No. 10-1662 ____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ____________________________________________ TANESHA DAVIS, Plaintiff-Appellant, v. CINTAS CORPORATION, Defendant-Appellee. ____________________________________________ On Appeal from the United States District Court for the Eastern District of Michigan No. 06-12311 The Honorable Sean F. Cox ____________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE ON BEHALF OF PLAINTIFFS-APPELLANTS AND IN FAVOR OF REVERSAL ____________________________________________ P. DAVID LOPEZ JENNIFER S. GOLDSTEIN General Counsel Attorney VINCENT J. BLACKWOOD U.S. EQUAL EMPLOYMENT Acting Associate General Counsel OPPORTUNITY COMMISSION Office of General Counsel CAROLYN L. WHEELER 131 M Street, N.E. Assistant General Counsel Washington, D.C. 20507 (202) 663-4733 Jennifer.goldstein@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .ii STATEMENT OF INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 A. Class Certification - District Court Decision . . . . . . . . . . . . . . . . . . 4 B. Individual Claim - Motion and District Court Decision . . . . . . . . . . . . . . . 5 ARGUMENT I. The district court abused its discretion in denying class certification where it erroneously viewed the case as consisting of myriad individual claims, rather than understanding that the class sought to challenge one system of allegedly discriminatory hiring . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 II. The district court erred in rejecting the individual discrimination claim where it required the plaintiff, on summary judgment, to meet a "pretext-plus" standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Alexander v. Aero Lodge No. 735, 565 F.2d 1364 (6th Cir. 1977) . . . . . . . . . . . . 20 Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir. 1998) . . . . . . . . . . 20, 21 Barnes v. GenCorp Inc., 896 F.2d 1457 (6th Cir. 1990) . . . . . . . . . . . . . . . . 28 Caridad v. Metro-N. Commuter R.R., 191 F.3d 283 (2d Cir. 1999) . . . . . . . . . . . . 19 Chen v. Dow Chem. Co., 580 F.3d 394 (6th Cir. 2009) . . . . . . . . . . . . . . . 25, 26 Coleman v. Gen. Motors Acceptance Corp., 296 F.3d 443 (6th Cir. 2002) . . . . . . 20, 21 Cooper v. Fed'l Reserve Bank of Richmond, 467 U.S. 867 (1984) . . . . . . . . . . . . 15 Cooper v. Southern Co., 390 F.3d 695 (11th Cir. 2004) . . . . . . . . . . . . . . . 20 Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546 (11th Cir. 1986) . . . . . . . . . . . . 19 Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003) . . . . . . . . . . . . . . . . . 23, 25 Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571 (9th Cir. 2010) . . . . . 17, 18, 19, 20, 21 EEOC v. Joe's Stone Crab, Inc., 220 F.3d 1263 (11th Cir. 2000) . . . . . . . . . . . . 15 Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) . . . . . . . . . . . . . . . . . . 17 Forrester v. Rauland-Borg Corp., 453 F.3d 416 (7th Cir. 2006) . . . . . . . . . . . . 26 Franks v. Bowman Transp. Co., 424 U.S. 747 (1975) . . . . . . . . . . . . . . . . 12, 13 Gen. Tel. Co. of Nw. v. EEOC, 446 U.S. 318 (1980) . . . . . . . . . . . . . . . . . . 20 Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147 (1982) . . . . . . . . . . . . . . . . . .17 In re IPO, 471 F.3d 24 (2d Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . 19 Int'l Bhd. of Teamsters v. U.S., 431 U.S. 324 (1977) . . . . . . . . . 12, 13, 15, 19, 20 Jefferies v. Harris County Cmty. Action Ass'n, 615 F.2d 1025 (5th Cir 1980) . . . . . .16 Kline v. Tenn. Valley Auth., 128 F.3d 337 (6th Cir. 1997) . . . . . . . . . . . . . . .26 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) . . . . . . . . . . . . . . . . 27 McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352 (1995) . . . . . . . . . . . . 28 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000) . . . . . . 23, 24, 25, 26 Robinson v. Metro-N. Commuter R.R., 267 F.3d 147 (2d Cir. 2001) . . . . . . . . . . . .19 Rogers v. Missouri Pac. R. Co., 352 U.S. 500 (1957) . . . . . . . . . . . . . . . . . .25 Scales v. J.C. Bradford & Co., 925 F.2d 901 (6th Cir. 1991) . . . . . . . . . . . . . 27 Serrano & EEOC v. Cintas Corp., No. 04-40132 (E.D. Mich.) . . . . . . . . . . . . . . . 1 Shipes v. Trinity Indus., 987 F.2d 311 (5th Cir. 1993) . . . . . . . . . . . . . . . . 19 Staton v. Boeing Co., 327 F.3d 938 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . 19 St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993) . . . . . . . . . . . . . . . 23, 24 Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311 (4th Cir. 2006) . . . . . . . 20, 21 Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1999) . . . . . . . . . . . . . . 13, 16 Wright v. West, 505 U.S. 277 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . .25 STATUTES and RULES Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq . . . . . . . . . . 1 42 U.S.C. § 2000e-2(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Fed. R. Civ. P. 23. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Fed. R. Civ. P. 23(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Fed. R. Civ. P. 23(b)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 21 Fed. R. Civ. P. 23(b)(2) advisory committee's note to 1966 amend. . . . . . . . . 