UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT ______________________________ Nos. 05-4183, 05-4311 ______________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee/Cross-Appellant, v. THE DIAL CORPORATION, Defendant-Appellant/Cross-Appellee. _______________________________________________________ On Appeal from the United States District Court for the Southern District of Iowa, Eastern Division Civil Action No. 3-02-CV-10109 The Hon. Ronald C. Longstaff, U.S.D.J., Presiding _______________________________________________________ REPLY BRIEF OF U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS CROSS-APPELLANT _______________________________________________________ JAMES L. LEE SUSAN R. OXFORD Deputy General Counsel Attorney U.S. EQUAL EMPLOYMENT LORRAINE C. DAVIS OPPORTUNITY COMMISSION Acting Associate General Counsel 1801 L Street, N.W., Room 7010 Washington, D.C. 20507 Tel. (202) 663-4791 Fax (202) 663-7090 TABLE OF CONTENTS page TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . .i TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . ii ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 I. Dial Has Not Met Its Burden of Proof at the Remedy Stage.. .6 A. The EEOC Is Not Judicially Estopped From Arguing on Appeal that the Record Is Inadequate to Deny Backpay to Wright-Bradley.6 B. Dial Failed to Present Any Evidence From Which the District Court Could Find that Dial Would Not Have Hired Wright-Bradley in May 2000 Based on Her Criminal Record. . . . . . . . . .8 C. Alternatively, Even Assuming Arguendo that the District Court Could Properly Rely on the Unsworn Statements of Dial's Counsel, Dial Nevertheless Failed to Demonstrate that it Would Not Have Hired Wright-Bradley in May 2000 Based on Her Criminal Record. . . . . . . . . . . . . . . . . . 15 II. This Is Not a Mixed-Motive Case.. . . . . . . . . . . . . 21 III. Dial's Other Arguments Have No Merit.. . . . . . . . 24 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 24 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . 25 ATTACHMENTS R.136 (Joint Status Report dated July 27, 2005) EEOC Ex. 12 (Paula Liles Employment Application 1-31-00) CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Federal Cases page Cohen v. West Haven Bd. of Police Comm'rs, 638 F.2d 496 (2d Cir.1980). . . . . . . . . . . . . . . . 20 Easley v. Anheuser-Busch, 758 F.2d 251 (8th Cir. 1985) . . . . 10 EEOC v. Delight Wholesale, 973 F.2d 664 (8th Cir. 1992) . . . .8 EEOC v. Joint Apprenticeship Comm. of the Joint Indus. Bd. of Elec. Indus., 186 F.3d 110 (2d Cir. 1999). . . .9, 20 EEOC v. Rath Packing, 787 F.2d 318 (8th Cir. 1986) . . . . . . .8 Gentile v. Mo. Dep't of Corr., 986 F.2d 214 (8th Cir. 1993). . 11 Green v. Sch. Bd. of Hillsborough County, 25 F.3d 974 (11th Cir. 1994). . . . . . . . . . . . . . . 11 Green v. U.S. Dep't of Labor, 775 F.2d 964 (8th Cir. 1985) . . .8 Hameed v. Int'l Ass'n of Bridge, Structural & Ornamental Iron Workers, Local 396, 637 F.2d 506 (8th Cir. 1980). . . . . .9 Hossaini v. W. Mo. Med. Ctr., 140 F.3d 1140 (8th Cir. 1998). . .7 Int'l Bhd. of Teamsters v. United States, 431 U.S. 324 (1977). .9 King v. Trans World Airlines, 738 F.2d 255 (8th Cir. 1984) . . 10 McKennon v. Nashville Banner Pub., 513 U.S. 352 (1995) . . .3, 23 Omaha Indian Tribe, Treaty of 1854 v. Wilson, 575 F.2d 620 (8th Cir. 1978), vacated on other grounds sub nom Wilson v. Omaha Indian Tribe, 442 U.S. 653 (1979) . . . . 20 Federal Cases (cont'd) page Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) . . . . . . . 22 Prudential Ins. Co. of Am. v. Nat'l Park Med. Ctr., 413 F.3d 897 (8th Cir. 2005). . . . . . . . . . . . . . . .7 Richardson v. Sugg, – F.3d – , 2006 WL 1445025 (8th Cir. May 26, 2006) . . . . . . . . . 21 Rivera v. NIBCO, Inc., 364 F.3d 1057 (9th Cir. 2004), cert. denied sub nom NIBCO, Inc. v. Rivera, 544 U.S. 905 (2005) . . . . . . . . . . . . . . . . . . . .9 Robinson v. Metro-North Commuter R.R., 267 F.3d 147 (2d Cir. 2001) . . . . . . . . . . . . . . . 10 Russell v. Microdyne, 65 F.3d 1229 (4th Cir. 1995) . . . . . . 23 Sander v. Alexander Richardson Invs., 334 F.3d 712 (8th Cir. 2003). . . . . . . . . . . . . . . 14 Shellenberger v. Summit Bancorp, 318 F.3d 183 (3d Cir. 2003) . 11 Stacks v. Sw. Bell Yellow Pages, 996 F.2d 200 (8th Cir.1993) . 21 Stringer v. St. James R-1 Sch. Dist., 446 F.3d 799 (8th Cir. 2006)11 Welch v. Liberty Mach. Works, 23 F.3d 1403 (8th Cir. 1994), abrogated on other grounds by McKennon v. Nashville Banner Pub., 513 U.S. 352 (1995). . . . . . . . . . . . . .9 Wise v. Kind & Knox Gelatin, 429 F.3d 1188 (8th Cir. 2005) . . 14 Woods v. United States, 724 F.2d 1444 (9th Cir. 1984). . . . . 20 Federal Statutes page 42 U.S.C. § 2000e et seq.. . . . . . . . . . . . . . . . . . . .1 42 U.S.C. § 2000e-2(m) . . . . . . . . . . . . . . . . . . 21, 22 42 U.S.C. § 2000e-5(g)(2)(B) . . . . . . . . . . . . . 21, 22, 23 42 U.S.C. § 2000e-5(g)(2)(B)(i) & (ii) . . . . . . . . . . . . 21 Treatises B. Lindemann & P. Grossman, II Employment Discrimination Law (3d ed. 1996). . . . . . 