Equal Employment Opportunity Commission and Cynthia Trudeau v. Communication Technical Systems 00-16111 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 00-16111 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, and CYNTHIA TRUDEAU, Intervenor, v. COMMUNICATION TECHNICAL SYSTEMS, INC. (SOUTHWEST), and COMMUNICATION TECHNICAL SYSTEMS, INC., Defendants-Appellees. On Appeal from the United States District Court for the District of Arizona BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT C. GREGORY STEWART CAREN I. FRIEDMAN General Counsel Attorney EQUAL EMPLOYMENT OPPORTUNITY PHILIP B. SKLOVER COMMISSION Associate General Counsel 1801 L Street, NW, 7th Floor Washington, D.C. 20507 LORRAINE C. DAVIS (202) 663-4720 Assistant General Counsel TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . ii STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . 1 STATEMENT OF ISSUES . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . 2 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . 3 1. Factual Background . . . . . . . . . . . . . . 3 2. District Court Decision . . . . . . . . . . . . 12 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . 16 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . 20 1. The district court erred in granting summary judgment to the defendants where the Commission established a prima facie case of pregnancy discrimination and proffered evidence of pretext . . . . . . . . . . . . . . 20 a. Standard of Review . . . . . . . . . . . . 20 b. Discussion . . . . . . . . . . . . . . . . 20 2. The district court erred in concluding that Ms. Trudeau is not entitled to relief even if the defendants are found liable for pregnancy discrimination . . . . . . . . . . . 32 a. Standard of Review . . . . . . . . . . . . 32 b. Discussion . . . . . . . . . . . . . . . . 33 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . 39 STATEMENT OF RELATED CASE CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICETABLE OF AUTHORITIES FEDERAL CASES Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) . . . . 34 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) . . 20 Barbour v. Merrill, 48 F.3d 1270 (D.C. Cir. 1995) . . . . 38 EEOC v. Dinuba Med. Clinic, ___ F.3d ___, No. 98-16454, 2000 WL 1199529 (9th Cir. Aug. 24, 2000) . . . . . . 32 EEOC v. Farmer Bros. Co., 31 F.3d 891 (9th Cir. 1994) . . 35 EEOC v. Goodyear Aerospace Corp., 813 F.2d 1539 (9th Cir. 1987) . . . . . . . . . . . 36-37 EEOC v. Hacienda Hotel, 881 F.2d 1504 (9th Cir. 1989) . . 34,36 EEOC v. Occidental Life Ins. Co., 535 F.2d 533 (9th Cir. 1976), aff'd, 432 U.S. 355 (1977) . . . . 37 EEOC v. Wal-Mart Stores, Inc., 156 F.3d 989 (9th Cir. 1998) . . . . . . . . . . . . 36 Freeman v. Arpaio, 125 F.3d 732 (9th Cir. 1997) . . . . . 26 General Tel. Co. v. EEOC, 446 U.S. 318 (1980) . . . . . . 36 Godwin v. Hunt Wesson, Inc., 150 F.3d 1217 (9th Cir. 1998) . . . . . . . . . . . 20-22 & 32 International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977). . . . . . . . . . . . . . . . . 23 Kolstad v. American Dental Ass'n, 119 S. Ct. 2118 (1999) . . . . . . . . . . . . . . . 36 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) . . . . . . . . . . . . . . . . 20-21 Reeves v. Sanderson Plumbing Prods., Inc., 120 S. Ct. 2097 (2000) . . . . . . . . . . . . . . . 27-28 Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406 (9th Cir. 1996) . . . . . . . . . . . . 22,31 Sischo-Nownejad v. Merced Community College Dist., 934 F.2d 1104 (9th Cir. 1991) . . . . . . . . . . . 21,32 Smith v. F.W. Morse & Co., 76 F.3d 413 (1st Cir. 1996) . . . . . . . . . . . . 23 St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993) . . . 27 Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981) . . . . . . . . . . . . . . . . 21,27 FEDERAL STATUTES 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . 2 28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1345 . . . . . . . . . . . . . . . . . . . . 1 Title VII of the Civil Rights Act of 1964 42 U.S.C. § 2000e-5(f)(1) . . . . . . . . . . . . . 1 42 U.S.C. § 2000e-5(f)(3) . . . . . . . . . . . . . 1 42 U.S.C. § 2000e-5(g)(1) . . . . . . . . . . . . . 34,36 Pregnancy Discrimination Act 42 U.S.C. § 2000e(k) . . . . . . . . . . . . . . . . 2,20 Civil Rights Act of 1991 42 U.S.C. § 1981a(b) . . . . . . . . . . . . . . . . 35 42 U.S.C. § 1981a(b)(1) . . . . . . . . . . . . . . 36 FEDERAL RULES Fed. R. App. P. 4(a)(1)(B) . . . . . . . . . . . . . 2 Fed. R. Civ. P. 4(m) . . . . . . . . . . . . . . . . 7 Fed. R. Civ. P. 60(a) . . . . . . . . . . . . . . . 2 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 00-16111 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, and CYNTHIA TRUDEAU, Intervenor, v. COMMUNICATION TECHNICAL SYSTEMS, INC. (SOUTHWEST), and COMMUNICATION TECHNICAL SYSTEMS, INC., Defendants-Appellees. On Appeal from the United States District Court for the District of Arizona BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT STATEMENT OF JURISDICTION The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331 & 1345 and 42 U.S.C. §§ 2000e-5(f)(1) & (3). On March 31, 2000, the district court entered judgment. (R.E. 146)<1>. The judgment constitutes a final decision, which the Court has jurisdiction to review pursuant to 28 U.S.C. § 1291.<2> The Commission filed a timely notice of appeal on May 26, 2000. (R.E. 147); see Fed. R. App. P. 4(a)(1)(B). STATEMENT OF ISSUES 1) Whether the district court erred in granting summary judgment to the defendants where the Commission established a prima facie case of pregnancy discrimination and proffered evidence of pretext. 2) Whether the district court erred in concluding that Ms. Trudeau is not entitled to relief even if the defendants are found liable for pregnancy discrimination. STATEMENT OF THE CASE This is an employment discrimination case brought pursuant to the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), contained in Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. ("Title VII"). The Commission filed suit on behalf of charging party Cynthia Trudeau when defendants refused to hire her as a computer systems engineer because she was pregnant. The district court granted the defendants' motion for summary judgment, and this timely appeal followed. STATEMENT OF FACTS 1. Factual Background Cynthia Trudeau worked as a systems engineer at Infinisys Corporation, a computer consulting firm in Phoenix, from August 1995 to May 1997. (R.E. 96). Infinisys went bankrupt during the last week in May 1997. (R.E. 83). The owner of Infinisys gathered employees together and announced that the company would cease business operations as of that day. (R.E. 84). Meanwhile, Communication Technical Systems, Inc. ("CTS"), a computer consulting firm out of Atlanta, was looking to enter the Phoenix market.