21 Fed. R. App. P. 29(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF INTEREST The Equal Employment Opportunity Commission (EEOC) is the agency charged by Congress with the administration, interpretation, and enforcement of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. This appeal raises issues concerning a class claim and an individual claim for gender discrimination in hiring. The appeal of the class claim involves the proper application of Fed. R. Civ. P. 23 to a Title VII claim of systemic discrimination, and the question of whether the pattern-or-practice model of proof endorsed by the Supreme Court requires a plaintiff to prove a pattern of discrimination or myriad individual claims at the liability stage. The appeal of the intentional discrimination claim raises the important question of whether a district court may invoke a "pretext-plus" standard on summary judgment, even though the Supreme Court rejected that standard. Because successful enforcement of Title VII depends significantly upon the ability of private individuals to challenge both systemic and individual discrimination, and because the legal standard for proving systemic discrimination is the same in private and Government enforcement actions, the EEOC has a strong interest in the outcome of this appeal. In addition to the overall importance of the issues to Title VII enforcement, the Court's resolution of the issues also may implicate the EEOC's related case against Cintas. See Serrano & EEOC v. Cintas Corp., No. 04-40132 (E.D. Mich.).<1> We therefore seek to present our views to this Court. See Fed. R. App. P. 29(a). STATEMENT OF THE ISSUES<2> 1. Whether the district court abused its discretion in denying class certification where it erroneously viewed the case as consisting of myriad individual claims, rather than understanding that the class sought to challenge one system of allegedly discriminatory hiring. 2. Whether the district court erred in rejecting the individual discrimination claim where it required the plaintiff, on summary judgment, to meet a "pretext- plus" standard. STATEMENT OF FACTS Nelly Avalos filed an EEOC charge on June 17, 2004, after Cintas declined to hire her for a sales service representatives (SSR) position. R.10 Att.15 (Avalos Charge).<3> Avalos stated she believed that Cintas had discriminated against her because of, inter alia, her sex. Id. at 2. Avalos further stated that she was filing the charge "as a class action charge, on my own behalf and on behalf of the class of women who have applied for work at Cintas. . . ." Id. Avalos subsequently joined an existing proposed class action brought on behalf of minority applicants, filing an amended complaint alleging Cintas engaged in a company-wide practice of discrimination against women in hiring to SSR positions in Cintas' Rental Division. A-174-78 (Memo. In Support of Leave to file Second Amended Complaint). In August 2008, the plaintiffs amended the complaint to include Tanesha Davis as a named plaintiff. A-179-96 (Motion to File Sixth Amended Complaint); A-925 (Motion Granted). Davis had applied for a job as an SSR at Cintas' Franklin, Wisconsin facility (Location 447) in September 2003, was rejected, applied again in September 2004, and was rejected a second time. A-186¶16. A. Class Certification - District Court Decision On March 31, 2009, the district court denied the plaintiffs' motion for class certification on the ground that they could not make the requisite showing under Rule 23(a) and 23(b)(2). A-653-72 (Order Denying Plaintiffs' Motions for Class Certification). The court held that the plaintiffs could not show commonality largely because "the hiring process in this case is conducted by thousands of Cintas managers at hundreds of Cintas facilities." A-660. The court discounted plaintiffs' statistical evidence purporting to show underrepresentation of women, holding it was "not persua[sive]." A-662. The court also discounted plaintiffs' evidence of statements by Cintas managers suggesting bias and held that even if the statements were evidence of discrimination, the statements "illustrate that the circumstances of discrimination are highly individualized and cannot be adequately treated in a generalized class action setting." A-664. The district court held that plaintiffs had not shown typicality because each putative class member's claim would require "an individualized and fact-intensive inquiry," and so a plaintiff proving "his own discrimination claim against Cintas would not necessarily have proven someone else's claim," rendering one class member's claim not typical of another's. A-665. The court added that "since Cintas has unique defenses against each class member's individual claim, the case is unsuitable for class action." Id. The court rejected certification under Rule 23(b)(2) because, the court stated, plaintiffs are challenging a hiring process that "involved thousands of managers at hundreds of Cintas locations making highly individualized decisions." The court also held that front and back pay would require individualized determinations and so, in the court's view, damages claims predominate over declaratory and injunctive relief. A-669. B. Individual Claim - Motion and District Court Decision Cintas moved for summary judgment on Davis' individual claims, arguing that Davis could not show that Cintas' proffered explanations for its decisions to reject her applications in September 2003 and September 2004 were a pretext for gender discrimination. A-518-54 (Cintas Motion for Summary Judgment). As for the 2003 decision, Cintas argued that Davis was not the best qualified for the job. A-530. Cintas' decision-maker was human resources manager Christine Richards, who gave Davis an initial screening interview. A-534. Richards decided not to advance Davis' application further. A-535. Richards had no recollection of her reasons for rejecting Davis. A-535 n.6. She coded Davis with the number "5" in the "reason for rejection" column, which means "not best qualified," the same reason given for virtually all the rejected applicants. A-535; see also A-583 (Opp. to Motion for Summary Judgment). In her contemporaneous notes, Richards recorded that Davis had told her that what she liked least about her current job was selling overpriced merchandise, and that she wished to keep a part-time job with LensCrafters while working as a full-time SSR. A-534. Cintas argues that these notes show the concerns Richards had about Davis. A-535 n.6. Cintas also argued that Davis had no route sales experience, while men it hired did have such experience, and that Davis "concealed" from Richards the fact that she had just accepted a new job at Pearle Vision starting the following week. A-534-35. In