IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _______________________ No. 05-12988-AA _______________________ MELVIN DAVIS, LEANDER FOSTER, MICHAEL A. FOX, TERRY R. JACKSON, WARREN LAW, JR., ATTRESS LOGAN, LORENZO MARTIN, and FREDERICK WATSON, Plaintiffs-Appellants, v. COCA-COLA BOTTLING CO. CONSOLIDATED, INC., Defendant-Appellee. _______________________________________________ On Appeal from the United States District Court for the Southern District of Alabama _______________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS-APPELLANTS _______________________________________________ ERIC S. DREIBAND General Counsel LORRAINE C. DAVIS Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel BARBARA L. SLOAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of the General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4721 Davis v. Coca-Cola Bottling Co. Consolidated, Inc., No. 05-12988-AA (11th Cir.) CERTIFICATE OF INTERESTED PERSONS In accordance with Eleventh Circuit Rules 26.1 and 28-2(b), I certify that the following persons or entities have an interest in the outcome of this case: Vincent J. Blackwood, Associate General Counsel for the Equal Employment Opportunity Commission The Honorable Charles R. Butler, Judge for the United States District Court for the Southern District of Alabama Coca-Cola Bottling Co., Consolidated, Inc., Defendant-Appellee. Roderick T. Cooks, Counsel for Plaintiffs-Appellants Melvin Davis, Plaintiff-Appellant Lorraine C. Davis, Acting Associate General Counsel for the Equal Employment Opportunity Commission Eric S. Dreiband, General Counsel for the Equal Employment Opportunity Commission Equal Employment Opportunity Commission, Amicus Curiae Gretchen W. Ewalt, Counsel for Defendant-Appellee Leander Foster, Plaintiff-Appellant Michael A. Fox, Plaintiff-Appellant Lucretia Guia, Counsel for Defendant Haynesworth, Baldwin, Johnson & Greaves, LLC, Counsel for Defendant Victor T. Hudson II, Counsel for Defendant C1 of 2 Davis v. Coca-Cola Bottling Co. Consolidated, Inc., No. 05-12988-AA (11th Cir.) CERTIFICATE OF INTERESTED PERSONS (cont'd) Hudson & Watts, LLP, Counsel for Defendant Terry R. Jackson, Plaintiff-Appellant Warren Law, Jr., Plaintiff-Appellant Attress Logan, Plaintiff-Appellant Lorenzo Martin, Plaintiff-Appellant Gregory P. McGuire, Counsel for Defendant-Appellee Bernhard Mueller, Counsel for Defendant Ogletree, Deakins, Nash, Smoak, Stewart, P.C., Counsel for Defendant-Appellee Byron R. Perkins, Counsel for Plaintiffs Barbara L. Sloan, Attorney for the Equal Employment Opportunity Commission John F. Suhre, Attorney for the Equal Employment Opportunity Commission Frederick Watson, Plaintiff-Appellant Maury S. Weiner, Counsel for Plaintiffs Robert L. Wiggins, Jr., Counsel for Plaintiffs-Appellants Wiggins, Childs, Quinn & Pantazis, Counsel for Plaintiffs- Appellants Barbara L. Sloan C2 of 2 TABLE OF CONTENTS Page(s) CERTIFICATE OF INTERESTED PERSONS. . . . . . . . . . . . . . .C-1 TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . .i TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . ii STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF ISSUES. . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings . . . . 3 2. Statement of Facts . . . . . . . . . . . . . . . . . 3 3. The District Court's Decisions . . . . . . . . . . . 8 STATEMENT OF STANDARD OF REVIEW. . . . . . . . . . . . . . . . 11 ARGUMENT I. THE DISTRICT COURT ERRONEOUSLY FAILED TO CONSIDER THE EFFECTS OF CCBCC'S ADMITTED POLICY OF NOT POSTING SUPERVISORY OR MANAGEMENT VACANCIES NOT ONLY ON THE ELEMENTS OF PLAINTIFFS' PROMOTION CLAIMS BUT ALSO ON THE DEFENSES THAT CCBCC MAY RAISE TO THOSE CLAIMS.. . . . . . . . . . . . . . . . . . . . 12 II. IN APPROPRIATE CASES, PLAINTIFFS SUING AS INDIVIDUALS MAY UTILIZE THE TEAMSTERS MODEL TO PROVE DISCRIMINATION UNDER TITLE VII.. . . . . . . . . . . . . . . . . . . . 19 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 28 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . 29 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Page(s) Bacon v. Honda of America Manufacturing, Inc., 370 F.3d 565 (6th Cir. 2004), cert. denied, 125 S. Ct. 1334 (2005). . . . . . . . . . . 24 Carmichael v. Birmingham Saw Works, 738 F.2d 1126 (11th Cir. 1984). . . . . . . . . . . . passim Carter v. West Publishing Co., 225 F.3d 1258 (11th Cir. 2000). . . . . . . . . . . . . . 18 Celestine v. Petroleos de Venezuela, 266 F.3d 343 (5th Cir. 2001) . . . . . . . . . . 20, 24, 28 Cooper v. Southern Co., 390 F.3d 695 (11th Cir. 2004). . . . . . . . . . . . . . .25 Cox v. American Cast Iron Pipe Co., 784 F.2d 1546 (11th Cir.1986) . . . . . . . . . . . . passim Craig v. Alabama State Univ., 804 F.2d 682, 686 (11th Cir. 1986) . . . . . . . . . . . 25 Davis v. Califano, 613 F.2d 957 (D.C. Cir. 1980) . . . . . . . . . . . . . . 23 Dews v. A.B. Dick Co., 231 F.3d 1016 (6th Cir. 2000) . . . . . . . . . . . . . . 15 EEOC v. Joe's Stone Crab, 220 F.3d 1263 (11th Cir. 2000) . . . . . . . . . . . . . 21 EEOC v. Metal Service Co., 892 F.2d 341 (3d Cir. 1990) . . . . . . . . . . . . . . . 15 Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978)) . . . . . . . . . . . . . . . . . . 14 Harris v. Birmingham Board of Education, 712 F.2d 1377 (11th Cir. 1983) . . . . . . . . . . . . . 15 Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367 (11th Cir. 2002) . . . . . . . . . . . . . 11 Hipp v. Liberty National Life Insurance Co., 252 F.3d 1208, 1227-29 (11th Cir. 2001) . . . . . . . . . 23 Lowery v. Circuit City Stores, 158 F.3d 742 (4th Cir. 1998), vacated, 527 U.S. 1031, 119 S.Ct. 2388 (1999) . . . . .9, 24 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973) . . . . . . . . . passim National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061 (2002) . . . . . . . . . . . .9 Nelson v. United States Steel Corp., 709 F.2d 675 (11th Cir. 1983) . . . . . . . . . . . . . . 18 Obrey v. Johnson, 400 F.3d 691 (9th Cir. 2005) . . . . . . . . . . . . . . 23 Patrick v. Ridge, 394 F.3d 311 (5th Cir. 2004) . . . . . . . . . . . . . . 17 Reeves v. Sanderson Plumbing Products, 530 U.S. 133, 120 S.Ct. 2097 (2000) . . . . . 11, 13, 20, 25 Roberts v. Gadsden Memorial Hospital, 835 F.2d 793 (11th Cir.), as amended on reh'g, 850 F.2d 1549 (11th Cir. 1988) . . . 15 Scarlett v. Seaboard Coast Line Railroad Co., 676 F.2d 1043 (5th Cir. 1982) . . . . . . . . . . . . .26-28 Smith v. J. Smith Lanier & Co., 352 F.3d 1342 (11th Cir. 2003) . . . . . . . . . . . . . 