No. 08-4638 ____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ____________________________________________ Paulina DeMarco, Plaintiff-Appellant, v. Stony Brook Clinical Practice Management Plan and Research Foundation of the State University of New York, Defendants-Appellees. _______________________________________________________ On Appeal from the United States District Court for the Eastern District of New York _______________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE _______________________________________________________ RONALD S. COOPER General Counsel CAROLYN L. WHEELER Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel PAUL D. RAMSHAW Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel Room 5SW18K 131 M St., N.E. Washington, DC 20507 (202) 663-4737 Paul.Ramshaw@eeoc.gov TABLE OF CONTENTS TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . ii TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . iii STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . 2 A. Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . 2 B. District Court's Decision. . . . . . . . . . . . . . . . . . . . . 11 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . 13 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 I. DEMARCO WAS NOT REQUIRED TO REFUTE THE DEFENDANTS' REASON FOR NOT HIRING HER IN ORDER TO ESTABLISH A PRIMA FACIE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . 15 II. THE DISTRICT COURT ERRED IN RULING THAT THERE IS INSUFFICIENT EVIDENCE OF PRETEXT. . . . . . . . . . . . . . . . . . 16 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 CERTIFICATE OF COMPLIANCE WITH FED. R. APP. P. 32. . . . . . . . . 23 VIRUS-CHECK CERTIFICATE. . . . . . . . . . . . . . . . . . . . . 24 CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . 25 TABLE OF AUTHORITIES CASES Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974). . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Back v. Hastings on Hudson Union Free School District, 365 F.3d 107 (2d Cir. 2004). . . . . . . . . . . . . . . . . . . . 18-19 Howell v. New Haven Board of Education, No. 02-736, 2005 Westlaw 2179582 (D. Conn. Sept. 8, 2005). . . . . . . 20 Miller v. Eby Realty Group LLC, 396 F.3d 1105 (10th Cir. 2005). . . . . . . . . . . . . . . . . . . . 21 Moorer v. Baptist Memorial Health Care System, 398 F.3d 469 (6th Cir. 2005). . . . . . . . . . . . . . . . . . . . . 20 Owens v. New York City Housing Authority, 934 F.2d 405 (2d Cir. 1991). . . . . . . . . . . . . . . . . . . . 15-16 Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). . . . . . . . . . . . . . . . . . . . . . . . 21 Sista v. CDC Ixis, Inc., 445 F.3d 161 (2d Cir. 2006). . . . . . . . . . . . . . . . . . . . . 15 U.S. v. Quattrone, 441 F.3d 153 (2d Cir. 2006). . . . . . . . . . . . . . . . . . . . . 17 STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency established by Congress to interpret, administer, and enforce Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and other federal laws prohibiting employment discrimination. Private actions filed under Title VII provide the Commission with essential assistance in combating employment discrimination. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 45 (1974). In granting the defendants' motion for summary judgment and dismissing this private action, the district court ruled that the plaintiff failed to establish a prima facie case of pregnancy discrimination because there is insufficient evidence that she was "qualified" for the job in question - even though there was ample evidence that she possessed the basic qualifications to perform the duties of the job. The district court ruled, in the alternative, that the evidence is insufficient to support a finding that the defendants' explanation for withdrawing the offer of employment is pretextual. As explained infra, the Commission believes that the district court applied an erroneous standard in assessing the sufficiency of the plaintiff's prima facie case and failed to view the evidence in the light most favorable to the plaintiff. We believe that the evidence, viewed properly, establishes a prima facie case and would allow a reasonable jury to find pretext. Accordingly, we offer our views to the Court. STATEMENT OF THE ISSUES 1. Whether the district court erred in requiring DeMarco to refute the defendants' reason for not hiring her in order to establish a prima facie case of discrimination. 