Nos. 09-2926 and 09-2930 _________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT _________________________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, ROBERTA M. HOLLINS, Intervenor-Appellant, v. CON-WAY FREIGHT, INC., Defendant-Appellee. _________________________________________________________ On Appeal from the United States District Court for the Eastern District of Missouri _________________________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION'S PETITION FOR REHEARING EN BANC _________________________________________________________ P. DAVID LOPEZ SUSAN L. P. STARR General Counsel Attorney LORRAINE C. DAVIS EQUAL EMPLOYMENT Acting Associate General Counsel OPPORTUNITY COMMISSION Office of General Counsel VINCENT J. BLACKWOOD 131 M Street, NE, Assistant General Counsel Washington, DC 20507 susan.starr@eeoc.gov (202) 663-4727 TABLE OF CONTENTS TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . .iii STATEMENT PURSUANT TO F.R.A.P. 35(b)(1). . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUE. . . . . . . . . . . . . . . . . . . . . . . . . . . 2 FACTUAL STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 PANEL DECISION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 CERTIFICATE OF COMPLIANCE ADDENDUM CERTIFICATE OF SERVICE TABLE OF AUTHORITIES FEDERAL CASES Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). . . . . . . . . . . . passim EEOC v. Siouxland Oral Maxillofacial Surgery Assoc., LLP, 578 F.3d 921 (8th Cir. 2009). . . . . . . . . . . . . . . . . . 1, 11-12 EEOC v. Target Corp., 460 F.3d 946 (7th Cir. 2006). . . . . . . . . . . . 11 Griffith v. City of Des Moines, 387 F.3d 733 (8th Cir. 2004). . . . . . . 1, 9 King v. Hardesty, 517 F.3d 1049 (8th Cir. 2008). . . . . . . . . . . . . .1, 9 Lewis v. City of Chicago, ___U.S. ____, 130 S. Ct. 2191 (2010) . . . 1, 12 McDonnell Douglas v. Green, 411 U.S. 792 (1973) . . . . . . . . . . . . . . 9 Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). . . . . . . . . . . . passim Richardson v. Sugg, 448 F.3d 1046 (8th Cir. 2006). . . . . . . . . . . . 10 FEDERAL STATUTES and LEGISLATIVE HISTORY Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. . .passim H.R. Rep. No.102-40(I), at 46 (1992), reprinted in, 1991 U.S.C.C.A.N. 549, 584. . . . . . . . . . . . . . . . . . 1, 8, 14 STATEMENT PURSUANT TO FED. R. APP. P. 35(b)(1) The Equal Employment Opportunity Commission petitions for rehearing en banc. This case merits en banc review for the following reasons: First, en banc consideration is necessary to secure uniformity of this Court's decisions. Fed. R. App. P. 35(b)(1)(A). The panel's ruling that Title VII is not violated when a manager excludes an employment applicant from consideration because the applicant is black conflicts with Supreme Court decisions and prior decisions of this Court. See Lewis v. City of Chicago, ___ U.S. __, 130 S. Ct. 2191, 2198 (2010); EEOC v. Siouxland Oral Maxillofacial Surgery Assoc., LLP, 578 F.3d 921, 926 (8th Cir. 2009); King v. Hardesty, 517 F.3d 1049, 1057 (8th Cir. 2008); Griffith v. City of Des Moines, 387 F.3d 733, 735 (8th Cir. 2004). Second, rehearing en banc is also warranted because the panel resolved a question of exceptional importance. Fed.R.App.P. 35(b)(1)(B). The panel's ruling that § 703(m) of Title VII is not violated when race motivates an employer to exclude a black applicant unless the employer proffers an additional nondiscriminatory reason for its action conflicts with the text and the purpose of Title VII, and with decisions of the Supreme Court. See 42 U.S.C. § 2000e-2(m); H.R. Rep. No. 102-40(I) at 45-46 (1992); Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003); Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). STATEMENT OF THE ISSUE Whether the panel's holding that plaintiffs cannot establish a Title VII violation where the company official responsible for reviewing applications failed to forward an application to the hiring officials because the applicant is black is inconsistent with decisions of the Supreme Court, this Court, and the statute's plain language. FACTUAL STATEMENT Roberta Hollins applied for a vacant position at a Con-Way Freight facility in Missouri. Br.<1> at 4. The highest ranking official at that terminal, Kenneth Gaffney, was solely responsible for interviewing and selecting an applicant and then passing that name through his regional manager, Kevin Beer, up to corporate headquarters in Michigan for final approval. After interviewing Hollins, Gaffney decided, in his words, "that she was qualified for the position," and he was "very interested in hiring her." Id. at 4-5. Gaffney testified that when he discussed Hollins with Beer, Beer warned him not to hire her because she was black. According to Gaffney, "[b]ased on Mr. Beer's communications to me, it was clear to me that he did not want to hire Ms. Hollins because she was Black," and Beer warned him that Hollins might bring a harassment claim against the company because of racial epithets at the