15 Strickland v. Water Works & Sewer Board, 239 F.3d 1199 (11th Cir. 2001) . . . . . . . . . . . . . 11 TWA v. Thurston, 469 U.S. 111, 105 S.Ct. 613 (1985) . . . . . . . . . . . 25 Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843 (1997) . . . . . . . . . passim Thiessen v. General Electric Capital Corp., 267 F.3d 1095 (10th Cir. 2001) . . . . . . . . . . . 20, 23 U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 98 S.Ct. 2943 (1983). . . . . . . . 13, 14, 20 Walker v. Mortham, 158 F.3d 1177 (11th Cir. 1998) . . . . . . . . . . . . . 17 STATUTES 42 U.S.C. § 1981 . . . . . . . . . . . . . . . . . . . . . passim The Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. . . . . . . . . . .1, 22-23, 24-25 Title VII of the Civil Rights Act of 1964, ` 42 U.S.C. §§ 2000e et seq. . . . . . . . . . . . . . passim IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 05-12988-AA ________________________ MELVIN DAVIS, LEANDER FOSTER, MICHAEL A. FOX, TERRY R. JACKSON, WARREN LAW, JR., ATTRESS LOGAN, LORENZO MARTIN, and FREDERICK WATSON, Plaintiffs-Appellants, v. COCA-COLA BOTTLING CO. CONSOLIDATED, INC., Defendant-Appellee. _______________________________________________ On Appeal from the United States District Court for the Southern District of Alabama _______________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS-APPELLANTS _______________________________________________ STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency charged by Congress with administering, interpreting, and enforcing Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"), the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. ("ADEA"), and other federal employment discrimination laws. This appeal raises important issues relating to defendant's policy of not posting or otherwise formally announcing vacancies for supervisory and management positions. In addition, the district court's decision suggests, erroneously we believe, that private plaintiffs suing as individuals may never use the evidentiary model set forth in Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843 (1997), but must instead attempt to fit their claims into the McDonnell Douglas framework. Because of the importance of these issues, we offer our views to this Court. STATEMENT OF ISSUES<1> 1. Whether an individual who did not apply for a specific job may nevertheless challenge his nonselection where, because his employer does not post or otherwise formally announce job vacancies, he did not timely learn about the vacancy or how to apply for it. 2. Whether, under the McDonnell Douglas framework, an individual's failure to apply for a specific vacancy constitutes a legitimate, non-discriminatory explanation that, if unrebutted, would entitle the employer to summary judgment on a claim for nonselection where, due to the employer's informal promotion practices, the individual did not learn of the vacancy before it was filled and the employer had reason to know he would be interested in the job. 3. Whether a plaintiff may use the Teamsters model to establish an individual claim of discrimination by proving: that the defendant engaged in a pattern or practice of discrimination, and that he is a member of the class injured by the discriminatory pattern or practice. STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings This is an appeal from a final judgment dismissing plaintiffs' claims of race discrimination under Title VII and 42 U.S.C. § 1981. On August 1, 2000, plaintiffs filed charges with the Commission alleging systemic discrimination in violation of Title VII. District court docket number ("R.")90, Exhibit ("Exh.") 1. On August 19, 2002, plaintiffs filed a complaint alleging, inter alia, that they were denied promotion because of their race in violation of § 1981 (R.1); they later amended the complaint to add Title VII claims. R.36. On November 15, 2002, the district court granted defendant's motion to dismiss most of the § 1981 promotion claims as untimely and further held that private plaintiffs suing as individuals could not pursue claims alleging a pattern or practice of discrimination under the Teamsters model. See R.20. Thereafter, in a series of orders, the court similarly rejected plaintiffs' Title VII pattern-or-practice claims and dismissed a number of their Title VII promotion claims as untimely (R.96-97); granted summary judgment on the remaining claims; and held that a two-year statute of limitations applied to the § 1981 claims. See R.95, R.144. Judgment for defendant was entered on April 26, 2005. R.145. Plaintiffs filed a timely notice of appeal on May 20, 2005. R.148. 2. Statement of Facts Coca-Cola Bottling Co., Consolidated, ("CCBCC") bottles and distributes Coca-Cola products throughout the southeastern United States. R.78, Exh.1 (Gill Decl. ¶ 1). In August 2000, nine current or former African-American employees from CCBCC's Mobile, Alabama, facility filed charges with the Commission complaining about systemic race discrimination in promotion, assignment to sales territories and light duty, as well as racial harassment. R.90, Exh.1. While the charges were pending, in August 2002, plaintiffs filed suit alleging similar claims under 42 U.S.C. § 1981. After receiving notices of right to sue from the Commission, the plaintiffs amended the complaint to add Title VII claims. R.36. The plaintiffs have not sought to be certified as class representatives. It is undisputed that, unlike its practice regarding bargaining unit positions, CCBCC did not post vacancies in supervisory and managerial positions until March 2001, after the charges were filed. See R.126, Exh.1 (Gill. Supp. Decl. ¶ 7). Before that time, there was no formal process for announcing or filling such openings. Id. The company contends that "most" employees were aware of vacancies either through word of mouth or, on occasion, announcements at employee meetings. Id. Plaintiffs, however, testified that, before CCBCC began posting vacancies, they often learned of available positions only after they were filled. See. e.g., R.90, Exh.6 (Davis Dep. 58); Exh.7 (Foster Dep. 63); Exh.8 (Fox Dep. 133-36); Exh.11 (Law Dep. 213, 217). They allege that they are interested in advancement and would have applied for various positions had they been aware of those positions earlier and/or known how to apply for positions