IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 02-13248-C EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. ELECTRONIC DATA SYSTEMS CORPORATION, Defendant-Appellee. On Appeal from the United States District Court for the Northern District of Alabama REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS PLAINTIFF-APPELLANT NICOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel JOHN F. SUHRE Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street N.W., Room 7040 Washington, D.C. 20507 (202) 663-4716 TABLE OF CONTENTS REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS PLAINTIFF-APPELLANT . . . . . . . . . 1 CONCLUSION . . . . . . . . . . . . . 21 TABLE OF AUTHORITIES Cases Page(s) Corbin v. Southland Intern. Trucks, 25 F.3d 1545 (11th Cir. 1994) . . . . . . . 14, 16 Hinson v. Clinch County Bd. of Ed., 231 F.3d 821 (11th Cir. 2000) . . . . . . 14, 16 Jones v. Firestone Tire & Rubber Co., Inc., 977 F.2d 527 (11th Cir. 1992) . . . . . 13 Lane v. Celotex Corp., 782 F.2d 1526 (11th Cir. 1986) . . . . . . . . . . . . . . . . 15 Mannicia v. Brown, 171 F.3d 1364 (11th Cir. 1999) . . . . . . . . . . . . . . . . 10 St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993) . . . . . . . . . . . . . . . . 11, 12 Silvera v. Orange County Sch. Bd., 244 F.3d 1253 (11th Cir. 2001) . . . . . . . . . . . 10 Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981) . . . . . . . . . 12 Thompson v. Metropolitan Multi-List, Inc., 934 F.2d 1566 (11th Cir. 1991) . . . . 16 Williams v. Vitro Services Corp., 144 F.3d 1438 (11th Cir. 1998) . . . . . . . . . . . . 20 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 02-13248-C EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. ELECTRONIC DATA SYSTEMS CORPORATION, Defendant-Appellee. On Appeal from the United States District Court for the Northern District of Alabama REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS PLAINTIFF-APPELLANT The Commission alleges that Electric Data Systems (“EDS”) violated Title VII by discriminating against Lafayette Hodges because of his sex. Specifically, the complaint alleges that EDS denied Hodges' request for a change in his work schedule to accommodate his ability to provide care for his son while granting a similar request by a female employee, and that as a result Hodges was terminated by EDS. In the district court, the Commission presented evidence that, when Hodges and DeMarco Johnson, a female employee, were assigned to work a shift that conflicted with their child-care arrangements, Sheila Wildes, who supervised both employees, demanded that Hodges, but not Johnson, arrange other child care within two weeks or be fired. The district court granted EDS's motion for summary judgment holding that a comparison of the company's treatment of Hodges and Johnson does not support an inference of discrimination because the two were not similarly situated in all respects. Specifically, the court ruled, Hodges was different from Johnson because he behaved “belligerently” when he was told that he would have to work a schedule which conflicted with his child-care responsibilities. The court also observed that, while they shared a supervisor, Hodges and Johnson had different team leaders and, the court concluded, “the relevant decision-makers” for Hodges and Johnson were different. Finally, the court determined that there was insufficient evidence to show that EDS's explanation for firing Hodges – that he was unwilling to try to make other child-care arrangements in two weeks and that he lied to EDS's manager – was a pretext for sex discrimination. In our opening brief on appeal, we argued that the district court improperly construed disputed facts in EDS's favor and misunderstood the nature of the EEOC's allegations. We argued that the court focused too narrowly on EDS's ultimate decision to fire Hodges on July 6 and, thereby, overlooked compelling evidence of disparate treatment. In particular, we emphasized that there was evidence that Wildes sealed Hodges' fate by insisting from the beginning that he work the new schedule or be fired while she made no similar demand of Johnson. We pointed out that EDS failed to offer a non-discriminatory reason for Wildes' different treatment of Hodges and Johnson. We also argued that it was wrong for the district court to dismiss the EEOC's claim because of Hodges' behavior at the announcement meeting inasmuch as EDS never advanced that as a reason for Hodges' discharge and, in any event, there was ample evidence contradicting EDS's assertion that Hodges misbehaved. Finally, we argued that, even if the