No. 10-6512 _________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________________________________________________ LINDA EPPS, Plaintiff/Appellant, v. FEDEX SERVICES, Defendant/Appellee. _________________________________________________________ On Appeal from the United States District Court for the Western District of Tennessee at Memphis No. 2:09-cv-2482 _________________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF/APPELLANT AND IN FAVOR OF REVERSAL _________________________________________________________ P. DAVID LOPEZ General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ELIZABETH E. THERAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St., N.E., 5th Floor Washington, D.C. 20507-0001 (202) 663-4720 elizabeth.theran@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE ISSUE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. Statement of the Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . 2 B. District Court's Decision. . . . . . . . . . . . . . . . . . . . . . . . . . .5 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 THE DISTRICT COURT ERRED IN CHARACTERIZING THE PLAINTIFF'S DEMOTION IN THIS CASE AS OCCURRING PURSUANT TO A RIF AND IN HOLDING THAT PLAINTIFFS IN RIF CASES ARE REQUIRED TO MAKE A "HEIGHTENED SHOWING" TO ESTABLISH A PRIMA FACIE CASE OF DISCRIMINATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 A. Epps's Demotion is not a RIF and Did Not Occur Pursuant to a RIF. . . . . . 9 B. The Modified Fourth Prong of the McDonnell Douglas Prima Facie Case Applicable in RIF Cases Should Not be Construed as a "Heightened Burden" Demanding a Greater Quantity or Quality of Evidence. . . . . . . . . . . . 14 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Allen v. Diebold, Inc., 33 F.3d 674 (6th Cir. 1994). . . . . . . . . . . . . . .10, 16 Amburgey v. Corhart Refractories Corp., 936 F.2d 805 (5th Cir. 1991). . . . . . 23 Bacon v. Honda of Am. Mfg., Inc., 370 F.3d 565 (6th Cir. 2004). . . . . . . . . 15 Barnes v. GenCorp, Inc., 896 F.2d 1457 (6th Cir. 1990). . . . . . . . . . . . passim Blair v. Henry Filters, Inc., 505 F.3d 517 (6th Cir. 2007). . . . . . . . . 17, 18, 24 Cline v. Catholic Diocese of Toledo, 206 F.3d 651 (6th Cir. 2000). . . . . . . . . 15 Dugan v. Albemarle Cnty. Sch. Bd., 293 F.3d 716 (4th Cir. 2002). . . . . . . . . 21-22 EEOC v. Avery Dennison Corp., 104 F.3d 858 (6th Cir. 1997). . . . . . . . . . . . 15 EEOC v. The Boeing Co., 577 F.3d 1044 (9th Cir. 2009). . . . . . . . . . . . . . . 22 Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344 (6th Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . . 8, 11, 17 Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). . . . . . . . . . . . . . .16, 17 Geiger v. Tower Auto., 579 F.3d 614 (6th Cir. 2009). . . . . . . . . . . . . . .18, 19 Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187 (10th Cir. 2008). . . . . . . . . 22 Hollins v. Atlantic Co., 188 F.3d 652 (6th Cir. 1999). . . . . . . . . . . . . . . 15 Jackson v. FedEx Corp. Servs., Inc., 518 F.3d 388 (6th Cir. 2008). . . . . . . . . 15 LaGrant v. Gulf & W. Mfg. Co., 748 F.2d 1087 (6th Cir. 1984). . . . . . . . . 10, 13 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). . . . . . . . . . . . passim Merillat v. Metal Spinners, Inc., 470 F.3d 685 (7th Cir. 2006). . . . . . . . . 20 Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687 (7th Cir. 2000). . . . . 21 Mitchell v. Toledo Hosp., 964 F.2d 577 (6th Cir. 1992). . . . . . . . . . . . . . . 8 Paluck v. Gooding Rubber Co., 221 F.3d 1003 (7th Cir. 2000). . . . . . . . . . . . 20 Petts v. Rockledge Furniture LLC, 534 F.3d 715 (7th Cir. 2008). . . . . . . . . . . 20 Ridenour v. The Lawson Co., 791 F.2d 52 (6th Cir. 1986). . . . . . . . . . . . 18-19 Ritter v. Hill 'N Dale Farm, Inc., 231 F.3d 1039 (7th Cir. 2000). . . . . . . . 