they were aware of and what the job requirements were. See, e.g., R.36 ¶¶ 34, 43, 62. There is evidence that, during the time that the company had no formal promotion system, most managers and supervisors in the Mobile area were white. See, e.g., R.126, Exh.24 (Gill Dep. 73-74 (recalling six black managers or supervisors before August 2000)); R.90, Exh.4 (Kane Dep. 80-81 (recalling only one African-American manager trainee)); compare R.126, Exh.23 (Spencer Dep. 27) (noting that, until recently, all production managers and supervisors were white); with R.90, Exh.10 (Jackson Dep. 74) (noting that most production workers are African-American). Since the charges were filed, Plaintiff Melvin Davis and a few other African-Americans have been promoted to supervisory or low-level management positions. See Davis Dep. 98; R.126, Exh.23 (Spencer Dep. 27). The experiences of Terry Jackson illustrate the effects of CCBCC's informal promotion method. Jackson has a high school diploma and two years of post-high-school technical training. Jackson Dep. 10. He started working for CCBCC part-time while still in school and then became a full-time employee in the sales department in 1992. Id. at 12. Shortly thereafter, he began working in the shipping department, where he built pallets. Id. at 16. In the mid-1990s, Jackson bid on and got a job in the production department where he now works under supervisor Ricky Suarez. Id. at 19, 25. In approximately 1997, he was invited to apply for and was given a job as leadman, or working foreman, in addition to his work on the production line. Id. at 22-25. As leadman, he acts as a "resource" person and handles paperwork for some nine other production line employees. Id. at 25. In 1998, Jackson heard about and applied for a job as Training Supervisor. Jackson Dep. 72- 73. He was interviewed by a team of five managers including the HR Manager, David Gill. See generally R.126, Exh.1(C) (application materials). Although Jackson was not selected, Gill testified that he did well in the interview (Gill Supp. Decl. ¶ 9a), and Gill's interview notes indicate that Jackson expressed an interest in promotion, stating that he would one day like to be vice-president in charge of production. Exh.1(C), at 6, 10, 12, 14. In March 2000, Jackson learned that a Production Supervisor position was vacant. He asked Suarez, his supervisor, how to apply; Suarez stated that Jackson should give Suarez his resume and Suarez would pass it along. Jackson did that but heard nothing; Suarez assured him that he had submitted the resume but, according to CCBCC, Suarez had not. Jackson Dep. 34-36; R.78, Exh.1 (Gill Decl. ¶ 6). The position was filled by David Presnall, a white man whose most recent experience with the company was as leadman in the warehouse in the Leroy, Alabama, facility. See Gill Decl. ¶ 6; R.126, Exh.1(M), at 34-56 (interview file); cf. Jackson Dep. 44 (noting that when Presnall arrived, he needed substantial training because he had "no kind of idea what was going on as far as production"). Gill stated that Jackson would have been considered if he had applied, but Gill did not receive his application and was "not aware" of Jackson's interest. Gill Decl. ¶ 6; but cf. R.126, Exh.24 (Gill Dep. 184) (agreeing that moving from line foreman to production supervisor would be "natural progression"). A few months later, Jackson learned that Paul Schum, a white employee, had been named to the position of Production Scheduler, an exempt non-management position. Jackson had known of the vacancy but believed that it would not be filled (Jackson Dep. 27, 30); it does not appear that the company considered anyone besides Schum. Gill Decl. ¶ 5 (Schum "was given" position). Shortly thereafter, Schum decided to return to his former job. Id. Learning from Schum of this decision, a black employee, Carolyn Spencer, inquired about the opening and was given the job. R.126, Exh.23 (Spencer Dep. 20-24); Gill Decl. ¶ 5 (Spencer was "placed" in job). Jackson testified that he also asked about the position but was told it had been filled. Jackson Dep. 31. Both the Supervisor and Scheduler positions were filled in 2000, within 180 days of Jackson's charge but more than two years before the suit was filed. See Gill Decl. ¶¶ 5, 6 (dating vacancies in 2000). In addition to their promotion claims, plaintiffs also complain of racial harassment at the Mobile facility. For example, Jackson testified that his supervisor, Ricky Suarez, sometimes called his African-American subordinates "contraband" – a reference, his employees believed, to runaway slaves. Jackson Dep. 48-52. Suarez also once demonstrated what he described as a hand signal for the Ku Klux Klan. Id. at 47, 53-56. Similarly, Sales Supervisor Ricky Knowles told one plaintiff that people called his mechanical pool cleaner a "little nigger" because it kept working and working (R.90, Exh.14, Watson Dep. 25-26); he and others in the department also laughingly repeated a riddle involving hanging a black man (id. at 32-33) and joked that white men can't jump but black men can't climb the corporate ladder. Davis Dep. 87; see also Watson Dep. 33-34. Further, Area Sales Manager Owen Shropshire called Randolph Hatcher "black man," repeatedly commented on how black his skin was - asking, for example, that he smile while unloading a truck because otherwise no one could see him in the dark. R.90, Exh.9 (Hatcher Dep. 88-89); see also id. at 103, 105, 107, 112, 117 (noting other people calling him "black" or "black man"). A white employee once called Fred Watson the "team's token nigger" in front of Shropshire with no apparent repercussions. Watson Dep. 17-18. There is also evidence of racially hostile graffiti on bathroom walls in various parts of the facility. See, e.g., Jackson Dep. 60 (drawing of stick person with "noose tied around his neck" and words "‘Stop hanging around, nigger'"); Hatcher Dep. 126-27 (drawing of "little man like hanging from a noose" with words "KKK"); Watson Dep. 28-29 (word "nigger" and drawing of noose). 