2. Whether the district court erred in ruling that there is not sufficient evidence to support a finding that defendants' explanation for their actions is pretextual. STATEMENT OF THE CASE A. Statement of Facts Pauline DeMarco worked for twelve years for different hospitals and medical practices as a clerk, an office manager, a clinical reimbursement manager, and a managed-care "CDM manager" (in charge of the codes used for diagnoses, services and billing). Joint Appendix ("JA") 1670-71. In November 2004, DeMarco sent a résumé to Stony Brook Clinical Practice Management Plan ("CPMP"), asking to be considered for an open Junior Data Analyst position. JA 1669-71. The résumé included a section titled "Experience Summary," which accurately and comprehensively listed her experience in the medical field. JA 1670-71. In January 2005 she was interviewed by Joan Gossner and Robert Teriaco of CPMP. JA 2104. She also filled out an employment application form that required her to detail her employment history, including any job that lasted longer than a month. JA 1068-69. CPMP ranked DeMarco as the second-most- qualified applicant and hired the person they considered the most qualified. JA 1636, 2053. On April 11, 2005, DeMarco took a job at the Gersh Academy, a private primary school, as assistant to the president, Kevin Gersh, performing clerical and administrative duties. JA 2105. According to DeMarco, Gersh subjected her to severe sexual harassment. He made sexual advances, sent her pornographic pictures, and told her about his sexual exploits. JA 2105. DeMarco resigned her position at the Gersh Academy on August 23, 2005, because of the harassment. JA 2105-06. In about June 2005, CPMP needed to hire a data analyst, a position that required a bachelor's degree. After encountering difficulty finding a suitable candidate, CPMP modified the requirements for the position to allow six years of relevant experience to substitute for the degree. JA 691, 1570 (¶ 3), 1677. Gossner, who had interviewed DeMarco in January, told Mary Bergan, CPMP's Manager of Human Resources, that DeMarco might be a good candidate. JA 689- 90. Bergan telephoned DeMarco and advised her to watch the web for the posting of the opening. JA 692. On July 21, 2005, after the opening was posted, DeMarco called Bergan, and Bergan invited her to apply for the position and asked her to send in a résumé. JA 2106. That same day DeMarco faxed Bergan a résumé that was almost the same as the one she had provided in November, but now noted that her employment with Mather Memorial Hospital, the most recent position listed, had ended in April. JA 1679-81, 2106. The résumé's "Experience Summary" did not include her then-current employment at Gersh Academy. JA 1680-81. At no time during the selection process for this job did the defendants ask DeMarco to complete an employment application like the one they had required her to submit in January. JA 2106-07 (¶ 11). CPMP had a six-person search committee. Laura Armandi, CPMP's Assistant Director of Financial Affairs, was the chair, and Gossner and Bergan were members. JA 1637-38. The search committee reviewed DeMarco's résumé and decided to interview her. JA 692-93, 696-97, 1638-39 (¶ 25). DeMarco testified that in this interview on August 29, 2005, she did not lie, and she answered truthfully all the questions asked her. JA 2107 (¶ 13). According to DeMarco, the interviewers asked her why she had left Mather Hospital, and she responded truthfully that she left that job because the hospital required her to work overtime and on the weekends, and this left her with insufficient time to study for the college classes she was taking to earn a bachelor's degree. JA 165, 1638 (¶ 22). DeMarco testified that they also asked her whether she was working at the time of the interview, and she answered honestly that she was not. JA 163-64. According to DeMarco, none of the interviewers asked her what she had been doing since leaving Mather. JA 163, 168, 2107 (¶ 12). DeMarco testified that she had decided to avoid mentioning her employment at Gersh Academy, if possible, for several reasons: she believed that the Gersh Academy position was not relevant to her qualifications for the data analyst position; she feared that Gersh would give her a bad reference because she had resisted his sexual advances; she was very uncomfortable discussing the sexual harassment; and she feared that CPMP would learn that she was pregnant and would reject her application for that reason. JA 165, 181, 185, 190-93. Armandi and Bergan testified that DeMarco was asked questions during the August 29 interview about why she had left Mather in April and what she had been doing since then, and she answered that she had been devoting herself to her studies and failed to disclose her Gersh Academy position. JA 699, 1638 (¶ 22), 1805-06 (¶ 11). Armandi also testified that the search committee explicitly asked DeMarco whether she had been employed since leaving Mather, and she replied that she had not been employed since then. JA 1806 (¶ 13). The other members of the committee did not testify or provide affidavits regarding the interview. Armandi believed at the time that DeMarco "handled the interview well," had "a positive attitude, and seems to be a good fit for our organization." JA 1579, 1817. The search committee recommended that DeMarco should proceed to "the next step in the [hiring] process." JA 1579. The next step was an interview on September 14 with the two CPMP managers who would be supervising DeMarco: Teriaco, who had interviewed her in January, and Darren Mikalsen. JA 1570-71. DeMarco testified once again that she did not lie during this interview, and that neither Teriaco nor Mikalsen asked her whether she had held any jobs since leaving Mather. JA 171-72, 2107 (¶ 14). She testified that, when Teriaco or Mikalsen asked her if she was doing anything currently, she responded, "I'm doing miscellaneous stuff, and I'm looking for [a] more full-time, steady position." JA 171.