workplace. Id. at 6-7. Gaffney testified that, after interviewing all the applicants for the job, he concluded Hollins "was the best fit and the best qualified applicant for the position and it was my desire to hire her." Id. at 8-9. However, because he was also concerned about Beer's warning not to hire a black candidate, he asked a white applicant he considered less desirable to take a pre- employment drug test along with Hollins. Id. Gaffney testified that, "[w]ere it not for the resistance I received from Kevin Beer, I would have submitted only Ms. Hollins [sic] application and hiring paperwork for approval and only have had her take the pre-employment drug test." Id. at 9. Gaffney was fired for reasons unrelated to the hiring process before he submitted any candidate to headquarters. Id. at 10. A Con-Way official testified that the company had a criminal conviction policy that would have precluded Hollins from being hired because of two misdemeanor theft convictions, both of which were more than twenty years old. Id. at 11-13. There was also contrary evidence indicating that the company's policy, which was not in writing, would not have precluded Hollins from being hired for this reason. Id. The EEOC brought this action alleging that Con-Way violated Title VII when Gaffney failed to forward Hollins's application because she is black.<2> The district court granted summary judgment holding that, because Gaffney continued to consider Hollins after Beer warned him not to select a black candidate and because Gaffney did not have final hiring authority, the "discriminatory nature" of the statements made by both Beer and Gaffney during the hiring process was insufficient to constitute direct evidence that race was a motivating factor in the decision not to hire Hollins. Id. at 13-14. PANEL DECISION A panel of this Court concluded that "the evidence is insufficient to support a finding of a causal link between the comments made by Mr. Beer and Mr. Gaffney and Con-Way's failure to hire Ms. Hollins." Slip op. at 4- 5. According to the panel, even if concerns about Hollins's race caused Gaffney not to forward her name through the hiring process<3>, no Title VII violation can be established because Gaffney did not have final hiring authority and Hollins ultimately would have been rejected because of her convictions. Id. at 5. The panel concluded that, for this reason, "regardless of the discriminatory animus, the plaintiffs cannot establish a causal link between the alleged discriminatory animus and the decision not to hire." Id. The panel rejected EEOC's argument that, even if Con-Way ultimately would have rejected Hollins because of her convictions, the company violated § 703(m) of Title VII because Hollins's race was a motivating factor in the company's failure to hire. According to the panel, this argument fails because § 703(m) applies only to "mixed motive" cases. Id. at 6. The panel stated: [I]t is important to recognize that Con-Way did not offer a motive for failing to hire Ms. Hollins: It merely said that Mr. Gaffney did not send her name forward and that after he was terminated it simply did not consider her application. If this is true, then racial considerations played no part in the failure to hire Ms. Hollins, and if it is false then Ms. Hollins might well prevail but not on a mixed-motive basis. Id. The panel also rejected EEOC's argument that proof that Hollins would not have been hired because of her convictions even if Gaffney had forwarded her application would provide only a limited defense to some forms of relief under § 706(g)(2)(B), 42 U.S.C. § 2000e-5(g)(2)(B). Id. at 6- 7. According to the panel, §703(m) "provides an alternative way for plaintiffs to establish a Title VII violation - the mixed-motive approach - in addition to the single-motive approach available under [§ 703(a)]." Id. at 6. Because §706(g)(2)(B) by its terms applies only when a claim is established under § 703(m), the panel reasoned, it is "inapplicable in a single motive case such as this one." Id. at 6-7. Finally, the panel held that the evidence was insufficient to establish a prima facie case under the indirect method of proof, holding that the plaintiffs "cannot establish that she was qualified" because her theft-related convictions rendered her "unqualified for any position with the company." Id. at 7. ARGUMENT Section 703(m) provides that an employer violates Title VII when "race . . . was a motivating factor for any employment practice, even though other factors also motivated the practice." 