 1067 (5th Cir. Unit B 1981) (emphasis added), vacated on other grounds, 456 U.S. 969 (1982)). Due to this limitation, "the determination that a defendant has met its burden of production . . . can involve no credibility assessment." Hicks, 509 U.S. at 509. Because credibility is at the heart of whether an employer's subjective reason is worthy of belief, the requirement that employers must meet a heightened burden of production cannot address all of the problems inherent in subjective decisionmaking. Perhaps in recognition of the limitations of the heightened burden of production in this context, this Court has indicated that a second rule is necessary to address the problems presented by subjective explanations proffered by employers. Specifically, this Court has indicated that plaintiffs successfully may cast doubt on an employer's subjective explanation for its actions by presenting any evidence that would cause a reasonable factfinder to question whether the employer might be using the proffered subjective explanation to mask discrimination.<7> For example, in Lee v. Conecuh County Bd. of Educ., 634 F.2d 959, 963 (5th Cir. 1981)<8>, the employer asserted that it did not hire the plaintiff as a school principal because it believed the plaintiff was "unfit" for the position. The court held that even if the employer's subjective reason was enough to rebut the plaintiff's prima facie case, the plaintiff demonstrated that the reason was pretextual when he introduced statistical evidence indicating the failure of the employer to hire black applicants into vacant principalships. Id. at 964. See also Stallworth v. Shuler, 777 F.2d 1431, 1434 (11th Cir. 1985) (stating that the employer's claims that it hired other individuals "for subjective reasons such as the superintendent's trust in them, their political loyalty, and their ability to get along with people" were "basically impossible to prove or disprove," and thus "cannot be sufficient in themselves" to undermine the district court's finding of discrimination); Fowler, 737 F.2d at 1012-13 (plaintiff allowed to provide his own testimony at trial to rebut employer's subjective explanation for its hiring decision). The lesson in these cases is that a plaintiff does not have to rebut directly the subjective reasons an employer provides for its employment decisions. It is enough to simply present evidence that would allow the factfinder to question the truthfulness of the employer's subjective explanation. See Combs, 106 F.3d at 1528 (factfinder may infer discrimination based on prima facie case and disbelief of employer's proffered reasons). See also Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1317 (10th Cir. 1999) (explaining that a plaintiff may establish pretext "by demonstrating such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence") (citations and internal quotation marks omitted). Consistent with this Court's approach in Lee, Stallworth and Fowler, this Court should hold that a plaintiff may cast doubt on an employer's subjective explanation for its employment decisions by presenting evidence that the employer's objective explanations may have been untruthful. This rule, which was announced by the panel in its opinion, see Chapman, 180 F.3d at 1250, is appropriate because, when a plaintiff successfully casts doubt on the employer's objective reasons for its employment decision, the plaintiff demonstrates an increased likelihood that the employer was motivated by an intent to discriminate that is sufficient to allow a reasonable factfinder to disbelieve the employer's subjective reasons for its actions as well.<9> Under the McDonnell Douglas/Burdine framework, a plaintiff who presents evidence showing that the employer's explanations are not worthy of belief is entitled to proceed to trial. See Combs, 106 F.3d at 1537 (stating this rule). See also Hicks, 509 U.S. at 511 ("The factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination."). Courts allow plaintiffs to proceed to trial in this circumstance because, in eliminating the legitimate reasons for the employer's actions, the plaintiff simultaneously shows that "'it is more likely than not the employer, who we generally assume acts only with some reason, based his decision on an impermissible consideration.'" Combs, 106 F.3d at 1537 (quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978)). See also 2 John H. Wigmore, Evidence in Trials at Common Law § 278(2), at 133 (Chadbourn rev. 1979) ("It has always been understood . . . that a party's falsehood . . . in the preparation and presentation of his cause . . . is receivable against him as an indication of his consciousness that his case is a weak or unfounded one; and from that consciousness may be inferred the fact itself of the cause's lack of truth or merit."). A plaintiff is entitled to the same type of inference in a case where he or she discredits each of the employer's objective reasons for its actions, leaving only the employer's subjective reasons for consideration. In discrediting the employer's objective reasons, the plaintiff makes a strong showing that more likely than not, the