<1> At the end of the interview, Teriaco believed she would be a "good fit," and offered her the job. JA 1572, 2055 (Teriaco 9-15-05 email stating: "Darren and I met with Paulina and have extended her an offer. . . . [We] feel that she will be a good fit and help us with our needs."). Teriaco and Mikalsen told DeMarco they wanted her to start immediately, but that CPMP's human resources office had to process the paperwork first. JA 175-76. They had DeMarco list her references and arranged a start date of October 3. JA 1572-73, 2607. They agreed to her salary demand, discussed her benefit package, showed her where she would work, and gave her advice on parking. JA 782-83, 1572, 2109 (¶ 16). On September 14, after the interview, Teriaco asked Bergan to process the paperwork for hiring DeMarco, and Bergan requested that the paperwork be processed on an expedited basis. JA 1572, 1687. DeMarco's appointment package was approved by the Equal Employment Opportunity Committee of the Stony Brook campus of the State University of New York ("SUNY") on September 20. JA 1686. Mikalsen testified that he called DeMarco's references on September 21 and that he typed up his notes of those calls within minutes of making the calls, or at the latest by September 23. JA 877, 882. Bergan testified that Mikalsen brought those notes to her on the 22nd, and they discussed them. JA 721. However, the electronic document that Mikalsen identified as the notes that he typed up on September 21, and that Bergan identified as the document she saw on the 22nd, indicates that the document was not created until October 24. JA 2051. Mikalsen testified that he talked with two of DeMarco's references, but the third person did not return his call. JA 1617. According to Mikalsen's notes, Margaret McVay did not remember DeMarco at first, but then did remember her and stated that DeMarco was "a good employee," was "good under pressure," and "handled all of her responsibilities well." JA 2103. McVay also stated that she would rehire DeMarco. JA 2103. The other reference with whom Mikalsen spoke was Sherry Elliot. According to Mikalsen's notes, Elliott said that DeMarco "maintained [the] charge master well," but had an "absenteeism problem." JA 2103. When asked if she would rehire DeMarco, Mikalsen's notes indicate that she replied, "I guess so." JA 2103. However, Elliot testified that, while she does not recall all the details of this conversation, she remembers that the conversation took place, and she believes that Mikalsen's notes do not accurately report her statements. JA 2100-01. Elliot testified that her consistent personal practice when contacted for a reference is that she speaks with the caller only if her reference will be positive. If her comments would be negative, she says nothing about the applicant and instead refers the caller to the hospital's human resources office. JA 2100. Accordingly, Elliot believes she gave DeMarco a positive reference, did not state that DeMarco had a "problem" with attendance, and answered "Yes" rather than "I guess so" when asked whether she would rehire her. JA 2100-01. Bergan testified that when Mikalsen told her about the results of his reference checks, he told her "that one reference was from someone who barely remembered her, another cited some attendance problems . . . , and the third reference never returned [his] call." JA 716, 1640. According to Bergan, because of these poor references, Bergan contacted the SUNY EEO committee and asked them to stop processing DeMarco's appointment package pending further reference checks. JA 1640. On September 20, 2005, DeMarco filed a charge of discrimination with the EEOC alleging sexual harassment, pregnancy discrimination, and retaliation by the Gersh Academy. JA 2108. On September 21, she participated in a press conference announcing her charge. JA 178, 2108. On September 22, DeMarco called Mikalsen and told him about her employment at the academy, the sexual harassment, her plan to sue the academy, and her pregnancy. JA 178-79, 2103, 2108-09. Bergan and Teriaco testified that when they learned of DeMarco's phone call on September 22, they decided that CPMP should not hire DeMarco. JA 717, 796-97, 1574-75. They testified that they believed that DeMarco lied to them during the interview, and, for that reason, she could not be trusted with access to the confidential information in CPMP's files. JA 717, 1574-75. On September 27, Bergan sought advice from Paul Kelly, the Assistant Vice President for Human Resources at the Research Foundation of the State University of New York ("Research Foundation").