42 U.S.C. § 2000e-2(m). Without ever considering the language of this provision, the panel held that the plaintiffs cannot establish a Title VII violation notwithstanding largely undisputed evidence that the official responsible for reviewing applications ultimately failed to forward Hollins's application to the hiring officials because she is black. This holding ignores decisions both of this Court and the Supreme Court and cannot be reconciled with the statute's terms. The panel gave two reasons for rejecting EEOC's argument that Title VII is violated when a company official excludes an applicant from consideration based on her race. First, it held that even though the company official failed to forward Hollin 's application for further consideration, a Title VII violation cannot be established because there is no "causal link between the alleged discriminatory animus and the decision not to hire [Hollins]." Slip op. at 4-5. Second, the panel held that the plaintiffs cannot establish a claim under § 703(m) because that provision applies only to "mixed motive" claims. Id. at 6. Both of these rationales contradict Title VII's express language and the holdings both of this Court and the Supreme Court. Prior to 1991, an individual disparate treatment claim could only be brought under § 703(a) of Title VII, a provision which makes it unlawful for an employer "to fail or refuse to hire . . . any individual . . . because of such individual's race . . . ." 42 U.S.C. § 2000e-2(a). In 1989, the Supreme Court held, in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), a sex discrimination case, that, even if sex was a factor in the decision to deny the plaintiff a partnership, the employer did not violate § 703(a) if the employer would have made the same decision without considering the plaintiff's sex.<4> Congress responded to Price Waterhouse by amending Title VII to clearly provide that, contrary to the Court's holding, an employer cannot escape liability under the statute if race, sex or another prohibited characteristic was a motivating factor in an employment action. Congress added § 703(m) to make clear that a Title VII violation is established through proof that a protected characteristic was "a motivating factor" in the employment action regardless of whether it caused the decision. See H.R.Rep. No.102-40(I), at 46, reprinted in 1991 U.S.C.C.A.N. 549, 584 (subsection titled "The Need to Overturn Price Waterhouse" reflects congressional intent to correct the "inevitable effect of the Price Waterhouse decision to permit prohibited employment discrimination to escape sanction under Title VII" when an employer shows other causes for a challenged employment action). The panel's holding in this case that a plaintiff must establish a causal link between discriminatory animus and the ultimate employment action nullifies this amendment and reverts to the standard repudiated by Congress in 1991. The Supreme Court noted, in Desert Palace v. Costa, that the language of § 703(m) "unambiguously states that a plaintiff need only 'demonstrat[e]' that an employer used a forbidden consideration with respect to 'any employment practice.'" 539 U.S. 90, 98 (2003) (quoting 42 U.S.C. § 2000e-2(m)). Accordingly, this Court has held that, "at the summary judgment stage, the issue is whether there is sufficient evidence that unlawful discrimination was a motivating factor in the defendant's adverse employment action." Griffith v. City of Des Moines, 387 F.3d 733, 735 (8th Cir. 2004). If the evidence is sufficient to demonstrate the presence of an unlawful motive, a plaintiff "does not need the three-part McDonnell Douglas analysis to get to the jury." Id. at 736. See King v. Hardesty, 517 F.3d 1049, 1058-59 (8th Cir. 2008) (district court erred when it analyzed case involving race-based comments under the McDonnell Douglas [v. Green, 411 U.S. 792, 802-04 (1973)] framework). This is true even if an employer can demonstrate that it would have taken the same action for some other reason. Desert Palace, 539 U.S. at 94. Such evidence is not a defense to liability. Id. Rather, an employer may be able to establish a partial affirmative defense under § 706(g)(2)(B) which limits the relief available to the plaintiff if it proves that "it would have made the same decision absent the illegal criterion." Richardson v. Sugg, 448 F.3d 1046, 1057 (8th Cir. 2006), citing Price Waterhouse, 490 U.S. at 246. Thus, it "does not absolve [the employer] of liability, but restricts the remedies available to a plaintiff." Desert Palace, 539 U.S. at 94; 42 U.S.C. § 2000e-5(g)(2)(B). The evidence in this case fits squarely within § 703(m). There is ample, uncontradicted evidence that Hollins's race was "a motivating factor" in Con-Way's selection process. It is undisputed that Hollins's race was openly discussed as a negative factor by the company officials with authority to exclude candidates from consideration when reviewing their applications. Further, the official authorized to make the initial selection, Gaffney, testified that he would have selected Hollins soon after interviewing her but for concerns about her race. The panel cited two factors in support of its conclusion that Title VII liability cannot be established here: that Gaffney, the official who testified that his actions were affected by Hollins's race, did not have hiring authority; and that the officials who did have hiring authority would have rejected her even if Gaffney had sent her application forward.