September 2004, Cintas general manager Pete Lombardo advanced Davis past the screening interview, noting that Davis' only concern was the "weather." A-536. Davis passed the next step, a written test called the ePredix test, designed to measure sales orientation and service orientation, with the second-highest score recorded for applicants in 2003 and 2004. Cf. A-587 (Opp. to Motion for Summary Judgment). She had a second, in-depth interview with service manager John Krueger, who advanced her to a route ride with management trainee/service coordinator, Matt Presendofer. A-536-37. According to Cintas, Presendofer wrote that the "physical part of job and her strength and work energy are questionable," and that Davis "would not be as efficient as most other SSRs." A-542. Lombardo subsequently rejected Davis for employment, again on the ground that she was "not the best qualified." A-538. Cintas argued that the reason for rejecting Davis was due to her expressed concerns about the weather and to Presendofer's concerns about her ability to handle the physical aspects of her job and to do a route ride efficiently. A-537-38. Cintas also pointed out that shortly after Davis' rejection, Lombardo approved a woman, Fawn Pomeroy, for hire. A-538. Davis argued in response that there was evidence that Cintas' proffered explanations were false and a pretext for discrimination. A-576 (Opp. to Motion for Summary Judgment). At the outset, Davis pointed out that between 1999 and the end of 2004, Cintas hired 80 SSRs at Location 447. A-577; A-607 (DiPrete Declaration)¶3. Only two of those hires were women. Id. Of those two women, the first was not hired until mid-2003, and the second was Pomeroy, hired in October 2004. Id. Davis noted the expert report had concluded that even with a "conservative estimate" of 26.6 percent female availability, "the discrepancy between [Cintas'] actual hiring and expected hiring [of women] is statistically significant at 3.7 standard deviations." A-608¶7. The expert stated that the odds of such a deviation happening by chance alone are "fewer than one time out of a thousand." Id. In arguing that Cintas' refusal to hire her in 2003 was discriminatory, Davis pointed to evidence that she had ten years of selling, service, and retail management experience at the time; she had a solid track record of employment; and a strong customer service and sales background, all of which Cintas preferred its SSRs to possess. A-582. Richards nonetheless did not advance Davis to ePredix test (the next step in the hiring process), though she did advance at least nine men to the test. A-583. Davis called into question Cintas' explanation that the notes Richards made about part-time work and selling overpriced merchandise explains why Richards likely did not advance Davis. Davis pointed out that Richards advanced two men to the ePredix test (Chris Pufahl and Mark Infusino) even though they told her that they were going to continue their part-time jobs - Pufahl working at a hardware store and Infusino working as a yoga instructor and massage therapist. A-584. To rebut the noted concern with her aversion to selling overpriced merchandise (which Richards herself stated she did not believe Cintas sold), Davis pointed to three men Richards advanced even though they expressed concerns about the selling component of the SSR job: Josh Braun, who told Richards he disliked "cold calling" because he "felt like a nag;" Justin Healy, who told her he did not like "lying to get the business;" and Cameron Harvey, who told Richards that what he liked least was "the customers." A-585. Davis also called into question Cintas' argument that her lack of route sales experience played a role in the hiring decision. She pointed to evidence that more than half the SSRs hired in 2003 and 2004 had no route experience of any kind<4> and, in any event, Richards had advanced nine male applicants to the ePredix test even though they lacked route experience and possessed less sales experience than Davis had. Id. Finally, as to the Pearle Vision job she allegedly concealed from Richards, Davis pointed to evidence that she had not decided to move to Pearle Vision at the time of her Cintas interview, that it was implausible that she would interview for the SSR job if she already had decided to take another, higher-paying job, and that in any event it could not have motivated Richards' decision not to advance Davis to the next stage in the interview process. A-583 n.5. Davis responded to Cintas' explanations for her 2004 rejection (allegedly her concern about the weather and its view of her ability to do the job efficiently) with evidence of pretext. Davis pointed out that Lombardo, the decision-maker, routinely hired male applicants who had expressed concern about the weather. Mark Infusino, for example, told Lombardo during his interview that his major concern about the SSR job was "extreme weather/extreme hours;" Brian Grall told Lombardo that what he disliked most about the job was "traffic & cold weather;" and Tim Koebl told Lombardo that his biggest concern about the SSR job was "cold in winter." A-590. As for efficiency, Davis pointed to a discrepancy between what Presendofer wrote immediately after his route ride with her, and his later deposition testimony. After the ride, Presendofer answered the question whether Davis "meets the physical requirement to be successful" with a "yes." A-591. He noted that she was not as strong as other SSRs, but that she "[w]ould be a great candidate for a smaller route." Id. Indeed, Presendofer stated that Davis "had all the attributes we wanted for a SSR candidate," and it was "[his] hope that we could hire [Davis]." A-587. Presendofer told her that she had performed efficiently and finished in less time than other applicants. A-592. Finally, Davis pointed out that Cintas never considered her for two uniform SSR slots, which generally require less heavy lifting, but instead hired two men without any sales or service experience for those slots. A-591-92. Despite Davis' evidence of pretext, the district court granted summary judgment to Cintas on her individual claims. A-673-90 (Order Granting Defendant's Motion for Summary Judgment Against Plaintiff Tanesha Davis). At the outset, the district court stated it was declining to rule on Cintas' argument that Davis failed to comply with the administrative prerequisites of Title VII.