<2> JA 720-21, 1641-42, 2061-62. In responding to Bergan's request for advice, Kelly suggested three options she should consider. JA 726. The first option was to hire DeMarco, but then "when she goes out on FMLA, don't hire her back." JA 726, 1703. Shortly after that conversation, Kelly sent an email to Barbara Pell, Manager of Employee Relations at the Research Foundation, asking Pell to handle the situation. JA 2061-62. In that email he summarized what Bergan had told him, including that when DeMarco was asked "what she was doing [after she left Mather], she told them that she was going to school and miscellaneous jobs." JA 2061. He also stated that CPMP had changed its mind about hiring DeMarco because "[t]hey have now learned that the candidate misrepresented their [sic] employment history on her application and in the interview"; and "a couple of [DeMarco's] reference[s] called said she had an attendance problem." JA 2061. On about October 3, Bergan spoke with Pell about the DeMarco situation. JA 435, 727-28, 1642-43. Like Kelly's email, Pell's notes of that conversation indicate that Bergan said: "When asked what she was doing [after leaving Mather], she [DeMarco] claimed she was going to school and working miscellaneous jobs." JA 435, 2737. Nobody connected with the defendants contacted DeMarco to tell her that they had changed their minds about hiring her. JA 735-36, 2109. When she contacted them in early October, they told her only that they had decided not to hire her because she was not a good fit. JA 2109-10. B. District Court's Decision The district court ruled that DeMarco failed to establish a prima facie case of pregnancy discrimination because she failed to establish that she was qualified for the data analyst position. JA 2375-81. The court noted that CPMP believes that their data analysts must be trustworthy because they have access to sensitive and confidential information. The court concluded that DeMarco failed to offer evidence on the basis of which a jury could find that she met this requirement. First, while CPMP's witnesses testified that DeMarco lied during her interviews, DeMarco, according to the court, failed to offer any evidence showing that she did not lie during the first interview. JA 2377 & n.5. DeMarco testified that she was not asked what she had been doing since April, but that testimony, according to the court, does not negate the possibility that she told the interviewers - without having been asked - that she had not been employed since leaving Mather. JA 2377 n.5. The court acknowledged that DeMarco stated in her affidavit that she was not dishonest during the September 14 interview, but that testimony, the court ruled, was not incompatible with her having lied during the August 29 interview. JA 2377 n.5. Second, the court reasoned that, even if DeMarco did not lie, she at least "deliberately withheld her recent employment history from CPMP," and "her conduct rendered her unqualified for the position she sought even if she did not affirmatively lie to CPMP about the subject." JA 2377-78. "Literally truthful statements can be seriously misleading," the court reasoned, "especially when they are combined with material omissions. Prospective employers can refuse to hire applicants who engage in such conduct during their interviews." JA 2378. On this evidence, the court ruled, "[n]o rational[ ] juror could fail to conclude . . . that she intentionally misled CPMP." JA 2378. According to the court, CPMP "found that her lack of trustworthiness disqualified her from the position," and "a jury could not rationally find otherwise." JA 2379-80. The court concluded: "Because the job required trustworthiness, good judgment and honesty, DeMarco was unqualified for the position. Accordingly, she has failed to establish a prima facie case of discrimination." JA 2380-81. Assuming arguendo that DeMarco established a prima facie case, the district court ruled that the defendants articulated a legitimate nondiscriminatory reason for not hiring her - that she intentionally misrepresented her employment history and they therefore did not trust her - and DeMarco failed to offer evidence of pretext. JA 2381-85. DeMarco claimed that she was not dishonest during the application process, but the court rejected that argument "for the reasons discussed above." JA 2382. DeMarco argued that pretext can be inferred from the defendants' articulation of different explanations for the decision at different times. The court ruled that varying explanations do not create a jury issue unless the explanations are "materially inconsistent with each other," and here they are not. JA 2382-83. DeMarco pointed to the contradictions in the evidence about when Mikalsen checked her references. The court responded that, even if the evidence was sufficient to show that CPMP's reliance on the reference checks was pretextual, DeMarco must also show in this case that it was pretext "for discrimination," and she offered no evidence of pregnancy discrimination. JA 