inquiry is focused on Yeager's decision to fire Hodges on July 6, there is sufficient evidence that her stated reasons for that decision are a pretext for sex discrimination. In response, EDS for the most part simply reiterates its version of disputed events surrounding Hodges' discharge and quarrels with the Commission's version. Notably, however, EDS does not respond to the Commission's argument that Wildes treated Hodges and Johnson differently from the start and that this difference in treatment remains unexplained. Furthermore, EDS does not dispute our assertion that EDS did not advance Hodges' behavior at the announcement meeting as a factor in the decision to fire him. Rather, the company attempts to make up for lost time by now arguing for the first time that the decision to fire Hodges was based on his demeanor at that meeting as well as a number of other aspects of Hodges' reaction to the company's ultimatum. Even if the company were permitted to advance these new arguments on appeal, the fact remains that Yeager, the company official who decided to fire Hodges on July 6, expressly stated that her decision was based only on his refusal to accept a two-week delay in his termination and not on his purported lies at the July 6 meeting. No mention was made of any of the other factors that EDS belatedly advances. 1. As we pointed out in our opening brief, the evidence in the record would support the following story. See EEOC br. at 17-19. When Hodges and Johnson were assigned to work a shift that conflicted with their child-care arrangements, Wildes, their supervisor, demanded that Hodges arrange other child care within two weeks, so that he could work the new shift, or be fired. Moreover, Wildes rejected without explanation Hodges' offer to swap shifts with a willing employee and expressed disbelief that he could not solve his problem when he explained his circumstances. On the other hand, Wildes did not require Johnson (who, unlike Hodges, did not propose a workable solution) to begin the new shift in two weeks or face discharge. Rather, she told Johnson to take two weeks to “see what you can do.” Further, when Johnson had not found a solution within that time period, Wildes gave her additional time without asking Johnson to explain her endeavors at finding a solution. The Commission argued that a reasonable jury could find from this evidence that Wildes treated Hodges differently perhaps based on the stereotype that women, not men, are primarily responsible for child care and, therefore, Wildes assumed that, because it was not his principal obligation, Hodges could find alternative child care within two weeks. EDS does not directly respond to this argument. Instead the company continues to assert that both Hodges and Johnson were offered a “two-week grace period” by Wildes, suggesting that this amounted to equal treatment. The evidence belies any such suggestion, however. Wildes made it absolutely clear to Hodges, when she offered him his “grace period,” that he would be fired if he did not go on the new schedule in two weeks, regardless of whether he was able to make alternative child-care arrangements. EEOC br. at 7. From Hodges' perspective, knowing that he would not be able to work the new schedule in two weeks, this was merely an offer of a brief postponement of his termination. From EDS's perspective, it was, at best, an ultimatum. EDS made it unmistakably clear to Hodges from the beginning that the decision to transfer him to a later schedule was final and would not be reconsidered notwithstanding his child-care problems. By contrast, when Johnson presented Hodges with similar child-care conflicts with her new schedule, she was told to stay on her present schedule for two weeks and “see what you can do” about alternative child-care arrangements.<1> EEOC br. at 4. There was no suggestion that the decision to change her schedule was final, and, indeed, it was reconsidered after she reported that she could not find alternative child-care arrangements. Thus, in Johnson's case, what EDS calls a “two-week grace period” was a postponement of a final decision on her schedule change, not an ultimatum. As we noted in our opening brief, Wildes offered no explanation for this difference in her reaction to Hodges' and Johnson's similar child-care problems. EEOC Br. at 19. Rather than directly respond to our argument, EDS distorts it beyond recognition, asserting that the Commission is arguing in this appeal that the relevant employment action is Wildes' “‘withdrawal' of her offer of a grace period and ‘threat' to fire” Hodges if he did not go on the new schedule.