21 ARGUMENT This appeal arises out of the Equal Employment Opportunity Commission's claim under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., that Dial Corporation discriminated against women when it used a strength test, the "Work Tolerance Screen" ("WTS"), to screen job applicants for entry-level positions at its Fort Madison, Iowa, meat processing plant. The EEOC's cross-appeal involves one of the last two issues presented to the district court during the relief stage of the litigation – the district court's denial of backpay to one of the 54 claimants in this matter. See Joint Appendix ("JA") 128-30. In its Answer Brief, Dial erroneously represents that this issue came before the district court on the EEOC's application. See Dial AnsBrf. at 51. In fact, as explained below, the parties presented the issue to the district court jointly in response to the court's June 27, 2005, directive that the parties confer and attempt to agree on a proposed form of judgment. See JA127, 133-34, 143-44. Following the jury's August 23, 2004, verdict for the Commission on the EEOC's "pattern or practice" claim of intentional discrimination and the district court's February 3, 2005, ruling for the Commission on the EEOC's disparate impact claim, R.82, 107 (JA71, 84-99), the district court issued a series of rulings determining the scope of the class of claimants and the standards for calculating backpay and other relief due each of the 54 individual claimants in this matter. See, e.g., R.118 (JA112-119); R.134 (JA120-127). Having established these standards, on June 27, 2005, the district court directed the parties to jointly submit a proposed form of judgment. JA127; see also R.135 (Text Order 6/29/05). The parties conferred as directed. See Joint Status Report, R.136 (attached). On August 26, 2005, the EEOC submitted the parties' Draft Proposed Order resolving all but two discrete issues. See Letter from Jean Kamp, EEOC Regional Attorney, to Judge Longstaff (JA133-34) with attached Draft Proposed Order (JA135-142). On the same date, Dial confirmed that the Draft Proposed Order reflected the parties' agreement as to all but the two issues the EEOC had identified, the first of which – backpay for claimant Heather Wright-Bradley – is the subject of the EEOC's cross- appeal. See Letter from Camille A. Olson, Esq., to Judge Longstaff (JA143-44). Both parties' letters describe the issue in virtually identical terms. Dial asserted that Wright-Bradley was not entitled to backpay because in 2005, after she accepted Dial's post-trial offer of employment, Dial learned certain information (relating to her criminal history) that Dial contended would have barred her from employment had Dial known of this information when she applied in May 2000. See JA133, 143. The EEOC contended, as Dial's letter acknowledged, that Wright- Bradley was nonetheless entitled to backpay because Dial acquired the information after it had already discriminated against her and because "to the extent the information is accurate, it would not have disqualified her from hire at the time she applied." JA133, 143. Thus, the EEOC's and Dial's letters both signaled to the district court that the EEOC was asserting a legal argument (that backpay was unaffected by "after acquired evidence") and a factual argument (that either Dial did not have in place a procedure for conducting criminal background checks when Wright-Bradley applied to Dial in 2000 or Wright-Bradley would not have been disqualified pursuant to it). After hearing counsels' arguments telephonically on September 6, 2005, see Hearing Transcript ("Tr.") 9/6/05 at 2-14, the district court ruled on September 14, 2005, that Wright-Bradley is not entitled to backpay. R.137. In our opening brief on our cross-appeal, we explained why this ruling should be reversed. First, regardless of whether Dial actually had a policy in May 2000 of not employing persons with certain criminal records, it is undisputed that the "after- acquired evidence" Dial received in August 2005 concerning Wright-Bradley's criminal record played no role whatsoever in Dial's May 2000 rejection of Wright- Bradley based on the WTS. Therefore, under McKennon v. Nashville Banner Pub., 513 U.S. 352 (1995), Dial is liable for backpay from the date the company unlawfully rejected Wright-Bradley until the agreed-upon backpay cut-off date for all claimants – March 31, 2005. See EEOC Brf. at 58-63. Second, Dial has not demonstrated that the alleged practice of conducting criminal background checks actually existed when Wright-Bradley applied to Dial in May 2000. The only example of a Dial job application form that is in evidence, see EEOC Brf. at 62 (citing EEOC Ex. 12 (attached)), does not ask applicants to disclose their criminal history or to authorize a criminal background check. During litigation, Dial identified medical examinations, drug testing, and job reference checks as part of the final steps in the hiring process, but never mentioned the existence of a criminal background check in connection with its pre-employment screening process. See EEOC Brf. at 21. The first mention to the EEOC that Dial was conducting criminal background checks occurred when claimants who had accepted post-trial job offers from Dial were completing their final pre-employment paperwork during the summer of 2005. Id. When Dial asserted that Wright-Bradley was disqualified from receiving backpay because of prior convictions, the EEOC asked for documentation that the practice of conducting criminal background checks, and the policy of not hiring someone with a particular type of criminal record, had existed in May 2000, when Wright-Bradley was rejected based on the WTS. See Hearing Tr. 9/6/05 at 4-5; EEOC Brf. at 21-22. Dial did not provide the EEOC with the requested documentation, Hearing Tr. 9/6/05 at 4-5, and the company provided no documentation to the district court when the court considered the issue. In light of this factual backdrop, we argued in our opening brief, alternatively, that Wright-Bradley's criminal record did not bar her from receiving backpay because Dial failed to meet its burden to establish (a) that the alleged policy actually existed in May 2000 and (b) if it did exist, that Dial