2383. The court acknowledged that Kelly suggested hiring DeMarco and then "not hiring her back after her maternity leave." Even if following this suggestion would have violated the FMLA, the court stated, the suggestion did not show pretext for discrimination: if it was pretext, it was clearly, the court ruled, pretext for CPMP's legitimate reason for not hiring her: her untrustworthiness. JA 2385. With respect to DeMarco's retaliation claim, the district court ruled that she established a prima facie case of retaliation, but failed to offer evidence of pretext. According to the court, no jury could rationally find that the defendants' decision not to hire her was based on learning that DeMarco was planning to sue her former employer. JA 2387-88. SUMMARY OF ARGUMENT Based on the evidence in the record, a reasonable jury could find the following facts: In June 2005, CPMP needed to hire a data analyst. After failing to find a qualified applicant with a bachelor's degree, they changed the requirements for the position and then actively recruited DeMarco for the job, based on her application for a similar job in January. When DeMarco applied, the search committee found her résumé satisfactory, interviewed her, and decided she would be a good fit. They invited DeMarco back for a second interview, this time with the managers to whom she would report. After interviewing DeMarco, those managers offered her the position, said they wished she could start immediately, and arranged a date for her to start. DeMarco did not say at either interview that she had not worked since she left her job at Mather, and, in fact, CPMP's managers understood that she had worked during that time at miscellaneous jobs, but did not ask for details of that employment. Then CPMP's managers suddenly changed their minds because of what DeMarco told them on the phone on September 22. DeMarco told them three things: (1) that she had worked for several months as a clerical at a primary school after leaving Mather; (2) that she had resigned from that job and filed a Title VII charge against her former employer alleging sexual harassment; and (3) that she was pregnant. The defendants assert that they changed their minds not because they learned that DeMarco filed a charge against her last employer or that she was pregnant, but solely because DeMarco's revelation that she worked at all after leaving Mather convinced them that she was too untrustworthy to have access to their confidential files. However, the findings summarized above would support a conclusion that this explanation is pretextual. A reasonable jury could conclude that the real reason the defendants changed their minds is that they learned that DeMarco was pregnant and had filed a charge against her last employer. ARGUMENT I. DEMARCO WAS NOT REQUIRED TO REFUTE THE DEFENDANTS' REASON FOR NOT HIRING HER IN ORDER TO ESTABLISH A PRIMA FACIE CASE. The district court ruled that DeMarco could not establish a prima facie case of discrimination because she failed to demonstrate that she was trustworthy enough to be qualified for the data analyst position. This was error. DeMarco established a prima facie case because there is ample evidence that DeMarco possessed the basic qualifications to perform the duties of the data analyst position. She was not required, as a part of her prima facie case, to show that the nondiscriminatory reason defendants gave for rejecting her - that she was untrustworthy - was pretextual. See Sista v. CDC Ixis, Inc., 445 F.3d 161, 171 (2d Cir. 2006) ("'McDonnell Douglas requires only a minimal showing of qualification to establish a prima facie claim. [A plaintiff] only needs to demonstrate that she possesses the basic skills necessary for performance of [the] job.'") (quoting Owens v. New York City Housing Auth., 934 F.2d 405, 409 (2d Cir. 1991)). Where, as here, a defendant asserts that it took an adverse action against an objectively qualified plaintiff because of some misconduct on the plaintiff's part, the plaintiff is not required to disprove this assertion in order to establish a prima facie case under Title VII; instead, the issue is properly addressed at the pretext phase. Owens, 934 F.2d at 409 (where defendant said it fired plaintiff for misconduct, district court erred in ruling that the misconduct prevented plaintiff from showing she was qualified at the prima facie case stage: while "such misconduct may certainly provide a legitimate and non-discriminatory reason to terminate an employee, . . . [it] is distinct . . . from the issue of minimal qualification to perform a job."). II. THE DISTRICT COURT ERRED IN RULING THAT THERE IS INSUFFICIENT EVIDENCE OF PRETEXT. When the evidence is viewed in the light most favorable to DeMarco, there is ample evidence in the record to support a finding that CPMP's explanation for withdrawing its offer is pretextual. First, there is evidence that DeMarco did nothing at the interviews to support a reasonable belief on the defendants' part that she lied about having