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 _________________________________________________________ REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT _________________________________________________________ JAMES L. LEE EQUAL EMPLOYMENT Deputy General Counsel OPPORTUNITY COMMISSION Office of General Counsel VINCENT J. BLACKWOOD 131 M Street, NE, 5th Fl. Acting Associate General Counsel Washington, DC 20507 Susan L.P. Starr (202) 663-4727 Attorney susan.starr@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES FEDERAL CASES Bevan v. Honeywell, Inc., 118 F.3d 603 (8th Cir. 1997). . . . . . . . . . . . . . . 16 Darchak v. City of Chicago Bd of Educ., 580 F.3d 622 (7th Cir. 2009). . . . . . . . .6 Excel v. Bosley, 165 F.3d 635 (8th Cir. 1998). . . . . . . . . . . . . . . . . . 5-6 Federal Deposit Insurance Corp. v. First Interstate Bk. of Des Moines, 885 F.2d 423 (8th Cir. 1989). . . . . . . . . . . . . . . . . . . . . . 16 Landgraf v. USI Film Products, 511 U.S. 244 (1994). . . . . . . . . . . . . . . . . .5 McDonnell-Douglas v. Green, 411 U.S. 792 (1973). . . . . . . . . . . . . . . . . . 12 McKennon v. Nashville Banner Publishing, Co.., 513 U.S. 352 (1995) . . . . . . . . .14 Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). . . . . . . . . . . . . . . . . . 5 Yates v. Rexton, 267 F.3d 793 (8th Cir. 2001). . . . . . . . . . . . . . . . . . . .16 FEDERAL STATUTES Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. § 2000e-2(m). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Americans with Disabilities Act, 42 U.S.C. § 12212(a), . . . . . . . . . . . . . . . . . . . . . . . . . . 13 _________________________________________________________ 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 _________________________________________________________ INTRODUCTION The Commission alleges in this action that Con-way violated Title VII by failing to hire Roberta Hollins because she is black. Notwithstanding undisputed evidence that Hollins' race was openly discussed as a negative factor by the company officials responsible for the hiring decision in the course of considering her application, and testimony by the official authorized to make a selection that he would have selected Hollins but for concerns about her race, the district court granted summary judgment to the defendant. In our opening brief, our principal argument was that the evidence is sufficient to support a finding that Hollins' race was "a motivating factor" in Con-way's selection process, and, therefore, that the company violated § 703(m) of Title VII. We pointed out that an employer violates § 703(m) if it considers an applicant's race in the hiring process even if it would not have hired the applicant for some other reason, and, therefore, Con-way's assertion that Hollins would have ultimately been rejected by the company because of her conviction record is not a defense to liability. In its brief as Appellee, Con-way never directly confronts this argument. Remarkably, its brief never mentions § 703(m) or its "motivating factor" standard. Instead, the company devotes most of its brief to arguing that Hollins would not have been hired because of her convictions even if she had been selected, without ever disputing the Commission's argument that the question of whether Hollins would have ultimately been hired is not relevant to Con-way's liability under § 703(m). We submit this reply brief to refocus the appeal on the relevant issues and to respond to Con-way's distortions of the record and the Commission's arguments. ARGUMENT 1. In our opening brief, we argued that the district court erred when it held that no reasonable jury could find that Hollins' race was a motivating factor in the company's decision not to hire her. We pointed out that the district court's reasoning that race was not a factor because Kenneth Gaffney continued to consider Hollins even after hearing Kevin Beer's warnings about hiring a black applicant ignores Gaffney's testimony that he wanted to select Hollins instead of continuing the selection process but did not do so because she was black. Because Hollins could not be considered by Con- way unless Gaffney sent her name forward and Gaffney failed to send her name forward, at least in part, because of her race, we argued, a reasonable jury could conclude that Con-way eliminated Hollins from consideration because of her race. In its brief as appellee, Con-way does not dispute the Commission's argument that an employer violates § 703(m) if an applicant's race affects its hiring process even if it does not change the ultimate decision. Nor could it. As we set out in detail in our opening brief, the text of § 703(m) and the case law interpreting it compel the conclusion that an employer that allows racial bias to enter into the hiring process is liable under that provision even if it would have made the same decision if race had not been a factor. Instead, Con-way simply ignores this principle and continues to argue that the district court properly granted summary judgment because the plaintiffs cannot prove that Hollins would have been hired even if her race had not been considered. Rather than address the question of whether there is sufficient evidence that Hollins' race was a motivating factor in the hiring process within the meaning of § 703(m), Con-way conflates the correct standard with an incorrect one and then analyzes the