<5> A-680 n.3. It then held that Davis concededly made out a prima facie case of hiring discrimination under a disparate treatment theory, and that Cintas proffered a legitimate explanation: "that Ms. Davis was simply 'not the best qualified' candidate." A-681. At this stage of the summary judgment proceedings, the court stated, "it is not sufficient for Ms. Davis to simply allege fact questions regarding the pretextual nature of Cintas' actions." A-682. Rather, a plaintiff must show "both that the reason was false, and that discrimination . . . was the real reason." Id. (internal quotations omitted). Looking at both the 2003 and 2004 decisions not to hire Davis, the court held that "[e]ven accepting Ms. Davis' arguments that Ms. Richards' finding of 'Not Best Qualified' with respect to Ms. Davis' application was a pretext, Ms. Davis has offered no evidence whatsoever that her application was rejected on reasons which were a pretext for gender discrimination." A-684 (emphasis in original); see also A-686 (same with regard to 2004 decision). The district court also apparently found significant that, in 2003, "not only had Ms. Davis pursued employment with other optical companies, but she had already accepted a full-time position with PearleVision, starting the week following her interview with Cintas." A-683 (emphasis in original). ARGUMENT I. The district court abused its discretion in denying class certification where it erroneously viewed the case as consisting of myriad individual claims, rather than understanding that the class sought to challenge one system of allegedly discriminatory hiring. The district court denied class certification largely on the ground that "[e]ach putative class member's claim of discrimination would require an individualized and fact-intensive inquiry." A-665 (Order Denying Plaintiffs' Motions for Class Certification at 13). The district court believed any class would consist of multiple individual claimants, each seeking to put forward "prima facie cases of discrimination." A-670. The court supposed that the case would proceed under the McDonnell Douglas model for individual cases, and that Cintas accordingly would seek "to rebut the cases with unique defenses by demonstrating that there were legitimate, nondiscriminatory reasons for the non-hirings." Id. The court's ruling reflects a fundamental misunderstanding of the model for class actions and pattern-or-practice claims set out in Franks v. Bowman Transportation Co., 424 U.S. 747, 772 (1975), and explained in more detail in International Brotherhood of Teamsters v. U.S., 431 U.S. 324, 359-62 (1977). Under that model, the issue is not what would be required to prove myriad individual claims, as the district court erroneously believed. The issue, at the liability stage, is the proof of one claim - the claim that Cintas engaged in a pattern or practice of gender discrimination. See Franks, 424 U.S. at 772 (plaintiffs carried burden "by demonstrating the existence of a discriminatory hiring pattern and practice by the [defendants]"). As the Supreme Court has stressed, "[t]he point is that at the liability stage of a pattern-or-practice trial the focus often will not be on individual hiring decisions, but on a pattern of discriminatory decisionmaking." Teamsters, 431 U.S. at 360 n.46. While such "a pattern might be demonstrated by examining the discrete decisions of which it is composed," a pattern-or-practice case "more commonly involve[s] proof of the expected result of a regularly followed discriminatory policy." Id. (emphasis added). The plaintiffs in this case identified and put forward evidence to prove Cintas had a system of conferring on overwhelmingly male facility-level managers the subjective and discretionary authority to hire SSRs, and that this system discriminated against female SSR applicants. Cf. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 988-91 (1999) (noting that hiring decisions based on subjective criteria may be challenged under disparate treatment theory and holding that they likewise may be challenged in a class action disparate impact case). The plaintiffs produced evidence and argued that managers had considerable discretion to make largely unconstrained decisions, and that they exercised that discretion to hire individuals who did not possess Cintas' "preferred" qualifications. A-226-30 (Memo. In Support of Class Cert.). The plaintiffs produced anecdotal evidence that top Cintas management viewed the SSR position as a man's job, and that this attitude percolated down to ground-level interviewers. A-230-33. Finally, and most significantly, plaintiffs produced powerful statistical evidence. The statistics indicated that Cintas predominantly hired men as SSRs. In 2001, for example, 96.2 percent of the hires were men; in 2002, 95.4 percent were men; and in 2003, 92.2 percent were men. A-824 (Killingsworth Report). The plaintiffs' expert compared the number of female hires in Cintas Rental Division locations to local availability of women, and found that virtually all locations underhired women in the years from 1999 to 2004, and a significant majority did so thereafter. A-780. (DiPrete Report). The expert found that the deviations from hiring under a gender- neutral system were as high as 17.43 standard deviations in 2004, 16.52 standard deviations in 2003, and 11.04 standard deviations in 2002. A-781. Despite plaintiffs' evidence, the district court denied certification, largely because it fundamentally misunderstood what a plaintiff must prove at the liability stage of a class