<2> EDS br. at 15. EDS then argues that we did not make this argument below and that, in any event, it would not state a claim under Title VII. We agree that we did not make the straw argument EDS puts forward, either in the district court or in our opening brief on appeal. However, we did argue below, as we argue on appeal, that Wildes discriminated against Hodges by giving him, but not Johnson, an ultimatum to find suitable child care within two weeks or be fired. See R.E., Tab 1, Pgs.5, 6-7 (Commission's complaint alleges that EDS “discriminated against [Hodges] on the basis of sex in assignment of his work schedule” and more particularly that EDS treated Hodges differently than a “similarly-situated employee of the opposite sex” as to setting Hodges work schedule in a manner that would have permitted him to continue his employment); Doc. 17, Pg. 20 (EEOC brief in opposition to summary judgment) (arguing that Johnson, but not Hodges, was given “exemption after exemption” from the schedule change while she sought alternative child care). EDS also argues that, even if Wildes treated Hodges differently with respect to his schedule because of his sex, this would not state a claim under Title VII. EDS Br. at 16-18. According to EDS, because Wildes did not have the authority to terminate Hodges, her actions cannot constitute an adverse employment action under Title VII, but were merely a “threat” to fire Hodges. This argument bears little relation to the facts of this case. The evidence indicates not that Wildes threatened Hodges, but that she made the decision to place Hodges on a new schedule notwithstanding his protestations that he could not work that schedule. We argued that, if that decision was made for a discriminatory reason, EDS would be liable under Title VII when the inevitable happened and Hodges was fired for failing or refusing to work the new schedule.<3> None of the cases cited by EDS, all of which involve situations where plaintiffs attempted to challenge threats which did not come to pass, are inconsistent with the Commission's argument. See EDS br. at 16-17.<4> 2. We argued in our opening brief that the district court erred in holding that Hodges was not similarly situated to Johnson due to his behavior at the meeting when the schedule change was announced because there is no evidence that Hodges' behavior at that meeting was a factor in the decision to fire him.<5> As we pointed out, neither Wildes nor Yeager testified that Hodges' behavior at the meeting motivated their decision to treat him more harshly than Johnson. In fact, as we have noted, Wildes gave no reason for treating Hodges differently, but rather insisted that she treated him the same as Johnson. We pointed out that this Court has held that, to create an inference of discrimination by comparing his treatment with that of another employee outside of the protected class, a plaintiff must present evidence that the plaintiff and the comparator were “similarly situated in all relevant respects.” See Silvera v. Orange County Sch. Bd., 244 F.3d 1253, 1259 (11th Cir. 2001) (emphasis added). In conducting this analysis, the focus should be on the reasons the defendant gave for the adverse employment action.<6> In such cases, a determination of whether the misconduct for which the plaintiff was fired is sufficiently similar to that of another employee who was treated less severely is “relevant” because it goes to the heart of the defendant's explanation for its actions. See EEOC br. at 23-25. By contrast, comparing the plaintiff's conduct to that of another employee where, as here, there is no evidence that plaintiff's conduct played a role in the adverse employment action is irrelevant because it does not show whether or not that action was taken for a discriminatory reason.<7> Moreover, as stated in our opening brief, to require a plaintiff to produce evidence of comparable misconduct by a comparator where the defendant has not offered that misconduct as a reason for its action is irreconcilable with the Supreme Court's requirement that a defendant “clearly set forth . . . reasons for its actions which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action.” St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993). EDS does not respond to our legal argument that a determination that a comparator is similarly situated should be based only on factors which the employer asserts were factors in its decision. Neither does the company dispute the Commission's assertion that neither Wildes nor Yeager stated that Hodges' behavior at the