facts under that erroneous legal framework. Con-way argues that the Commission's claim fails in this case because there is insufficient evidence of a "causal link" between the discriminatory animus and the company's failure to hire Hollins, i.e., evidence that an adverse action was caused by the animus. Con-way br. at 24 ("in order to survive summary judgment on direct evidence the plaintiff must submit sufficient evidence of a discriminatory motive and that the motive caused the challenged decision" (emphasis in original)); see also Con-way br. at 28 (even if plaintiffs can prove that the selection of Gaffney was delayed because of her race, summary judgment was proper because "a reasonable jury could not find that as a result of the delay, Hollins was not hired by Con-way"). Con-way's contention that it did not violate Title VII if it would have made the same decision absent the discriminatory animus cannot be reconciled with the plain language. Section 703(m) provides that "an unlawful employment practice is established" when discriminatory animus is "a motivating factor" in "any employment practice." 42 U.S.C. § 2000e-2(m) (emphasis added). Congress enacted this provision in response to Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), to make clear that where discriminatory animus is a motivating factor in the decision-making process, liability attaches regardless of whether the employer would have made the same decision absent such animus. Landgraf v. USI Film Prods., 511 U.S. 244, 251 (1994). Thus, if there is evidence from which a jury could find that race played a part in motivating Gaffney's decision not to hire Hollins, liability attaches without an additional showing that Con-way's consideration of Hollins' race caused the company's failure to hire her. Con-way's argument that an employer cannot be found to have violated Title VII absent a finding that its consideration of an applicant's race actually caused the employer's failure to hire the applicant has been rejected by this Court. In Excel v. Bosley, 165 F.3d 635, 638 (8th Cir. 1998), this Court held that the plaintiff's claim is cognizable under § 703(m) even if the claimant was fired for violating a work rule independent of the discrimination. The Court stated, "It is not necessary that the actual termination decision be motivated by discriminatory animus. If the decision making process is tainted by discrimination, the claimant is entitled to relief." Id. at 638 (citation omitted). See also Darchak v. City of Chicago Bd. of Educ., 580 F.3d 622, 633 (7th Cir. 2009) ("even if the Board is able to prove valid reasons for not renewing Darchak's contract . . . such proof does not by itself extinguish Darchak's claim" in light of evidence that supervisor who failed to recommend the plaintiff for renewal harbored discriminatory animus). In arguing that the district court's dismissal of the Commission's claim should be affirmed because of a lack of proof that the racial bias in the hiring process caused the company not to hire Hollins, Con-way not only ignores the relevant legal standard, it also ignores evidence in the record that Hollins' race played an important role in her failure to obtain a job with the company. For the reasons discussed above, the question of whether Con- way would have hired Hollins if her race had not been a factor in the process is not relevant to the issue before this Court since it would, at most, affect the relief available to the Commission and not the viability of the claim. Nonetheless, we briefly respond to Con-way's argument to dispel the company's suggestion that we have distorted the record. Con-way asserts that, even if Beer and Gaffney were motivated by racial animus, their views did not have "any impact whatsoever on Hollins' failure to be hired by Con-way." Con-way Br. at 24. In making this assertion, Con-way simply ignores Gaffney's clear and unambiguous testimony that he would have immediately selected Hollins when he was authorized to fill the vacancy but for Beer's statements warning him against hiring a black applicant. Instead, the company points to evidence that Gaffney accepted applications from other applicants and conducted interviews after he was authorized to make a selection to argue that no delay was caused by Hollins' race. This argument ignores the obvious point that Gaffney's decision to continue the search was the delay. Because Hollins was black, rather than selecting her for hire, Gaffney protracted the hiring process. He considered an applicant he determined to be less qualified than Hollins, Angela Patterson, and he solicited other applications. Con-way suggests that Gaffney continued the selection process not because of Beer's warnings not to hire Hollins because she was black but rather to "play politics" by giving consideration to current employees' relatives and friends. Con-way br. at 26, n.21. However, there is no evidence that Gaffney continued the interview process so that he could consider those applicants. Rather, Gaffney testified that he wanted to hire Hollins immediately and would have done so but for Beer's statements. R.44, Gaffney Dep., JA Tab 16 at 134-36 (Gaffney "knew in his heart . . . that [he] needed to come up with a back-up plan if [Beer was] going to stay firm" about not hiring a black applicant). The back-up plan was to continue to accept applications rather than put forward Hollins' name. But, if