employer was motivated by an impermissible factor. See Furnco Constr. Corp., 438 U.S. at 577 (explaining the basis for this inference). Where the plaintiff has made such a showing, a court should not give too much weight at the summary judgment stage to the subjective reasons proffered by the employer, because as this Court has recognized, subjective reasons provide a convenient mechanism for masking discrimination. See Miles, 750 F.2d at 871 (voicing this concern about subjective reasons). Instead, as this Court and other courts have recognized, the proper course is to allow a trier of fact to decide whether, based on the credibility of the witnesses and the evidence presented, the employer was motivated by its subjective (or objective) reasons or by an intent to discriminate. See Robbins, 660 F.2d at 1070 (agreeing with majority that, notwithstanding the employer's subjective reason that it did not hire the plaintiff because of her personality, the plaintiff was entitled to suspect discrimination and to have a trial in part because the employer had given her a false reason for its hiring decision) (Smith, J., dissenting); Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1298 (D.C. Cir. 1998) (allowing the plaintiff to proceed to trial on his ADEA and ADA failure to hire claims because he cast doubt on the employer's objective explanations for its decision, and the remaining subjective explanation could have been asserted to mask discrimination); Widoe v. District No. 111 Otoe County School, 147 F.2d 726, 729-30 (8th Cir. 1998) (plaintiff entitled to a trial on her ADEA claim because she cast doubt on the employer's objective explanation, leaving only the employer's subjective explanations (one of which was that the plaintiff did not interview well), which were not sufficient to warrant summary judgment). See also Fuentes v. Perskie, 32 F.3d 759, 764 n.7 (3d Cir. 1994) (explaining that in some circumstances, a plaintiff who successfully casts doubt on some of the employer's proffered reasons "may not need to discredit the remainder . . . because the factfinder's rejection of some of the defendant's proffered reasons may impede the employer's credibility seriously enough so that a factfinder may rationally disbelieve the remaining proffered reasons, even if no evidence undermining those remaining rationales in particular is available"); Giacoletto v. Amax Zinc Co., Inc., 954 F.2d 424, 427 (7th Cir. 1992) (explaining that employers take a risk "when they make employment decisions based on essentially subjective judgments about qualities such as 'interpersonal skills'" because although relying on such factors is "not per se illegal, the jury may, under some circumstances, reasonably consider subjective reasons as pretexts for discrimination"). B. Because Chapman cast doubt on both of AIGCS's proffered reasons for its actions, he should be allowed to present his ADEA claims against AIGCS to a jury As the panel recognized, Chapman presented enough evidence to cast doubt on AIGCS's objective reason that it did not hire Chapman because of his unstable job history. Chapman, 180 F.3d at 1250. See also supra pp. 5-6 (district court and magistrate judge implicitly and/or explicitly agreed that Chapman cast doubt on AIGCS's proffered objective explanation). As explained above, that evidence, in and of itself, is sufficient to cast doubt on AIGCS's subjective reason because, in showing that AIGCS's objective explanation may have been untruthful, Chapman presented evidence that also would allow a reasonable factfinder to determine that AIGCS's subjective explanation (that Chapman interviewed poorly) was not worthy of belief.<10> See supra pp. 14-19. Because a reasonable factfinder could disbelieve each of AIGCS's proffered reasons for why it did not hire Chapman for (or transfer him to) one of its vacant positions for which he was qualified, Chapman should be allowed to proceed to trial on his claims under the ADEA. CONCLUSION For the foregoing reasons, this Court should reverse the district court's decision to award summary judgment to AIGCS on Chapman's ADEA claims, and remand for further proceedings. Respectfully submitted, C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel GEOFFREY L.J. CARTER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW, 7th Floor Washington, D.C. 20507 April 28, 2000 (202) 663-4728 CERTIFICATE OF SERVICE I, Geoffrey L.J. Carter, hereby certify that on this 28th day of April, 2000, two copies of the attached brief were sent by overnight mail (counsel in Washington, DC were served by messenger), postage prepaid, to each of the following counsel of record: Richard T. Seymour, Esq. Teresa A. Ferrante, Esq. Lawyers' Committee for Civil Rights Under Law 1401 New York Ave., NW, Suite 400 Washington, DC 20005 R. Lawrence Ashe, Jr., Esq. Michael W. Dubus, Esq. Paul, Hastings, Janofsky & Walker, LLP 600 Peachtree St., NE, Suite 2400 Atlanta, GA 30308-2222 James J. Oh, Esq. P. Kevin Connelly, Esq. Martin Harris, Esq. Connelly, Sheehan & Moran 150 S. Wacker Drive, Suite 1600 Chicago, Illinois 60606 David N. Schaeffer, Esq. Kidd & Vaughn 191 Peachtree