<5> Whether considered separately or in tandem, these factors do not support the panel's conclusion. Insofar as the decision is based on the notion that preliminary steps in the hiring process cannot form the basis of Title VII liability even if discriminatory unless the discriminating official had authority to make the final hiring decision, it is flatly inconsistent with other decisions of this Court. In EEOC v. Siouxland Oral Maxillofacial Surgery Assoc., LLP, 578 F.3d 921, 926 (8th Cir. 2009), this Court affirmed a jury verdict finding an employer liable under Title VII for failing to hire an applicant because she was pregnant, where the supervisor who excluded her by failing to forward her application to upper management had "authority to conduct the initial interviews . . . [and] to reject applicants," but did not have final hiring authority. See also EEOC v. Target Corp., 460 F.3d 946 (7th Cir. 2006) (company violated Title VII if store manager responsible for interviewing and forwarding desired applicants to upper management refused to interview certain applicants because they were black). Indeed, the Supreme Court recently expressly recognized that although "Title VII does not define 'employment practice,' . . . we think it clear that the term encompasses the conduct of which petitioners complain: the exclusion of . . . applicants." Lewis v. City of Chicago, 130 S. Ct. 2191, 2198 (2010). Like the initial interviewer in Siouxland, Gaffney was authorized by his employer to interview applicants for employment and decide whether to reject them or send their application on for further consideration. In the exercise of that authority, he failed to act on Hollins's application because she was black. His actions, like those of the supervisor in Siouxland, were the actions of Con-Way and directly caused Hollins to be excluded from further consideration. Accordingly, the panel's assertion that, even accepting the allegation that Gaffney did not send Hollins's name forward -- an action that the panel acknowledged could be found to have been based on race (slip op. at 8) -- "racial considerations played no part in the failure to hire Ms. Hollins," overlooks that Gaffney was acting as Con-Way's agent when he held her application back because of her race. Id. at 6. Even if it could be said that Hollins's race was not a but-for cause of the failure to hire her, her race surely was a factor in Con-Way's hiring process. The panel also rejected the EEOC's argument that proof that Hollins would not have been hired, even if her race had caused Gaffney to delay forwarding her application, would not be a defense to liability under §703(m). According to the panel, § 703(m) does not apply to this case because it is limited to "mixed-motive" cases and "Con-Way did not offer a motive for failing to hire Hollins." Slip op. at 5-6. In reaching this conclusion, the panel fails to consider the language of § 703(m) which clearly encompasses the plaintiffs' claims in this case. Nothing in the language of §703(m) supports the panel's conclusion that liability is established only if other factors also motivated the challenged practice. On the contrary, the provision states that liability is established where race is a motivating factor "even though other factors also motivated the practice." 42 U.S.C. § 2000e-2(m) (emphasis added). The plain meaning of the statutory language is that there is liability whether or not other factors motivated the decision. As the Supreme Court made clear, "where, as here, the words of the statute are unambiguous, the 'judicial inquiry is complete.'" Desert Palace, 539 U.S. at 98 (internal citation omitted). Because §703(m) "unambiguously states that a plaintiff need only 'demonstrate' that an employer used a forbidden consideration with respect to 'any employment practice'" (id.), the panel erred by artificially raising the threshold for Title VII liability by adding terms not found anywhere in the provision. In addition to restricting the provision's plain meaning, the panel's reading of § 703(m) also would frustrate Congress's intent when it enacted the provision. Congress amended Title VII after Price Waterhouse to make all considerations of race unlawful, whether or not it was the "but-for" cause of the challenged employment action, to avoid the "inevitable effect of the Price Waterhouse decision to permit prohibited employment discrimination to escape sanction under Title VII." See H.R. Rep. No. 102-40(I), at 46, reprinted in, 1991 U.S.C.C.A.N. 549, 584. Moreover, the panel's reading makes little sense on a practical level. This case demonstrates why. Gaffney testified that he failed to forward Hollins's application solely because she was black; he stated that he was not concerned about her convictions. According to the panel, as a result, Con- Way did not violate § 703(m). But, if Gaffney testified that he failed to forward Hollins's application because he was concerned about her race and her