he was going to accept applications, in addition to trying to find an acceptable white applicant, he needed to "play politics" by accepting applications from everyone who came in, including current employees' relatives and friends even though he had no intention of hiring any of them. Id. at 164, 167-68. Moreover, consideration of these applicants does not explain why Gaffney sent forward for drug testing both Hollins and Patterson rather than just Hollins. Con-way also expresses bewilderment over the Commission's contention that consideration of race by Gaffney or Beer could expose the company to liability since "neither Gaffney nor Beer had any authority to hire anyone without first securing approval from the [personnel department]." Con-way br. at 28. The fact that Gaffney did not have final hiring authority means only that his selection of Hollins would not have been sufficient to get her a job at Con-way. However, it is undisputed that selection by Gaffney was necessary for Hollins to get a job. Consequently, he had the practical authority to deny her the opportunity to obtain employment with Con-way by failing to select her. Therefore, the evidence that he failed to select Hollins because of her race is sufficient to support a finding that Con-way violated § 703(m) whether or not she would have ultimately been hired. 2. Con-way devotes most of its brief to arguing tangential issues and to quibbling about factual details that do not directly affect the correctness of the district court's dismissal of this action. Before responding to these points, we once again note that, even if this Court were to accept Con-way's arguments on all of these issues, it would not change the fact that summary judgment was improper for the reasons discussed above. We argued in our opening brief that the evidence would support a finding that Beer's discriminatory animus toward Hollins also affected consideration of her application after Gaffney left and was replaced by Sellers. EEOC br. at 26-32. Con-way mischaracterizes the Commission's argument as alleging that Sellers himself harbored discriminatory animus and then goes on to dismantle this straw argument. Con-way br. at 28-30. Con-way then suggests this Court should not consider the Commission's actual argument that a jury could find that Beer's involvement tainted the decision to hire Godwin because this argument purportedly requires additional "factual development," and thus was waived. Id. at 30-32. Once again Con-way distorts the Commission's argument, stating that the Commission relies solely on Beer's disparate treatment of Hollins and a white applicant, both of whom indicated continued interest in the position after Gaffney left. Id. Then Con-way points to evidence outside the record it claims exonerates Con-way by demonstrating the two applicants were treated identically. Not only is this evidence not relevant because it fails to nullify evidence of Beer's racial bias in the selection process, but the evidence does not even support the theory for which it was cited by Con- way.<1> Con-way argues that Beer responded identically to Hollins and to a white applicant, Patterson. However, rather than supporting this theory, Patterson's testimony in fact demonstrates that Beer treated Patterson more favourably than Hollins. Patterson did testify that she called Beer after Gaffney left, telling Beer she was still interested in the CSR position. Conway Br., Add. at 4-5. However, Patterson's testimony is inconsistent. At one point she testified that after telling Beer she was still interested in the job, Beer called her back a week later, telling her she would need to submit a new application. Id. at 6-7. Later in her testimony, she stated that she spoke with him only once. Id. at 8. As this case was decided on summary judgment and thus must be viewed in a light most favorable to the plaintiffs, a reasonable jury could conclude that Beer did call Patterson back to tell her how to proceed but did not similarly inform Hollins. Moreover, whether or not Beer called back Patterson, it is undisputed that Beer told Patterson to reapply if she wanted Con-way to continue to consider her for the CSR position. Beer never told Hollins this. Therefore, this evidence is not inconsistent with the Commission's argument that race was a motivating factor in Beer's failure to contact Hollins and tell her to reapply if she wanted to be considered for the vacant position. Moreover, even if a jury credited Con-way's reading of Patterson's testimony - that Beer similarly ignored Patterson's and Hollins' overtures - it could find nonetheless that Beer was motivated to ignore Hollins' application, at least in part, because of her race. Regardless of his motivation for not returning Patterson's call, a jury could conclude based on this record that Beer's statements that he did not want a black hired were the reason why he did not call back Hollins. Thus, viewing the evidence in the light most favorable to the plaintiffs, a reasonable jury could conclude Beer was motivated, at least in part, by Hollins' race when he failed to pass Hollins' name on to Sellers or to inform him of her continued interest in the position. 