No. 10-2629 ____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ____________________________________________ MIRNA E. SERRANO, Plaintiff, and EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. CINTAS CORPORATION, Defendant-Appellee. ____________________________________________ On Appeal from the United States District Court for the Eastern District of Michigan, No. 04-40132 The Honorable Sean F. Cox ____________________________________________ REPLY BRIEF OF APPELLANT EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ____________________________________________ P. DAVID LOPEZ JENNIFER S. GOLDSTEIN General Counsel Attorney U.S. EQUAL EMPLOYMENT LORRAINE C. DAVIS OPPORTUNITY COMMISSION Acting Associate General Counsel Office of General Counsel 131 M Street, NE CAROLYN L. WHEELER Washington, DC 20507 Assistant General Counsel (202) 663-4733 Jennifer.goldstein@eeoc.gov ORAL ARGUMENT REQUESTED TABLE OF CONTENTS Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iv Argument I. EEOC may use the Teamsters proof framework for a claim brought under §706. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. The district court abused its discretion by denying EEOC leave to amend its complaint to invoke §707 . . . . . . . . . . . . . . . . . . . . . . . . 14 III. EEOC satisfied all administrative prerequisites to filing suit by investigating and conciliating its claim . . . . . . . . . . . . . . . . 19 IV. The district court erred in granting summary judgment on EEOC's claim that Cintas discriminated against thirteen individual women. . . . . . .23 A. Prima facie case . . . . . . . . . . . . . . . . . . . . . . . . . 23 B. Cintas' proffered explanations and comparative evidence of pretext . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29 C. Statistical evidence . . . . . . . . . . . . . . . . . . . . . . . 33 D. Anecdotal evidence . . . . . . . . . . . . . . . . . . . . . . . . 40 V. The District Court abused its discretion by limiting EEOC's discovery. . .43 A. Farmer deposition . . . . . . . . . . . . . . . . . . . . . . . . . 43 B. Unredacted applications . . . . . . . . . . . . . . . . . . . . . . 45 C. Discovery extension . . . . . . . . . . . . . . . . . . . . . . . . 47 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .49 Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . 50 Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . .50 Supplemental Designation of Relevant District Court Documents Not Under Seal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51 TABLE OF AUTHORITIES CASES Barnes v. GenCORP, 896 F.2d 1457 (6th Cir. 1990) . . . . . . .36, 37, 38, 40, 41 Barnhart v. Pickrel, Schaffer & Ebeling, 12 F.3d 1382 (6th Cir. 1993) . . 40, 41 Bratten v. SSI Servs., 185 F.3d 625 (6th Cir. 1999) . . . . . . . . . . . . . 10 Bush v. Dictaphone Corp., 161 F.3d 363 (6th Cir. 1999) . . . . . . . . . .43, 44 Chen v. Dow Corp., 580 F.3d 394 (6th Cir. 2009) . . . . . . . . . . . . . . . 32 Cicero v. Borg-Warner Automotive, 280 F.3d 579 (6th Cir. 2002) . . . .33, 34, 38 Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867 (1984) . . . . . . . . .25 Duggins v. Steak 'N Shake, 195 F.3d 828 (6th Cir. 1999) . . . . . . . . . . . 18 EEOC v. Continental Oil Co., 548 F.2d 884 (10th Cir. 1977). . . . . . . . . . .2 EEOC v. CRST Van Expedited, Inc., 2009 WL 2524402 (N.D. Iowa 2009). . . . . . 21 EEOC v. Gen. Tel. Co. of Nw., 885 F.2d 575 (9th Cir. 1989). . . . . . . . . . .2 EEOC v. Harvey L. Walner & Assocs., 91 F.3d 963 (7th Cir. 1996) . . . . . . . 20 EEOC v. Kaplan Higher Educ. Corp., 2011 WL 1775746 (N.D. Ohio 2011). . . . . . 3 EEOC v. Keco Industries, 748 F.2d 1097 (6th Cir. 1984) . . . . . . . .19, 20, 22 EEOC v. Mitsubishi Motor Mfg., 990 F.Supp. 1059 (C.D. Ill. 1988) . . . . . . . 8 EEOC v. Monarch Machine Tool Co., 737 F.2d 1444 (6th Cir. 1980) . . . . 1, 4, 12 EEOC v. Paramount Staffing, 601 F.Supp.2d 986 (W.D. Tenn. 2009) . . . . . . . 20 EEOC v. Scolari Warehouse Markets, 488 F. Supp.2d 1117 (D. Nev. 2007) . . . . .3 EEOC v. Shell Oil Co., 466 U.S. 54 (1984) . . . . . . . . . . . . . . . . . . .9 EEOC v. St. Louis-S.F. Ry., 743 F.2d 739 (10th Cir. 1984) . . . . . . . . . . .3 EEOC v. Target Corp., 2007 WL 1461298 (E.D. Wis. 2007) . . . . . . . . . . . .21 EEOC v. Waffle House, Inc., 534 U.S. 279 (2002) . . . . . . . . . . . . . . . 12 Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344 (6th Cir. 1998) . . . .40 Farber v. Massillon Bd. Of Educ., 917 F.2d 1391 (6th Cir. 1990) . . . . . . . .30 FCC v. AT&T Inc., 131 S.Ct. 1177 (2011) . . . . . . . . . . . . . . . . . . . .6 Gen. Tel. Co. of Nw. v. EEOC, 446 U.S. 318 (1980) . . . . . . . . . .1, 2, 8, 21 Georator Corp. v. EEOC, 592 F.2d 765 (4th Cir. 1979) . . . . . . . . . . . . .22 Gilty v. Village of Oak Park, 919 F.2d 1247 (7th Cir. 1990) . . . . . . . . . 25 Hazelwood Sch. Dist. v. U.S., 433 U.S. 299 (1977) . . . . . . . . . . . . . . 36 Hickman v. Taylor, 329 U.S. 495 (1947) . . . . . . . . . . . . . . . . . . . .46 Hopson v. DaimlerChrysler Corp., 306 F.3d 427 (6th Cir. 2002) . . . . . . . . 36 Int'l Bhd. of Teamsters v. U.S., 431 U.S. 324 (1977) . . . . . . . .2, 12, 17, 48 Kavorkian v. CSX Transp., Inc., 117 F.3d 953 (6th Cir. 1997) . . . . . . . 4 Khozhaynova v. Holder, 641 F.3d 187 (6th Cir. 2011) . . . . . . . . . . . . . 5 Lorillard v. Pons, 434 U.S. 575 (1978) . . . . . . . . . . . . . . . . . . . . 11 Mayor of Philadelphia v. Educ. Equal. League, 415 U.S. 605 (1974) . . . . . . . 33 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) . . . . . . . . . 13, 34, 38 McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995) . . . . . .24, 27 Moore v. City of Paducah, 790 F.2d 557 (6th Cir. 1986) . . . . . . . . . . .14, 18 NAACP v. City of Mansfield, 866 F.2d 162 (6th Cir. 1989) . . . . . . . . . . . .36 O'Neal v. City of New Albany, 293 F.3d 998 (7th Cir. 2002) . . . . . . . . . . .26 Palmer v. Shultz, 815 F.2d 84 (D.C. Cir. 1987) . . . . . . . . . . . . . . . . .36 Reeves v. Sanderson Plumbing Prods., 530 U.S. 133 (2000) . . . . . . . . . . . .30 Sims v. Cleland, 813 F.2d 790 (6th Cir. 1987) . . . . . . . . . . . . . . . . . 34 Smith v. Pyro Mining Co., 827 F.2d 1081 (6th Cir. 1987) . . . . . . . . . . . . 10 Sprint/United Management Co. v. Mendelsohn, 552 U.S. 379 (2008) . . . . . . . . 41 St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993) . . . . . . . . . . . . 25, 32 Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981) . . . . . . . . . 25 Thurman v. Yellow Freight Sys., 90 F.3d 1160 (6th Cir. 1996). . . . . . . . . . 26 U.S. v. City of Yonkers, 592 F. Supp. 570 (S.D.N.Y. 1984). . . . . . . . . . . .7 U.S. v. O'Brien, 130 S.Ct. 2169 (2010) 10 Wal-Mart Stores v. Dukes, ___ S.Ct. ___, 2011 WL 2437013 (June 20, 2011). . . . . . . . . . . .. . . . . . . . . . . . 12, 13, 25 Wexler v. White's Fine Furniture, 317 F.3d 564 (6th Cir. 2003). . . . . . . . 25 STATUTES and LEGISLATIVE HISTORY 42 U.S.C. §1977A(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. 42 U.S.C. §2000e-5 (§706). . . . . . . . . . . . . . . . . . . . . . . .passim 42 U.S.C. §2000e-5(f)(1). . . . . . . . . . . . . . . . . . . . . . . . 5, 6 42 U.S.C. §2000e-6 (§707) . . . . . . . . . . . . . . . . . . . . . . . passim 42 U.S.C. §2000e-6(a). . . . . . . . . . . . . . . . . . . . . . . . 7 42 U.S.C. §2000e-6(b). . . . . . . . . . . . . . . . . . . . . . . . . . 7 42 U.S.C. §2000e-6(c) . . . . . . . . . . . . . . . . . . . . . . . . . 7 42 U.S.C. §2000e-6(d) . . . . . . . . . . . . . . . . . . . . . . . . . 7 42 U.S.C. §2000e-6(e). . . . . . . . . . . . . . . . . . . . . . . . . .7, 8 Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 . . . . .9, 11 118 Cong. Rec. 4081 (1972) . . . . . . . . . . . . . . . . . . . . . . .8 MISCELLANEOUS D. Baldus and J. Cole, Statistical Proof of Discrimination (1980) . . . . .36 http://www.eeoc.gov/eeoc/statistics/enforcement/all.cfm (last visited July 7, 2011) . . . . . . . . . . . . . . . . . . . . . . 22 EEOC Compliance Manual, 2001 WL 36129027) . . . . . . . . . . . . . . . . .22 Brief for Respondent Nashville Banner, 1994 WL 488297 (filed Sept. 8, 1994). . . . . . . . . . . . . . . . . . . . . . . . 26 EEOC's opening brief argued that the district court erred by ignoring critical Sixth Circuit and Supreme Court precedent when it addressed issues relating to the alleged pattern or practice of sex discrimination, and to individual instances of alleged discrimination. Cintas' brief in response amplifies those errors, making arguments that downplay or utterly ignore precedential decisions that speak directly to the issues presented to this Court. We address Cintas' errors - and the precedent it dismisses - in this reply. I. EEOC may use the Teamsters proof framework for a claim brought under §706. EEOC's opening brief pointed to the considerable authority holding that when EEOC brings suit under §706 on behalf of a class of women, EEOC may use the pattern-or-pattern framework to prove its claim of sex discrimination. That authority includes binding precedent from within this Court. EEOC v. Monarch Machine Tool Co., 737 F.2d 1444 (6th Cir. 1980). Cintas dismisses that precedent as inconsequential, and contends that §706 constrains EEOC to bring only "individual claims," Def. Br. at 44, as if the EEOC is simply representing individuals when it proceeds under §706. Cintas' argument misunderstands the authority Congress conferred on EEOC when it amended Title VII in 1972. Over thirty years ago, the Supreme Court considered - and rejected - the notion that EEOC simply stands in the shoes of the individuals on whose behalf it seeks relief when it brings suit under §706. Gen. Tel. Co. of Nw. v. EEOC, 446 U.S. 318, 324-25 (1980). Prior to General Telephone, some courts had held that EEOC was effectively a proxy for individuals and that, like individuals, it would have to seek Rule 23 certification when it brought suit on behalf of a class of individuals. Id. at 320 & n.1. The defendant in General Telephone invoked this "individual" view of §706 to argue that EEOC could not pursue its claim under the pattern-or-practice framework because it had not procured Rule 23 certification. Id. at 322. The Supreme Court rejected that conception of EEOC's authority under §706. Id. at 325 ("EEOC is not merely a proxy for the victims of discrimination"). The Court held that "EEOC need look no further than §706 for its authority to bring suit in its own name" on behalf of a class of individuals. Id. at 324. The Supreme Court remanded the case, and EEOC went on to prove its case under the framework of International Brotherhood of Teamsters v. U.S., 431 U.S. 324 (1977). See EEOC v. Gen. Tel. Co. of Nw., 885 F.2d 575 (9th Cir. 1989). Cintas makes no attempt to distinguish General Telephone and effectively ignores that Supreme Court decision, save for one cursory citation in a footnote. Def. Br. at 