<3> CTS briefly considered purchasing Infinisys; however, after CTS's officers traveled to Phoenix to evaluate the situation, they decided against buying Infinisys due to its dire financial problems. (R.E. 14-15). Instead, CTS purchased some of Infinisys' office furniture and equipment and negotiated a lease with the landlord to take over Infinisys' building space. (R.E. 13, 16, 78). CTS also set about acquiring Infinisys' former customers. (R.E. 37). Most importantly for purposes of this appeal, CTS sought to hire Infinisys' systems engineers. To that end, on May 22, 1997, Keith Gordon, president of CTS, Inc., and CEO of CTS Southwest, and Mike Malone, Executive Vice-President of CTS, Inc., met briefly with eight of Infinisys' systems engineers, including Ms. Trudeau, to tell them that CTS was interested in hiring some or all of them. (R.E. 41-42). CTS officers told the systems engineers that if they were interested in working for CTS, they should report to work the next morning to be considered for available positions. (R.E. 64). Ms. Trudeau was the only female systems engineer at Infinisys, and she was six months pregnant with twins at the time of this meeting. (R.E. 98). Ms. Trudeau was interested in working for CTS as a systems engineer, so she reported to work the next morning at 8:30 a.m. (R.E. 98). However, CTS officers did not grant her an interview, (R.E. 98), though they did conduct interviews with other Infinisys systems engineers who were interested in gaining employment. (R.E. 24-26, 38-39, 73). At around noon, Ms. Trudeau's supervisor at Infinisys, John Abretske, sent her home and told her he would call her later to tell her whether she had a job with CTS. (R.E. 65). Mr. Abretske called Ms. Trudeau that evening to tell her that CTS decided not to hire her. (R.E. 65). Ms. Trudeau asked, "Who did [CTS] decide to keep?" Mr. Abretske responded, "Everybody else." (R.E. 98-99; see also R.E. 67-68). Indeed, CTS offered employment to every Infinisys systems engineer, except Ms. Trudeau. See R.E. 33 (offer letter to Ken Bruder); R.E. 34 (offer letter to Jamie Neilon); R.E. 115 (affidavit of Tom Donnelly stating that CTS offered him a position); R.E. 119 (affidavit of Dave Nansel stating that CTS offered him a position); R.E. 80 (Mr. Scarborough's testimony that Francisco Brooks reported to him while working at CTS); R.E. 104 (Eric Borgen told EEOC investigator that he received an offer of employment from CTS); R.E. 50 (Mr. Abretske's testimony that CTS offered Gerald Crow a position, but he went to work for MCI); R.E. 42, 88 (Jeff Barrett did not attend the meeting with CTS because he had another job lined up and was not interested in working for CTS; nevertheless, CTS made him an offer). When Mr. Abretske informed her that CTS was not going to offer her a job, Ms. Trudeau asked him if it was due to her particular skills. Mr. Abretske answered, "No." (R.E. 65). Mr. Abretske had been Ms. Trudeau's supervisor for almost her entire tenure with Infinisys. (R.E. 62-63). In fact, in May 1997, Mr. Abretske supervised all nine of Infinisys' systems engineers. (R.E. 36). Due to the fact that Mr. Abretske was the engineering manager at Infinisys, Mr. Gordon and Mr. Malone sought Mr. Abretske's opinion about the Infinisys systems engineers when they were deciding who to hire. (R.E. 17-18, 20, 40). According to Mr. Gordon, CTS relied primarily on Mr. Abretske's recommendations in deciding which Infinisys systems engineers to hire. (R.E. 19, 21-22, 32). Mr. Gordon testified that he did not rely on any documentation such as personnel files, performance evaluations, or resumes. (R.E. 22-23); see also R.E. 48-49, 85 (testimony that there was no access to personnel files when the hiring decisions were being made). According to Mr. Abretske, he did not provide CTS with detailed information about the expertise of each systems engineer. (R.E. 108). Rather, he made general recommendations either for or against hiring the engineers. (R.E. 108). Mr. Abretske recommended that CTS hire all of Infinisys' systems engineers, except Francisco Brooks. (R.E. 104, 106, 66). Mr. Abretske testified that he recommended against hiring Mr. Brooks because he was "somewhat incompetent" and had "really poor Unix skills." (R.E. 45, 57). Despite Mr. Abretske's recommendation against hiring Mr. Brooks and in favor of hiring Ms. Trudeau, CTS hired Mr. Brooks but did not hire Ms. Trudeau. (R.E. 80). Mr. Brooks ended up working for CTS for only about a month. (R.E. 81-82). Mr. Abretske testified that he got the impression that Ms. Trudeau's pregnancy was the reason CTS did not offer her a job. (R.E. 104, 106). He testified that he "remember[ed] there was some discussion about Cindy and her pregnancy," but he could not "remember exactly what was said and how the conversation came about." (R.E. 44). He further testified: "I know [CTS officers] tended to be leery of hiring Cindy because of the fact that she was pregnant, and quite pregnant." (R.E. 43).<4> Mr. Gordon testified that one of the reasons CTS did not hire Ms. Trudeau was because she did not have experience with Unix, a particular type of computer system. (R.E. 27). Mr. Malone was adamant at his deposition that CTS "[a]bsolutely" wanted only systems engineers with Unix skills. (R.E. 72). Both Mr. Gordon and Mr. Malone admitted, however, that CTS offered jobs to, and hired, several Infinisys systems engineers who had no experience with Unix systems. (R.E. 27-28, 72); see also R.E. 117 (Mr. Bruder does not have Unix skills); R.E. 119 (Mr. Nansel does not have Unix skills); R.E. 115 (at the time CTS offered him a position, Mr. Donnelly had no Unix skills). In addition, CTS hired Mr. Abretske in a supervisory capacity, and, as Mr. Gordon admitted, he did not have Unix skills either. (R.E. 19, 29-30, 54). Despite CTS's position that it wanted only systems engineers with Unix skills, Mr. Gordon and Mr. Malone indicated to Mr. Abretske that they would need to hire someone with Novell and Microsoft<5> computer systems experience to take over a portion of Infinisys' business that specifically required knowledge of those systems. (R.E. 48). Ms. Trudeau was certified to work on Novell systems and was working toward certification in Microsoft systems. (R.E. 59-60). At Infinisys, she worked on projects involving both Novell and Microsoft systems. (R.E. 61, 97). In fact, Ms. Trudeau was the lead engineer on the Vodavi project, which entailed conversion from Novell to Microsoft. (R.E. 97). Ken Bruder, an Infinisys systems engineer who CTS ended up hiring, had also worked on the Vodavi project at Infinisys. Ms. Trudeau, however, was the lead engineer because she was senior to Mr. Bruder. (R.E. 89-90). Mr. Scarborough testified that the Vodavi project was ongoing when Infinisys folded, and CTS took it over. (R.E. 91-92). Another of the Infinisys accounts that CTS took over was with the City of Phoenix. According to Mr. Abretske, working on this account required Novell systems skills, and CTS assigned Mr. Bruder to the project. (R.E. 52). Mr. Bruder, however, was unable to handle this account on his own, and Mr. Abretske had to assist him. (R.E. 52). Mr. Abretske testified that Ms. Trudeau would have been able to handle this account without assistance. (R.E. 52-53). In Mr. Abretske's opinion, Ms. Trudeau would have been a better choice than Mr. Bruder to work on former Infinisys accounts for CTS. (R.E. 48). This is because, according to Mr. Abretske, Ms. Trudeau "was definitely more advanced than Ken Bruder," she "had a larger amount of experience with systems engineering," and she "had more talent than Ken." (R.E. 46-47). When asked whether Ms. Trudeau was a better engineer than Mr. Bruder, Mr. Abretske stated that if he had to choose between the two of them, he "personally would have picked Cindy." (R.E. 47). Mr. Bruder himself acknowledged he had less experience than Ms. Trudeau, and, unlike her, he had never worked as a project leader. (R.E. 117). Mr. Bruder never worked on any Unix projects while he was employed by CTS. (R.E. 51, 104, 109). Besides her lack of Unix skills, another reason that CTS gave for why it did not hire Ms. Trudeau was that, as Mr. Gordon testified, she "had a couple of glitches against her on her performance." (R.E. 