3. As we pointed out in our opening brief, because the evidence affirmatively establishes race as a motivating factor in Con-way's decision not to hire Hollins, it is not necessary to analyze the facts under the McDonnell-Douglas paradigm as did the district court. McDonnell-Douglas is designed to ascertain the true motivation for the employment practice at issue where the evidence demonstrating discriminatory animus is circumstantial. Nonetheless, as we argued in our opening brief, the district court erred in ruling that the Commission did not establish a prima facie case under McDonnell-Douglas v. Green, 411 U.S. 792 (1973). EEOC br. at 28- 32. The district court ruled that the evidence fails to establish that Hollins was qualified for the position she sought because of her criminal convictions, notwithstanding evidence that Gaffney considered her the best qualified applicant and that Con-way acknowledges that her convictions played no part in the consideration of her application. In its brief as appellee, Con-way reiterates the district court's conclusion that she was not qualified because of her twenty-year old convictions without responding to the analysis in the Commission's brief. Con-way makes the same fundamental error as did the district court - - it improperly inserts proof of qualifications as a necessary prerequisite to establishing a Title VII violation. Unlike the Americans with Disabilities Act, nothing in Title VII's plain language requires such proof. See, 42 U.S.C. § 12212(a), (b)(5) (the ADA explicitly incorporates qualifications into its definition of prohibited discrimination to determine, fundamentally, whether the discrimination against the individual is unlawful). None of the standards of liability established in § 2000e-2 speak to qualifications. Rather they protect all individuals from discrimination by employers motivated by race or other identified classifications. Con-way expressly acknowledges that its criminal conviction policy played no part in the decision not to hire Hollins. Con-way Br. at 40 ("Hollins' four theft convictions had nothing to do with" the decision not to hire Hollins). Thus, as we argued in our opening brief, Hollins' convictions and Con-way's policy are logically irrelevant because they had nothing to do with Con-way's actual motivation for not hiring Hollins. EEOC br. at 30- 32. As we argued, this evidence should be treated like after-acquired evidence advanced by an employer to support an argument that it would have not hired an individual in the first instance if it had known of misdeeds by the claimant at the time of hire. See McKennon v. Nashville Publishing Co., Inc., 513 U.S. 352 (1995). As the Supreme Court said in McKennon, "the employer could not have been motivated by knowledge it did not have and it cannot now claim that the employee was fired for the non-discriminatory reason." 513 U.S. at 360. Similarly, Con-way admits that Hollins' convictions were not considered when it declined to hire her, and therefore it cannot claim that she was not hired for this reason. 3. As we argued in our opening brief, the question of whether Con- way would have rejected Hollins due to her convictions even if she had been selected by Gaffney is not properly before this Court because it relates only to a limited affirmative defense to relief and Con-way did not move for partial summary judgment on this defense in the district court. See EEOC br. at 32-34. Nevertheless we reviewed the evidence relating to the convictions and Con-way's policy to demonstrate that the matter is not as one-sided as the district court suggests. In responding to this review of the evidence, Con-way disputes a number of the Commission's representations. Without burdening this Court with further argument on an issue that is not presented, we feel compelled to respond to several of the company's assertions. As we pointed out in our opening brief, and Con-way has clarified, all of the evidence shows that the criminal background checks for Missouri applicants were either limited to a "seven year minimum" or to a specified seven-year span. Con-way's official in charge of reviewing the criminal background checks on all applicants testified that the number of years an employer is permitted to check for criminal conviction purposes differs from state to state. This official did not explain why the Missouri applications uniformly reflected nothing greater than a seven-year span nor is there any testimony that Missouri employers may consider similarly old convictions it otherwise discovers. Despite this lack of evidence, Con-way baldly asserts in its brief, without citation to the record or to any statutory provision, that "[i]n Missouri, there is no restriction on how far back an employer can search for criminal records." Br. at 42. There is nothing in the record to support this assertion. Finally, Con-way responds to our argument that the evidence that Gaffney, the only Con-way official to review Hollins' application, told Hollins "not to worry about" the old misdemeanors because "[w]e don't go back that far anyway" was erroneously excluded as hearsay. According to Con-way, Gaffney's statement was properly excluded because he did not have "significant involvement, either as advisor or other participant" in the subject of the statement. Br. at 17 (citing Yates v. Rexton, 267 F.3d 793, 802 (8th Cir. 2001)). However, as we pointed out in our opening brief, this Court has held that "personal knowledge is not required for an employee admission." EEOC br. at 39, citing Federal Deposit Ins. Corp. v. First Interstate Bk. of Des Moines, 885 F.2d 423, 435 (8th Cir. 