would have learned about Wright- Bradley's prior criminal record and would have disqualified her from employment on that basis. See EEOC Brf. at 63-65. The EEOC argued that Dial had offered no evidence to demonstrate the scope or even the existence of the asserted policy against hiring persons with criminal convictions, relying instead solely on vague and inconsistent oral representations by Dial's counsel during the telephonic hearing the district court conducted in this matter. Id. at 64-65. Dial now argues that it had a policy of not employing anyone with a criminal record "[t]hroughout the time it administered the WTS"; that the district court found as much in its September 14, 2005, Order; and that the district court's remedial order thus turns on "findings of fact" that this Court should review for abuse of discretion. See Dial AnsBrf. at 43-45. Dial asserts that the EEOC is judicially estopped from arguing that the factual record is inadequate because "it was EEOC which sought to proceed before the district court regarding Wright-Bradley when it did, without an evidentiary hearing." Id. at 51. Finally, Dial argues that a "mixed-motive analysis" applies, id. at 46-48, and that the EEOC has waived any challenge to such a defense by failing to argue it below. Id. at 49-50. None of these arguments has merit. I. Dial Has Not Met Its Burden of Proof at the Remedy Stage. A. The EEOC Is Not Judicially Estopped From Arguing on Appeal that the Record Is Inadequate to Deny Backpay to Wright-Bradley. As a threshold matter, we note that there is no merit to Dial's contention that the EEOC is judicially estopped from arguing on appeal "that the record is inadequate to determine Wright-Bradley's eligibility for backpay, since it was EEOC which sought to proceed before the district court when it did, without an evidentiary hearing." See Dial AnsBrf. at 51. First, this misstates the issue. The Commission is not arguing on appeal that the district court could not determine Wright-Bradley's entitlement to backpay. Rather, we are arguing that assuming, as the Court must, that Wright-Bradley was presumptively entitled to backpay given the court's finding of liability, see discussion infra, Dial had the burden of proving that Wright-Bradley was not entitled to that relief, and the district court erred in determining that Dial met that burden here. "Judicial estoppel" in no way precludes the Commission from making this argument on appeal simply because we advised the district court that we believed "the matter might be resolved through a telephone conference with the Court," JA134, and indicated, at the close of the telephonic hearing, that if the district court ruled against the EEOC, we would appeal rather than pursue further litigation before the district court. Hearing Tr. 9/6/05 at 28. Judicial estoppel bars a party from taking inconsistent positions in the same or related litigation. See Prudential Ins. Co. of Am. v. Nat'l Park Med. Ctr., 413 F.3d 897, 905 (8th Cir. 2005). This Court has repeatedly held that judicial estoppel "applies only when a party takes a position that is ‘clearly inconsistent with its earlier position.'" See, e.g., id. (citing Hossaini v. W. Mo. Med. Ctr., 140 F.3d 1140, 1143 (8th Cir. 1998)). There is nothing inconsistent between the position the EEOC took before the district court and our position on appeal. Before the district court, we disputed the factual representations made by Dial's counsel concerning the existence and scope of Dial's asserted policy and practices regarding criminal records. We then argued that, in any event, Wright- Bradley's criminal record was "after-acquired evidence" which, under McKennon, could justify limiting, but could not bar entirely, a backpay award. See Hearing Tr. 9/6/05 at 1-14. At the end of the telephonic hearing, we indicated that if the district court ruled against us we would address any errors on appeal. Id. at 28. On appeal, we urge that the district court's decision should be reversed because, among other reasons, Dial had offered no evidence to support its counsel's representations, which we had disputed below. See EEOC Brf. at 63-65. Since there is no inconsistency between these positions, the EEOC is not judicially estopped from arguing on appeal that Dial failed to meet its burden of proof. B. Dial Failed to Present Any Evidence From Which the District Court Could Find that Dial Would Not Have Hired Wright-Bradley in May 2000 Based on Her Criminal Record. Dial urges affirmance of the district court's denial of backpay to Wright- Bradley because the court's finding that Wright-Bradley would never have been hired by Dial due to her criminal record "is supported by the record, and was plainly within the district court's discretion." Dial AnsBrf. at 45. To the contrary, there is no evidence in the record on this issue. As a result, Dial has failed to meet its burden of proof on its asserted defense to backpay for one of the EEOC's claimants. A district court is presumptively obligated to award victims of employment discrimination backpay and other make-whole relief. See EEOC v. Delight Wholesale, 973 F.2d 664, 669-70 (8th Cir. 1992); EEOC v. Rath Packing, 787 F.2d 318, 329 (8th Cir. 1986) (district court obligated to exercise its sound discretion to grant prevailing Title VII claimant "the most complete relief possible"). Wright-Bradley, having been denied employment based on the WTS, falls within the "scope of the plaintiff class" that the district court determined is entitled to relief on the EEOC's disparate impact claim. See R. 118 (Order dated April 12, 2005) at 1-3 (JA112-14). She is, therefore, entitled