announcement meeting was a factor in their treatment of him. Instead the company attempts to make up for lost time by now arguing for the first time that, not only Hodges' behavior at the meeting, but other aspects of Hodges' reaction to the schedule change “formed the basis for” the decision to terminate him. EDS br. at 19. Specifically, EDS now asserts that Hodges' discharge was based not only on the two reasons stated by Yeager (which are addressed below), but also on: his reaction at the announcement meeting; his failure to respond to Wildes' offer of a two-week postponement of the schedule change; and his refusal to meet with Yeager without a witness. EDS br. at 12-13, 19-20. This argument is too little, too late. It is too late because it was not made in the district court. It is too little because there is no evidence that the decision was based on any of these additional factors. EDS can state in its brief that they “formed the basis for the decision,” but it cannot change the fact that neither Wildes nor Yeager testified that they considered any of these factors in deciding how to treat Hodges. The Supreme Court has held that, to show that a challenged decision was based on a legitimate nondiscriminatory reason, “the defendant must clearly set forth, through the introduction of admissible evidence, the reasons” for that action. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254-55 (1981); accord Hicks, 509 U.S. at 507. Unsupported assertions of counsel in a brief are not a substitute for evidence. 3. Even if Wildes or Yeager had testified that they relied on Hodges' reaction to the schedule change in deciding how to treat him, the company would not be entitled to summary judgment. As we pointed out in our opening brief, there are substantial factual disputes concerning Hodges' conduct. EDS, like the district court, relies on Wildes' version of what occurred at the announcement meeting. EDS br. at 2-3. However, in considering a motion for summary judgment, the nonmovant's evidence “is to be believed” and “all justifiable inferences” must be drawn in his favor. Jones v. Firestone Tire & Rubber Co., 977 F.2d 527, 535-36 (11th Cir. 1992). As we noted in our opening brief, there is abundant evidence contradicting EDS's view of Hodges' conduct at the announcement meeting. First, Hodges denied that he behaved as Wildes claimed, which alone is sufficient to preclude summary judgment.<8> See EEOC br. at 10 & 21. In addition, both Galey and Schultz dispute EDS's description of Hodges' reaction at the announcement meeting. See EEOC br. at 10-11. Consequently, because the district court was "faced with having to believe one party or the other," summary judgment was not appropriate. Corbin v. Southland Int'l. Trucks, 25 F.3d 1545, 1548 (11th Cir. 1994). EDS attempts to sidestep the evidence contradicting its view of Hodges' conduct at the announcement meeting by discrediting Galey's and Schultz's testimony. EDS argues that Galey's deposition testimony cannot be read to mean that the company told her to fabricate a story. EDS br. at 20-22. However, at her deposition, Galey testified that the notes EDS produced could have been altered, and that EDS told her to rewrite her first draft of her notes to make her description of Hodges' conduct “more severe.”<9> See EEOC br. at 10. While, as EDS argues, it is possible to read the evidence to support its view that the company did not ask Galey to add details that were not true, summary judgment is not the proper place to weigh conflicting evidence or determine credibility. See EEOC br. at 21 (quoting Hinson v. Clinch County Bd. of Educ., 231 F.3d 821, 827 (11th Cir. 2000)). EDS also argues that Galey did not repudiate most of the notes, but simply stated that she could not recall whether the actions described therein actually happened at the meeting. EDS br. at 22-23. In her deposition, Galey questioned the accuracy of those notes either because they contained information she knew was not accurate, e.g., that more than one employee complained about Hodges' behavior, or because they described events that she did not recall happening at the meeting. See EEOC br. at 10-11. In any event, any conflict between the notes that Galey purportedly wrote and her deposition testimony “presents a question of credibility which requires jury resolution.” Cf. Lane v. Celotex Corp., 782 F.2d 1526, 1532 (11th Cir. 1986) (conflict between nonparty witness's recall during deposition and statements in affidavit could not be resolved at summary judgment). EDS also attempts to refute Schultz's testimony that Hodges was not “belligerent” and was “no more vocal” than other employees during the announcement meeting by questioning what Schultz meant by “belligerent” and “vocal”.