45-46 n.157. Against the backdrop of this silence, Cintas urges this Court to turn back the clock to the pre-General Telephone era, but there is no basis for ignoring Supreme Court precedent. Indeed, the one appellate decision Cintas cites in support of its contention that §706 is confined to "individual instances of discrimination" is no longer good law. See Def. Br. at 37 (citing EEOC v. Continental Oil Co., 548 F.2d 884 (10th Cir. 1977)). The Continental Oil court, in a pre-General Telephone decision, did view §706 as limiting EEOC to challenging individual instances of discrimination, but the Tenth Circuit later renounced Continental Oil's conception of §706. See EEOC v. St. Louis-S.F. Ry., 743 F.2d 739 (10th Cir. 1984). Noting that Continental Oil was decided prior to General Telephone, the St. Louis-S.F. Railway court emphasized that the Supreme Court had since made clear that Congress intended to give EEOC "broad enforcement powers" under §706 to "secur[e] more effective enforcement of the statute." Id. at 743-44. "[W]e therefore follow [General Telephone]," stated the Tenth Circuit, and not arguments based on Continental Oil. Id. at 743. The Tenth Circuit accordingly held EEOC was not limited to seeking individual relief, but could seek class-wide relief, when it brings suit under §706. Id. at 743-44. <1> Like the Tenth Circuit, this Court also relied on General Telephone when it held §706 provides EEOC the authority to challenge a pattern of discrimination. As EEOC discussed in its opening brief (at 40-43) this Court in Monarch Machine answered the precise question at issue here: whether EEOC may prove its case under the Teamsters pattern-or-practice framework when it brings suit under §706. This Court's holding that EEOC can should end the inquiry. Nevertheless, Cintas seeks to undermine the significance of Monarch Machine with three principal arguments. None justifies ignoring this Court's precedent. First, Cintas maintains that the Monarch Machine holding is dicta because it was contained "in a footnote" and because it came after the Court determined remand was necessary. Def. Br. at 43. EEOC's opening brief explained that the entire section IV of the Monarch Machine decision addressed - both in the text and in a footnote - whether the EEOC's §706 action should be tried under the Teamsters pattern-or-practice framework. EEOC Br. at 42-43; see also Monarch Machine, 737 F.2d 1444, 1449-50 & n.3, 1453. Cintas ignores this portion of EEOC's opening brief, suggesting it has no answer to the argument that the critical language in Monarch Machine was not a mere passing comment in a footnote, but instead comprised extensive discussion of an essential issue, and hence is binding precedent. Moreover, the fact that the relevant portion of the decision instructed the district court how to conduct the trial upon remand does not render the Court's instruction dicta. See Kavorkian v. CSX Transp., Inc., 117 F.3d 953, 957 (6th Cir. 1997) (rejecting argument that language in earlier opinion was dicta; language instructing district court "on remand" how to instruct jury on burden of proof "was part and parcel of our holding"). Monarch Machine's ruling that the district court erred by refusing to allow EEOC to use the Teamsters proof framework in its §706 action likewise was "part and parcel" of its holding and therefore not dicta. Second, Cintas seems to argue that this Court should ignore Monarch Machine and General Telephone because the language of Title VII is "plain." See Def. Br. at 40. Cintas asserts that because the language is "so clear[] ..., this dispute can be resolved without reference to any other authority." Id.; Def. Br. at 43 (because of "plain" language, "consideration of Monarch (or any other case) is unnecessary"). This Court should decline Cintas' exhortation to ignore case law, just as it consistently has rejected a party's attempt to have a panel ignore Circuit precedent in favor of a different reading of a statute. See, e.g., Khozhaynova v. Holder, 641 F.3d 187, 192 (6th Cir. 2011) (because one panel may not overrule holding of another panel, "we decline to reconsider our initial statutory interpretation of [federal immigration law]"). In any event, Cintas by no means offers a better reading of the statute. As discussed in EEOC's opening brief (at 44-46), the plain language of §706(f)(1) broadly authorizes EEOC to bring a civil action, without any language limiting the method of proof EEOC may use to prove its claim. See 42 U.S.C. §2000e-5(f)(1) ("If ... the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission may bring a civil action against any respondent ... named in the charge."). Cintas suggests the language of §706(f)(1) is limiting, but Cintas mischaracterizes the statutory text. Cintas' brief states that §706(f)(1) "permits the EEOC to sue an employer on behalf of a 'person or persons aggrieved' by the employer's unlawful employment practice. 42 U.S.C. § 2000e-5(f)(1)." Def. Br. at 35. In fact, §706(f)(1) contains no language stating that an EEOC suit is "on behalf" of individuals. Nor does Cintas accurately characterize the reference to "person or persons aggrieved" in §706(f)(1), for that language refers to the right of such individuals to intervene in an EEOC action, not to EEOC's authority to bring suit. 42 U.S.C. § 2000e-5(f)(1) ("The person or persons aggrieved shall have the right to intervene in a civil action brought by the Commission ..."). Indeed, the right of intervention indicates Congress understood EEOC does not simply act on individuals' behalf when it brings suit. Cintas' inaccuracies in discussing §706 are important, because a "plain language" argument should be based on an accurate rendition of the plain language. Cintas' discussion of §707 also is flawed. Cintas argues that §707 is impermissibly "superfluous" unless read as the sole authority for an EEOC action challenging a pattern or practice of discrimination. Cintas focuses on a single sentence in §707(e). Def. Br. at 40 (citing language authorizing EEOC "to investigate and act on a charge of a pattern or practice of discrimination"). In so doing, Cintas ignores the remainder of that subsection, as well as the other subsections in §707. Basic principles of statutory interpretation command a less myopic examination of the language. See FCC v. AT&T Inc., 131 S.Ct. 1177, 1184 (2011) ("statutory interpretation turns on 'the language itself, the specific context in which that language is used, and the broader context of the statute as a whole'") (citation omitted). Such an examination reveals several reasons why §707 is not superfluous. First, §707(e), along with §§707(c) and (d), served to effectuate the transfer of functions and authority from the Attorney General to EEOC. When Congress amended Title VII in 1972 to confer litigation authority on EEOC, it did not alter or delete the portions of the then-existing §707, which gave the Attorney General authority to bring a civil action challenging a pattern or practice of discrimination. §§707(a)-(b), 42 U.S.C. §§2000e-6(a)-(b). Instead Congress added subsections onto §707 indicating the authority transfer. 42 U.S.C. §§2000e-6(c)-(e). Those provisions, including §707(e), are not made superfluous if §706 is understood to provide ample authority for EEOC suit, but rather are essential to understanding that the §§707(a)-(b) powers are transferred to EEOC. Critically, the breadth of that authority transfer cannot be understood without referring back to §706(f)(1), which explains that EEOC may bring actions against non-governmental entities while the Attorney General has the authority to pursue actions against governmental entities. Second, §707 retains independent significance because it provides authority for suits alleging a pattern or practice where no charge has been filed. See U.S. v. City of Yonkers, 592 F. Supp. 570, 586-87 (S.D.N.Y. 1984) ("no requirement exists that a charge first be filed" in actions brought under §707); cf. Gen. Tel., 446 U.S. at 327. Third, §707 authorizes suit where the Government seeks relief for discrimination extending beyond the charge-filing period applicable to §706 suits. EEOC v. Mitsubishi Motor Mfg., 990 F.Supp. 1059, 1083-88 (C.D. Ill. 1988). Finally, regardless of the breadth of §707's independent significance, the drafters of the 1972 amendments indicated in the language of the statute their intent that §706 would provide authority for all EEOC actions, including those to be proved under the pattern-or-practice framework: Congress specified in §707(e) that when EEOC acts on a pattern-or-practice allegation, "[a]ll such actions shall be conducted in accordance with the procedures set forth in [§706]." 42 U.S.C. §2000e-6(e). The legislative history of the 1972 amendments also confirms that Congress intended that EEOC be able to pursue a discrimination claim under the pattern-or-practice framework when it brings suit under §706(f)(1). See 118 Cong. Rec. 4081, 4082 (1972); see also EEOC Br. at 46-47. Cintas never addresses this explicit legislative history, nor does it cite any other history to support its proffered reading of the statute. The Supreme Court cited to this legislative history in General Telephone, a case which, along with Monarch Machine, correctly interpreted EEOC's authority under §706. In sum, an examination the language and history of Title VII reveals the flaws in Cintas' "superfluous" argument, and further reveals that Monarch Machine not only is binding precedent, but also is correct. Cintas proffers a third reason this Court should disregard Monarch Machine: Cintas asserts that this Court decided Monarch Machine "before the enactment of amendments to Title VII that bear specifically on the issue now before the Court." Def. Br. at 42. It is unclear how the 1991 amendments "bear specifically" on the issue of EEOC's enforcement authority under §706(f)(1). The Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071, made no alterations to §706(f)(1), nor indeed to any part of subsection (f). The 1991 Act also made no alterations to the provision Cintas claims is important - §707. Congress' decision to leave untouched the relevant provisions is a powerful indication that it intended no alteration in the rule General Telephone and Monarch Machine established. See EEOC v. Shell Oil Co., 466 U.S. 54, 69 & n.21 (1984) ("'In any area where the new law does not address itself, ... it was assumed that the present case law as developed by the courts would continue to govern the applicability and construction of Title VII.'") (citation omitted). It is true that the 1991 Act altered other provisions of Title VII, and Cintas' argument flows from this alteration; thus, despite Cintas' word choice, Cintas actually argues not that the amendments "bear specifically" on EEOC authority