to backpay unless Dial demonstrates otherwise. Regardless of whether Dial's asserted defense to her backpay is analyzed as "after-acquired evidence" or under general principles governing remedies in a disparate impact claim, Dial bears the burden of proof to establish that Wright- Bradley would not have been hired even absent Dial's discriminatory use of the WTS. See, e.g., Welch v. Liberty Mach. Works, 23 F.3d 1403, 1405-06 (8th Cir. 1994) (under "after-acquired evidence" doctrine employer bears "substantial burden" of establishing that any alleged policy on which asserted disqualification was based "predated the hiring . . . of the employee in question"), abrogated on other grounds by McKennon, 513 U.S. 352; Hameed v. Int'l Ass'n of Bridge, Structural & Ornamental Iron Workers, Local 396, 637 F.2d 506, 520 (8th Cir. 1980) ("once an alleged discriminatee shows that he or she applied for a position, ‘the burden then rests on the employer to demonstrate that the individual applicant was denied an employment opportunity for lawful reasons.'") (quoting Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 362 (1977)); see also Rivera v. NIBCO, Inc., 364 F.3d 1057, 1072 (9th Cir. 2004) ("before an employer may use ‘after-acquired evidence,' it must meet its burden of showing that, had it been aware of that evidence, it would have forthwith discharged the employee") (dicta), cert. denied sub nom NIBCO, Inc. v. Rivera, 544 U.S. 905 (2005); EEOC v. Joint Apprenticeship Comm. of the Joint Indus. Bd. of Elec. Indus. ("JAC"), 186 F.3d 110, 122-23 (2d Cir. 1999) (employer that is found liable for unlawful refusal to hire bears burden to show potential claimant "would not have been hired even absent the discrimination") (dicta); Easley v. Anheuser-Busch, 758 F.2d 251, 262 (8th Cir. 1985) ("In class actions, . . . the employer carries the burden of demonstrating at the remedial phase that an individual applicant would not have been hired even absent unlawful discrimination.") (quoting Teamsters). Since Wright-Bradley was denied employment because of the WTS, she is entitled to relief unless Dial establishes by a preponderance of the evidence that it had a legitimate, non-discriminatory reason for not hiring her. See Robinson v. Metro-North Commuter R.R., 267 F.3d 147, 161- 62 (2d Cir. 2001). Dial failed to present any evidence in support of its claim that Wright-Bradley should be denied backpay. Dial submitted no affidavits, offered no documents, and presented no company officials to testify concerning the existence or scope of its alleged "criminal background" policy or practice. Indeed, in responding to the Commission's cross-appeal, Dial cites no record evidence to support what it asserts were "findings of fact" by the district court. See Dial AnsBrf. at 43-45. Dial cites only its counsel's oral representations during the telephonic hearing ("Hearing Tr. 9/6/05"), the EEOC's opening brief ("EEOC Br."), and the district court's September 14, 2005, Order ("Jt. Ex. 18"). See Dial AnsBrf. at 43-45. Since none of this is "evidence," it cannot satisfy Dial's burden of proof on this factual issue. See Stringer v. St. James R-1 Sch. Dist., 446 F.3d 799, 804 (8th Cir. 2006) (unsworn arguments not evidence); Shellenberger v. Summit Bancorp, 318 F.3d 183, 191 (3d Cir. 2003) (counsel's remarks not "evidence" for purpose of evaluating motion for judgment as a matter of law); Gentile v. Mo. Dep't of Corr., 986 F.2d 214, 219 (8th Cir. 1993) ("Unsworn statements cannot be used as a basis for findings of fact."); cf. Green v. Sch. Bd. of Hillsborough County, 25 F.3d 974, 979 (11th Cir. 1994) (counsel's statements during closing arguments not evidence). The EEOC never acquiesced in the factual representations of Dial's counsel during the telephonic hearing, and Dial acknowledges as much. See Dial AnsBrf. at 45-46 ("As the [hearing] transcript . . . makes clear, . . . the facts with regard to Wright-Bradley were disputed.") (emphasis in original). Apart from agreeing that when Wright-Bradley applied to Dial in May 2000 she had a prior felony conviction and two misdemeanors, as well as a subsequent felony conviction in 2004, see Hearing Tr. 9/6/05 at 4, the EEOC disputed virtually everything Dial's counsel asserted in arguing against backpay for Wright-Bradley. For instance, in explaining our objections to the "very broad release" Dial initially asked our claimants to sign, we informed the district court that although Dial had "said they were doing this for all of their new employees," we strongly doubted this representation. See id. ("It turns out that that's probably not true, or at least we were never able to get proof that it was true."). Even after Dial agreed to limit the background check to applicants' criminal history, we remained skeptical that this was a bona fide practice. See id. at 4-5 ("Dial told us that they [conducted a criminal background check] routinely for all of their new employees, but, again, we haven't been able to verify that. We've asked to see criminal background checks on other employees. I asked specifically for five men and five women who were hired, in May of 2000 when Heather Wright would have been hired and they have been unable to locate any background checks for those people.") (emphasis added). After Dial's counsel misstated to the court that the company had provided the EEOC with relevant information "going back to 1994," id. at 6, we noted that "[w]e asked [Dial] for comparables" and were "repeatedly told there were none." Id. at 12. The EEOC also made it clear that we did not concede Dial's representations concerning the extent of Wright-Bradley's