<10> EDS br. at 23-24. Wildes testified that Hodges “acted belligerently” and was “extremely vocal” at the announcement meeting. See EEOC br. at 9. Consequently, Schultz's testimony creates a direct conflict with that of Wildes that cannot be resolved at summary judgment. See Corbin, 25 F.3d at 1548. The question of what Schultz, or Wildes for that matter, meant by those terms requires weighing the evidence, which is improper at summary judgment. See Hinson, 231 F.3d at 827. 4. EDS also suggests in its brief that Hodges was different from Johnson because, unlike Johnson, Hodges made no attempts to find a solution to his child-care problem. EDS br. at 3 & 7. However, the record shows that there is very little difference between what Hodges and Johnson did to attempt to find alternative child care. Furthermore, the evidence suggests that Hodges, and not Johnson, took the initiative to find another employee willing to exchange shifts with him, a step that would have resolved the conflict and caused no problems for EDS. Hodges told Wildes and Yeager that his friend could not keep his son longer in the afternoon. He also told them that he had considered whether his mother could keep his son, but her health prevented it, and that he had considered child care, but could not afford it.<11> Johnson told EDS that she had considered moving in with her mother, but she could not do so because Johnson would incur a penalty for breaking her lease. The only affirmative effort Johnson made was to ask her child-care provider whether it would waive any fee for keeping her children a little longer. Although Hodges did not ask any child-care facility to waive its entire fee so he could afford to enroll his son, he took an affirmative step that would have completely resolved the problem if EDS had not stubbornly refused to consider it. Unlike Johnson, Hodges took the initiative to find another employee who was willing to exchange shifts with him. As we explained in our opening brief, EDS officials acknowledged that such a shift swap would have been possible. EEOC br. at 5-6. Accordingly, EDS's attempts to brand Hodges as uncooperative are belied by the record. 5. The Commission also argued that summary judgment was inappropriate as to the circumstances of July 6, the day Yeager fired Hodges. EEOC br. at 26. We argued that, contrary to the district court's conclusion, there was a disputed issue of fact as to whether Yeager's stated reasons for the discharge were true. Yeager testified that she decided to fire Hodges because he refused to accept her offer of a two-week postponement of the schedule change and because he purportedly lied to her. As we argued in our opening brief, the evidence as to whether Hodges refused Yeager's two-week offer is disputed and, therefore, that issue cannot be decided at summary judgment. EEOC br. at 27-28. Hodges testified that he never said he did not want the two weeks, but simply told Yeager, as he had Wildes, that he would not be able to find proper child care in that amount of time.<12> Id. at 8. Schultz's testimony corroborates Hodges' account. EDS claims that Schultz's testimony does not contradict Yeager's statement that Hodges was not willing to accept the two-week time limit. EDS br. at 25. This is an untenable assertion. Schultz specifically states in her affidavit that she “heard [Hodges] accept this offer” of “two weeks in which he could work at his original schedule until he could make arrangements for child care.”<13> Doc. 13, No. 3. Schultz's statement undoubtedly creates a factual dispute on this issue that cannot be resolved at summary judgment. The Commission also argued that Yeager's deposition testimony shows that she would not have fired Hodges solely on the basis of the purported lies because she testified that she could not “see any other reason why [she] wouldn't have” allowed Hodges to keep his job if he had told her that he would take two weeks to try to find suitable child care.<14> EEOC br. at 28. EDS does not dispute that a reasonable jury could infer from Yeager's statement that she would not have fired Hodges solely on the basis of his purported lies. In fact, EDS agrees that Yeager's statement that she would have allowed Hodges to continue working if he had accepted the two-week offer shows that “she could not state whether the lies, alone, would have been enough to warrant termination at that point.”