been employed since leaving Mather. DeMarco testified that: (1) she did not lie during her interviews (JA 2107); (2) nobody asked her what she had been doing between April and August (JA 163, 168, 171-72, 2107); and (3) she told them that she had been studying and "doing miscellaneous things" (JA 171). The district court's statement (JA 2377) that DeMarco never denied lying during the first interview is mistaken. In her affidavit, DeMarco expressly denied lying at either of her interviews. JA 2107 (¶¶ 13-14). Moreover, there is no support in the record for the district court's speculation (JA 2377 n.5) that, even if, as DeMarco testified, nobody asked her what she did after leaving Mather, DeMarco may have volunteered that she did not work during that period. The defendants offered no evidence supporting the district court's hypothetical - that DeMarco volunteered this denial - and DeMarco was therefore not required to offer countervailing evidence. Moreover, based on Kelly's September 27 email to Pell (JA 2061) and Pell's notes of her October 3 conversation with Bergan (JA 2737), a jury could find that Bergan told both Kelly and Pell that, when DeMarco was asked during the interviews about the gap in her employment history, she replied that she had been studying and "doing miscellaneous jobs." See U.S. v. Quattrone, 441 F.3d 153, 162, 172 (2d Cir. 2006) (jury can rely on internal email messages to show what the defendant knew). A jury could therefore find that the defendants already knew - as a result of the interviews and long before DeMarco's September 22 call - that she had been employed after leaving Mather. It is undisputed that DeMarco decided to avoid disclosing her employment at the Gersh Academy during the application process if possible. The issue here, however, is not the morality of that decision, or whether an employer can legitimately take into account a candidate's failure to disclose a recent job. The issue is pretext: whether that is what the defendants here did. The defendants claim that what DeMarco revealed on September 22 (that she had worked for four months in a clerical position at a primary school) was so different from what she had communicated during the interviews (allegedly implying or expressly stating that she had not been employed during that period) that they concluded that she had lied to them during the interviews and therefore could not be trusted with confidential information. A jury could find, however - based on DeMarco's testimony, Kelly's email, and Pell's notes - that the interviewers already knew before DeMarco's September 22 call that she had been employed during the relevant period. The jury could therefore also reject the defendants' stated reason for why they changed their mind about hiring the plaintiff. If CPMP's managers already knew that DeMarco had been employed after leaving Mather, the fact that she had a job during that period was not new information. That is, the jury would be entitled to decide that (1) CPMP's managers would not have changed their minds about hiring her on learning merely that she had a job after leaving Mather - because they already knew that; and (2) the only significant new information they acquired on the 22nd was that DeMarco was pregnant and was planning to sue her former employer. See Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 124 (2d Cir. 2004) (plaintiff established pretext in part with evidence on the basis of which a jury could find that the problems that the defendants are now relying on "were minor, and unimportant to the defendants before the development of the purported discriminatory motive"). Thus, if the jury finds that the difference between what DeMarco said during the interviews and what she said on the phone (about whether she was employed during the gap period) was not significant, the jury could conclude that DeMarco's allegation - that the defendants changed their minds about hiring her because they learned that she was pregnant and had filed a charge against her last employer - is more credible than the defendants' assertion - that they changed their minds because they learned that instead of having had miscellaneous jobs, she had a particular clerical job. The other significant evidence of pretext is the evidence suggesting that, after DeMarco called them on September 22 and they changed their minds about hiring her, CPMP's managers scrambled around for a legitimate explanation for their decision, and in the process exaggerated, fabricated, and misrepresented relevant information. There is evidence that Mikalsen prepared a document falsely asserting that DeMarco's references said negative things about her and then falsely testified that the document was prepared before DeMarco revealed that she had filed a charge and was pregnant. In his notes, Mikalsen stated that Elliot reported an attendance "problem" and was hesitant about rehiring DeMarco. JA 2103. However, Elliot testified that she gave a positive reference, did not use the word "problem," and expressed no hesitance about rehiring DeMarco. JA 2100-01. There is also evidence that Mikalsen's summary (to Bergan) of what the references said was unduly negative. Compare JA 1640 with JA 2103. Furthermore, a jury could find that Bergan told Kelly that "a couple of the reference[s]" stated that DeMarco had attendance problems, when even Mikalsen's suspect notes state that only one did. JA 2103, 2061. Most important, a jury could find that Mikalsen and Bergan lied when they testified that Mikalsen's notes about the references were prepared and discussed before they learned about DeMarco's pregnancy and her plans to sue her former employer. JA 721, 877, 2051. See Moorer v. Baptist Mem'l Health Care Sys., 398 F.3d 469, 481-82 (6th Cir. 2005) (pretext established in part with evidence showing that documents that plaintiff's superior allegedly relied on in recommending his discharge did not exist until after she recommended it); Howell v. New Haven Bd. of Educ., No. 02-736, 2005 Westlaw 2179582, *6 (D. Conn. Sept. 8, 2005) (plaintiff established pretext with, inter alia, evidence showing that disciplinary notices in her personnel file had been backdated). The testimony by Bergan and Mikalsen that Mikalsen checked DeMarco's references on the 21st and they discussed them on the 22nd is the only evidence that any of the defendants' employees learned anything negative about DeMarco - or started to seriously rethink hiring her - between her interview on the 14th and her phone call on the 22nd. As stated above, a jury could find that the defendants' witnesses lied about when they checked and discussed the references, what the references said, and why they first started re-thinking their hiring decision. If the jury rejects those witnesses' testimony about the references, the jury could also decide to reject their testimony (1) that DeMarco lied to them about what she did after leaving Mather and (2) that they changed their minds about DeMarco's trustworthiness because her alleged "lie" about her employment history was so significant to them. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000) ("[T]he factfinder is entitled to consider a party's dishonesty about a material fact as affirmative evidence of guilt."); Miller v. Eby Realty Group LLC, 396 F.3d 1105, 1113 (10th Cir. 2005) ("If the factfinder concludes that one of the employer's reasons is disingenuous, it is reasonable for it to consider this in assessing the credibility of the employer's other proffered reasons.").<3> CONCLUSION For the reasons stated above, the judgment of the district court should be reversed and this case should be remanded for further proceedings. Respectfully submitted, RONALD S. COOPER General Counsel CAROLYN L. WHEELER Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel /s/ Paul D. Ramshaw PAUL D. RAMSHAW Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St., N.E., Room 5SW18K Washington, D.C. 20507 (202) 663-4737 Paul.Ramshaw@eeoc.gov CERTIFICATE OF COMPLIANCE WITH FED. R. APP. P. 32 I certify that this brief complies with Federal Rule of Appellate Procedure 32(a). The font is 14-point Times Roman. The text of the brief contains 5,019 words, as calculated by Microsoft Word 2003. /s/ Paul D. Ramshaw Paul D. Ramshaw December 29, 2008 VIRUS-CHECK CERTIFICATE I certify that the Adobe .pdf file I am submitting and serving electronically has been certified as free of viruses by Symantec Anti-Virus version 9.0.3.1000, updated November 28, 2008 (rev. 33). /s/ Paul D. Ramshaw Paul D. Ramshaw December 29, 2008 CERTIFICATE OF SERVICE I certify that on this date, December 29, 2008, this office mailed two copies of this brief to each of the lawyers listed below, and sent each of them an Adobe .pdf file of the brief by electronic mail. William G. Ballaine Landman Corsi Ballaine & Ford 120 Broadway New York, NY 10271 wballaine@lcbf.com Douglas Holden Wigdor Thompson, Wigdor & Gilly, LLP 85 Fifth Avenue New York, NY 10003 dwigdor@twglawyers.com /s/ Paul D. Ramshaw Paul D. Ramshaw *********************************************************************** <> <1> In his deposition, Mikalsen testified that DeMarco denied having been employed since leaving Mather. JA 842, 864-65. However, at his deposition Teriaco did not remember her saying that. JA 775. Teriaco testified that when asked what she had been doing since leaving Mather, DeMarco talked about her studies. JA 775. <2. The Research Foundation, which is also a defendant in this action, provided extensive personnel and support services to CPMP. <3> The district court's decision dismissing DeMarco's retaliation claim turned on its ruling that she failed to offer evidence that the defendants' articulated reason for not hiring her was pretextual. JA 2387-88. The arguments in this brief (supra pp. 16-21) showing that DeMarco offered sufficient evidence of pretext with respect to her discrimination claim apply equally to her retaliation claim, and the district court's dismissal of that claim should therefore also be reversed.