27). Mr. Gordon did not specify what the "glitches" were, but later in his testimony, he alluded to customer complaints. (R.E. 28). As it turns out, Ms. Trudeau did receive complaints from one of Infinisys' customers. (R.E. 56). It is not unusual, however, for customers to lodge complaints about systems engineers. (R.E. 117). For example, Mr. Bruder admitted that customers had complained about him and that he had been replaced by another engineer on certain projects while working at Infinisys. (R.E. 117). In addition, Mr. Donnelly admitted that he too had received customer complaints and was replaced by another engineer on those projects. (R.E. 116). Despite customer complaints against them, as noted above, CTS nevertheless offered jobs to both Mr. Bruder and Mr. Donnelly. (R.E. 115, 117). Furthermore, Mr. Abretske testified that he did not inform Mr. Gordon or Mr. Malone of Ms. Trudeau's customer complaints, and that he did not recall saying anything negative about Ms. Trudeau to either Mr. Gordon or Mr. Malone. (R.E. 45, 55-56). Mr. Malone testified that at the time of hiring, he had no knowledge of Ms. Trudeau's skills or performance. (R.E. 74). In fact, Ms. Trudeau had always received good performance evaluations at Infinisys, and she received a $4,000 raise after her first year. (R.E. 62). Ms. Trudeau's salary at Infinisys at the time the company folded was $34,000 per year plus $12,000 annual commission. (R.E. 97). CTS hired former Infinisys systems engineers either at the same salary they were earning at Infinisys, or at an increase in salary. For example, Mr. Nansel's offer of employment from CTS was for the same salary he earned at Infinisys. (R.E. 119). On the other hand, Mr. Bruder's salary increased from $37,000 to $43,000 when he went from Infinisys to CTS. (R.E. 117). CTS Inc.'s maternity leave policy applied to CTS Southwest. (R.E. 75-76). Furthermore, according to CTS's employee handbook, insurance benefits would have been available to Ms. Trudeau anywhere from 30 to 60 days from the date of hire. (R.E. 125). CTS hired Infinisys employees on May 23, 1997. (R.E. 104, 110). Ms. Trudeau delivered her twins on July 31, 1997. (R.E. 69). She incurred out-of-pocket expenses to gain insurance coverage after CTS refused to hire her. (R.E. 70, 100). As a result of CTS's discrimination, Ms. Trudeau experienced emotional distress and mental anguish. (R.E. 100). When CTS refused to hire Ms. Trudeau, she was six months pregnant with twins. CTS's conduct left her with neither an income nor insurance coverage. Without Ms. Trudeau's salary, she and her husband did not have the means to meet their own monthly expenses, much less the expenses of a family of four. (R.E. 100). 2. District Court Decision The Commission filed suit alleging that CTS discriminated against Ms. Trudeau on the basis of sex and pregnancy in violation of Title VII. CTS moved for summary judgment, arguing that Ms. Trudeau: 1) was not qualified for the position; 2) was not treated less favorably than similarly-situated non-pregnant employees; and 3) cannot rebut its legitimate, nondiscriminatory reasons for refusing to hire her. (R.E. 137). The district court found that Ms. Trudeau was not qualified for the position because she did not have Unix systems experience and because she had received customer complaints. (R.E. 139). The district court also agreed with CTS that Ms. Trudeau was not treated less favorably than similarly-situated non-pregnant employees. Specifically, the district court found that Mr. Bruder and Ms. Trudeau were not similarly situated because they had different qualifications and because Mr. Bruder had not received customer complaints. (R.E. 139). Next, the district court noted the disagreement as to the number of Infinisys' systems engineers to whom CTS offered employment. CTS maintained that Mr. Bruder was the only Infinisys systems engineer offered employment, while the Commission maintained that CTS offered employment to every Infinisys systems engineer except Ms. Trudeau. (R.E. 139). As to this disagreement, the district court stated that "[t]he number is irrelevant." (R.E. 139). "As long as CTS can show that the decision to not hire Trudeau was made in good faith...," the court continued, "CTS's business decision will not be re-evaluated by this Court, regardless if one or many former Infinisys employees was hired." (R.E. 139-40). The district court next opined that the Commission "relied solely on [Ms. Trudeau's] allegations in making its finding of discrimination and in bringing this action." (R.E. 140). In the court's view, the Commission's only evidence of discrimination is Ms. Trudeau's allegations that "Abretske told her there was talk about her pregnancy during the hiring process, that the reason she was not hired has nothing to do with her skills or training, that he believed she was qualified for a position, and that he did recommend her to CTS." (R.E. 140). According to the district court, however, "Abretske denies having made any of those comments, or cannot remember when, where, or to whom the comments were made." (R.E. 140). Taking Ms. Trudeau's statements as the only evidence of discrimination, the district court concluded that those "sworn statements about what another said [are] alone insufficient to create a genuine issue of material fact." (R.E. 141). The district court thus concluded that the Commission did not meet its burden of establishing a prima facie case of discrimination. (R.E. 141). The court then went on to conclude that CTS offered a legitimate, nondiscriminatory reason for failing to hire Ms. Trudeau, namely that Mr. Bruder was more qualified for the position in question and that he did not receive customer complaints. (R.E. 139, 141). The district court deferred to CTS's position that Mr. Bruder was better qualified than Ms. Trudeau because, in its view, courts should not engage "in second-guessing employment hiring decisions turning on the qualifications of applicants." (R.E. 139). On the issue of discrimination, the district court ended its analysis here, without proceeding to consider whether the Commission's pretext evidence rebutted CTS's explanation for not hiring Ms. Trudeau. On the issue of damages, the district court first noted that, before declaring bankruptcy, Infinisys never promised to compensate its employees for vacation, sick time, or accrued wages. (R.E. 141). The court then concluded that Ms. Trudeau "is not entitled to lost vacation or sick time accrued with Infinisys" because she "had no legitimate expectation to receive damages from Infinisys in exchange for unused vacation and sick days." (R.E. 141). The district court next observed that, even if CTS acquired the assets of Infinisys, it did not thereby acquire the liabilities of Infinisys, such as unpaid wages and "the responsibility of continued employment for all existing Infinisys employees." (R.E. 142). In the district court's view, "[d]amages similar to what Trudeau claims are an unfortunate consequence of bankruptcy." (R.E. 142). As for insurance coverage, the district court noted the disagreement between the Commission and CTS as to when Ms. Trudeau would have been entitled to insurance benefits had she been hired. (R.E. 142). CTS argued that Ms. Trudeau would not have been entitled to any insurance benefits during a 90-day probationary period. (R.E. 142). On the other hand, the Commission argued (and presented evidence) that, pursuant to CTS's employee handbook, Ms. Trudeau would have been eligible for