criminal record. Apart from the four convictions we identified to the court at the outset, id. at 4, we told the district court we were hearing about the other alleged offenses for the first time during the telephonic hearing. See id. at 10 ("[Dial's counsel has] listed a whole lot more of this criminal record. . . . [The original] report . . . has nothing of [these] other [convictions.] . . . . obviously [Dial has] continued to look for information . . . ."). Not only did we have no way, during the telephonic hearing, to verify the accuracy of these previously-undisclosed convictions, equally troubling was the fact that Dial continued to dig into Wright-Bradley's background, beyond the initial report Dial supplied to the EEOC. Thus, the EEOC did not concede Dial's factual representations during the telephonic hearing. To the contrary, we informed the district court that we had requested documentation which Dial never provided, and we repeatedly indicated our strong doubts that a criminal background check was a routine part of Dial's hiring practices. See, e.g., id. at 12 ("The [job] application does specifically say that the hire offer is contingent on a drug test and on a check of previous employment. It does not say anything about a background check. I think we've got a factual problem here.") (emphasis added). That we urged the district court to reject Dial's backpay defense based on the "after-acquired evidence" doctrine under McKennon, id. at 5-6, 12-13, does not alter the fact that the EEOC consistently disputed Dial's unsupported factual assertions during the telephonic hearing. In sum, since a district court is presumptively obligated to award victims of employment discrimination backpay and other make-whole relief, a denial of backpay following a finding of liability must be supported by substantial evidence in the record, an issue on which the defendant bears the burden of proof. With respect to Wright-Bradley's backpay award, the district court could have ruled in the EEOC's favor without the need for any further evidence, as the relevant dates on which such a backpay award would be based were not in dispute. In order for the district court to rule in Dial's favor, however, Dial had to submit actual evidence to meet its burden of proof. The district court's denial of backpay to Wright-Bradley based on no record evidence, relying solely on the unsworn assertions of Dial's counsel which the EEOC contested, requires reversal by this Court under any standard of appellate review. See Wise v. Kind & Knox Gelatin, 429 F.3d 1188, 1191 (8th Cir. 2005) (overturning district court's factual finding because it was not supported by any evidence in the record); Sander v. Alexander Richardson Invs., 334 F.3d 712, 720 (8th Cir. 2003) (insufficient record evidence required reversal of district court's factual finding). C. Alternatively, Even Assuming Arguendo that the District Court Could Properly Rely on the Unsworn Statements of Dial's Counsel, Dial Nevertheless Failed to Demonstrate that it Would Not Have Hired Wright- Bradley in May 2000 Based on Her Criminal Record. Dial Corporation represented to the district court, through its counsel, that all new employees were subjected to a criminal background check and that Dial did not employ persons with a criminal background like that of Wright-Bradley. See, e.g., Dial AnsBrf. at 43-45. Even aside from the fact that these representations are wholly unsupported by any evidence of any kind, the oral statements of Dial's counsel during the telephonic hearing were, in addition, vague and internally inconsistent as to the existence of the policy, its scope, and how it was actually implemented. As a result, even assuming arguendo that the district court could rely on the statements of Dial's counsel in this situation, a contention we strongly dispute, counsel's statements on September 6, 2005, nevertheless do not support the district court's denial of backpay to Wright-Bradley. For example, Dial's counsel stated that "it is clear that the company, when it gets information regarding these kinds of convictions, acts on them [sic], and does not maintain in its workforce . . . employees who have these types of criminal records." Hearing Tr. 9/6/05 at 14 (emphasis added). Counsel's only explanation for what she meant by "these kinds of convictions" or "these types of criminal records" were her statements that the company would hire individuals "if their criminal background checks were just minor misdemeanors" but would terminate employees "if they have . . . been found to have been convicted of a serious misdemeanor felony." Id. at 7 (emphasis added). It is unclear from the latter whether the term "misdemeanor felony" refers to a separate category of criminal convictions, or whether counsel meant that Dial terminates employees (and, presumably, rejects applicants) only for felony convictions and "serious" misdemeanors. If misdemeanor convictions can form the basis for a termination or a refusal to hire by Dial, what distinguishes "serious misdemeanors" from "minor misdemeanors"? Does it depend on the number of convictions, the type of infraction, or some combination of the two? It is not possible to discern, based on counsel's oral representations during the telephonic hearing, the precise parameters of what the company asserted as its policy concerning disqualifying criminal convictions. In addition to being unclear as to what types of offenses allegedly disqualify someone from working at Dial, it is unclear from counsel's statements during the telephonic hearing whether disqualification is based only on convictions that involve