<15> EDS br. at 19 n.18. In our opening brief, we also pointed out that the events of July 6 are not dispositive of the claims in this action because Hodges would have been fired in any event. EEOC br. at 28-29. As we pointed out, EDS has never suggested that Wildes and Yeager did not mean what they said to Hodges at the time: that he was going to be fired if he did not begin to work the new schedule on July 6, or two weeks later if he accepted the proffered “grace period.” Since the evidence would support a finding that Hodges would not have been able to find alternative child care in two weeks, a reasonable jury could find that Hodges' discharge was inevitable and that the July 6 meeting simply determined whether it would occur on that day or two weeks later. Id. EDS offers no response to this argument. CONCLUSION For the foregoing reasons, the district court's decision granting summary judgment to EDS should be reversed. Respectfully submitted, NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel John F. Suhre Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street N.W., Room 7040 Washington, D.C. 20507 (202) 663-4716 CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with the type-volume limitations set forth in F.R.A.P. 32(a)(7)(B)(i). The brief contains 5,003 words. John F. Suhre CERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing brief were mailed, first class, on this the 16th day of September, 2002, to the following counsel of record: Vicki L. Gillette, Esq. Electronic Data Systems Corp. 5400 Legacy Dr. H3-3D-05 Plano, Texas 75024 John F. Suhre Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street N.W., Room 7040 Washington, D.C. 20507 1 We stated in our opening brief that Johnson first approached Wildes on July 2, the same day Hodges asked Wildes to permit him to stay on his old schedule. EEOC br. at 4. EDS claims that there is no evidence in the record that Johnson approached Wildes “so soon after the announcement was made.” EDS br. at 6 n.7. However, Yeager's deposition testimony and notes attached thereto show that Wildes told her that Johnson came to Wildes about the schedule change on July 2. Doc. 10, Ex. 1C, Pgs. 30, 63 & attachment (plaintiff's exhibit 3). 2 Although EDS puts the words “withdrawal” and “threat” in quotation marks, it does not provide a citation to the EEOC's brief for this purported quote. In fact EEOC's brief does not contain either of those words or any form thereof. 3 Circuit courts, including this one, routinely hold that a defendant may be held liable if the manager who fired the plaintiff merely acted as a rubber stamp for the biased subordinate, even if the manager lacked discriminatory intent. See Russell v. McKinney Hosp. Venture, 235 F.3d 219, 226-27 (5th Cir. 2000) (citing cases). 4 In any event, the Commission also alleges that Yeager's decision to fire Hodges on July 6 was itself based on sex. Accordingly, even if EDS were correct that Wildes' actions did not constitute an adverse employment action under Title VII, we would still have a claim. We argued in our opening brief that the district court erred in granting summary judgment with respect to this allegation. We address EDS's response to that argument infra at 16-20. 5 The district court also ruled that Hodges and Johnson were not similarly situated because different managers made the decisions regarding them, noting that Yeager fired Hodges, while Blankenship permitted Johnson to keep her old schedule. As we stated in our opening brief, and supra at 4-5, this ignores the evidence showing that Wildes was the relevant decision maker for both Hodges and Johnson because, as EDS has admitted, it was Wildes who gave Hodges an ultimatum – find other child care within two weeks or be fired – while permitting Johnson to stay on the early shift even after her initial two weeks had expired. See EEOC br. at 25-26. 6 See, e.g., Silvera, 244 F.3d 1253, 1259 (11th Cir. 2001) (court held that plaintiff and comparator were not similarly situated because plaintiff was discharged for having committed frequent and recent sexual assaults, while comparator, who was not fired, had committed fewer and less recent assaults that did not involve violence); Mannicia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999) (court held that plaintiff and comparator were not similarly situated because instances of misconduct for which plaintiff was fired were not sufficiently similar to those of comparator who was not fired). 7 If the district court's analysis were correct, then an employer who asserts that it fired an employee for lying could claim that a comparator identified by the fired employee is not similarly situated because he, unlike the fired employee, is left handed. 