1989). It is uncontested that Gaffney was the sole official at the Poplar Bluff facility responsible for interviewing candidates and for answering their questions about the application and the application process. In that capacity and during that process, he, as Con-way's highest-ranking official in that office, answered Hollins' question about how Con-way would treat her misdemeanor convictions. Testifying as "an authorized agent of the employer," Gaffney's statement is admissible as "an admission of a party opponent." Bevan v. Honeywell, Inc., 118 F.3d 603, 611 (8th Cir. 1997) (internal citations omitted). Con-way simply ignores this Court's rule that firsthand knowledge is not required for admission into evidence of party- admissions, focusing instead on Gaffney's knowledge of the particulars of the hiring policy, which goes not to the question of admissibility but rather to the weight to which his statement is entitled. 4. Con-way attempts to distract this Court from the overwhelming evidence of racial animus motivating the decision not to hire Hollins by nitpicking about the record. For example, Con-way accuses the Commission of "misstat[ing] the record" by asserting that "'Beer approved Sellers' request to hire Godwin.'" Con-way br. at 13, n.14. This assertion ignores Beer's testimony that after selecting a candidate, all SCMs (which would include Sellers) must contact Beer to discuss the "candidate," and his or her "qualifications," and then Beer "give[s] approval." R.44, Beer Dep., JA Tab 15 at 35-36. Con-way also contends that our statement that there is evidence that Beer knew Godwin was white is not supported by the record. Con-way br. at 29, n.23. However, Beer testified that Gaffney told him he was considering one black applicant and Gaffney testified that he told Beer about Godwin. R.44, Beer Dep., JA Tab 15 at 110, 186; Gaffney Dep., JA Tab 16 at 200-01. Similarly, Con-way's assertion that Beer "had absolutely no involvement in the decision to terminate Gaffney," Con-way br. at 11, n.11, ignores Beer's testimony that Beer, Gaffney and another Con-way official had a conference call during which "we . . . terminated [Gaffney]." R.44, Beer Dep., JA Tab 15 at 97-98, 100, 141. Finally, Con-way again accuses the Commission of misstating the record by asserting that Sellers told Beer that he found applications for the CSR position merely because the Commission inadvertently cited to pages 152-53 in Beers' deposition rather than to pages 189-90, which clearly support EEOC's assertion. CONCLUSION For the foregoing reasons, the EEOC respectfully asks this Court to reverse the award of summary judgment and remand for further proceedings. JAMES L. LEE Deputy General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel _________________________ 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) I certify that this brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 3629 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) because it has been prepared in a proportionally spaced typeface using MS Word 2003 in Times New Roman 14-point type. /s/ Susan L.P. Starr Susan L.P. Starr January 15, 2010 ANTI-VIRUS CERTIFICATION FORM (Eighth Circuit Local Rule 28A(d)(2)) CASE NAME: EEOC & Hollins v. Con-way Freight, Inc. DOCKET NUMBER: 09-2926 and 09-2930 I, Susan L.P. Starr, certify that the diskettes containing the PDF version of the Brief as Appellant that were submitted to the Court, to opposing counsel, and to intervenor counsel were scanned for viruses and no viruses were detected. NAME AND VERSION OF ANTI-VIRUS DETECTOR USED: Symantec AntiVirus Program 10.1.6000, Version 01/10/2010 rev. 17. ________________________ 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 CERTIFICATE OF SERVICE I, Susan L.P. Starr, hereby certify that I filed ten paper copies of the foregoing Reply Brief as Appellant with the Court by express mail, postage pre-paid, on this 15th day of January, 2010. I also certify that, via this same mailing, I submitted the foregoing Brief as Appellant to the Court in PDF format on a 3 1/2 inch computer diskette. I further certify that I served two paper copies of the foregoing Reply Brief as Appellant, as well as an electronic copy in PDF format on a 3 1/2 inch computer diskette, this 15th day of January, 2010, by first-class mail, postage pre-paid, to the following counsel of record: Kerri S. Reisdorff Jonathan Berns CONSTANGY, BROOKS DOBSON, GOLDBERG, & SMITH, LLC BERNS & RICH, LLP 2600 Grand Blvd, Suite 300 5017 Washington Place, 3rd Fl. Kansas City, MO 64108 St. Louis, MO 63108 ___________________________ 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 ********************************************************************************** <> <1> For this reason, Con-way's objections to this Court considering the Commission's legal theory on this point are unpersuasive. As demonstrated above, "no factual development" is necessary to elucidate the district court's error. Con-way br. at 30. <2> In its opening brief, we mistakenly stated that "all but one of the CBCs from Missouri" were subject to a background check spanning more than seven years. EEOC br. at 35. Con-way correctly caught the error, noting that the instance we identified as an exception was from Wisconsin and not Missouri. Br. at 7, n.6. Therefore, there is no evidence that any of the background checks from Missouri applicants spanned more than seven years.