bodily harm or threats of bodily harm, or convictions of any type. Counsel's comments suggest, at one point, that the reason for not hiring someone with a past conviction is to maintain a safe workplace. See id. at 14 ("the company . . . does not maintain in its work force, for safety purposes, . . . employees who have these types of criminal records"). One could, for example, read this to exclude a felony theft that did not involve any threatened or actual bodily harm. If the asserted disqualification is limited to felonies involving bodily harm or threat of bodily harm, is it all such felonies, or does Dial sometimes make exceptions based on extenuating circumstances? Clarification of these questions is relevant to a proper determination of whether Dial would have actually rejected Wright-Bradley in May 2000, as Wright-Bradley may be able to explain extenuating circumstances that would warrant such an exception. Dial also has not established whether the alleged disqualification is based only on recent convictions, or on any conviction no matter how remote in time. The statements made by Dial's counsel during the hearing inconsistently suggest both. At one point Dial's counsel said, in reference to Wright-Bradley's December 2004 conviction, "For the year following that the company would not have hired her," Hearing Tr. 9/6/05 at 8, suggesting convictions are held against an individual for up to one year. At another point, Dial's counsel argued that Wright-Bradley's criminal record as of May 2000 would have disqualified her from employment, see id. at 9, even though Wright-Bradley's pre-application felony theft conviction occurred in 1995, five years before she applied to Dial. Id. at 4. Wright-Bradley did have two misdemeanor convictions in 1999, the year before she applied, see id. at 4, and Dial's counsel seemed to indicate that "serious" misdemeanors were also a hiring disqualification, id. at 7. Although Dial's counsel described Wright-Bradley's misdemeanors in terms that suggest they were serious offenses, see id., it is impossible from counsel's statements to determine exactly what was involved and when it occurred. Without more, the district court could not have properly relied on counsel's statements to support a determination that Wright-Bradley's criminal record fell within the contours of Dial's alleged policy. Finally, the comments of Dial's counsel also raise questions about whether Dial actually conducted a criminal background check on persons who were offered employment in May 2000, when Wright-Bradley was rejected based on the WTS. In trying to convince the district court that Dial would have inevitably discovered this information at the time Wright-Bradley applied, Dial does not state that a criminal background check would definitely have been conducted (and Dial did not produce, in response to the EEOC's request, any copies of background checks conducted at that time or authorization forms for persons hired around that time). Instead, counsel argued that, "if [Wright-Bradley] stood in the shoes that she would have stood in in 2000, when she applied, this is information that regularly is present on the police blotters of both the Fort Madison Democrat, as well as the Burlington Hawkeye Newspaper, as it was with these other five individuals who were employees of the company whose employment was terminated." Hearing Tr. 9/6/05 at 8 (emphasis added). Counsel continued, "If [Dial] initially hired her, the company believes very strongly that it would have, within no time, gotten this information because there was so much of it – so many convictions in such a small community in Fort Madison." Id. at 9 (emphasis added); see also id. at 14 ("if, . . . for some reason, if there was some argument that, you know, the background check would have been missed, it is clear that the company, when it gets information regarding these kinds of convictions, acts on them . . . ."). When Dial's counsel referred to the police blotters of local newspapers and then stated that "[t]his is the kind of information [Dial] would have received," id. at 9, Dial is effectively conceding that it did not have a regular system in place, in May 2000, for conducting formal criminal background searches of persons it hired at that time. The fact that Dial's counsel later suggests the opposite, see id. at 9-10, merely underscores the inconsistencies in Dial's counsel's representations. Taken as a whole, the vague and inconsistent statements of Dial's counsel during the telephonic hearing, along with Dial's inability to produce any copies of contemporaneous background checks or authorization forms from May 2000 in response to the EEOC's requests, id. at 4-5 & 12, strongly suggest that Dial had no regular system for conducting criminal background checks when Wright-Bradley applied to Dial in May 2000. Absent such a regular practice, there is no credible basis to infer that Dial, reading newspaper accounts in May 2000, would have inevitably discovered convictions that occurred one to four years earlier. Thus, the district court erred when it denied backpay to Wright-Bradley based on the vague and internally inconsistent statements of Dial's counsel during the telephonic hearing. Counsel's arguments do not represent the "substantial evidence" required to affirm a district court's factual findings. See Woods v. United States, 724 F.2d 1444, 1451- 52 (9th Cir. 1984) (substantial evidence cannot be based on inferences drawn from facts that are uncertain or speculative) (citing Omaha Indian Tribe, Treaty of 1854 v. Wilson, 575 F.2d 620, 642 (8th Cir. 1978), vacated on other grounds sub nom