action, pattern-or-practice case. The district court's focus on "thousands of managers at hundreds of Cintas locations making highly individualized decisions," A-669, is wholly misplaced in a class, pattern-or- practice case. Indeed, as the Supreme Court repeatedly has explained, there is a "crucial difference" between individual and class claims: "[t]he inquiry regarding an individual's claim is the reason for a particular employment decision, while 'at the liability stage of a pattern-or-practice trial the focus often will not be on individual hiring decisions, but on a pattern of discriminatory decisionmaking.'" Cooper v. Fed'l Reserve Bank of Richmond, 467 U.S. 867, 876 n.9 (1984) (quoting Teamsters, 431 U.S. at 360 n.46); cf. Teamsters, 431 U.S. at 342 n.24 (employer's proffered legitimate reasons for "'making individual selections are insufficient to dispel a prima facie case of systemic exclusion'") (citation omitted); see also Franks, 424 U.S. at 772; Teamsters, 431 U.S. at 358-60 & n.46; EEOC v. Joe's Stone Crab, Inc., 220 F.3d 1263, 1287 (11th Cir. 2000) ("in determining pattern or practice liability, the [plaintiff] is not required to prove that any particular employee was a victim of a pattern or practice; it need only establish a prima facie case that such a policy existed"). Compounding this error, the court made other rulings at odds with long- settled precedent. At the outset, the court held that because the hiring process was not entirely subjective, but contained objective components, it could not support a finding of a general policy of discrimination. A-660. It is true that Cintas' subjective hiring process contained some minimal objective requirements, such as having a driver's license. Some small objective component within a larger, subjective system does not take away from the subjective nature of Cintas' hiring process. As the Supreme Court held in Watson, "[h]owever one might distinguish 'subjective' from 'objective' criteria, it is apparent that selection systems that combine both types would generally have to be considered subjective in nature." Watson, 487 U.S. at 989; id. at 990 (if employer prefers applicants with high school diplomas, its selection system nonetheless cold be "considered 'subjective' if it also included brief interviews with the candidates"). The district court erred by disregarding plaintiffs' statistical evidence on the ground that it found Cintas' expert more persuasive, that locations that under-hired women over-hired minorities, and that hiring patterns fluctuated from year-to-year and location to location. A-662-63. The district court's cursory statement about the relative persuasiveness of the statistical experts, A-662, does nothing to explain why it essentially ignored the evidence of yearly underhiring of women. Cf. Teamsters, 431 U.S. at 339 n.20 (statistics probative in case such as this one because an "imbalance is often a telltale sign of purposeful discrimination. . . . 'In many cases the only available avenue of proof is the use of racial statistics to uncover clandestine and covert discrimination by the employer.'") (citation omitted). The fact that some locations may have "over-hired" minorities is irrelevant to a claim of gender discrimination. See Jefferies v. Harris County Cmty. Action Ass'n, 615 F.2d 1025, 1032 (5th Cir 1980) ("Title VII provides a remedy against employment discrimination on the basis of an employee's 'race, color, religion, sex, or national origin.' 42 U.S.C. § 2000e-2(a). The use of the word 'or' evidences Congress' intent to prohibit employment discrimination based on any or all of the listed characteristics."). As to the variations in statistics between locations and years, plaintiffs' evidence revealed that while there were variations, in every year the underhiring was at a statistically-significant level (ranging from 3.77 to 17.43 standard deviations), and was present at the vast majority of locations. A-781 (DiPrete Report). With little explanation from the court for its rejection of plaintiffs' statistics, it appears that, at bottom, the district court reached out to make a merits- based ruling in favor of Cintas. The district court overstepped the proper role of a court in reviewing a motion for class certification. While "the class determination generally involves considerations that are enmeshed in the factual and legal issue comprising the plaintiffs' cause of action," Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160 (1982) (internal citations omitted), the Supreme Court found "nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action." Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 176 (1974); cf. Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571, 590 (9th Cir. 2010) (en banc) (while district court must make some findings to determine whether Rule 23's requirements are met, it should focus on the common questions for resolution, not on proof of answers to those questions or likelihood of success on the merits). Indeed, as the Dukes court explained, because plaintiffs' statistical evidence is the core of a plaintiffs' merits case in a pattern-or-practice case, "disputes over whose statistics are more persuasive are often not disputes about whether the plaintiffs raise common issues or questions, but are really arguments going to proof of the merits." Id. at 591. The court accordingly erred by summarily dismissing plaintiffs' statistical evidence. The district court repeatedly expressed its concern that plaintiffs challenged an allegedly discriminatory hiring system that extended across many Cintas locations, and involved many different hiring officials. A-660, A-662, A-665, A- 670. It is unclear why the multiplicity of venues for application of Cintas' allegedly discriminatory hiring system should negate the arguments for class certification. There was evidence that Cintas maintained a practice of allowing managers to use subjective criteria to make hiring decisions, that this practice co- existed with a