3. The District Court's Decisions In a series of orders issued over a 2½-year period, the district court dismissed a number of plaintiffs' claims under Federal Rule of Civil Procedure 12(c) and granted summary judgment on the remainder of the claims. In orders issued in November 2002 and November 2003, the district court initially held that plaintiffs may not pursue claims alleging a pattern or practice of discrimination under § 1981 or Title VII because they are suing as individuals. According to the court, "the pattern or practice theory is not available to the nine Plaintiffs here because they merely allege individual claims of disparate treatment" and "do not purport to represent a class." See R.95 (11/15/2002 Order at 6 (discussing plaintiffs' claims under § 1981)); see also R.96-97 (11/19/2003 Order at 6-7 (claims under Title VII)). The court indicated that statements by this Court in Cox v. American Cast Iron Pipe Co., 784 F.2d 1546 (11th Cir. 1986), recognizing the availability of pattern-or-practice claims in actions brought by individuals were dicta. See 11/19/2003 Order at 6-7. The court also indicated that plaintiffs may not utilize the Teamsters model for any claims. See id. at 7 (quoting Lowery v. Circuit City Stores, 158 F.3d 742, 761 (4th Cir. 1998) ("we decline to give individual plaintiffs a pattern or practice cause of action or allow them to use the Teamsters method of proof"), vacated on other grounds, 527 U.S. 1031, 119 S.Ct. 2388 (1999)). Further, the court held that, under National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061 (2002), the denial of a promotion is a discrete act which cannot be challenged after the expiration of the applicable limitations period. Accordingly, the court dismissed all of the plaintiffs' § 1981 claims challenging promotions which were awarded before August 19, 2000 (applying two-year limitation period), and all Title VII claims from before February 4, 2000 (180 days before the charges were filed). See 11/15/2002 Order at 4-5; 11/19/2003 Order at 2-3. In its November 2003 order, the court refused to dismiss as untimely the Title VII claim of Melvin Davis concerning a Bulk Account Manager's position and the Title VII claims of Leander Foster, Michael Fox and Warren Law concerning an "‘exempt position' that was awarded to Jimmy Hassler," reasoning that the parties disputed when those positions had been filled. The court did not discuss claims such as Jackson's 2000 promotion claims which defendant did not argue were untimely under Title VII. See 11/19/2003 Order at 5. In a March 2004 order, however, the court indicated that only the four explicitly identified promotion claims remained. See R.95 (3/23/2004 Order at 2 & n.2 (claims of Davis, Fox, Foster, and Law regarding jobs filled by John Gilbert and Jimmy Hassler "are the only disparate treatment claims which remain pending under Title VII")). Although the parties subsequently briefed the merits of the other Title VII promotion claims (see R.126-127 (CCBCC's Summary Judgment Memorandum); R.135 (Plaintiffs' Opposition)), the court never addressed those claims. Instead, the court granted summary judgment for the defendant with respect to the four claims it had previously considered potentially timely, noting evidence that they were filled before February 4, 2000. 3/23/2004 Order at 8. The court then granted defendant's motion for summary judgment on the remaining claims, largely on procedural grounds or for lack of evidence. See id. at 6-17; R.144 (4/26/2005 Order). STATEMENT OF STANDARD OF REVIEW This Court reviews a grant of summary judgment de novo, viewing all of the facts and reasonable inferences from those facts in the light most favorable to the nonmoving party. Strickland v. Water Works & Sewer Bd., 239 F.3d 1199, 1203 (11th Cir. 2001); see also Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150-51, 120 S.Ct. 2097, 2110 (2000) (Rule 50). Summary judgment is appropriate only where "there is no genuine issue as to any material fact" and "the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56; Strickland, 239 F.3d at 1203. This Court similarly reviews de novo a grant of judgment on the pleadings under Federal Rule of Civil Procedure 12(c). Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1370 (11th Cir. 2002). "Judgment on the pleadings is appropriate when no material facts are in dispute, and judgment may be rendered by considering the substance of the pleadings and any judicially noticed facts." Id. A claim may not be dismissed unless, accepting the facts in the complaint as true and viewing them in the light most favorable to the plaintiff, it is clear that he can prove no set of facts that would entitle him to relief. Id. ARGUMENT I. THE DISTRICT COURT ERRONEOUSLY FAILED TO CONSIDER THE EFFECTS OF CCBCC'S ADMITTED POLICY OF NOT POSTING SUPERVISORY OR MANAGEMENT VACANCIES NOT ONLY ON THE ELEMENTS OF PLAINTIFFS' PROMOTION CLAIMS BUT ALSO ON THE DEFENSES THAT CCBCC MAY RAISE TO THOSE CLAIMS. The district court erred in granting summary judgment without considering the impact that CCBCC's admitted policy of not posting or formally announcing vacancies for non-bargaining unit positions would have on plaintiffs' Title VII promotion claims. This Court has held that where, as here, an employer fills vacancies informally, without posting, the employer "has a duty to consider all those who might reasonably be interested" in the position whether or not they actually apply. Carmichael v. Birmingham Saw Works, 738 F.2d 1126, 1133 (11th Cir. 1984). Moreover, in such circumstances, the employer may not raise the failure of an employee to apply as a reason for failing to consider him for a position if the employee had no notice of or opportunity to apply for that position. Although Carmichael is plainly relevant to the claims in this case, the district court failed to follow it. Under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824 (1973), a plaintiff alleging that he was denied a job because of his race makes out a prima facie case by showing that he belongs to a protected class; he applied and was qualified for a job for which the employer was seeking applicants; he was rejected; and the employer continued to seek applicants with plaintiff's qualifications. See, e.g., Carmichael, 738 F.2d at 1131 (citing McDonnell Douglas). This evidence raises a presumption of discrimination because it eliminates the most common reasons for the challenged employment action: there was no vacancy; the plaintiff was not qualified; or the employer did not know of plaintiff's interest in the position. See id. at 1133. To rebut that presumption of discrimination, the employer must articulate a "legitimate, nondiscriminatory reason for the employee's rejection." Id. at 