under §706(f)(1), but rather that the amendments indirectly implicate EEOC authority. Cintas observes that Congress added enhanced damages to actions brought under §706, but did not reference §707. See 42 U.S.C. § 1977A(a)(1) ("In an action brought by a complaining party under section 706 ... the complaining party may recover compensatory and punitive damages ... in addition to any relief authorized by section 706(g)."). Cintas then makes an inferential leap, and argues that the difference in remedies necessarily means that Congress intended to limit EEOC to bringing suits alleging a pattern or practice under §707. Def. Br. at 42-43. There is simply no logical basis for this inference. Cintas' argument that Congress limited EEOC authority without so specifying flies in the face of the principle that "Congress does not enact substantive changes sub silentio." U.S. v. O'Brien, 130 S.Ct. 2169, 2178 (2010)). The cases Cintas cites in support of its argument that this Court should disregard Monarch Machine (Def. Br. at 42) both involve situations in which subsequent legislation spoke directly to the issue addressed. See Bratten v. SSI Servs., 185 F.3d 625, 633 (6th Cir. 1999) (cases holding that reassignment not a required accommodation under Rehabilitation Act no longer good law after statutory change explicitly referencing reassignment); Smith v. Pyro Mining Co., 827 F.2d 1081, 1087 (6th Cir. 1987) (prior case holding that employer need not accommodate employee's religious needs no longer good law after Title VII amendment providing that employers must reasonably accommodate employees' religious needs). It is more consistent with principles of statutory interpretation to assume that Congress understood that §706(f)(1) provided EEOC with the authority to pursue a discrimination claim under any method of proof, and that authorizing damages under §706 was sufficient to ensure EEOC could seek such damages when it sought to challenge a pattern of discrimination. As the Supreme Court has observed, "Congress is presumed to be aware of [a] ... judicial interpretation" of a statutory section and "to adopt that interpretation" when it re-enacts the statute without changing the statutory section. Lorillard v. Pons, 434 U.S. 575, 580 (1978). In other words, Congress can fairly be presumed to have been aware of General Telephone and its progeny (including Monarch Machine) when it amended Title VII. Cintas' argument also stands in tension with one of the fundamental purposes of the 1991 Act. In the Act, Congress stated it found that "additional remedies under Federal law are needed to deter unlawful harassment and intentional discrimination in the workplace." Pub.L. 102-166, 105 Stat. 1071 §2(1) (emphasis added). Congress indicated that one of the purposes of the Act therefore was "to provide appropriate remedies for intentional discrimination and unlawful harassment in the workplace." Id. at §3(1). Nowhere does Congress indicate that these additional remedies would be unavailable to EEOC when it decided to bring suit to challenge a pattern or practice of discrimination, nor would limiting relief be consistent with Congress' desire to provide additional remedies. In sum, Congress legislated in the context of well-settled precedent, and there is no evidence Congress meant to overturn that precedent sub silentio. To the contrary, as the Supreme Court emphasized, "[a]gainst the backdrop of our decision[] in ... General Telephone, Congress expanded the remedies available in EEOC enforcement actions in 1991 to include compensatory and punitive damages." EEOC v. Waffle House, Inc., 534 U.S. 279, 288 (2002). Finally, Cintas suggests that it somehow would be incongruous with Teamsters for EEOC to use the pattern-or-practice framework when it brings suit under §706. Def. Br. at 45-46. As a general matter, of course, Monarch Machine explicitly rejected the argument Cintas renews before this Court: Monarch Machine held that the Teamsters framework, which was adopted from an earlier §706 case, was fully available to EEOC when it brought suit under §706. 737 F.2d at 1449-50 & n.3 (noting that Teamsters itself relied on a §706 case). Cintas argues that the availability of damages after the 1991 Act makes EEOC's use of the Teamsters framework particularly incongruous because "EEOC's burden under Teamsters is lower than that in a typical disparate treatment case." Def. Br. at 45; see also Def. Br. at 46 (EEOC should not be permitted to utilize Teamsters' "lower burdens" and be able to recover remedies authorized by §706). Cintas appears to misunderstand - or at least mischaracterizes - the Teamsters burdens. Under Teamsters, EEOC would have a heightened initial burden to show "more than the mere occurrence of isolated ... discriminatory acts." Teamsters, 431 U.S. at 336 (emphasis added). Showing instances of disparate treatment will not suffice, for EEOC must prove "discrimination was the company's standard operating procedure." Id.; see also Wal-Mart Stores v. Dukes, ___ S.Ct. ___, 2011 WL 2437013, at *7 n.7 (June 20, 2011) (reaffirming continuing vitality of Teamsters).<2> In sum, Teamsters, which relied on a §706 case and on general principles from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), about creating inferences of discrimination, set out a model for proving a claim of systemic discrimination. As it did in General Telephone and Monarch Machine, EEOC has brought suit under §706(f)(1), and has sought to use the Teamsters framework to challenge systemic discrimination. Both the Supreme Court and this Court permitted EEOC to proceed, rejecting the same arguments Cintas now urges this Court to adopt. There is no ground to ignore this precedent. II. The district court abused its discretion by denying EEOC leave to amend its complaint to invoke §707. After the district court ruled that §707, and not §706, was the statutory provision that authorizes EEOC to challenge discrimination under the Teamsters framework, EEOC sought interlocutory review of that ruling. The district court denied the certification request and, only 11 days later, EEOC sought leave to amend its complaint to conform to the district court's ruling. EEOC did not seek to change the essence of what it sought to prove: a pattern or practice of sex discrimination in violation of Title VII. It simply sought to reference §707 instead of §706. The district court nevertheless denied EEOC's motion. EEOC, in its opening brief, argued these facts paralleled those in Moore v. City of Paducah, 790 F.2d 557 (6th Cir. 1986). EEOC Br. at 51-52. In Moore, this Court held the district court abused its discretion where the plaintiff had sought to substitute the correct statutory provision (§1983) for the incorrect one set out in the complaint (§1985), and where the §1983 claim was supported by facts set out in the original complaint. Id. at 559-62. In response to EEOC's argument that Moore is the critical precedent on the amendment issue, Cintas neither addresses nor even cites to Moore in its brief to this Court. EEOC submits that Cintas' silence on the significance of Moore is telling: even if EEOC incorrectly believed §706 provided ample enforcement authority, Moore indicates the district court should have permitted EEOC to amend its complaint to add reference to §707. Instead of addressing Moore, Cintas creates a narrative in which an amendment "would have fundamentally changed the nature of this action from a collection of individual discrimination claims to a claim for systemic discrimination." Def. Br. at 48. Cintas contends that adding reference to §707 would be tantamount to "asserting a new claim," necessitating "significant additional discovery." Def. Br. at 53. Cintas' narrative cannot withstand scrutiny of the record in this case. The record shows that EEOC's claim had always been that Cintas engaged in a pattern or practice of sex discrimination in violation of Title VII. EEOC always indicated it would seek to prove its claim under the Teamsters framework. EEOC's complaint-in-intervention, filed in December 2005 after its investigation and conciliation on behalf of a "class" of women, alleged that Cintas denied employment to "a class of women as alleged in [private] Plaintiffs' Second Amended Complaint...." R.98 ¶8. That referenced "Second Amended Complaint" alleged Cintas engaged in a "policy, pattern, or practice" of denying SSR positions to women. R.70 ¶1 (emphasis added). Cintas suggests improper delay on EEOC's part in the ensuing years. See Def. Br. at 50 (chastising EEOC for delay of "nearly six years"); Def. Br. at 52-53 (claiming EEOC waited "four years" before making clear its intent to pursue systemic discrimination). As Cintas well knows, however, any delay in proceedings was not EEOC's doing: the district court had ordered that discovery and motions related to the private plaintiffs' class certification take precedence over EEOC's claim. See R.145 at¶ 16 (discovery and scheduling order stating that "[t]he scheduling of the merits phase of discovery and other remaining dates will take place after the motion for class certification is resolved"); see also R.130, R.162 (scheduling orders). Even during the class certification phase, EEOC continued to express its eagerness to pursue the claim of systemic discrimination. During the class certification oral argument in February 2009, an EEOC attorney attended and told the court that EEOC had found "a powerful case involving a pattern or a practice of sex discrimination in hiring. We will vigorously represent the interest of the gender class. We intend to do so." R.878 at 38 (emphasis added). Cintas' attorneys were present at that argument. Id. at 2. When class certification proceedings ended, the district court held a scheduling conference on August 10, 2009, during which the court and parties discussed bifurcation of EEOC's case pursuant to Teamsters. The district court entered a scheduling order the next day, noted in the district court docket sheet as "SCHEDULING ORDER AS TO EEOC PATTERN AND PRACTICE ACTION." D-77 (entry R.646). The district court requested additional briefing relating to the timing of the private plaintiffs' case vis-à-vis "EEOC's 'pattern or practice' action." R.647 at 1 (emphasis added). EEOC accordingly filed a brief on August 21, 2009, discussing Teamsters, and what EEOC will have to show in the first stage - namely, that Cintas "engaged in a pattern or practice of discrimination." R.651 at 2 (emphasis added). EEOC also explained how the second phase would proceed if EEOC were successful in showing "'discrimination was the company's standard operating procedure.'" Id. (quoting Teamsters, 431 U.S. at 336). Perhaps even more telling than what EEOC said in its August 21, 2009, briefing was what Cintas said in its brief filed on the same day. Cintas argued