culture in which the SSR position was considered a man's job, and that the net result was a pattern of statistically significant under-hiring of women in virtually all Cintas locations. Cf. Dukes, 603 F.3d at 603 n.23 ("the court and many others have held that 'delegation to supervisors, pursuant to company-wide policies, of discretionary authority without sufficient oversight . . . gives rise to common questions of fact warranting certification of the proposed class'") (quoting Caridad v. Metro-N. Commuter R.R., 191 F.3d 283, 291 (2d Cir. 1999), overruled on other grounds by In re IPO, 471 F.3d 24, 39-42 (2d Cir. 2006)); see also Staton v. Boeing Co., 327 F.3d 938, 955-56 (9th Cir. 2003); Shipes v. Trinity Indus., 987 F.2d 311, 316 (5th Cir. 1993); Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1557 (11th Cir. 1986). As discussed above, the fact that certain individual decisions in certain locations may not have been discriminatory does not affect the liability determination in a pattern-or-practice case, but simply would go to an individual's entitlement to relief at Stage 2 of proceedings. For this reason, courts have not hesitated to certify a class where a company policy leads to discrimination in multiple locations. See, e.g., Dukes, 603 F.3d at 578 (putative class involves women employees at 3,400 stores in 41 regions); Robinson v. Metro-N. Commuter R.R., 267 F.3d 147, 155 (2d Cir. 2001) (class certified where there was company- wide policy of delegating discretionary authority related to discipline and promotions, involving 220 different occupations spread over 37 departments); Shipes, 987 F.2d at 316 (class properly certified where different plants "utilized the same subjective criteria in making personnel decisions" and "white supervisors at both plants applied the subjective criteria"). Nor has the Supreme Court itself hesitated to allow a pattern-or-practice claim where one practice affects hiring decisions across many locations. See Teamsters, 431 U.S. at 329 n.2 (defendant company "currently has 51 terminals and operates in 26 States and three Canadian Provinces"); id. at 329 (noting Government complaint "charging a pattern or practice of employment discrimination . . . throughout the company's transportation system").<6> Finally, the district court erroneously believed that the claim for back pay and front pay meant that damages claims would predominate over declaratory and injunctive relief, making this case inappropriate for certification under Rule 23(b)(2). A-669. As many courts have held, "a request for back pay in a Title VII case is fully compatible with the certification of a Rule 23(b)(2) class." Dukes, 603 F.3d at 618 (citing, inter alia, Allison v. Citgo Petroleum Corp., 151 F.3d 402, 415 (5th Cir. 1998); Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311, 331 (4th Cir. 2006); Cooper v. Southern Co., 390 F.3d 695, 720 (11th Cir. 2004)) . Indeed, Sixth Circuit precedents explicitly recognize "that back pay is a permissible remedy in a Rule 23(b)(2) class." Coleman v. Gen. Motors Acceptance Corp., 296 F.3d 443, 449 (6th Cir. 2002) (citing Alexander v. Aero Lodge No. 735, 565 F.2d 1364, 1372 (6th Cir. 1977) (Title VII case). The district court did not explain how it squared its ruling with that of Coleman, where this Court explained that Title VII back pay is "qualitatively different" from compensatory damage claims under the Equal Credit Opportunity Act, for back pay "generally involves less complicated factual determinations and fewer individualized issues." Coleman, 296 F.3d at 449; see also Thorn, 445 F.3d at 331-32 (Title VII back pay awards do not predominate over injunctive remedies because of uncomplicated nature of award). Even more important, the Coleman court stressed, is that "as an equitable remedy, back pay does not involve the more significant issues of procedural fairness and constitutionality." Id. at 450 (citing Allison, 151 F.3d at 415). Finally, "back pay is 'an integral component of Title VII's "make whole" remedial scheme . . . , a scheme to which the drafters of the Federal Rules . . . clearly intended Rule 23(b)(2) to apply." Dukes, 603 F.3d at 619 (citing Fed. R. Civ. P. 23(b)(2) advisory committee's note to 1966 amend.). The district court accordingly erred in denying class certification. II. The district court erred in rejecting the individual discrimination claim where it required the plaintiff, on summary judgment, to meet a "pretext-plus" standard. Cintas' proffered explanation for failing to hire Davis in 2003 was that she was not the best qualified, that she expressed concern about selling overpriced merchandise, and that she wished to keep a part-time job. Its explanation for failing to hire her in 2004 was that she expressed concern about the weather and Presendofer's stated questions about her efficiency. Davis produced evidence that Cintas' explanations were false. In particular, she produced evidence that Richards declined to advance her to the ePredix test in 2003 despite her strong sales and service, and that Richards' expressed concerns about Davis were not applied to eliminate men from consideration for the SSR job, as they were for her. Davis likewise produced evidence that, in 2004, Lombardo eliminated Davis from consideration for the SSR job based on factors he did not apply to men. The district court effectively acknowledged that Davis had produced evidence of pretext when it stated Davis created a fact issue "regarding the pretextual nature of Cintas' decision not to hire her." A-684 (Order Granting Defendant's Motion for Summary Judgment Against Plaintiff Tanesha Davis at 12). The court went on to require something more of Davis, however. According to the court, showing the employer's explanations are false is not enough to defeat summary judgment. The court stated that "entirely devoid from the record . . . is any indication that Cintas' decision was a pretext for gender discrimination." A- 684 (emphasis in original). The court's