1130 (adding that employer's evidence must raise "a genuine issue of fact"). At that point, the plaintiff may attempt to prove that the employer's explanation was pretextual or present other evidence showing that "‘a discriminatory reason more likely motivated the employer.'" Id. (quoting U.S. Postal Serv. Bd. of Govs. v. Aikens, 460 U.S. 711, 716, 103 S.Ct. 1478, 1482 (1983)); see also Reeves, 530 U.S. at 147-48, 120 S.Ct. at 2101 ("once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision"). Significantly, however, this familiar framework does not neatly fit the facts and evidence in this case or other similar cases where, because of his employer's informal promotion practices, an employee, despite his interest in promotion, did not know that a specific vacancy existed and/or how to go about applying for it. In such cases, the employee cannot make out a classic prima facie case nor can he rebut his employer's explanation that he was not considered because he did not apply. Cf. U.S. Postal Serv. Bd. of Govs. v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1482 (1983) (noting that McDonnell Douglas was "‘never intended to be rigid, mechanized, or ritualistic'") (quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949 (1978)). In Carmichael, this Court explained how McDonnell Douglas should apply in such cases. The employer in Carmichael largely relied on word of mouth notice and informal review procedures in making promotions. Carmichael, 738 F.2d at 1133. The plaintiff alleged that, despite his interest in promotion, he was repeatedly passed over for promotion because of his race. Reversing judgment for the employer, this Court held that an employer who uses "informal methods" to fill job vacancies "has a duty to consider all those who might reasonably be interested [in the position] as well as those who have learned of the job opening and expressed an interest." Id. at 1133. The Court held that, under McDonnell Douglas, the "plaintiff makes out a prima facie case – that is, he creates a presumption of discrimination and forces the employer to articulate legitimate reasons for his rejection – as long as he establishes that the company had some reason or duty to consider him for the post." Id. Furthermore, the Court continued, the employer cannot "avoid a Title VII violation by showing that it incorrectly assumed that the plaintiff was uninterested in the job." Id. at 1134. On the contrary, if "the plaintiff in fact had no notice of or opportunity to apply for the job, such a reason for rejection is ‘legally insufficient and illegitimate.'" Id. (quoting Harris v. Birmingham Bd. of Educ., 712 F.2d 1377, 1383-84 (11th Cir. 1983)). Accord Roberts v. Gadsden Mem. Hosp., 835 F.2d 793, 796-98 (11th Cir.), as amended on reh'g, 850 F.2d 1549 (11th Cir. 1988). Cf. Smith v. J. Smith Lanier & Co., 352 F.3d 1342, 1346 (11th Cir. 2003) (stating that Carmichael does not apply where employer "formally posts its vacant positions"). Courts in other circuits, citing Carmichael, have reached similar results in reviewing similar hiring or promotion practices. See Dews v. A.B. Dick Co., 231 F.3d 1016, 1021-22 (6th Cir. 2000) (endorsing and applying Carmichael in reversing summary judgment where employer used informal promotion methods); EEOC v. Metal Serv. Co., 892 F.2d 341, 348-49 (3d Cir. 1990) (reversing directed verdict for defendant, holding that Title VII plaintiff's failure formally to apply for particular job will not preclude him from establishing a prima facie case under McDonnell Douglas where he made "every reasonable attempt to convey his interest" to employer). In our view, Carmichael applies to claims such as Terry Jackson's claim that he was denied promotion to the position of Production Supervisor in March 2000. CCBCC does not dispute that, during the relevant time frame, the company did not post openings for supervisory or managerial positions but rather mainly relied on word of mouth. In addition, evidence of Jackson's employment history would support a finding that CCBCC should have known that Jackson would be interested in the job. When told of the working foreman position in the Production Department some years before, Jackson had applied and was selected. R.90, Exh. 10 (Jackson Dep. 22-25). Shortly thereafter, he learned of and applied for a job as Training Supervisor; HR Manager David Gill testified that Jackson did well in the interview, and Gill's interview notes indicate that Jackson's goal was one day to become vice president of production. R.126, Exh.1 (Gill Supp. Decl. ¶ 9a & Exh.1(C)). Gill also agreed that moving from Jackson's current job as working foreman to the Production Supervisor position would be a "natural progression." Exh.24 (Gill Dep. 184). There is also unrebutted testimony that Jackson specifically expressed an interest in the Production Supervisor job. He testified that, when he asked his supervisor, Ricky Suarez, how to apply for the vacant position, Suarez told him to provide Suarez with a copy of his resume. Jackson Dep. 34-36; cf. id. at 23 (previously, Jackson had been told to notify Suarez if interested in working foreman job). Jackson gave his resume to Suarez, who, according to Jackson, sometimes called black employees "contraband" and once demonstrated a Ku Klux Klan hand signal. Id. at 47-56. Gill stated that Suarez did not tell him that Jackson was interested in the position. R.78, Exh.1 (Gill Decl. ¶ 6). Furthermore, CCBCC did not question Jackson's qualifications. Gill stated that he would have considered Jackson if he had applied (id.), and it does not appear that David Presnall, the successful white applicant, was better qualified. See Jackson Dep. 44 (noting that Presnall needed substantial training when he started); R.126, Exh.1(M) at 34-56 (Presnall application materials). CCBCC explained that Jackson was not selected because he did not apply. See, e.g., R.127-1 (Summary Judgment Memorandum at 41-42 (since he did not receive Jackson's application, Gill did not know of Jackson's interest). Under Carmichael, however, in light of its informal promotion policy, a jury could find that the company had a duty to consider Jackson even without a formal application. Having failed to do so, CCBCC's explanation for this failure is "legally insufficient and illegitimate" (Carmichael, 738 F.2d at 1134). Although it relied on Jackson's failure to apply as a defense to