against allowing the private plaintiffs to delay proving their claims "until the pattern or practice claim that is being pursued by ... EEOC ... is resolved." R.653 at 1; see also id. at 1-2 (urging against delay "[b]ecause the success or failure of the EEOC's pattern or practice claim has no bearing on the Individual Plaintiffs' ability to prove their individual claims"); id. at 2 (noting that "EEOC has ... raised a claim that Cintas engaged in a pattern or practice of discriminatory hiring"); id. at 4 (private plaintiffs cannot avoid testing claim "before adjudication of the EEOC's pattern or practice claim"); id. at 5 (referring to "EEOC's pattern or practice action"). It is hard to reconcile Cintas' statements in its August 21, 2009, filing - in which it fully acknowledged that EEOC planned to prove a pattern or practice of discrimination - with the version of events Cintas now offers this Court. In any event, when the district court ruled EEOC could not use that framework in a §706 action - the first time any court had ever so ruled - EEOC responded promptly, first by seeking interlocutory review in light of Monarch Machine and then by seeking amendment of the complaint. Cintas argues that EEOC has never offered any justification for "its delay" in seeking to "include a claim for pattern or practice discrimination." Def. Br. at 48. EEOC did not delay; from the outset and consistently thereafter EEOC claimed that Cintas engaged in a pattern or practice of discrimination. It is true that EEOC did not refer to §707 initially, but EEOC believed there was no reason to do so in light of Monarch Machine and other authority. Even if EEOC had unduly delayed, this Court has emphasized that "[t]o deny a motion to amend, a court must find 'at least some significant showing of prejudice to the opponent.'" Duggins v. Steak 'N Shake, 195 F.3d 828, 834 (6th Cir. 1999) (quoting Moore, 790 F.2d at 562); see also id. ("delay alone, regardless of its length is not enough to bar it [amendment] if the other party is not prejudiced") (quotations omitted). Cintas has not made the requisite showing of prejudice. Cintas claims that its discovery was not focused on a pattern or practice of discrimination, and that amendment would have amounted to an upheaval in its preparations. See Def. Br. at 54 (EEOC's "new claim" would require Cintas "to take and defend additional depositions, ... run new statistical analyses, and possibly retain additional expert witnesses"). Given that EEOC consistently had averred it was seeking to prove a pattern or practice of sex discrimination and that Cintas acknowledged as much at the outset of the discovery period, it is hard to comprehend how Cintas' attorneys could have neglected to engage in such discovery. And, in fact, Cintas did not refrain from such discovery. For example, Cintas engaged a statistical expert who produced a lengthy report that focused on disputing the existence of a pattern of discrimination. See A-909 ("Our analyses of the hiring decisions ...do not support the Plaintiffs' allegations that there is a common pattern of hiring decisions adverse to females") (emphasis added); A-956 ("these results are inconsistent with the allegation of a common SSR hiring pattern that is adverse to women") (emphasis added). EEOC did not unduly delay in seeking to amend its complaint, nor did Cintas show it would have suffered prejudice from an amendment. Denying leave to amend was therefore an abuse of discretion. III. EEOC satisfied all administrative prerequisites to suit by investigating and conciliating its claim. It is undisputed that EEOC investigated and conciliated on behalf of a class of women who applied unsuccessfully to be SSRs in Michigan. It is also undisputed that all thirteen claimants fall within the parameters of that clearly- defined class - all were women Cintas rejected in favor of male applicants. Cintas concedes that, under the authority of EEOC v. Keco Industries, 748 F.2d 1097 (6th Cir. 1984), EEOC's administrative steps were sufficient to satisfy any prerequisites to bringing a claim on behalf of a "class" of women. Def. Br. at 63-64. Cintas' concession means that if this Court reverses the §706/707 or complaint-amendment rulings, it is unnecessary to address the conciliation argument. Regardless, Keco and its progeny hold that EEOC may pursue a claim on behalf of a class of women, and that EEOC's investigation need not focus on the identities of the particular class members. See Keco, 748 F.2d at 1102 ("The form and substance of [EEOC] conciliations is within the discretion of the EEOC ... and is beyond judicial review."). As long as the outline of the class is identified, as it plainly was here, EEOC need not identify each individual class member during the administrative phase. Id.; see also, e.g., EEOC v. Paramount Staffing, 601 F.Supp.2d 986, 989-90 (W.D. Tenn. 2009). Cintas asserts Keco need not be followed because EEOC pled only a claim under §706, and not "a claim for pattern or practice discrimination under § 707." Def. Br. at 63. Thus Cintas argues that EEOC must identify each individual during the administrative phase if EEOC later sues under §706 seeking relief on the individual's behalf. Id. In effect, Cintas is asking this Court to overrule Keco, to ignore the myriad district court decisions relying on Keco, and to take a position contrary to the decisions of other courts of appeals that independently have ruled that EEOC may "challenge discrimination affecting unidentified members of a known class" under §706. EEOC v. Harvey L. Walner & Assocs., 91 F.3d 963, 968 (7th Cir. 1996); see also EEOC Br. at 62-63 (citing §706 cases relying on Keco and decisions from Third, Fourth, and Ninth Circuits). Keco was a §706 case as were all the cited cases - a fact Cintas ignores in making its argument. See R.876-3 (certified copy of Keco complaint). There is therefore no basis to distinguish Keco, brought under §706 on behalf of a class of women, from this case, similarly brought under §706 on behalf of "a class of women." R.98 ¶8 (EEOC Complaint). Of course, whatever method of proof EEOC may use to prove its claim, EEOC plainly is authorized to bring suit on behalf of a class of women under §706. See Gen. Tel., 446 U.S. at 324 ("EEOC need look no further than § 706 for its authority to bring suit in its own name for the purpose, among others, of securing relief for a group of aggrieved individuals"); id. at 320 (EEOC may seek "classwide relief" under §706). Cintas argues that the failure of the private plaintiffs to obtain class certification somehow is relevant to the conciliation issue, Def. Br. at 63, but that argument is puzzling in light of General Telephone's holding that EEOC "may seek classwide relief under § 706(f)(1) ... without being certified as the class representative." 446 U.S. at 320. Cintas relies on a single district court case from outside the Sixth Circuit in support of its argument. Def. Br. at 62, 64-68 (citing EEOC v. CRST Van Expedited, Inc., 2009 WL 2524402 (N.D. Iowa 2009)).<3> Invoking CRST, Cintas contends that identifying the parameters of the class, but not each individual class member, during the administrative phase somehow implicates Cintas' "due process rights." Def. Br. at 66. Such rhetoric cannot justify departing from Keco and its progeny. As Keco highlighted, no binding consequences attach to EEOC investigations and cause determinations. Keco, 748 F.2d at 1100 (EEOC determination "does not adjudicate rights and liabilities"). No due process rights are implicated by the non-adjudicative, administrative process. See Georator Corp. v. EEOC, 592 F.2d 765, 768-69 (4th Cir. 1979). Finally, Keco correctly held that EEOC, as the agency "created to administer and enforce" Title VII, must be accorded discretion on the form and substance of its investigation and conciliation. Keco, 748 F.2d at 1102. EEOC received 99,922 charges and engaged in 4,981 conciliations in FY2010 (the most recent year of available data). See http://www.eeoc.gov/eeoc/statistics/enforcement/all.cfm (last visited July 7, 2011). Where an employer is interested in settling a case in conciliation, EEOC frequently is able to negotiate a successful resolution without the need to resort to litigation, as it did in 1,348 conciliations in FY2010. Id. Those conciliations may involve numerous proposals and counterproposals by EEOC and the employer, and additional gathering of information. See EEOC Compliance Manual § 64.6, 2001 WL 36129027. But where an employer is disinterested, EEOC has no power to force the employer to resolve the matter. Thus in a class conciliation, if EEOC believes the employer is not serious about reaching an agreement, it would be a useless expenditure of agency resources to work to identify each class member. An employer could substantially prolong the conciliation process by insisting EEOC develop additional, comprehensive information, even though the employer has no real interest in reaching an agreement. <4> In this case, as discussed in EEOC's opening brief (at 17), Cintas never made a counterproposal in response to EEOC's initial proposal. EEOC therefore determined that, after years of attempting to conciliate, further conciliation efforts would be unproductive. Under Keco and its progeny, EEOC satisfied all administrative prerequisites to suit. IV. The district court erred in granting summary judgment on EEOC's claim that Cintas discriminated against thirteen individual women. A. Prima facie case Cintas does not challenge the district court's ruling that EEOC established a prima facie case of sex discrimination as to five claimants. Cintas does dispute the existence of a prima facie case as to the remaining eight claimants. Def. Br. at 71. As to the eight claimants, Cintas officials rejected their employment applications in favor of male applicants for reasons EEOC maintains were discriminatory. Years after the officials rejected the women, Cintas launched investigations into the women's backgrounds as part of its preparation for litigation. When Cintas discovered discrepancies, however minor, Cintas argued to the district court that the women were dishonest, and that Cintas therefore could not be liable for sex discrimination against them. In particular, Cintas has contended that the after-acquired evidence of "dishonesty" means that EEOC cannot establish a prima facie case of discrimination, even though the after-acquired evidence did not motivate the allegedly discriminatory hiring decisions. In 1995, the Supreme Court addressed a conflict in the lower courts about how to handle after-acquired evidence. Its ruling was clear: liability depends on the employer's motives when it made the decision. Because Cintas officials "could not have been motivated by knowledge [they] did not have," McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 