acknowledgment that Davis had produced evidence of pretext at the summary judgment stage should have ended the court's inquiry and allowed the trier of fact to decide the ultimate question of discrimination. The court's failure to do so, and its requirement that Davis produce something more, comprised reversible error. The district court failed to understand the fundamental lesson explained in detail by the Supreme Court in St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993), and reiterated in Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000), and Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), that evidence that the defendant's proffered reason for its challenged decision is not the real reason for its actions - in other words, evidence that the defendant is dishonest or is covering up the basis for its actions - may be powerful evidence of discrimination. That evidence alone, along with the prima facie case Cintas conceded Davis established, is sufficient to support a discrimination finding and so is sufficient evidence to withstand a motion for summary judgment. In St. Mary's Honor Center, 509 U.S. at 511, the Court held that the "factfinder's disbelief of the reasons put forward by the defendant . . . may, together with the elements of the prima facie case, suffice to show intentional discrimination." See also id. ("rejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination"); id. at 511 n.4 ("rejection of the defendant's proffered reasons is enough at law to sustain a finding of discrimination"). To be sure, as the Court stressed, the "ultimate question" in the case is not whether the employer lied, but whether the employer intentionally discriminated. Id. A finder of fact may infer intentional discrimination from rejection of the defendant's proffered reasons, but it need not do so. But that "ultimate question" is for the finder of fact, not for the district court on summary judgment, as the Supreme Court repeatedly made apparent. See id. at 507 (defendant must set forth reasons "which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause"); id. at 511 ("trier of fact" must decide ultimate question of discrimination, and may do so based on disbelief of employer's proffered reasons); id. at 519 ("factfinder" must decide whether disbelief of employer's explanation means the real reason was intentional discrimination). If any questions remained as to whether a plaintiff who puts forward a prima facie case and evidence that the employer's explanations are false has adduced enough evidence to sustain a discrimination finding, Reeves put those questions to rest. In Reeves, the Court reiterated that it is permissible "for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation." Reeves, 530 U.S. at 147. The Court elaborated that proof that the employer's explanation is unworthy of credence is "one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive," for the trier of fact may infer "from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose." Id. There was nothing unique about the Court's holding, it stressed, for "[s]uch an inference is consistent with the general principle of evidence law that the factfinder is entitled to consider a party's dishonesty about a material fact as 'affirmative evidence of guilt.'" Id. (quoting Wright v. West, 505 U.S. 277, 296 (1992)); see also Desert Palace, 539 U.S. at 99-100 (evidence that employer's explanation is unworthy of credence is one form of circumstantial evidence probative of intentional discrimination, and "'[c]ircumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence'") (quoting Rogers v. Missouri Pac. R. Co., 352 U.S. 500, 508 n.17 (1957)). In Chen v. Dow Chemical Co., 580 F.3d 394 (6th Cir. 2009), this Court addressed head-on the issue of what evidence a plaintiff must produce to survive summary judgment. The answer, according to the Court, is that "[t]o carry her burden in opposing summary judgment, Chen must produce sufficient evidence from which a jury could reasonably reject Dow's explanation of why it fired her." Id. at 400. No additional evidence is required, for "[a]t the summary judgment stage, the issue is whether the plaintiff has produced evidence from which a jury could reasonably doubt the employer's explanation." Id. at 400 n.4 (emphasis added); cf. Kline v. Tenn. Valley Auth., 128 F.3d 337, 347 (6th Cir. 1997) (once a plaintiff "has disproved the reasons offered by the defendant, the factfinder is permitted to infer discrimination" and a plaintiff need not "introduce additional evidence of discrimination to prevail on the merits").<8> Disregarding all of these authorities, the district court here usurped the role of the jury when it took for itself the task of deciding whether the evidence of pretext was evidence of intentional discrimination. It is true that there may be some cases in which evidence that the employer's explanation is false nevertheless is not sufficient to withstand summary judgment. See Reeves, 530 U.S. at 148 (even where plaintiff set forth sufficient evidence to reject defendant's explanation, employer still would be entitled to judgment "if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision"). The district court did not state that the record "conclusively" indicated some other, legitimate reason for Cintas' decisions, nor does it. Rather, in decrying the lack of "any indication" that Cintas' proffered explanations were a pretext for discrimination, the district court apparently believed Davis had to produce additional evidence linking Cintas' decisions to gender discrimination; in other words, the court required a showing of "pretext plus." Such a requirement is flatly inconsistent with controlling Supreme Court precedent, as it is with precedent from this Court setting out the plaintiff's burden of showing pretext at the summary judgment stage. Even if some additional evidence tending to support an inference of discrimination were necessary, Davis did produce additional evidence. Along