insurance benefits somewhere between 30 and 60 days after her hire date, and, therefore, would have had insurance coverage for the delivery of her twins. (R.E. 142). After noting the parties' divergent factual positions, and without referring to any record evidence cited by the parties in support of their positions, the district court simply concluded that "Trudeau is not entitled to reimbursement for loss of insurance coverage during her pregnancy." (R.E. 142). The district court also found that Ms. Trudeau's claim for damages is "speculative" because "[s]he was never quoted her potential starting salary, nor was it known when she would begin her maternity leave, since a twin pregnancy carries greater risk and an indefinite delivery date." (R.E. 143). The district court in essence ruled that even if the Commission could prove that CTS discriminated against Ms. Trudeau, it would not be entitled to an award of damages on her behalf. Accordingly, the district court granted CTS's motion for summary judgment. (R.E. 145). SUMMARY OF ARGUMENT The Commission established a prima facie case of pregnancy discrimination via direct and circumstantial evidence. Furthermore, the Commission came forward with evidence of pretext to rebut CTS's proffered reasons for failing to hire Ms. Trudeau. Accordingly, the district court erred in granting summary judgment to CTS. First, the Commission presented direct evidence of pregnancy discrimination. Specifically, Mr. Abretske testified that "there was some discussion about Cindy and her pregnancy" during the hiring process. He also testified that he knew that CTS's officers were "leery of hiring Cindy because of the fact that she was pregnant." This evidence of discriminatory animus is alone sufficient to establish a prima facie case and to satisfy the required showing at the pretext stage. In addition to establishing a prima facie case via direct evidence of discrimination, the Commission offered circumstantial evidence, as well. On this point, the district court found that the Commission failed to establish that Ms. Trudeau was: 1) qualified for the position in question; and 2) treated less favorably than non-pregnant similarly-situated applicants. The Commission, however, raised a genuine issue of material fact on the question whether Ms. Trudeau was qualified for the position of systems engineer at CTS. The Commission presented evidence that Ms. Trudeau was highly qualified for the position due to her skills, training, and experience and due to the nature of CTS's business. The Commission also presented evidence from which a reasonable jury could find that Ms. Trudeau was treated less favorably than other similarly-situated non-pregnant applicants. For example, there is evidence that CTS offered a job to every Infinisys systems engineer except Ms. Trudeau. One of the applicants to whom CTS offered employment was described as "somewhat incompetent." At least one other was less skilled and experienced than Ms. Trudeau. The Commission also met its burden of raising a genuine issue of material fact on the question of pretext. One reason that CTS advanced for not hiring Ms. Trudeau is that she did not possess Unix computer systems skills. The Commission, however, produced evidence that four of the eight Infinisys systems engineers to whom CTS offered jobs did not have Unix skills either. Moreover, the Commission presented evidence that at least one of the systems engineers who went to work for CTS, Mr. Bruder, was hired to handle former Infinisys accounts that required Novell and Microsoft skills, which Ms. Trudeau possessed. Mr. Bruder did not work on Unix accounts for CTS. The other reason that CTS advanced for not hiring Ms. Trudeau was that she had customer complaints while working at Infinisys. One of Infinisys' former customers had complained about Ms. Trudeau; however, the Commission presented evidence that it was not unusual for a systems engineer to receive customer complaints. Indeed, two of the systems engineers to whom CTS offered jobs, Mr. Bruder and Mr. Donnelly, had also received customer complaints while at Infinisys, and they had to be replaced by different systems engineers on particular projects. Moreover, there is evidence that CTS officers did not even know about Ms. Trudeau's customer complaints at the time they made their hiring decision. In addition, the fact that CTS offered a job to every Infinisys systems engineer except the one who was pregnant, including those who had no Unix skills and those who had received customer complaints, sheds light on CTS's true motivation for not hiring Ms. Trudeau. In short, the Commission presented ample evidence that would permit a reasonable jury to disbelieve the reasons CTS offered for failing to hire Ms. Trudeau and find instead that her pregnancy was the real reason. In granting summary judgment, the district court invaded the province of the jury. This Court should reverse and remand for trial. On the issue of damages, the district court erred in confusing damages that Ms. Trudeau may have suffered due to Infinisys' bankruptcy with damages that the Commission is seeking for CTS's discriminatory failure to hire her. Should a jury find that CTS is liable for pregnancy discrimination, the Commission will be entitled to back pay and benefits for Ms. Trudeau, and compensatory and punitive damages. In addition, as the Commission itself is a plaintiff in this action, the Commission is seeking injunctive relief, as well. The district court also erred in ruling that Ms. Trudeau's damages are speculative because CTS never quoted her a starting salary, and because she was pregnant with twins. It was not necessary for CTS to have quoted Ms. Trudeau a starting salary in order for the district court to calculate a reasonable award of back pay. The Commission presented evidence of Ms. Trudeau's former salary, as well as evidence that CTS paid greater or comparable salaries to systems engineers hired from Infinisys. Furthermore, because Ms. Trudeau's delivery date is certain and can be used in calculating an award of damages, the district court erred in concluding such damages would be speculative. ARGUMENT 1. The district court erred in granting summary judgment to the defendants where the Commission established a prima facie case of pregnancy discrimination and proffered evidence of pretext. a. Standard of Review This Court reviews the district court's decision to grant summary judgment de novo. Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1219-20 (9th Cir. 1998). The Court "must determine, viewing the evidence in the light most favorable to the nonmoving party, whether any genuine issues of material fact exist and whether the district court correctly applied the relevant substantive law." Id. at 1220. "[S]ummary judgment will not lie . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). b. Discussion Title VII prohibits discrimination "because of or on the basis of pregnancy, childbirth, or related medical conditions." 42 U.S.C. § 2000e(k). Generally, Title VII cases are governed by the burden-shifting framework articulated in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802-04 (1973). Pursuant to that framework, the plaintiff must first establish a prima facie case of discrimination. Id. at 802. This initial burden is "not onerous." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Indeed, the Court has stated that "[t]he requisite degree of proof necessary to establish a prima facie case for Title VII . . . on summary judgment is minimal." Godwin, 150 F.3d at 1220 (citation omitted); see also Sischo-Nownejad v. Merced Community College Dist., 934 F.2d 1104, 1111 (9th Cir. 1991) (stating that "very little" evidence must be produced to establish a prima facie case and to survive summary judgment). Once the plaintiff raises a presumption of discrimination through establishment of the prima facie case, the employer then carries the burden of producing a legitimate nondiscriminatory reason for its conduct. McDonnell Douglas, 411 U.S. at 802; see also Burdine, 450 U.S. at 253. The burden then shifts back to the plaintiff to show that the reason given by the employer is not the true reason, but instead is a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; see also Burdine, 450 U.S. at 253. At the outset, it is worth noting that where, as here, there is direct evidence of discrimination, a plaintiff need not establish a prima facie case using the McDonnell Douglas elements. Indeed, "[t]he prima facie case may be based either on a presumption arising from the [McDonnell Douglas factors] . . ., or by more direct evidence of discriminatory intent." Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406, 1409 (9th Cir. 1996) (citations omitted). Furthermore, direct evidence of discriminatory animus may satisfy the required showing at the pretext stage. Godwin, 150 F.3d at 1221. Here, the Commission proffered direct evidence of CTS's discriminatory motive. For example, Mr. Abretske testified that "there was some discussion about Cindy and her pregnancy" during the hiring process, and that CTS's officers were "leery of hiring Cindy because of the fact that she was pregnant." (R.E. 43-44). Such direct evidence of discrimination is sufficient in itself to establish a prima facie case of discrimination and to show pretext. For this reason alone, the district court erred in granting summary judgment. Failing to take into account the Commission's direct evidence of discrimination, the district court analyzed the case using the McDonnell Douglas framework and concluded that the Commission did not establish a prima facie case of pregnancy discrimination. In so concluding, the district court erred. The district court also erred when it failed to consider the Commission's pretext evidence that rebutted the defendants' proffered reasons for not hiring Ms. Trudeau. This Court should, therefore, reverse the grant of summary judgment and remand for trial on the merits. According to the district court, in order to establish a prima facie case of pregnancy discrimination, the Commission had to satisfy the following elements: 1) Ms. Trudeau was pregnant; 2) she was qualified for the position; 3) she was not hired; and 4) she was treated less favorably than other non-pregnant, similarly-situated applicants.<6> (R.E. 138) (citing McDonnell Douglas, 411 U.S. at 802). Accepting the defendants' version of the facts, the district court concluded that the Commission failed to satisfy the second and fourth elements of its prima facie case. (R.E. 138). The Commission, however, proffered sufficient circumstantial evidence to establish a prima facie case under McDonnell Douglas. As to the second element of the prima facie case, i.e. whether Ms. Trudeau was qualified for the position, quite obviously, Ms. Trudeau was a systems engineer, and CTS sought to hire systems engineers. This alone qualifies her, for purposes of establishing a prima facie case. In addition, Ms. Trudeau was certified to work on Novell systems, and she was working toward certification in Microsoft systems. (R.E. 59-60). At Infinisys, she worked on projects involving both Novell and Microsoft systems, and she was the lead engineer on the Vodavi project, which entailed conversion from Novell to Microsoft. (R.E. 61, 97). This evidence plainly raises a genuine issue of material fact on the question of Ms. Trudeau's qualifications because it would allow a reasonable jury to find that Ms. Trudeau was qualified to work as a systems engineer. The Commission also presented evidence from which a reasonable jury could find that Ms. Trudeau was treated less favorably than other similarly-situated non-pregnant applicants, to satisfy the fourth element of its prima facie case. Ms. Trudeau was the only female (and, necessarily, the only pregnant) systems engineer at Infinisys when the corporation folded. CTS offered a position to every Infinisys systems engineer except her.<7> Several of the systems engineers to whom CTS offered employment had similar or lesser qualifications than Ms. Trudeau. For example, Francisco Brooks, who CTS hired, was "somewhat incompetent" and had "really poor Unix skills" according to Mr. Abretske. (R.E. 45, 57). The district court, however, compared Ms. Trudeau only to Mr. Bruder and found that the two were not similarly situated because, according to CTS, Mr. Bruder was better qualified, and he had not received customer complaints. Even if the district court correctly focused on Mr. Bruder as the appropriate comparator, the Commission raised a genuine factual dispute by pointing to record evidence that Ms. Trudeau was a more competent systems engineer than Mr. Bruder and that Mr. Bruder had, in fact, received customer complaints. For example, Mr. Bruder worked on the Vodavi project at Infinisys, but Ms. Trudeau was the project leader because, as between her and Mr. Bruder, she was the senior engineer. (R.E. 89-90). Furthermore, Mr. Bruder, who CTS hired to take over the Infinisys accounts, was unable to handle them on his own, and Mr. Abretske had to assist him. (R.E. 52). According to Mr. Abretske, Ms. Trudeau would have been able to handle these accounts without assistance. (R.E. 52-53). Mr. Abretske testified that Ms. Trudeau would have been a better choice than Mr. Bruder to work on Infinisys' former accounts for CTS because she "was definitely more advanced than Ken Bruder," she had more experience with systems engineering, and she had "more talent than Ken." (R.E. 46-48). Mr. Bruder himself admitted that he did not have as much experience as Ms. Trudeau, and, unlike her, he had never worked as a project leader. (R.E. 117). He also admitted that, while working as a systems engineer at Infinisys, he had received customer complaints. (R.E. 117). The district court did not consider this evidence because, in its view, "[c]ourts [refrain] from engaging in second-guessing employment hiring decisions turning on the qualifications of applicants." (R.E. 139). Courts cannot, however, turn a blind eye to evidence that raises a genuine issue of material fact as to whether an employer was motivated by qualifications or, instead, by discriminatory criteria. Courts are obliged to explore whether a challenged hiring decision was made on impermissible grounds and not merely rubber stamp a hiring decision simply because the employer claims an applicant is unqualified. Furthermore, on summary judgment, the court is obligated to draw all inferences in a light most favorable to the nonmovant, and it is not permitted to weigh the evidence or make credibility determinations. See Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). The trial court's failure to "second-guess" CTS's hiring decision was tantamount to viewing the evidence in the light most favorable to the movant and resolving a disputed issue of fact rather than leaving it for a jury. Had the court properly considered the evidence in the light most favorable to the Commission, it would have been compelled to conclude that