his promotion claim, CCBCC might attempt to argue here, as it did below for other plaintiffs, that Jackson was not selected because he was less qualified than the successful applicant. Any such argument should be rejected. The issue is why the company did not select Jackson. An employer may not satisfy its burden under McDonnell Douglas by articulating a reason that might have motivated the decision but must instead "present specific evidence regarding the decision-maker's actual motivation" for the challenged decision. See Walker v. Mortham, 158 F.3d 1177, 1182 n.8 (11th Cir. 1998) (adding that "court may not assume, based on its own perusal of the record, that the decision-maker in a particular case was motivated by a legitimate reason when the defendant has offered none"); see also Patrick v. Ridge, 394 F.3d 311, 318-20 (5th Cir. 2004) (stating that employer does not satisfy intermediate burden of articulation by proffering reason that could not have motivated decisionmaker at the time challenged decision was made). The district court therefore improperly granted summary judgment to the company on this claim.<2> Finally, we note that CCBCC's informal promotion practices may also affect the timeliness of plaintiffs' promotion claims. Claims such as those of Jackson concerning the Production Supervisor and Scheduler positions undeniably arose within 180 days of when the charges were filed and, so, were clearly timely. See, e.g., R.78, Exh.1 (Gill Decl. ¶ 3) (Supervisor vacancy was filled on 3/27/2000 while Scheduler vacancy was filled on 7/28/2000 and 8/7/2000). However, given plaintiffs' allegations that they often learned of vacancies only after they were filled, claims regarding promotions occurring outside the charge-filing period may also be timely. "Under equitable tolling, Title VII's statute of limitations period does not start to run until a plaintiff knew or reasonably should have known that she was discriminated against." Carter v. West Pub. Co., 225 F.3d 1258, 1265-66 (11th Cir. 2000); see also Nelson v. United States Steel Corp., 709 F.2d 675, 676-77 (11th Cir. 1983) ("The 180-day period begins to run only when the complainant first learns or should have learned of the alleged discrimination."). Thus, if plaintiffs could establish, for example, that, due to CCBCC's policy, one or more of the plaintiffs first learned about an opening within the charge-filing period, a claim concerning that position should not have been dismissed on timeliness grounds regardless of when the position was filled. II. IN APPROPRIATE CASES, PLAINTIFFS SUING AS INDIVIDUALS MAY UTILIZE THE TEAMSTERS MODEL TO PROVE DISCRIMINATION UNDER TITLE VII. The district court held that the plaintiffs in this action may not assert "pattern or practice" claims because they have not been certified as class representatives. The court's decision suggests that private plaintiffs suing as individuals may never use the analytical model set forth in Teamsters to establish discrimination under Title VII. As the district court noted, however, this Court has stated that individual plaintiffs may rely on Teamsters to establish that they have been denied employment opportunities because of a discriminatory policy or practice of their employer. Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1559 (11th Cir. 1986). As we discuss below, contrary to the district court's view, this Court's analysis of the issue in Cox is not dicta and is a correct interpretation of the law. The plaintiffs allege, inter alia, that they were denied promotions because of their race. The ultimate factual question in a Title VII disparate treatment case such as this is whether the employer is "‘treating some people less favorably than others'" because of their race. Aikens, 460 U.S. at 715, 103 S.Ct. at 1482 (quoting inter alia Teamsters, 431 U.S. at 335 n.15, 97 S.Ct. at 1854 n.15). One method courts have devised for pursuing this inquiry is the McDonnell Douglas framework, discussed above, where the employer responds to the plaintiff's prima facie case by proffering reasons for the challenged employment action, and the plaintiff then attempts to prove that those reasons are a pretext for discrimination. See, e.g., Reeves, 530 U.S. at 142-43, 120 S.Ct. at 1206. As this Court stressed in Carmichael, however, "McDonnell Douglas provides only one method of establishing discrimination." 738 F.3d at 1131 (emphasis in original). Where plaintiffs challenge more than individual acts of discrimination, Teamsters provides an alternative method of proof. Cf. Celestine v. Petroleos de Venezuela, 266 F.3d 343, 355 (5th Cir. 2001) (opining that a "pattern or practice case . . . is really merely another method by which disparate treatment can be shown"). To establish a racially discriminatory pattern or practice under Teamsters, a plaintiff must prove that "racial discrimination was the company's standard operating procedure, the regular rather than the unusual practice." Teamsters, 431 U.S. at 336, 97 S.Ct. at 1855. Because the focus is on the alleged "pattern of discriminatory decisionmaking" (Thiessen v. General Elec. Capital Corp., 267 F.3d 1095, 1106 (10th Cir. 2001) (citation omitted)), plaintiffs typically rely on some combination of statistical evidence, documentary or anecdotal evidence of the employer's intent to discriminate, and direct evidence of discrimination. See, e.g., Teamsters, 431 U.S. at 337-40, 97 S.Ct. at 1854-57; EEOC v. Joe's Stone Crab, 220 F.3d 1263, 1287 (11th Cir. 2000). Proof of a discriminatory policy or practice "supports an inference that any particular employment decision, during the period in which the discriminatory policy was in force, was made in pursuit of that policy." Teamsters, 431 U.S. at 362, 97 S.Ct. at 1868. Thus, an individual who shows that he is a member of the class affected by the practice "will be presumptively entitled to relief, subject to a showing by the company that its . . . refusal to [hire or promote the individual] was not based on its policy of discrimination." Teamsters, 431 U.S. at 362-63, 97 S.Ct. at 1868-69. While suits alleging a pattern or practice of discrimination under Teamsters have traditionally been brought by the Government or as class actions, see, e.g., Joe's Stone Crab, 220 F.3d at 1286-87, the model may in rare cases be used in suits by individual plaintiffs. As the Teamsters Court explained, the importance