360 (1995), evidence Cintas uncovered long after the challenged decisions does not implicate its liability for discrimination. However, under McKennon, if Cintas can establish the claimants' omissions were sufficiently "severe," the omissions may limit the remedy the claimants might obtain. Cintas downplays the import of McKennon, arguing that its ruling is inapplicable. Cintas draws several factual distinctions, noting, for example, that this case involves "hiring decision[s]" while McKennon addressed "a firing decision." Def. Br. at 74. It is unclear how this distinction undermines the central lesson of McKennon that what matters for liability purposes is the employer's motive at the time of the decision. Cintas' primary argument is that the after-acquired evidence goes to EEOC's prima facie case, and "Cintas' knowledge or lack of knowledge does not matter at this stage." Def. Br. at 73 (citing Gilty v. Village of Oak Park, 919 F.2d 1247, 1251 (7th Cir. 1990)). There are two fundamental problems with Cintas' argument: it is logically flawed and it relies on a case that is no longer good law. The point of a Title VII case is not to establish a prima facie case. Rather, the point is to prove the employer acted based on discriminatory reasons, as the Supreme Court repeatedly emphasizes. See Wal-Mart, 2011 WL 2437013, at *7 ("in resolving an individual's Title VII claim, the crux of the inquiry is 'the reason for a particular employment decision'") (quoting Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867, 876 (1984)); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993) ("ultimate factual question" is whether employer "intentionally discriminated against the plaintiff"). The burden-shifting scheme, of which the prima facie case is a part, is a tool designed to "sharpen the inquiry into the elusive factual question of intentional discrimination." Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 n.8 (1981); see also Wexler v. White's Fine Furniture, 317 F.3d 564, 576 (6th Cir. 2003) (en banc) (burden-shifting framework meant to ascertain employer's "actual motivation"). In other words, the prima facie case is not separate from proving the employer's motives, but it is the mechanism used to prove those motives. McKennon stressed that an employer cannot be motivated by knowledge it does not have, and this basic point logically applies at whatever stage of the burden-shifting analysis the after-acquired evidence comes into play. Cintas relies on Gilty, a Seventh Circuit decision, for its argument that the employer's knowledge is irrelevant at the prima facie stage, but Gilty was decided before McKennon, and no longer is good law in light of that decision. The McKennon Court was well aware of Gilty, for the employer in McKennon quoted from Gilty at great length in its Supreme Court brief. See Brief for Respondent Nashville Banner, 1994 WL 488297, *38-40 (filed Sept. 8, 1994). The employer argued, just as Cintas does here, that the after-acquired evidence of the plaintiff's "misconduct" meant she "could never pass the threshold prima-facie requirement that she was qualified...." Id. at *39. The Supreme Court rejected Respondent's argument, and ruled that after-acquired evidence implicates remedies, not liability for discrimination. 513 U.S. at 356. Relying on McKennon, the Seventh Circuit has since acknowledged that "after-acquired evidence that an employee misrepresented her qualifications in a job application or résumé does not bar the employee's discrimination claim." O'Neal v. City of New Albany, 293 F.3d 998, 1004 (7th Cir. 2002); see also Thurman v. Yellow Freight Sys., 90 F.3d 1160, 1168 (6th Cir. 1996) (affirming finding that employer failed to establish McKennon defense of showing it would not have hired plaintiff based on after-acquired evidence of plaintiff's later-discovered omissions and misrepresentations on job application). Cintas' effort to resuscitate a thoroughly rejected argument should be rejected. EEOC by no means wishes to minimize the importance that any employer reasonably would place on honesty. But the McKennon Court expressed concern about scorched-earth tactics in which an employer accused of discrimination might "undertake extensive discovery into an employee's background ... to resist claims under the Act." McKennon, 513 U.S. at 363. The Court therefore struck a balance, allowing uncovered evidence to limit remedies, but only if the employer can establish any omission or misrepresentation is such that the employer would not have hired the individual. Id. at 362-63. Cintas expends considerable energy arguing that it was "undisputed" Cintas valued honesty, Def. Br. at 72, but the question under McKennon is a more targeted one: was there evidence Cintas would have rejected the applicants based on the omissions? 513 U.S. at 362-63. Cintas presented declarations from hiring officials who reviewed the applicants' applications and depositions, after which the officials averred that they valued honesty and would not have hired the women. Def. Br. at 71 n.182 (citing declarations). Cintas presented no evidence that it had rejected other applicants with similar omissions, and the evidence in the record indicates Cintas made no effort to conduct an all-encompassing review of applicants' academic and employment records. A-264-265 ¶7 (applicant review consisted of checking driving records and administering drug test). Moreover, there was evidence that Cintas hired male applicants with omissions in their applications. A-2161, 2162, 2166-2169, 2172-2173 (Smith Decl. & Exh. 2) (of 231 male applicants hired in Michigan from 1999-2005, twenty-four had gaps in employment history, and 117 had missing information, including criminal convictions and moving violations). Cintas can, however, limit the remedies for which it would be liable if it can show it would not have hired Raby because she did not mention she worked at a gas station while looking for work, A-514 (Dep. at 33), would not have hired Vitale because she did not mention two part-time jobs she held for a few weeks while looking for full-time employment, A-345 (Dep. at 59), would not have hired Kremhelmer because she omitted one job she held for two weeks and employment with a temp agency that gave her day-long assignments, A-1815 (Dep. at 214-217), or would not have hired Bradstrom - who graduated from high school in 1969 - because her reporting of her high school grade point average thirty years later was inaccurate. A-211 (Dep. at 74). Cintas has not yet made the requisite showing, however. Cintas has not yet sought to make the targeted showing on the individual claimants because it has yet to acknowledge McKennon as binding precedent. The critical point at this stage, though, is that Cintas cannot show the claimants were unqualified based on generalized assertions of dishonesty when the evidence it uncovered admittedly did not factor into Cintas' decisions to reject their applications. B. Cintas' proffered explanations and comparative evidence of pretext Cintas meshes two arguments EEOC made in its opening brief about the female applicants' relative qualifications, thereby confusing the issues. EEOC made two distinct points. First, EEOC acknowledged that Cintas put forward explanations for its rejection of the female applicants, but EEOC underscored that the explanations were not made contemporaneously with the challenged decisions. EEOC Br. at 72-74. The explanations came from officials who remembered nothing about the hiring decisions, and only offered their explanations after they examined the female applicants' depositions, and the applications of the women and the men hired in their stead, in connection with this litigation. EEOC pointed out that, with regard to each and every female candidate, Cintas officials highlighted a quality that made the male candidate preferable to the female. That quality - whether retail experience, route sales experience, college education, or prior physical jobs - made the men desirable when they possessed it, but did not make the female candidates desirable when they had the same, seemingly-desirable experience.<5> EEOC accordingly argued that although Cintas satisfied its burden of producing an explanation, the circumstances under which these explanations were proffered weakens them, and that weakness should be taken into account in the pretext analysis. See Farber v. Massillon Bd. of Educ., 917 F.2d 1391, 1398 (6th Cir. 1990); cf. Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 148 (2000) (court may consider evidence's weakness in pretext analysis). Second, EEOC faulted the district court for refusing to conduct side-by-side comparisons of the relative qualifications of male and female applicants. EEOC Br. at 83-85. Cintas argues that EEOC is treating "all the hiring decisions at issue as a monolithic enterprise," and contends that EEOC has avoided making comparisons of "people competing for the same job at the same time." Def. Br. at 77-78. Cintas is quite simply incorrect. EEOC argued in favor of making side-by-side comparisons, and EEOC devoted eleven pages in its opening brief to laying out the relative qualifications of the women who applied and the men Cintas hired in their stead. EEOC Br. at 21-31. For example, EEOC compared Leila Vitale, who had worked for over six years as a route sales representative for Schwan's but was not even interviewed by Cintas, with Bryan Hallock and Matthew Mullen, both of whom lacked any customer service or sales experience. EEOC Br. at 21-23. EEOC quoted from depositions by a Cintas official admitting that, in his view, Vitale's experience should have "put her over the top over this guy [Mullen]." EEOC Br. at 22 (citing A-467). EEOC compared Patricia Washington, who also had been a route driver for Schwan's, with David Lowe and Robert Koss, who also lacked any route sales experience, and had worked in fields (such as financial services) quite different than the SSR position. EEOC Br. at 23. EEOC also focused on the qualifications of Christine Colfer, who Cintas official Gehan Haridy acknowledged was better qualified than Jeremy Dantzer, hired in her stead. EEOC Br. at 23-24. Cintas argued in its brief that the "decision-makers at Location 31 [where Colfer applied] at the time preferred candidates with stable job histories and looked unfavorably upon a work history with short-duration jobs...." Def. Br. at 27. Yet Cintas officials rejected Colfer, who had worked two years in a route sales job and six years as a crew supervisor for a pool cleaning company, in favor of Dantzer, whose longest job tenure was fourteen months. A-52-53; A-408-410. Cintas officials also rejected Bradstrom, who applied to the same location, even though she had had worked for twenty-one years as a Bank One route