the Commission raised a genuine issue of material fact on the fourth element of its prima facie case, as well. The district court, therefore, erred when it concluded that CTS was entitled to summary judgment for the Commission's failure to establish a prima facie case of pregnancy discrimination. In addition to establishing its prima facie case, the Commission also met its burden of raising a genuine issue of material fact on the question of pretext. A plaintiff may demonstrate pretext "by showing that the employer's proffered explanation is unworthy of credence." Burdine, 450 U.S. at 256; see also St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993) ("The factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination."); Reeves v. Sanderson Plumbing Prods., Inc., 120 S. Ct. 2097, 2109 (2000) ("a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated"). In deciding whether the employer's explanation is pretextual, "the trier of fact may still consider the evidence establishing the plaintiff's prima facie case and inferences properly drawn therefrom." Reeves, 120 S. Ct. at 2106 (citation omitted). The Commission came forward with ample evidence from which a reasonable jury could infer that CTS's proffered legitimate nondiscriminatory reasons are not the true reasons for its failure to hire Ms. Trudeau. One of CTS's proffered reasons for not offering Ms. Trudeau a job is that she did not possess Unix computer systems skills. (R.E. 27). Record evidence shows, however, that despite Mr. Malone's insistence that CTS was interested in hiring only systems engineers with Unix skills, (R.E. 72), both Mr. Gordon and Mr. Malone admitted that CTS nevertheless extended job offers to various Infinisys systems engineers who had no Unix experience whatsoever. (R.E. 27-28, 72). The systems engineers who lacked Unix skills but who nonetheless received job offers include Mr. Bruder (R.E. 117), Mr. Donnelly (R.E. 115), and Dave Nansel (R.E. 119). In addition, CTS hired Mr. Abretske in a supervisory capacity, and, as Mr. Gordon admitted, Mr. Abretske did not have Unix skills either. (R.E. 19, 29-30, 54). Moreover, Mr. Gordon and Mr. Malone told Mr. Abretske that CTS would need to hire some systems engineers who were qualified to work on accounts that formerly belonged to Infinisys and that required Novell and Microsoft systems skills -- skills that Ms. Trudeau possessed. (R.E. 48, 59-60). Finally, Mr. Malone himself admitted that, at the time of hiring, he had no knowledge of Ms. Trudeau's skills. (R.E. 74). Thus, a reasonable jury could find that Ms. Trudeau's lack of Unix skills was not the real reason CTS failed to extend her an offer. The other reason that CTS proffered for its failure to hire Ms. Trudeau is that she had received customer complaints. (R.E. 28). The Commission, however, pointed to evidence that CTS offered jobs to at least two systems engineers, Mr. Bruder and Mr. Donnelly, who had received customer complaints. (R.E. 116-17). Furthermore, the Commission presented evidence that it is not unusual for customers to complain about systems engineers. (R.E. 117). Mr. Bruder and Mr. Donnelly both stated that they had received customer complaints and were subsequently replaced by different systems engineers on certain projects while working for Infinisys. (R.E. 116-17). The Commission also presented evidence that, at the time they made their hiring decisions, Mr. Gordon and Mr. Malone did not even know about the customer complaints lodged against Ms. Trudeau. For example, Mr. Abretske testified that he told neither Mr. Gordon nor Mr. Malone of Ms. Trudeau's customer complaints. (R.E. 55-56). In fact, at his deposition, Mr. Abretske could not recall saying anything negative about Ms. Trudeau to Mr. Gordon or Mr. Malone. (R.E. 45). Finally, just as Mr. Malone admitted that he had no knowledge of Ms. Trudeau's skills at the time of hiring, he also admitted that he knew nothing about her performance level. (R.E. 74). Thus, a reasonable jury could also find that Ms. Trudeau's customer complaints were not the real reason CTS failed to offer her a job. Moreover, the very fact that CTS offered jobs to every Infinisys systems engineer except Ms. Trudeau, including one that Mr. Abretske described as "somewhat incompetent" (R.E. 45), and one that did not even express an interest in working for CTS (R.E. 42, 88), is sufficient to raise an inference that CTS's stated reasons are actually a pretext for discrimination. The district court found that the number of offers that CTS made is "irrelevant" as long as the decision not to hire Ms. Trudeau was made "in good faith." (R.E. 139-40). On the contrary, it is certainly relevant that the only systems engineer who was six months pregnant with twins during the hiring process is the only systems engineer to whom CTS refused to extend an offer, despite her arguably superior qualifications. The fact that all of the other systems engineers received offers is certainly indicative of discriminatory conduct. In addition, Mr. Abretske, who was intimately involved in the decision-making process believed that Ms. Trudeau's pregnancy was the reason CTS did not hire her. He testified that he knew that Mr. Gordon and Mr. Malone were "leery of hiring Cindy because of the fact that she was pregnant."<8> (R.E. 43). In the midst of this glaring direct and circumstantial evidence of discrimination, the district court nevertheless found that CTS acted "in good faith" because Ms. Trudeau was not trained in Unix and because she had received customer complaints. Yet, as demonstrated, a reasonable jury could disbelieve both of CTS's proffered reasons and find instead that the more likely explanation for CTS's failure to hire Ms. Trudeau was her pregnancy. The district court essentially made findings of fact where material facts are in dispute, by misstating the significance of certain pieces of evidence and by altogether ignoring certain other pieces of evidence. In so doing, the district court invaded the province of the jury. The Ninth Circuit "has set a high standard for the granting of summary judgment in employment discrimination cases." Schnidrig, 80 F.3d at 1410. A plaintiff "need produce very little evidence of discriminatory motive to raise a genuine issue of material fact." Godwin, 150 F.3d at 1220 (citation omitted). This is "precisely because the ultimate question is one that can only be resolved through a 'searching inquiry' - one that is most appropriately conducted by the factfinder, upon a full record." Sischo-Nownejad, 934 F.2d at 1111. Because the Commission offered substantial evidence that the employer's proffered reasons are not credible, in addition to direct evidence of discrimination, it "has made a sufficient showing to create triable issues with respect to the employer's motivation." Godwin, 150 F.3d at 1219 (citations omitted). The district court, therefore, erred when it granted summary judgment in favor of the defendants. 