of McDonnell Douglas lies 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." Teamsters, 431 U.S. at 358, 97 S.Ct. at 1866. By demonstrating the existence of a discriminatory pattern or practice, the Court explained, plaintiffs make out a prima facie case of discrimination against the individual class members, and the burden of proof therefore shifts to the employer to dispel the inference that individual employment decisions were not made in pursuit of the policy or practice. Id. at 359 & n.45 (noting that "proof of a discriminatory pattern and practice . . . create[s] a greater likelihood that any single decision was a component of the overall pattern"). Nothing about this reasoning is limited to class actions or Government enforcement actions. This Court recognized as much in Cox v. American Cast Iron Pipe Co., 784 F.2d 1546 (11th Cir. 1986), where plaintiffs were challenging an alleged policy of giving certain jobs only to men. After initially certifying a class, the district court decertified it; the court then analyzed the 21 plaintiffs' individual claims under McDonnell Douglas and rejected all but three. See id. at 1558-59. This Court reversed the decertification order and then separately addressed the rulings on the individual claims, holding that, because plaintiffs had established a discriminatory policy, their claims should have been analyzed under Teamsters, rather than McDonnell Douglas. The Court reasoned that plaintiffs "were in substantially the same position as [plaintiffs in Government or class cases] – that is, they had proven that sex discrimination ‘was the company's standard operating procedure,' and they were entitled to the presumption that the complained-of employment practice violated Title VII." Cox, 784 F.2d at 1559 (quoting Teamsters, 431 U.S. at 336, 97 S.Ct. at 1855). Analyzing similar facts under the ADEA, the Tenth Circuit recently reached a similar result. See Thiessen, 267 F.3d at 1108 (in ADEA suit challenging alleged pattern or practice of terminating older workers brought by individual plaintiff with 22 other putative "class" members Court stated, "[w]e do not hold that whenever there is evidence of a pattern-or-practice, a class must be certified."). See also Hipp v. Liberty Nat'l Life Ins. Co., 252 F.3d 1208, 1227-29 (11th Cir. 2001) (analyzing ADEA pattern or practice claim in suit with 10 plaintiffs); cf. Obrey v. Johnson, 400 F.3d 691, 694- 99 (9th Cir. 2005) (analyzing individual plaintiff's allegations of a systemwide pattern of discrimination against Asian-Pacific Islanders including himself under a Teamsters model); Davis v. Califano, 613 F.2d 957, 962-66 (D.C. Cir. 1980) (analyzing individual promotion claims under Teamsters and stressing importance of statistical evidence). In ruling that individual plaintiffs may not use the Teamsters model to challenge a discriminatory policy or practice, the district court here refused to follow Cox. The court reasoned that this Court's application of Teamsters to the individual claims was merely dicta since the Court had already reversed the decertification order. 11/19/2003 Order at 6. On the contrary, however, since the individual claims had been dismissed, had this Court not reversed those rulings, the decision reinstating the class would not have aided the individuals. The district court also relied on cases from other circuits that hold that pattern-or-practice claims are limited to suits by the Government or class actions. 11/19/2003 Order at 5-6. In our view, however, these cases are not persuasive since their holdings are conclusory. In the main, the cases note that individual instances of alleged discrimination are typically tried under a McDonnell Douglas framework, but they do not explain why an individual could not also challenge a discriminatory policy or practice and, if he does so, why he could not rely on Teamsters. See, e.g., Bacon v. Honda of America Mfg., Inc., 370 F.3d 565, 575-76 (6th Cir. 2004) (citing caselaw from other circuits, holding that because pattern-or-practice "claim" does not "address individual hiring decisions," it is "inappropriate as a vehicle for proving discrimination in an individual case"), cert. denied, 125 S. Ct. 1334 (2005); Celestine v. Petroleos de Venezuela, 266 F.3d 343, 355-56 (5th Cir. 2001) (noting that Supreme Court "has not explicitly stated that the pattern and practice method of proof may never be used in private non-class suits," but other courts have and, given the nature and purpose of such a proof scheme, as well as precedents from Fifth and other circuits, finding no error in district court's refusal to apply Teamsters proof method to individual claims); Lowery v. Circuit City Stores, 158 F.3d 742, 760 (4th Cir. 1998) (same, noting "manifest" and "crucial" difference between individual's claim of discrimination and class action), vacated on other grounds, 527 U.S. 1031, 119 S.Ct. 2388 (1999).<3> Nor does such a limitation make sense. Plaintiffs suing as individuals may challenge facially discriminatory policies, such as a rule preventing pilots over age 60 from becoming flight engineers in TWA v. Thurston, 469 U.S. 111, 105 S.Ct. 613 (1985). They may also challenge facially neutral policies with a disparate impact on the plaintiff's protected class. See, e.g., Craig v. Alabama State Univ., 804 F.2d 682, 686 (11th Cir. 1986) ("We perceive no impediment to using disparate impact analysis as to the appellant's individual claim."). They likewise should be permitted to challenge a discriminatory pattern or practice. That is the approach this Court followed in a recent case. In Cooper v. Southern Co., 390 F.3d 695 (11th Cir. 2004), seven plaintiffs alleged that the common employment practices of several related companies either fostered a pattern or practice of race discrimination or had a disparate impact on black employees. Id. at 703. This Court affirmed the denial of class certification, yet proceeded to analyze the individual plaintiffs' private claims under a pattern and practice theory of discrimination. Id. at 725-26. We acknowledge that there is language in a decision by the former Fifth Circuit which could be read to suggest that only the Government and class claimants may rely on Teamsters, and that individual plaintiffs must establish their claims under McDonnell Douglas. See Scarlett v. Seaboard Coast Line R.R. Co., 676 F.2d 1043, 1053 (5th Cir. 