driver. A-219-221. Cintas instead hired Cory Dral, who had held four jobs over the last two years. A-356-357. In sum, EEOC made side-by-side comparisons for each of the thirteen claimants, and argued that the district court erred by refusing to make such comparisons because they comprised evidence that Cintas discriminated against the individual women. Cintas' argument to the contrary cannot be reconciled with a review of EEOC's opening brief. Finally, Cintas argues that even if EEOC were able to show "Cintas' proffered reasons [for refusing to hire the female applicants] were not ... its true reasons," EEOC had not shown pretext because "there is no evidence that its true reasons were discriminatory." Def. Br. at 80. Cintas's argument is in tension with what the Supreme Court and this Court have expressed in decision after decision, namely that evidence an employer has lied can be - and on summary judgment should be considered to be -- affirmative evidence of discrimination. See Hicks, 509 U.S. at 511; Chen v. Dow Corp., 580 F.3d 394, 400 & n.4 (6th Cir. 2009). Cintas presented explanations for its actions that were not documented at the time and so do not have the assurances of veracity that would be accorded contemporaneous evidence. These explanations do nonetheless meet Cintas' burden under Burdine, but EEOC presented comparative evidence disputing the veracity of Cintas' explanation that each female applicant was less qualified than the male applicants who Cintas decided to interview and hire. This comparative evidence, especially when considered in conjunction with the statistical and anecdotal evidence, is evidence of pretext that should have precluded summary judgment. C. Statistical Evidence Cintas urges that EEOC's statistical evidence not be considered at the pretext stage because the statistics cannot establish definitively the reason for each individual decision. EEOC has always acknowledged this aspect of statistical evidence, which has both inherent strengths and limitations. One key strength of proper statistical analyses is their reliance on hard data, and such analyses therefore "serve an important role as one indirect indicator of ... discrimination." Mayor of Philadelphia v. Educ. Equal. League, 415 U.S. 605, 620 (1974); see also Cicero v. Borg-Warner Auto., 280 F.3d 579, 592-93 (6th Cir. 2002) (statistical evidence is circumstantial evidence "making discrimination more likely"). Of course, as EEOC consistently has acknowledged, statistics cannot prove definitively that any particular decision was discriminatory because statistics inherently examine decisions only with broad strokes; they must analyze a sufficiently large sample size to be reliable. Yet the statistics here do show that, on average, Cintas officials treated female SSR applicants disadvantageously. Such evidence therefore helps place individual decisions in context, especially where those individual decisions are based on nebulous and belated assertions about comparative qualifications. To reject the statistics' usefulness to the pretext analysis, as Cintas urges, would eliminate evidence that is probative of pretext and would be contrary to the explicit holdings of the Supreme Court in McDonnell Douglas and this Court that statistical evidence may be useful to showing pretext in an individual discrimination case. See McDonnell Douglas, 411 U.S. at 804-05; Cicero, 280 F.3d at 592-93; Sims v. Cleland, 813 F.2d 790, 794 (6th Cir. 1987). Statistics are one piece of a puzzle that, when considered in conjunction with the other evidence in this case, make it more likely than not that discrimination played a part in the individual decisions. Cicero, 280 F.3d at 592-93 (statistics "coupled with" other circumstantial evidence creates a fact issue as to pretext). Cintas argues that one aspect of the expert's report in this case takes it out of the realm of acceptable statistical analyses. Def. Br. at 82 ("the Type of Statistics Offered Here Are not Probative [of] ... Pretext"). Cintas argues that EEOC's statistics only eliminate "chance" as an explanation for why at most six of 268 total hires were female, "and do not eliminate any other 'most common nondiscriminatory explanations.'" Def. Br. at 83. Cintas argument is flawed for two reasons. First, Dr. DiPrete's report explicitly indicated he did eliminate the most common nondiscriminatory explanations in his analysis. For example, DiPrete explained that in ascertaining the appropriate female availability figure from actual application data provided by Cintas for the period 1999-2005Q1 (the second availability measure), he excluded applicants "without a valid driver's license," one of the few objective requirements for the SSR job. A-635. When DiPrete examined applicant flow logs of applications actually considered by hiring officials from 2004-2005Q1 (the third availability measure), he was able to be even more thorough in screening out unqualified applicants. DiPrete considered only those applications resulting in a hire or in a rejection based on the coding "not best qualified." A-635. Thus DiPrete was able to eliminate from his statistical analysis any applicant - male or female - rejected for submitting an "Incomplete Application," for not "Meet[ing] Minimum Job Requirements," for being unable to "Perform the Essential Job Functions," for a "Negative Reference Check," for a "Negative Credit Check," for a "Negative Driving Record Check," for a "Negative Criminal Check," for "Fail[ing] or Refus[ing] to Take Drug Test," for being unavailable "for Required Shift/Hours," or for "Fail[ing] or Refus[ing] to Take Physical or Functional Capacity Exam." A- 636. DiPrete also eliminated applications submitted at a time when no position was open or when the available position had been filled. A-636. The expert report thus indicates that, contrary to Cintas' generalized assertion of flaws, the report did eliminate the most common nondiscriminatory reasons for applicants' rejection. Cintas' more generalized attack on DiPrete's report (that it only eliminates chance as an explanation for female underhiring) reflects a misunderstanding of statistics and how EEOC seeks to use them to prove its case. All statistical analyses recognize that when employment decisions show a gender (or other protected trait) discrepancy, "there are three possible explanations for the discrepancy: the operation of legitimate selection criteria, chance, or the defendant's bias." Barnes v. GenCORP, 896 F.2d 1457, 1468 (6th Cir. 1990) (citing D. Baldus and J. Cole, Statistical Proof of Discrimination 291 (1980)). What statistical analyses necessarily focus on is eliminating chance as an explanation.<6> See Hopson v. DaimlerChrysler Corp., 306 F.3d 427, 437 (6th Cir. 2002); Palmer v. Shultz, 815 F.2d 84, 91 (D.C. Cir. 1987). If the statistical analysis successfully eliminates chance, courts hold it reasonable to infer bias played a role, especially where the statistical proof is strong, as measured by standard deviations from the expected value of a sample. Hazelwood Sch. Dist. v. U.S., 433 U.S. 299, 311 & n.17 (1977) ("a fluctuation of more than two or three standard deviations would undercut the hypothesis that decisions were being made randomly with respect to race"); NAACP v. City of Mansfield, 866 F.2d 162, 167- 68 (6th Cir. 1989) (quoting Hazelwood). In this case, Cintas' hiring of women reflected a statistical disparity far in excess of two or three standard deviations. Even using conservative estimates of female availability, Cintas' underhiring of women deviated from expected values by more than 10 standard deviations in 1999-2002 and by almost five standard deviations from 2003-2005Q1. A-642. Cf. Hazelwood, 433 U.S. at 309 n.14 (where standard deviations exceed two or three, "the hypothesis that teachers were hired without regard to race would be suspect"). This Court has observed that a defendant may choose to challenge the inference created by the statistics by demonstrating that even if bias "played a role in some of the decisions, that bias did not play a role in the particular decision[s]" challenged. Barnes, 896 F.2d at 1469; see also id. (defendant may show that "each plaintiff was less qualified than others"). Cintas does not acknowledge any possible bias, but instead simply attacks the expert report head-on for failing to eliminate "the lack of qualifications of the 13 individual applicants as an explanation." Def. Br. at 83. As discussed above, a statistical analysis is not designed to assess one individual's qualifications vis-à-vis another's. EEOC fully acknowledges, though, that it cannot rest on statistics alone to rebut Cintas' argument about the relative qualifications of the female applicants.<7> But EEOC may use the statistics, together with side-by-side comparisons of the male and female applicants and anecdotal evidence about the widespread belief that the SSR position was "male-only," to create a fact issue about whether Cintas' explanations are pretextual. See Hopson, 306 F.3d at 437-38 (where "significant statistics [are] coupled with independent circumstantial evidence of discrimination," plaintiff has met burden of showing bias, and "defendant is not entitled to summary judgment") (citing Barnes, 896 F.2d at 1469); see also McDonnell Douglas, 411 U.S. at 804- 05; Cicero, 280 F.3d at 593 (statistical evidence coupled with other circumstantial evidence raises fact issue that defendants' proffered reason for firing "was a pretext for discrimination"). Finally, Cintas improperly attacks the expert report for taking insufficient account of local data both in drawing conclusions about female underhiring and in according Census code 913 a 33% weight. Def. Br. at 84-86. As to the Census code (only one of four availability measures DiPrete used), A-634-635, DiPrete clearly did utilize local data. He stated that he "estimated the geographic boundaries of the local labor market using zip code information for Cintas workers and applicants," then combined "information on geography with information on feeder occupations and on age and education ... to estimate the gender composition of the relevant local labor market." A-634. The 33% figure was conservative, for it was the "maximum" number of hires that had had any previous experience in Census code 913. A-634-635. DiPrete found it untenable to accord Census code 913 a 100% weight, as Cintas apparently urges, because only a minority of hires came from that job category and because Cintas valued skills - such as customer service - found in other job categories. A-2121-2124. As to Cintas' broader attack, it is somewhat difficult to comprehend. Cintas refers to "five-year long data," Def. Br. at 85, but DiPrete broke his analysis into two time periods: 1999-2002 (four years) and 2003-2005Q1 (two-and-a-quarter years). A-633. Both periods showed statistically significant patterns of underhiring. Moreover, statistical tests DiPrete ran showed "no significant difference in the pattern of underhiring across [individual] years." A-640 n.5. In any event, DiPrete did analyze local data, and that analysis is reflected in Table 3, which lists each location's hire data and each location's external female availability under all four measures.