2. The district court erred in concluding that Ms. Trudeau is not entitled to relief even if the defendants are found liable for pregnancy discrimination. a. Standard of Review The district court ruled on summary judgment that, as a matter of law, Ms. Trudeau is not entitled to damages. Questions of law are reviewed de novo. EEOC v. Dinuba Med. Clinic, ___ F.3d ___, No. 98-16454, 2000 WL 1199529 (9th Cir. Aug. 24, 2000). Likewise, as stated above, this Court reviews the district court's decision to grant summary judgment de novo. Godwin, 150 F.3d at 1219-20. b. Discussion The district court erred in concluding that Ms. Trudeau is not entitled to damages. The district court's analysis presupposes that the Commission is seeking remedies under a theory of successor liability. The district court ruled that because Infinisys "never promised . . . its employees that they would be compensated for vacation, sick time, or accrued wages," and because CTS did not acquire Infinisys' liabilities, therefore, Ms. Trudeau "had no legitimate expectation to receive damages." (R.E. 141). In so ruling, the district court utterly misunderstood the Commission's claim for legal and equitable relief under Title VII. The district court's confusion is evident from its statement that "[d]amages similar to what Trudeau claims are an unfortunate consequence of bankruptcy." (R.E. 142) (emphasis added). The Commission is obviously not seeking reimbursement for wages and insurance coverage that Ms. Trudeau lost as a consequence of Infinisys' bankruptcy. Indeed, on summary judgment, the Commission argued that it was seeking relief to make Ms. Trudeau whole for injuries she suffered on account of CTS's unlawful employment discrimination, including back pay with benefits, and compensatory and punitive damages. (R.61 at 19). Despite the Commission's argument, the district court's analysis focused on whether CTS acquired Infinisys' assets and liabilities at bankruptcy. Whether Infinisys promised to pay wages earned, and whether CTS acquired Infinisys' liabilities, however, are questions that are simply irrelevant to the central question in the instant case, namely whether CTS is liable for failing to hire Ms. Trudeau based on her pregnancy, in violation of Title VII. In other words, the question here is whether CTS is responsible for remedies that flow from its own unlawful conduct. One of Title VII's essential purposes is "to make persons whole for injuries suffered on account of unlawful employment discrimination." Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975). "The injured party is to be placed, as near as may be, in the situation [s]he would have occupied if the wrong had not been committed." Id. at 418-19 (citation omitted); see also EEOC v. Hacienda Hotel, 881 F.2d 1504, 1518 (9th Cir. 1989) ("the district court is required to attempt to make victims of discrimination whole by restoring them to the position in which they would have been absent the discrimination"). Thus, Congress has provided that when a Title VII plaintiff successfully demonstrates intentional discrimination, the plaintiff is entitled to injunctive relief, including reinstatement, back pay, "or any other equitable relief as the court deems appropriate." 42 U.S.C. § 2000e-5(g)(1). Additionally, since the enactment of the Civil Rights Act of 1991, the prevailing Title VII plaintiff is also entitled to compensatory damages, and, in appropriate cases, to punitive damages, as well. 42 U.S.C. § 1981a(b). In keeping with the Supreme Court's directive to make Title VII plaintiffs whole for injuries suffered due to unlawful discrimination, this Court has held that a plaintiff may collect any actual, out-of-pocket expenses incurred due to lost insurance coverage. EEOC v. Farmer Bros. Co., 31 F.3d 891, 902 (9th Cir. 1994). The Commission raised a genuine issue of material fact as to whether Ms. Trudeau would have been covered by CTS's medical insurance at the time she delivered her twins. CTS argued that Ms. Trudeau would not have been entitled to any medical insurance benefits during a probationary 90-day period, which included her delivery date. The district court accepted CTS's position. (R.E. 142). The Commission, however, produced evidence that, according to CTS's employee handbook, Ms. Trudeau would have been entitled to medical insurance benefits anywhere from 30 to 60 days from her date of hire. (R.E. 125). Had she been hired on May 23, 1997, as were the other former Infinisys employees (R.E. 104), a reasonable jury could find that she would have had medical insurance coverage through CTS for her twins' birth on July 31, 1997. (R.E. 69). In addition to back pay and benefits for Ms. Trudeau, the Commission is seeking compensatory and punitive damages. The Commission proffered evidence that Ms. Trudeau suffered mental anguish and emotional distress as a result of CTS's conduct. (R.E. 100). As to punitive damages, there is ample evidence in the record from which a reasonable jury could conclude that CTS intentionally discriminated "with malice or with reckless indifference to [Ms. Trudeau's] federally protected rights." 42 U.S.C. § 1981a(b)(1); see also Kolstad v. American Dental Ass'n, 119 S. Ct. 2118, 2122 (1999). The Commission's direct evidence of discrimination -- that CTS's officers were "leery" of hiring a pregnant woman -- alone is sufficient to demonstrate that CTS acted with malice or reckless indifference. See EEOC v. Wal-Mart Stores, Inc., 156 F.3d 989, 992 (9th Cir. 1998) (direct evidence that employer refused to hire applicant on basis of pregnancy enough to demonstrate reckless disregard for purposes of awarding punitive damages). Moreover, the district court ignored the fact that the Commission, itself a plaintiff in this action, is seeking injunctive relief. "Section 706(g) specifically gives courts the power to enjoin an 'unlawful employment practice.'" EEOC v. Goodyear Aerospace Corp., 813 F.2d 1539, 1544 (9th Cir. 1987) (quoting 42 U.S.C. § 2000e-5(g)(1)). Thus, when the Commission files a civil enforcement action, it not only acts to secure relief for aggrieved individuals, but it also seeks to "advance the public interest in preventing and remedying employment discrimination." General Tel. Co. v. EEOC, 446 U.S. 318, 331 (1980); see also Hacienda Hotel, 881 F.2d at 1519 ("the EEOC is not merely a proxy for the victims of discrimination, but acts also 'to vindicate the public interest in preventing employment discrimination.'") (quoting General Tel., 446 U.S. at 326). "The EEOC's right of action is independent of the employee's private action rights." Goodyear Aerospace, 813 F.2d at 1542. Indeed, the Commission's "interests in determining the legality of specific conduct and in deterring future violations are distinct from the employee's interest in a personal remedy." Id. By seeking injunctive relief, "'the EEOC promotes public policy and seeks to vindicate rights belonging to the United States as sovereign.'" Id. at 1543 (quoting EEOC v. Occidental Life Ins. Co., 535 F.2d 533, 537 (9th Cir. 1976), aff'd, 432 U.S. 355 (1977). Thus, regardless of the availability of specific remedies such as back pay and benefits for Ms. Trudeau, the Commission is entitled to proceed and obtain relief in the public interest. Finally, the district court erred when it found that because CTS never quoted Ms. Trudeau a starting salary, and because being pregnant with twins "carries greater risk and an indefinite delivery date," an award of damages is "speculative." (R.E. 143). First of all, employers who deny employment opportunities based on unlawful discriminatory reasons do not have to quote a prospective employee a salary in order for that individual to collect back pay. There are obviously reliable ways of calculating what Ms. Trudeau would have earned had CTS hired her. For example, the Commission produced evidence of Ms. Trudeau's salary at Infinisys and also came forward with evidence that CTS offered other Infinisys systems engineers either the salary they were currently earning, or an increase. (R.E. 97, 117, 119). The