1982) (upholding district court's refusal to permit plaintiffs to proceed under Teamsters, noting that plaintiffs are not the Government or class representatives and stating: "[a]n individual proceeding as an individual under Title VII must prove the elements of a discriminatory hiring claim as set forth in McDonnell Douglas"). However, Scarlett should not be read to categorically rule out the use of all aspects of the Teamsters analysis in a private Title VII action that has not been certified as a class action. In Scarlett, ten individuals filed suit alleging that the defendants' seniority policies perpetuated past racial discrimination against African-Americans who were currently employed as trainmen and conductors. After a bench trial, the district court, applying the McDonnell Douglas analysis, found that several of the plaintiffs were not victims of discrimination because they had never unsuccessfully applied or been deterred from applying for positions as trainmen. Scarlett, 676 F.2d at 1152. On appeal, these plaintiffs argued that, because they were bringing a "pattern or practice claim," they should be allowed to establish liability for the alleged unlawful practice in stage one proceedings and reserve "issues of individual entitlement to relief" for stage two. Id. at 1053. This Court rejected that argument, holding that merely labeling a claim as a "pattern or practice claim" did not "alter the fact that [plaintiffs] must prove their claim that they were discriminatorily refused positions as trainmen." Id. In context, therefore, Scarlett holds only that an individual private plaintiff may not rely on Teamsters to establish Title VII liability without demonstrating that he was adversely affected by an employer's discriminatory policy. This does not mean that individuals may not try systemic claims under a Teamsters model. On the contrary, Teamsters does not require that "issues of individual entitlement to relief" be reserved for stage two proceedings. While large pattern-or-practice cases brought by the Government or class plaintiffs are frequently bifurcated for convenience, there is no need for bifurcated trials in cases such as Scarlett or this one since the number of potential claimants is not great. Rather, a court would be free to require plaintiffs to proffer proof not only that the employer maintained a pattern or practice of discrimination, but also that they were within the class of persons injured by the pattern or practice. Cf. Teamsters, 431 U.S. at 361, 97 S.Ct. at 1868 (noting that stage two proceedings are needed "if the Government has not, in the course of proving a pattern or practice, already brought forth specific evidence that each individual was discriminatorily denied an employment opportunity"). Only then would the burden of proof shift to the employer to prove that any adverse actions against the plaintiff were not caused by the discriminatory policy. This reading of Scarlett is consistent with Cox where, as noted above, this Court subsequently ruled that plaintiffs may rely on Teamsters to establish individual claims of discrimination where they can establish that discrimination was the company's standard operating procedure. Cox, 784 F.2d at 1559. Moreover, although Scarlett is also binding precedent in the Fifth Circuit, Celestine, citing Scarlett, expressly acknowledges that that Court had "not definitively ruled out use of the Teamsters method of proof in a private individual racial discrimination suit." 266 F.3d at 356. We therefore urge this Court to reaffirm the position that it took in Cox, holding that, in appropriate cases, a plaintiff suing as an individual may use the Teamsters model to prove his claims of discrimination. CONCLUSION For the foregoing reasons, the Commission respectfully asks this Court to reverse the judgment in claims such as Terry Jackson's claim regarding the Production Supervisor position, to remand such claims to the district court for further proceedings, and to reject the district court's ruling that private plaintiffs suing as individuals may not use the Teamsters model to prove claims of systemic discrimination. Respectfully submitted, ERIC S. DREIBAND General Counsel LORRAINE C. DAVIS Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel __________________________________ BARBARA L. SLOAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of the General Counsel 1801 L Street, N.W., 7th Floor Washington, D.C. 20507 (202) 663-4721 CERTIFICATE OF COMPLIANCE In accordance with Federal Rule of Appellate Procedure 32, I certify that this brief was prepared with Courier New (monospaced) typeface, 12-point font, and contains 6866 words, from the Statement of Interest through the Conclusion, as determined by the Word Perfect 9 word counting program. ____________________________ Barbara L. Sloan CERTIFICATE OF SERVICE I, John F. Suhre, hereby certify that one copy of the foregoing Brief of the Equal Employment Opportunity Commission as Amicus Curiae, was mailed this 23rd day of August, 2005, by first-class mail, postage prepaid, to: Robert L. Wiggins Roderick T. Cooks WIGGINS, CHILDS, QUINN & PANTAZIS, PC The Kress Building 301 19th Street, North Birmingham, NC 35203 Gretchen W. Ewalt Gregory P. McGuire OGLETREE, DEAKINS, NASH, SMOAK & STEWART, PC 2301 Sugar Bush Road, Suite 600 Raleigh, NC 27612-3382 ____________________________________ John F. Suhre ********************************************************************************** <> <1> The Commission takes no position on any other questions that may be raised in this appeal. <2> In the district court, CCBCC asserted, without authority, that plaintiffs “must prove that Defendant’s practice of not posting the openings was intended to discriminate against them.” R.127-1 (Summary Judgment Memorandum at 25). On the contrary, Carmichael makes clear that the policy is highly relevant without regard to any evidence as to why it was adopted in the first place. <3> The Lowery Court noted that the Supreme Court has never applied the Teamsters model in a private, non-class action. 158 F.3d at 761. That is true. We note, however, that the same may be said for many other issues. Although the Supreme Court has not held that claims under the ADEA may be analyzed under the McDonnell Douglas framework, for example, every circuit has held that McDonnell Douglas may apply. Reeves, 530 U.S. at 141-42, 120 S.Ct. at 2105.