Street, Suite 3630 Atlanta, Georgia 30303 GEOFFREY L.J. CARTER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW Washington, D.C. 20507 April 28, 2000 (202) 663-4728 CERTIFICATE OF COMPLIANCE Pursuant to Fed. R. App. Proc. 32(a)(7)(C), I certify that this brief complies with the type volume limitation set forth in the rules. Based on the word count provided by WordPerfect 8 for Windows, this brief contains 5,010 words. GEOFFREY L.J. CARTER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW, Room 7022 Washington, D.C. 20507 April 28, 2000 (202) 663-4728 1 The Commission appears as amicus curiae principally to address only this issue, which generally corresponds to Issue 4, as stated in the Court's April 3, 2000 notice to counsel. See also Chapman's En Banc Brief at 1 (listing Issues 1-4 from the April 3, 2000 notice). Regarding Issue 1, the Commission assumes for the sake of this argument that Chapman raised a genuine issue of material fact about whether AIGCS's objective explanation (job skipping) was pretextual, and thus does not specifically analyze that issue in this brief. The Commission also does not address Issue 2, but emphasizes that this omission does not imply that the Commission believes that AIGCS met its burden of production when it merely asserted that it did not hire Chapman because it believed he interviewed poorly. See infra pp. 12-14 (discussing the employer's burden of production). Issue 3 is addressed infra p. 20 n.10. The Commission does not express any views on other issues that this appeal may raise. 2 AIG is the parent company of AIGCS. In the interest of brevity, the Commission refers to both as AIGCS. 3 The Commission provides only a summary of the facts relevant to Chapman's ADEA claims. Accordingly, the facts and record citations presented here do not represent all of the evidence highlighted by the parties in support of their respective cases. 4 Regarding his interview, Chapman testified that his interviews with Wogsland and Turnquist focused on his past experience, education and qualifications, and were "respectful and businesslike and professional." R23-208; R24-57. 5 The Supreme Court may provide additional guidance on the plaintiff's burden at the pretext stage when it issues its decision in Reeves v. Sanderson Plumbing Products, Inc., No. 99-536, which is currently pending before the Court. See 120 S. Ct. 444 (1999) (granting petition for certiorari). 6 The Commission also notes that the heightened burden of production is not a complete solution because it is not always applied in a clear and consistent manner. Compare Fowler, 737 F.2d at 1011 (employer's belief that plaintiff would not remain with the company for long was sufficient to meet employer's burden of production) with Harris v. Birmingham Bd. of Educ., 712 F.2d 1377, 1382 (11th Cir. 1983) (employer's belief that plaintiff was not interested in the position in question was not a legitimate reason sufficient to meet employer's burden of production). 7 In its suggestion of rehearing en banc, AIGCS acknowledges that a plaintiff may cast doubt on an employer's subjective reasons by presenting his own testimony contesting the employer's subjective reason, or by presenting evidence regarding how the employer applied its subjective criteria to other individuals. See AIGCS Suggestion of Rehearing En Banc at 14-15. 8 Decisions of the former Fifth Circuit serve as binding precedent in the Eleventh Circuit. See Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981) (stating this rule). See also Lee v. Russell County Bd. of Educ., 684 F.2d 769, 775-76 (11th Cir. 1982) (citing Lee, 634 F.2d 959, with approval). 9 The justifications for adopting this rule are most compelling where the employer's remaining reasons are subjective. Although there are circumstances where a plaintiff may rebut an employer's objective explanation by establishing the falsehood of other objective explanations, see, e.g., Burns v. AAF-McQuay, Inc., 96 F.3d 728, 733 (4th Cir. 1996) (plaintiff cast doubt on sixteen out of eighteen objective reasons proffered by employer, which was sufficient for a jury to disbelieve all of the reasons), the need for such a rule is less compelling in that context because objective explanations generally may be verified or discredited by referring to objective evidence. Subjective reasons simply are different, precisely because they may be easily asserted to mask discrimination, and because their validity depends solely on the employer's state of mind. See supra pp. 11-12. 10 This Court should not overlook the other evidence in the record that directly and indirectly casts doubt on AIGCS's subjective explanation for its actions. Irrespective of whether this Court agrees with the Commission on the legal issues addressed in this brief, Chapman's evidence of his qualifications and his own impressions of his job interview, coupled with the evidence that AIGCS hired another individual who interviewed poorly (see supra pp. 4-5 (summarizing this evidence)), is more than sufficient to cast doubt on AIGCS's subjective explanation that it did not hire Chapman because he interviewed poorly.