salary used to calculate an award of back pay need not be undisputed; it need only be a realistic figure. See Barbour v. Merrill, 48 F.3d 1270, 1279 (D.C. Cir. 1995). Secondly, when the district court ruled that damages were "speculative" because Ms. Trudeau's due date was uncertain, Ms. Trudeau had already delivered her twins. Thus, the district court knew the precise date that she would have been forced to take maternity leave because that date had come and gone. Therefore, the time frame for calculating an award of back pay is not speculative. In fact, the district court itself engaged in speculation when it stated that Ms. Trudeau's pregnancy carried "greater risk," thus implying that she would have taken maternity leave earlier simply because she was carrying twins. (R.E. 143). The date that Ms. Trudeau actually delivered her twins provides a concrete benchmark for calculating an award of back pay should a jury find that CTS discriminated against Ms. Trudeau on the basis of her pregnancy. In sum, the district court erred when it ruled that Ms. Trudeau is not entitled to damages. CONCLUSION For the foregoing reasons, the Court should reverse the district court's grant of summary judgment and remand for trial. Respectfully submitted, C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel CAREN I. FRIEDMAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, NW, 7th Floor Washington, D.C. 20507 (202) 663-4720 September 11, 2000STATEMENT OF RELATED CASE To the knowledge of the Commission, there are no related cases pending in this Court. CERTIFICATE OF COMPLIANCE I certify that, pursuant to Fed. R. App. P. 32(a)(7)(C) and Ninth Circuit Rule 32-1, the attached opening brief is monospaced, has 10.5 or fewer characters per inch, and contains 8,777 words. ___________________________________ Caren I. Friedman CERTIFICATE OF SERVICE I hereby certify that on this 11th day of September 2000, the original and fifteen (15) true and correct copies of the attached brief were mailed first class postage prepaid to the Clerk of Court, and two (2) true and correct copies were mailed to counsel of record at the following address: Charles W. Herf, Esq. Mireya C. Martin, Esq. QUARLES & BRADY LLP One East Camelback Road, Suite 400 Phoenix, Arizona 85012-1649 ___________________________________ 1Citations to the Excerpts of Record will refer to the page number and will be abbreviated "R.E." Citations to other record documents will refer to the district court docket number and will be abbreviated "R." 2Currently pending before this Court is the Commission's Motion to Correct Clerical Mistake Pursuant to Fed. R. Civ. P. 60(a). In that motion, the Commission argues that the district court made a clerical mistake when, despite granting the Commission's motion to amend the complaint to add a defendant, the court entered final judgment in favor of only one defendant. Regardless of the Court's ruling on that pending motion, the Court has jurisdiction over this appeal. If the Court grants leave to correct the clerical mistake, the appeal will proceed against both defendants-appellees; otherwise, the appeal will proceed against Communication Technical Systems, Inc. (Southwest) only. 3Communication Technical Systems, Inc. (Southwest), headquartered in Phoenix, is a wholly-owned subsidiary of Communication Technical Systems, Inc., a company based in Atlanta. (R.E. 11-12). Since the same individuals own and manage both corporations, the defendants will simply be referred to as "CTS". Where appropriate, the parent will be referred to as "CTS, Inc." and the subsidiary will be referred to as "CTS Southwest." 4One week after Mr. Abretske testified unfavorably to CTS, the company filed a Third-Party Complaint against him, alleging that CTS "relied exclusively on the information and recommendations provided by" Mr. Abretske, and that Mr. Abretske "provided the only source of information regarding the systems engineers at Infinisys." (R.30 at 2-3; R.23). The Third-Party Complaint went on to allege that Mr. Abretske (and his wife) were required to indemnify CTS to the extent that it is found liable for discrimination against Ms. Trudeau. (R.30 at 4). Prior to CTS filing this action against Mr. Abretske, however, Mr. Gordon testified that Richard Scarborough, Infinisys' Director of Technical Services, also had some input in the hiring process because he was familiar with the systems engineering staff at Infinisys. (R.E. 17, 32). Indeed, Mr. Scarborough testified that CTS followed his hiring recommendations "[a] hundred percent." (R.E. 95). Moreover, at summary judgment, CTS argued that it decided to hire Mr. Bruder based on Mr. Abretske's and Mr. Scarborough's recommendations. (R.50 at 8). In any event, the district court ruled that CTS could not serve Mr. Abretske with the Third-Party Complaint because the time for service under Fed. R. Civ. P. 4(m) had passed. (R.E. 136). 5Elsewhere in the record, Microsoft systems are referred to as "NT". See, e.g., R.E. 128. 6The Commission takes issue with the district court's formulation of the prima facie case. McDonnell Douglas "did not purport to create an inflexible formulation" of the prima facie case. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 358 (1977); see id. ("The importance of McDonnell Douglas lies, not in its specification of the discrete elements of proof there required, but in its recognition of the general principle that any Title VII plaintiff must carry the initial burden of offering evidence adequate to create an inference that an employment decision was based on a discriminatory criterion illegal under the Act."). In the Commission's view, under the facts of this case, it could establish a prima facie case of pregnancy by showing that: 1) Ms. Trudeau was pregnant; 2) she was qualified for the position; 3) CTS did not offer her a position; and 4) CTS offered positions to non-pregnant persons who had similar or lesser qualifications. See, e.g., Smith v. F.W. Morse & Co., 76 F.3d 413, 421 (1st Cir. 1996) (formulating prima facie elements of pregnancy discrimination to fit facts of that case). For the sake of argument, however, the Commission will demonstrate that, even using the district court's formulation, it has established a prima facie case of pregnancy discrimination. 7See R.E. 33 (offer letter to Ken Bruder); R.E. 34 (offer letter to Jamie Neilon); R.E. 115 (affidavit of Tom Donnelly stating that CTS offered him a position); R.E. 119 (affidavit of Dave Nansel stating that CTS offered him a position); R.E. 80 (Mr. Scarborough's testimony that Francisco Brooks reported to him while working at CTS); R.E. 104 (Eric Borgen told EEOC investigator that he received an offer of employment from CTS); R.E. 50 (Mr. Abretske's testimony that CTS offered Gerald Crow a position, but he went to work for MCI); R.E. 42, 88 (Jeff Barrett did not attend the meeting with CTS because he had another job lined up and was not interested in working for CTS; nevertheless, CTS made him an offer). 8The district court attempted to discount Mr. Abretske's testimony by stating that Mr. Abretske denied having made certain comments to Ms. Trudeau or cannot remember having made them. (R.E. 140). Whether Mr. Abretske recalls what he said to Ms. Trudeau the night he told her CTS was not offering her a job is immaterial. The fact remains that at his deposition, he testified unequivocally that CTS's officers discussed Ms. Trudeau's pregnancy and were "leery" of hiring her because of her pregnancy. (R.E. 43-44).