<8> A-639. Only three of fourteen locations had anything but 0% female hires in the 1999-2002 period. A-639. DiPrete then went on to conclude that although hiring was done at specific locations with their "own labor market," there was "no statistical difference in the pattern of underhiring women across these locations either in the first period or in the second period." A- 640. Cintas' objections to the expert's report therefore lack merit. D. Anecdotal evidence EEOC's opening brief cited to statements from managers, female applicants, and Cintas' CEO indicating that a pervasive attitude existed across Cintas locations that the SSR job was considered "man's work." EEOC Br. at 9-12. EEOC acknowledged that comments without a direct nexus to a challenged decision "'may not be conclusive proof of discrimination against an individual.'" Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 356 (6th Cir. 1998) (citations omitted). Yet, as Ercegovich emphasized, evidence of a discriminatory atmosphere or attitude tends to "add 'color' to the employer's decisionmaking processes and to the influences behind the actions taken with respect to the individual." Id. Accordingly, evidence of "a discriminatory atmosphere" may "serve as circumstantial evidence of individualized discrimination directed at the plaintiff." Id. Cintas argues that alternate authority exists within this Court, authority that speaks to the significance of statements evincing a discriminatory atmosphere. Cintas cites to Barnes, 896 F.2d at 1457, and to Barnhart v. Pickrel, Schaffer & Ebeling, 12 F.3d 1382, 1395 (6th Cir. 1993), and then argues that "[a]s with the plaintiffs in Barnes and Barnhart, the EEOC has not provided any foundation to show its alleged 'anecdotal evidence' is linked to the particular hiring decisions at issue." Def. Br. at 87-88. Cintas' citation to Barnes and Barnhart is misleading, for neither case involved anecdotal evidence or evidence of biased statements. In Barnhart, this Court held no inference of discrimination could be drawn from a law firm's proposed reduction in its mandatory retirement age from 70 to 65 when the plaintiff was 61 and would have been unaffected. 12 F.3d at 1395. In Barnes, this Court held that individuals challenging their terminations in a RIF could not rely on discriminatory treatment of another individual, especially given explicit evidence they were less qualified than those retained. 896 F.2d at 1475. Cintas' argument that statements must be "linked to the particular decisions at issue" is, moreover, at odds with the Supreme Court's decision in Sprint/United Management Co. v. Mendelsohn, 552 U.S. 379 (2008). The Court rejected any sort of per se rule of the type Cintas seems to be urging, and held that the relevance of allegedly discriminatory acts of other supervisors not involved in challenged actions is "fact based and depends on many factors, including how closely related the evidence is to the plaintiff's ... theory of the case." Id. at 388. Here it is EEOC's theory that a pervasive, "male-only" culture across Michigan locations led hiring officials to disregard qualified women's applications. The statements submitted fully support that theory. Cintas complains that the comments are "ambiguous." Def. Br. at 90-91. It is difficult to understand the ambiguity of statements that the SSR position is "a man's job," A-461(Dep. at 22); that "Cintas does not really hire women" as SSRs, A-852; that "they hire men to do the driving and ... [a woman] would be better off sewing in the plant," A-849; that Cintas officials "don't hire females ... they['re] kind of male chauvinistic," A-484(Dep. at 83); that "they only hire women for the office," A-444(Dep. at 26); and that "[t]hey normally hire men for the driving jobs," and "we usually have the women" work in the factory, A-490(Dep. at 49). <9> Cintas also complains that the statements are only "isolated," Def. Br. at 91, but EEOC produced 17 individuals who made statements or testified about statements made to them reflecting a widespread belief the SSR job was not for women. EEOC Br. at 10-13. Further, the notion that Cintas locations themselves are isolated islands is undercut by Cintas' movement of hiring officials from location to location. See A-1547 (manager Dave Armbrester worked at Madison Heights, then at Westland); A-1655-1656 (HR manager Holly Woonton worked at Madison Heights and then two Detroit locations); A-1686-1687 (Kristy Gordley moved between five different Michigan locations, performing HR management and recruiting roles). The problem of an all-male ethos apparently was so far from isolated that Cintas' CEO Scott Farmer was prompted to address it in a speech at an annual managers' meeting. A-32 (referring to "the myth that females cannot be SSRs"). Cintas complains "there is no evidence that this comment has any connection to the Michigan facilities at issue," Def. Br. at 91, but the fair import of his statement is that the problem was company-wide. In any event, because Cintas successfully fought EEOC's request to take Farmer's deposition,<10> EEOC was unable to learn more about the basis for Farmer's belief that Cintas managers had a stereotypical view that women were unable to be SSRs. At a minimum, though, it can reasonably be inferred that Farmer thought Cintas had a significant problem with attitudes about the SSR position and women's ability to perform successfully in it. V. The District Court abused its discretion by limiting EEOC's discovery. A. Farmer deposition EEOC argued in its opening brief that the magistrate abused his discretion by prohibiting altogether the deposition of CEO Scott Farmer. EEOC Br. at 88-94. In response, Cintas does not argue that this Court should adopt the "apex doctrine." Def. Br. at 92. General rules of evidence - namely the rules regarding relevance and the protection from annoyance or undue burden - therefore govern the issue. Application of those rules should have permitted EEOC to take Farmer's deposition. Cintas argues that this Court's decision in Bush v. Dictaphone Corp., 161 F.3d 363 (6th Cir. 1999), "is controlling here." Def. Br. at 93. EEOC agrees that Bush is helpful to analysis of the issue in this case. In Bush, the magistrate limited the deposition of the President and Chief Operating Officer of Pitney-Bowes (the defendant's parent corporation) to two hours and limited the content to questions involving statements he had made. 161 F.3d at 367. There was no evidence the official "had any involvement in [the plaintiff's] termination" and no evidence he "even knew that [the plaintiff] had been terminated." Id. Further, the statements he made did not directly involve the plaintiff. Id. This Court agreed that the limitations imposed by the magistrate were "a reasonable way to balance [the plaintiff's] right to discovery" with the competing interests in the case. Id.<11> Here, by contrast, the magistrate made no effort to balance the competing interests, but instead prohibited the Farmer deposition entirely, even though EEOC was fully willing to accept limits on the length and location of Farmer's deposition. A-17. The magistrate therefore abused his discretion. Cintas argues that Farmer had no involvement in the decisions to reject the applications of the thirteen individuals. Def. Br. at 94. EEOC agrees, and does not intend to ask Farmer about specifics relating to the thirteen female applicants. What EEOC does intend to ask Farmer include questions about the "myth that females cannot be SSRs," a myth that Farmer felt sufficiently important to justify addressing it an annual meeting. EEOC therefore might ask Farmer why he believed there was such a myth, what information he reviewed or considered in deciding the myth existed, whether he believed women were being screened out of SSR jobs based on sex discrimination, whether he ever heard managers state that women could not or should not work as SSRs, whether he considered Michigan facilities in developing his view that Cintas managers were adhering to a myth that women could not be SSRs, whether in the aftermath of his speech there was any further discussion at the annual meeting about the myth that women cannot be SSRs, and what steps (if any) he directed be taken to remedy the problem. To EEOC's knowledge, no other Cintas official made a speech about the apparently pervasive myth, and the magistrate's issuance of the protective order therefore prejudiced EEOC by preventing it from acquiring potentially relevant information. B. Unredacted applications Cintas redacted identifying information about individuals who applied to Michigan locations other than the seven where the claimants had applied. EEOC argued in its opening brief that if this Court reverses the pattern-or-practice rulings, Cintas would have to provide the unredacted information "because contacting the other women could help EEOC prove there was a larger pattern or practice of discrimination." EEOC Br. at 95-97. Cintas does not challenge this point, except to argue that the magistrate required EEOC to identify all individuals for whom it would seek relief regardless of the proof framework to be used, that "EEOC has not challenged this order on appeal," and that EEOC therefore could not use the documents "to solicit the participation of any additional women." Def. Br. at 104- 05. Cintas is incorrect for three reasons. First, regardless of whether EEOC seeks monetary relief for women at other Michigan locations, information on the currently-unidentified women could well help EEOC establish a pattern of discrimination under the Teamsters framework. In response, Cintas contends that "discovery cannot be used as a fishing expedition." Def. Br. at 104. While it is true that unduly broad discovery requests may be limited - as was true in the cases Cintas cites - there is nothing unduly broad about seeking the identities of the women in EEOC's class. The point of discovery is to acquire information, and "[n]o longer can the time-honored cry of 'fishing expedition' serve to preclude a party from inquiring into ... relevant facts." Hickman v. Taylor, 329 U.S. 495, 507 (1947). Further, even if EEOC proceeds by proving discrimination only on an individualized basis, pattern-or- practice evidence - including anecdotal evidence the women may be able to provide - is relevant, especially given EEOC's theory that a widespread belief that women could