convictions, then, according to the panel, § 703(m) would have been violated. It is hard to understand why Congress would have wanted to impose such an arbitrary limitation which permits an employer to escape liability if it was motivated by discriminatory animus alone, but not if it also was influenced by nondiscriminatory factors. Because the panel's reading of § 703(m) undermines the core purpose of the amendment and of Title VII generally to stamp out invidious discrimination in employment, en banc consideration is merited. If left to stand, the panel decision will permit employers to escape liability under Title VII even where, as here, there is direct, uncontradicted evidence that race was a motivating factor in an employment action. CONCLUSION For the foregoing reasons, the EEOC respectfully asks this Court to vacate the panel's decision and rehear this case, en banc if necessary. P. DAVID LOPEZ General Counsel LORRAINE C. DAVIS Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel __/s/ Susan L.P. Starr______ SUSAN L.P. STARR Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, NE, 5th Floor Washington, DC 20507 (202) 663-4727 susan.starr@eeoc.gov FOR THE EIGHTH CIRCUIT Nos. 09-2926 and 09-2930 EEOC & Hollins v. Con-Way Freight CERTIFICATE OF COMPLIANCE WITH RULE 32(a) This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) and 40(b) because it contains 3003 words (as counted by MS Word 2003), excluding the parts of the brief exempted by Rule 32(a)(7)(B)(iii). The brief complies with the typeface requirements of Rule 32(a)(5) and the typestyle requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14-point type. /s/ Susan L.P. Starr Susan L.P. Starr November 8, 2010 CERTIFICATE OF SERVICE I, Susan L.P. Starr, hereby certify that I filed this petition with the Clerk of the Court for the United States Court of Appeals for the Eighth Circuit by using the CM/ECF system on November 8, 2010. I certify that all participants are registered CM/ECF users and that service will be accomplished by the CM/ECF system. Kerri S. Reisdorff Jonathan Berns CONSTANGY, BROOKS Denise Marie Portnoy & SMITH, LLC DOBSON, GOLDBERG, 2600 Grand Blvd, Suite 300 BERNS & RICH, LLP Kansas City, MO 64108 5017 Washington Place, 3rd Fl. St. Louis, MO 63108 Frank B. Shuster CONSTANGY, BROOKS & SMITH, LLP 230 Peachtree Street, NW Suite 2400 Atlanta, GA 30303 /s/ Susan L.P. Starr SUSAN L.P. STARR Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, NE, 5th Floor Washington, DC 20507 (202) 663-4727 susan.starr@eeoc.gov November 8, 2010 *********************************************************************** <> <1> The EEOC's appellate brief (Br.) and reply brief are available electronically via the ECF link on this Court's website, https://ecf.ca8.uscourts.gov, and contain citations to the district court record to support all factual assertions. All materials filed in the district court are available electronically via the ECF link on the website of the U.S. District Court for the Eastern District of Missouri, https://ecf.moed.uscourts.gov. A copy of the panel opinion is attached as an addendum to this petition. <2> Hollins intervened as a plaintiff alleging claims under Missouri law and Title VII. <3> Specifically, the panel held, "[v]iewing the facts in the light most favorable to the plaintiffs, Mr. Beer and Mr. Gaffney discussed Ms. Hollins's race, in the context of discussing applicants for the open position, as a reason not to offer her the job. Further, Mr. Gaffney testified that he would have submitted Ms. Hollins's name to fill the open position and begun the process of hiring her if his superior, Mr. Beer, had not discouraged him from hiring a black person." Slip op. at 8. <4> Price Waterhouse produced four separate opinions in the Supreme Court, none of which commanded a majority. However, all nine justices agreed that there was no liability under § 703(a) if the employer would have made the same decision absent consideration of the discriminatory factor. The Court disagreed about who should bear the burden of proof with respect to that issue. Six justices held that the burden of proof would shift to the employer to prove that it would have made the same decision. 490 U.S. at 231-79. Three justices believed the burden should remain with the plaintiff to prove that the consideration of sex was a but-for cause of the challenged employment action. 490 U.S. at 279-95. <5> The question of whether Hollins's convictions would have caused Con- Way to reject her if she were not black is not properly before this Court since Con-Way's motion for summary judgment raised only the question of whether the company can be held liable for violating Title VII. As we argue in the text, the company is liable whether or not Hollins would ultimately have been rejected. If the Court agrees, it should reverse the judgment of the district court and remand for further proceedings. Con-Way can raise its argument that it is entitled to limit relief under § 706(g)(2)(B) on remand.