Wilson v. Omaha Indian Tribe, 442 U.S. 653 (1979)). Moreover, any uncertainty as to whether Wright-Bradley would have been hired is properly "resolved against [Dial], since it is [Dial's] discriminatory employment practices which are the source of the uncertainty." See EEOC v. JAC, 164 F.3d at 100 (citing Cohen v. West Haven Bd. of Police Comm'rs, 638 F.2d 496, 502 (2d Cir.1980) (other citations omitted)). II. This Is Not a Mixed-Motive Case. Dial argues that the district court properly denied backpay to Wright-Bradley because under 42 U.S.C. § 2000e-5(g)(2)(B), "[w]here the defendant demonstrates it would have taken the same action absent an impermissible factor, damages are inappropriate." Dial AnsBrf. at 49. Dial's "mixed motive" analysis is, however, wholly misplaced. See Dial AnsBrf. at 46-50. Although "mixed motive" analysis under Title VII is often presented as a method of a plaintiff's proof of discrimination, it is actually a defense to monetary relief that a Title VII defendant must assert and prove. See B. Lindemann & P. Grossman, II Employment Discrimination Law (3d ed.) at 1841-42 & n.348 (1996). Title VII provides, in this regard, that where "a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor," the district court may grant injunctive relief and attorney's fees and costs, but shall not award damages or order reinstatement. See 42 U.S.C. § 2000e-5(g)(2)(B)(i) & (ii). The statutory language makes clear, however, that the "legitimate" factor or factors on which the employer relies must have actually motivated the decision. The defense is not available if the legitimate factor is a theoretical consideration that never actually came into play because the defendant's discriminatory conduct cut short the full decisionmaking process. The "mixed motive" defense set forth in 42 U.S.C. § 2000e-5(g)(2)(B) expressly applies only to those claims "in which an individual proves a violation under section 2000e-2(m) of this title." See 42 U.S.C. § 2000e-5(g)(2)(B). Section 2000e-2(m) of Title VII specifies that "an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice." 42 U.S.C. § 2000e-2(m) (emphasis added). Consequently, the "mixed motive" scenario to which the remedies limitations of section 2000e-5(g)(2)(B) may apply are those claims in which the "other [legitimate] factors" actually motivated the decision in question. Based on the plain language of the statute, the defense is not available if the asserted "legitimate factor" is something that did not, in fact, actually happen at the time of the employment decision. Cf. Price Waterhouse v. Hopkins, 490 U.S. 228, 252 (1989) (plurality opinion) (employer's legitimate reason for discharge in mixed-motive case will not suffice "if that reason did not motivate it at the time of the decision"); id. at 260-61 (White, J., concurring in judgment); id. at 261 (O'Connor, J., concurring in judgment). There was no "mixed motive" in this case. As in McKennon, see Dial AnsBrf. at 47-48 (citing McKennon, 513 U.S. at 359–60), it is undisputed that Dial rejected Wright-Bradley based solely on unlawful considerations – Dial's use of the WTS. Dial is quite correct that the EEOC did not argue below that Dial failed to meet its burden of proof under section 2000e-5(g)(2)(B) of Title VII, Dial AnsBrf. at 50, because that provision does not apply here. The "mixed motive" defense is not available when a defendant employer, like Dial in this case, asserts that if only it had not discriminated, it surely would have taken the same action for a legitimate reason. See McKennon, 513 U.S. at 360 ("The employer could not have been motivated by knowledge it did not have and it cannot now claim that the employee was fired [or not hired] for the nondiscriminatory reason."). Rather, Dial's use here of the phrase "would have taken the same action," see Dial AnsBrf. at 49, reflects a classic example of "after-acquired evidence." See Russell v. Microdyne, 65 F.3d 1229, 1237 (4th Cir. 1995) (distinguishing "mixed motive," which is based on what was actually in employer's mind at time of challenged action, from "after-acquired evidence" of an alleged justification that did not motivate employer at the time). Dial's assertion of a hypothetical situation – that if it had not discriminated against Wright-Bradley, it believes it would have rejected her anyway for an alleged non-discriminatory reason it discovered later on – cannot establish a defense to damages under section 2000e-5(g)(2)(B). III. Dial's Other Arguments Have No Merit. Dial's other arguments have no merit. Dial suggests this Court should review the decision below for abuse of discretion because the district court's remedial order turns on findings of fact. Dial AnsBrf. at 45. To the contrary, the district court's denial of backpay involved a misapplication of McKennon, and the district court's application of McKennon is properly reviewed de novo. See EEOC Brf. at 58. In any event, to the extent the district court's denial of backpay is based on factual assumptions that it made without any evidentiary foundation, concerning matters the EEOC disputed, the district court's factual "findings" are clearly erroneous. Under any standard of judicial review, this Court should reverse the district court's denial of backpay to Wright-Bradley. CONCLUSION For all of the foregoing reasons, we respectfully urge this Court to reverse the district court's denial of backpay to Wright-Bradley. Respectfully submitted, JAMES LEE Deputy General Counsel LORRAINE C. DAVIS Acting Associate General Counsel DATED: June 22, 2006 SUSAN R. OXFORD, Attorney U.S. Equal Employment Opportunity Commission 1801 L