8 Hodges' testimony at his deposition and in his affidavit show that he disputes EDS's claim that he “reacted in a defiant, angry manner.” Doc. 13, No. 5, Pgs. 207-12 & No. 1, ¶ 7. 9 According to EDS, the Commission should be precluded from arguing that Galey's testimony questioning the accuracy of the notes creates a genuine issue of fact because we did not make that argument below. EDS br. at 20 & n.20. However, there was no reason for the Commission to rely on Galey's testimony about Hodges' conduct at the meeting in district court because, as we have noted previously, EDS never offered his conduct either as a reason for giving him only two weeks to find other child care or as a reason for discharging him. 10 EDS repeatedly refers to Schultz's “EEOC-drafted affidavit,” implying that it should be discounted because it is self-serving. First, EDS points to no evidence that the words in the affidavit are the EEOC's and not Schultz's. In any event, even if the EEOC drafted the affidavit (a common practice in any litigation), Schultz swore that its contents were “true and correct.” Doc. 13, No. 3. Lastly, this court has noted that it would be “surprised if any party ever submitted an affidavit that was not self-serving” and further concluded that such an “attack on the credibility of the witness is inappropriate during a motion for summary judgment.” See Thompson v. Metro. Multi-List, Inc., 934 F.2d 1566, 1578 (11th Cir. 1991). 11 EDS claims that Hodges did not ask his son's mother to keep him for the extra hour because Hodges did not want her to think that he could not care for his son and suggests that this was an inadequate explanation. EDS br. at 3-4. However, although Hodges did state that he was reluctant to ask his son's mother for the reason stated by EDS, he also testified that his son's mother could not keep his son because, at the time, she did not have a car. Doc. 13, No. 5, Pg. 224 & No. 1, ¶ 6. 12 EDS claims that Hodges “admitted he did not respond to Wildes' repeated questions regarding the two-week grace period.” EDS br. at 19, citing Hodges' deposition testimony. However, the cited portions do not support EDS's assertion. At one point, EDS's counsel asked how Hodges responded to Wildes' suggestion that he take some time to try to work out his problem, to which Hodges answered that he told Wildes that his only alternative was to put his son in child care, which he could not afford. Doc. 13, No. 5, pgs. 135-36. EDS also claims that, at pages 240-41 of his deposition, Hodges stated that it was ‘‘possible” he said “What I said out there” in response to Wildes' two-week offer. EDS br. at 19 n.17. But at that point, EDS's counsel was asking Hodges about his reaction when Wildes accused him of unprofessional conduct in the announcement meeting. EDS's counsel asked Hodges whether he ever gave that answer “in response to one of Sheila's questions,” but counsel never specifically asked whether he gave that response to Wildes' two-week offer. Doc. 13, No. 5, pg. 240. 13 EDS argues that Schultz “confirms that Hodges adamantly maintained that he would not be able to make alternative arrangements.” EDS br. at 25 n.24. However, this is not inconsistent with Hodges' statement that he did not refuse the two weeks, but told both Wildes and Yeager that even if he had two weeks, he would not be able to make other child-care arrangements. 14 EDS misrepresents the Commission's position by stating the we argue that Yeager's deposition testimony shows that the purported lies “played no role” in her decision to fire Hodges. EDS br. at 19 n.18. On the contrary, we argued that her testimony makes clear that the purported lies did not play “a decisive role” in that decision. See EEOC br. at 28. 15 EDS points out that Yeager stated that “[c]ollectively, all those things made [her] decision.” The fact that the purported lies were a factor in her decision does not contradict her statement that they did not play a decisive role, as the Commission argued. Moreover, even assuming that this latter testimony is inconsistent with her prior statement that there was no “other reason” why she would not have permitted Hodges to keep his job if he had agreed to the two-week offer, summary judgment would still be inappropriate. Williams v. Vitro Services Corp., 144 F.3d 1438, 1445 (11th Cir. 1998) (summary judgment precluded where deposition of one of defendant's officials contained “several inconsistencies that cast doubt on the credibility of these assertions”).