with the evidence of falsity, she produced evidence of a backdrop in which women were simply not hired in statistically significant numbers. Specifically, Davis produced evidence that Cintas hired no women as SSRs from 1999 until mid-2003, and then hired one in 2003 and another in late 2004 - making 78 of its 80 SSR hires during that time period male. Davis produced evidence that the low rate of female hires, when contrasted with female availability, was statistically significant. While generalized evidence of hiring patterns is not controlling as to the individual decisions not to hire Davis, such evidence "may be relevant to any showing of pretext." McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804-05 (1973) (statistics "may be helpful" in determining whether specific employment practice challenged was consistent with employer's overall practice); see also Scales v. J.C. Bradford & Co., 925 F.2d 901, 906 (6th Cir. 1991) ("It is well-settled that information concerning an employer's general employment practices is relevant even to a Title VII individual disparate treatment claim."); Barnes v. GenCorp Inc., 896 F.2d 1457, 1466 (6th Cir. 1990) (statistical evidence of pattern of discrimination may be used to rebut employer's articulated reason).<9> In sum, the plaintiff produced sufficient evidence to defeat summary judgment and the district court erred in holding to the contrary. CONCLUSION We urge this Court to reverse the judgment of the district court and remand the case for further proceedings. Respectfully submitted, P. DAVID LOPEZ General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel s/ Jennifer S. Goldstein JENNIFER S. GOLDSTEIN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION CERTIFICATE OF COMPLIANCE I hereby certify that the attached opening brief is proportionally spaced, has a typeface of 14 points, and contains 6,671 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). s/ Jennifer S. Goldstein CERTIFICATE OF SERVICE I hereby certify that on October 27, 2010, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Sixth Circuit by using the appellate CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by e-mail sent by the appellate CM/ECF system. s/ Jennifer S. Goldstein *********************************************************************** <> <1> The EEOC also intervened in this case to challenge Cintas' alleged systemic discrimination. R.168 (EEOC Complaint in Intervention in No. 04-CV-281 (N.D. Cal.)). The EEOC did not file any briefs on the class certification issue and, after the district court denied certification, the EEOC did not file a brief on the remaining issues because its intervention was premised on the class claim, not the individual claims. <2> The Commission takes no position on any other issue raised in this appeal. <3> "R.*" refers to the docket entry number in case No. 04-CV-281 (N.D. Cal.). "A- *" refers to the page number in Appellant's Appendix. <4> The next three SSRs hired after Cintas screened out Davis lacked route sales experience. Davis pointed out that Damian Vertz had worked as a partsman and Andrew Hansen had six months sales experience as a car rental management trainee. A-586. Davis noted that the third, Tim Koelbl, had worked for four to five months in cemetery sales. Id. He did do some route sales with Serv-Ice, but only part-time, over the summer while he was in school. Id. <5> Cintas had argued that Davis' failure to file an EEOC charge barred her from pursuing her Title VII claims, even though Avalos had filed a charge alleging discrimination against a class of female applicants. A-539-40 (Cintas Motion for Summary Judgment). Cintas contended that, notwithstanding the single-filing rule, Davis could rely on Avalos' charge only as long as Avalos' claim was pending because the "tolling" period would end with the end of Avalos' individual claim. Id. Because the district court declined to rule on the issue, the EEOC will not address it here. If Cintas were to raise the issue again, however, the EEOC would seek to file a reply brief because Cintas' argument reflects a serious misunderstanding of the single-filing rule, which is not a "tolling" rule at all. The single-filing rule is a rule of vicarious exhaustion of administrative requirements. <6> Rule 23 is not at issue in Government actions because the Government need not satisfy the requirements of Rule 23 in order to seek relief on behalf of a class of individuals. See Gen. Tel. Co. of Nw. v. EEOC, 446 U.S. 318, 324, 327-28 & n.9 (1980). <7> The Allison, Thorn, and Cooper courts ultimately affirmed the denial of class certification on other grounds. <8> The Seventh Circuit likewise has highlighted the distinction between what a plaintiff must prove at trial in order to prevail in a discrimination case, and what a plaintiff must produce at the summary judgment stage. In Forrester v. Rauland- Borg Corp., 453 F.3d 416 (7th Cir. 2006), the court observed that even if the employer's stated reason for an employment action "is not the true ground, the employer may still be innocent of discrimination . . . [b]ut the case could not be resolved on summary judgment, because a trier of fact (judge or jury) would be entitled to infer a discriminatory motive from the pretextual character of the employer's ground." Id. at 417. <9> The district court's emphasis on Davis' subsequent Pearle Vision job suggests that the court believed it somehow significant to the pretext issue. Even if it were true that Davis already had decided to move to Pearle Vision at the time of her Cintas interview but concealed her intentions from Richards, such after-acquired evidence could not possibly have motivated Richards' decision not to advance Davis to the next stage in the interview process. See McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352 (1995). The after-acquired evidence thus is not relevant to liability for intentional discrimination, though it may be relevant to the plaintiff's relief. See id.