Street, N.W. Washington, D.C. 20507 Tel. (202) 663-4791 Fax (202) 663-7090 CERTIFICATE OF COMPLIANCE I certify that this Reply Brief complies with the type-volume limitation set forth in Fed. R. App. P. 32(a)(7)(B). The brief contains 6,159 words. See Fed. R. App. P. 32(a)(7)(B)(i). The brief was prepared using the WordPerfect 9 word processing system, in 14-point proportionally-spaced Times New Roman type for text and 14-point Times New Roman type for footnotes. See Fed. R. App. P. 32(a)(5). The accompanying diskette has been scanned for viruses and is virus-free. June 22, 2006 Susan R. Oxford A T T A C H M E N T S CERTIFICATE OF SERVICE I, Susan R. Oxford, hereby certify that on this 22nd day of June, 2006, I caused an original and nine copies of the EEOC's cross-appeal reply brief to be sent by Federal Express, postage prepaid, to the Clerk of the Court for the U.S. Court of Appeals for the Eighth Circuit, along with one diskette containing an electronic version of the reply brief in pdf format, and two copies of the same EEOC reply brief and one diskette containing an electronic version of the same in pdf format to be sent by the same means, on the same date, to counsel of record at the following address: Camille A. Olson, Esq. Anne E. Duprey, Esq. SEYFARTH SHAW LLP 55 East Monroe Street, Suite 4200 Chicago, Illinois 60603 (312) 346-8000 Counsel for Appellant/Cross-Appellee Dial Corporation June 22, 2006 Susan R. Oxford *********************************************************************** <> <1> “R.#” refers to the district court’s docket entry; “EEOC Brf.” refers to EEOC’s Answer Brief as Appellee and Opening Brief as Cross-Appellant; and “Dial AnsBrf.” refers to Dial’s Reply/Answer Brief as Appellant/Cross-Appellee. <2> Indeed, Dial, having failed to offer any evidence to the district court during the September 6 hearing or to ask the district court to schedule an evidentiary hearing, waived its right to put in evidence on this issue. It was not incumbent on the EEOC to advance Dial’s position by asking the district court to hear evidence on Dial’s asserted defense. <3> In addition, Dial fails to recognize that a party faces an even higher burden when asserting “judicial estoppel” against the federal government than against a private litigant. See Green v. U.S. Dep’t of Labor, 775 F.2d 964, 969-70 (8th Cir. 1985). Since the EEOC’s positions below and on appeal are not inconsistent, however, this Court need not consider Dial’s failure to address this higher burden. <4> In Easley, this Court observed that, in at least one prior case, it had “indicated that the appropriate burden of proof to be placed on the employer once liability has been established is that of ‘clear and convincing evidence.’” 758 F.2d at 262 n.23 (citing King v. Trans World Airlines, 738 F.2d 255, 257 (8th Cir. 1984)). As we explain infra, because Dial presented no evidence on this issue, it has failed to carry its burden of proof regardless of whether the appropriate standard is “clear and convincing evidence” or merely “preponderance of the evidence.” <5> Dial designated the abbreviation “Jt. Ex.” to refer to the parties’ Joint Trial Exhibits. See Dial AnsBrf. at 1 n.1. There is no Joint Exhibit #18 in this case, however. Dial apparently meant to refer to the district court’s September 14, 2005, Order, which is item #18 in the Joint Appendix. The portion of the court’s order addressing this issue is found at pages 128 to 130 of the Joint Appendix. <6> Dial initially asked the claimants who accepted job offers to authorize Dial to conduct “a background investigation of their criminal record, their credit history, [and] personal information from neighbors.” We “objected strenuously” to this overly-broad authorization, and Dial agreed to limit the background check to criminal history. Hearing Tr. 9/6/05 at 4. <7> Dial erroneously asserted on appeal that it dismissed Wright-Bradley based on six pre-2000 convictions. Dial AnsBrf. at 44. Dial knew about only three of those convictions when it ended Wright-Bradley’s employment on August 4, 2005, and apparently learned about the others as it continued to search Wright-Bradley’s record. <8> In our opening brief, we noted that prior to the September 6 telephonic hearing, we had asked Dial for ten sample criminal background checks for employees hired in May 2000, the month when Wright-Bradley was rejected. Dial responded with two examples: one for an employee hired in August 2004 and one for an employee hired in December 2000. See EEOC Brf. at 22 n.11. Dial never offered either document to the district court as evidence to support its factual representations, so neither document is part of the factual record in this case. In any event, even if they were part of the record, two examples out of the hundreds of persons Dial hired during this time, standing alone, do not demonstrate what Dial’s standard practices were, particularly since neither document was contemporaneous with Wright-Bradley’s original application to Dial in May 2000. Thus, these two documents, which are not part of the record in this case, do not establish that Dial conducted criminal background checks during the applicable time frame of May 2000. See Cohen v. West Haven Bd. of Police Comm’rs, 638 F.2d 496, 503 (2d Cir. 1980). <9> See, e.g., Richardson v. Sugg, – F.3d – , 2006 WL 1445025, *8 (8th Cir. May 26, 2006) (“To qualify for application of the mixed-motive analysis, the plaintiff must ‘demonstrate that an illegitimate criterion was a motivating factor in the employment decision.’”) (citing Stacks v. Sw. Bell Yellow Pages, 996 F.2d 200, 201-02 (8th Cir.1993); 42 U.S.C. § 2000e-2(m)).