not be SSRs led Cintas officials to dismiss the applications of the thirteen claimants. Second, Cintas' suggestion that EEOC would not be able to expand the class of women for whom it would seek relief in the second Teamsters phase because it did not challenge the magistrate's order requiring it to produce the names of the women is groundless. At the time of the magistrate's ruling on March 2, 2010, R.735, the district court had already issued its February 9, 2010, ruling precluding EEOC from proceeding under Teamsters. R.723. Thus there was no need to argue the impropriety of the magistrate's ruling independently of EEOC's challenge to the §706/Teamsters ruling, which is the heart of this appeal. Third, Cintas' statement that EEOC did not challenge the order as it pertained to EEOC's claim on behalf of individuals is incorrect. As discussed infra, EEOC had filed a motion on February 17, 2010, seeking an extension of the discovery period precisely because it needed the additional time to identify all individuals subject to sex discrimination at Michigan facilities. R.731. That motion was pending at the time of the magistrate's ruling, and was not denied until April 5, 2010. R.783. If this Court reverses the ruling on extending discovery, unredacted applications plainly would be relevant to identifying the class of women injured by discrimination. C. Discovery extension EEOC argued in its opening brief that the district court should have extended the discovery period when, mid-way though the discovery period, the court ruled EEOC could not prove its case under the Teamsters framework for which it had been preparing. EEOC Br. at 98-99. Cintas's argument in response mischaracterizes this case's procedural background. Cintas first argues that EEOC was "dilatory" because it "had more than four years after it joined the litigation to conduct its individual investigation but inexplicably failed to do so," and that the discovery period was "sufficiently lengthy." Def. Br. at 99-100. In fact, after EEOC filed its complaint in December 2005, discovery for EEOC's claim was deferred while the private parties in the consolidated cases conducted discovery on whether to certify a nationwide class of female applicants. R.731 Ex.1 at 4. The district court denied class certification on March 31, 2009, R.627, and a Rule 23(f) petition was denied on June 16, 2009. The discovery period for EEOC's claim under the pattern-or-practice framework then opened in August 2009 and was scheduled to close in May 2010, or 9 months later, with all witnesses for trial to be listed by April 2010, 8 months after the opening of discovery. R.646. EEOC anticipated it would prove, under Teamsters, that "discrimination was the company's standard operating procedure," 431 U.S. at 336, and that proof as to the individual victims would be deferred until after the liability trial. R.731 Ex.1 at 2-3. Only after the court's February 2010 ruling that EEOC could not utilize the Teamsters framework because it brought suit under §706 - the first time any court had so ruled - did EEOC learn it would have to pursue an individualized claim. Given the novel ruling of the district court, and the short discovery time period, the court should have extended the discovery period. CONCLUSION EEOC urges this Court to reverse the judgment of the district court and remand the case for further proceedings. Respectfully submitted, P. DAVID LOPEZ General Counsel LORRAINE C. DAVIS Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel s/ Jennifer S. Goldstein JENNIFER S. GOLDSTEIN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION CERTIFICATE OF COMPLIANCE I hereby certify that the attached opening brief is proportionally spaced, has a typeface of 14 points, and contains 12,182 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). The length of this brief is less than half the length of the oversize opening briefs the Court permitted the parties to file. s/ Jennifer S. Goldstein CERTIFICATE OF SERVICE I hereby certify that on July 11, 2011, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Sixth Circuit by using the appellate CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by e-mail sent by the appellate CM/ECF system. s/ Jennifer S. Goldstein ADDENDUM Supplemental Designation of Relevant District Court Documents Not Under Seal Docket No. Description 130 Stipulated Amended Scheduling Order 145 Stipulated Discovery and Scheduling Order 162 Stipulated Scheduling Order 647 Order Regarding Briefing on Proposed Scheduling 651 Supplemental Brief by EEOC Regarding Proposed Scheduling 653 Supplemental Brief by Cintas Regarding Proposed Scheduling 731 Ex.1 Declaration of Kenneth L. Bird 878 Transcript of Motion Hearing held on 02/06/2009 ********************************************************************************** <> <1>Cintas also cites two district court decisions in support of its contention that §706 is limited to "individual" claims. Def. Br. at 37-38. Those decisions undermine Cintas' argument rather than buttress it. In EEOC v. Kaplan Higher Educ. Corp., 2011 WL 1775746 (N.D. Ohio 2011), EEOC had argued that the limitations period applicable when it brings suit under §706 does not apply to a §707 suit. The district court, in ruling on the issue, did not hold there was a distinction between §706 and §707, but rather held the opposite. The court held that the two sections were inextricably linked, and that the limitations period of §706 therefore applied to actions brought under §707. Id. at *2-4. The court in EEOC v. Scolari Warehouse Markets, 488 F. Supp.2d 1117 (D. Nev. 2007), likewise held that "[g]iven the similar nature" of claims brought under §§706 and 707, EEOC could pursue compensatory and punitive damages in a case brought "pursuant to §§706 and 707." Id. at 1145. In any event, in each suit EEOC had relied on both §706 and §707, and so the courts had no occasion to consider whether EEOC could prove a pattern or practice under §706 alone. <2>Wal-Mart held the Dukes class' evidence insufficient to demonstrate a common question for Rule 23 purposes, an inquiry it said overlaps with the plaintiffs' "merits contention that Wal-Mart engages in a pattern or practice of discrimination." 2011 WL 2437013, at *7. Accordingly, assuming this Court reverses the district court's pattern-or-practice ruling, Cintas may well argue on remand that this case is more like Wal-Mart, while EEOC expects to prove at trial that this case is more like Teamsters - namely, that the evidence adduced demonstrates sex discrimination in SSR hiring was Cintas' standard operating practice. No party has yet filed a motion on the merits of EEOC's claim that Cintas engaged in a pattern or practice of discrimination, and so any merits issue is not before this Court. <3> Cintas also cites EEOC v. Target Corp., 2007 WL 1461298 (E.D. Wis. 2007), but Target lends no support to Cintas' argument. Target held that EEOC could not seek relief for a claimant rejected for a job before the time frame of EEOC's investigation. Unlike the claimant in Target, all thirteen claimants in this case fell within the time parameters of EEOC's investigation. <4>Cintas argues that EEOC "admi[tted]" it must "specifically identify" individual victims of discrimination in its Determination. Def. Br. at 60 & n.178 (citing R.836-5 at 55, 56). Cintas' argument on this point is misleading, for it has never been EEOC's position that Title VII requires it to identify each member of a class affected by discrimination in its Determination. What Cintas cites in support of its argument is the deposition of an EEOC investigator, who was attempting to explain how EEOC handles investigations that are initiated by an individual's charge, but then grow to encompass alleged class discrimination. R.836-5 at 9-12 (Dep. at 50-61). As the investigator explained, EEOC's Determination would identify only the individuals named in the underlying charge, "and then we would identify other harmed parties or class members in our conciliation agreement." R.836-5 at 11 (Dep. at 57-58). When no agreement is reached, the identification of individuals does not occur. <5> Cintas also claimed that the men it hired possessed skills or experience that the women lacked and that were valued highly by Cintas officials. For example, Cintas hired a man who spoke Arabic, and later asserted that Arabic fluency was a valued skill. Def. Br. at 13. Cintas offers no contemporaneous evidence on this point, such as job advertisements seeking applicants who spoke Arabic. The only evidence it offered was a declaration by an official who examined the applications and then stated that he "would have" valued Arabic fluency. A-1913 18; see also A-1911 7 (no recollection of application). <6> Of course, limiting the pool of applicants to those objectively qualified itself serves to eliminate common nondiscriminatory explanations, and then the analysis focuses on eliminating chance as the reason why an employer rejected qualified women in favor of qualified men. <7>Cintas mischaracterizes EEOC's argument. Cintas avers that "EEOC says it was error for the district court to hold that statistics alone cannot show pretext." Def. Br. at 84 (citing EEOC Br. at 76). EEOC never argued statistics alone can show pretext in this case. See EEOC Br. at 76 ("Statistics alone cannot explain why an employer rejects a particular applicant."). EEOC believes that Cintas has overstepped the bounds of appropriate legal argument by mischaracterizing EEOC's submission to this Court. <8>DiPrete also explained that he did a sophisticated statistical test in which he analyzed local data separately and then combined the data in a statistically- meaningful way. A-640 ("I used Poisson regression to perform direct goodness of fit tests for the pattern of counts across Cintas locations and over time for hires as compared with female availability."). This test does not result in the simplistic amalgamation of data that Cintas suggests and is more statistically reliable than isolating the data. A-2130-2132 ("Multilevel models have been a standard statistical strategy for analyzing data drawn from multiple contexts for over two decades"). <9>Cintas argues that an interviewer's statement to Harrington that he would notify her of an open clerical position is ambiguous. Def. Br. at 91. In context, however, the statement is not ambiguous, for the interviewer referenced clerical jobs at the end of her interview for an SSR job, not a clerical job; Harrington reasonably understood that the interviewer was not giving her serious consideration for the SSR job. A-475(Dep. at 19). <10>EEOC challenges the Farmer deposition ruling on appeal. <11>The magistrate also had barred the deposition of the company CEO who, unlike the President, had not made any statements. Bush, 161 F.3d at 367.