20, 21 Rowan v. Lockheed Martin Energy Sys., Inc., 360 F.3d 544 (6th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . passim Schoonmaker v. Spartan Graphics Leasing, LLC, 595 F.3d 261 (6th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Shah v. Gen. Elec. Co., 816 F.2d 264 (6th Cir. 1987). . . . . . . . . . .12, 13, 16-17 Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379 (2008). . . . . . . . . . . . 16 Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981). . . . . . . . . . . . .15 Tye v. Bd. of Educ. of the Polaris Joint Vocational Sch. Dist., 811 F.2d 315 (6th Cir. 1987). . . . . . . . . . . . . . . . . . . . . . . . 12, 13, 14 Ward v. Int'l Paper Co., 509 F.3d 457 (8th Cir. 2007). . . . . . . . . . . . . . 22-23 Watkins v. Sverdrup Tech., Inc., 153 F.3d 1308 (11th Cir. 1998). . . . . . . . . . .23 Wilson v. Firestone Tire & Rubber Co., 932 F.2d 510 (6th Cir. 1991). . . 10, 18, 19 Wrenn v. Gould, 808 F.2d 493 (6th Cir. 1987). . . . . . . . . . . . . . . . . . . . 15 STATUTES & RULES Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. . . . . . 1 Fed. R. App. P. 29(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Fed. R. App. P. 32(a)(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Fed. R. App. P. 32(a)(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Fed. R. App. P. 32(a)(7)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . 26 OTHER AUTHORITIES Webster's Third New Int'l Dictionary (1976 ed.). . . . . . . . . . . . . . . . . . 9 STATEMENT OF INTEREST The U.S. Equal Employment Opportunity Commission is the agency established by Congress to administer, interpret, and enforce Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. This appeal presents an important issue concerning the proper analysis of discrimination claims when the defendant alleges that the adverse action in question was taken pursuant to a reduction in force, or RIF. In this case, the district court treated the plaintiff's demotion as a RIF, even though it affected only her position and resulted in no net loss of employees or positions to the defendant, and therefore required the plaintiff to satisfy a heightened evidentiary burden in order to establish a prima facie case of discrimination under Title VII. In so ruling, the district court fundamentally misconstrued the nature of the scenario in question and, further, erred in holding that plaintiffs who are terminated or demoted as part of a RIF must make a "heightened," as opposed to merely a different, evidentiary showing than non-RIF plaintiffs. Because resolution of this issue will affect the EEOC's enforcement of Title VII as well as other federal antidiscrimination statutes, the Commission offers its views to the Court pursuant to Fed. R. App. P. 29(a). STATEMENT OF THE ISSUE <1> Whether the district court erred in characterizing the plaintiff's demotion in this case as occurring pursuant to a RIF and in holding that plaintiffs in RIF cases are required to make a "heightened showing" in order to establish a prima facie case of discrimination. STATEMENT OF THE CASE A. Statement of the Facts The plaintiff, Linda Epps, who is African American, began working for the defendant, FedEx Services ("FedEx"), in 1988 as a senior programmer in Orlando, Florida. R.38-3 at 1 (Epps aff. ¶ 4); R.27-3 (Epps dep. 18).<2> She received multiple promotions over the years, and in 1997 she was promoted to the position of Manager IT in revenue systems at FedEx, with responsibility for managing approximately eight full-time employees and up to six different applications. R.38-3 at 1 (Epps aff. ¶ 4); R.27-3 (Epps dep. 29-34). In September 2005, Epps was hired as the Manager of IT for FedEx's Managed Resource Services Office, or MRSO, in Memphis, Tennessee. R.38-3 at 1 (Epps aff. ¶ 4); R.27-3 (Epps dep. 37- 39). The Manager IT, MRSO position was in what FedEx termed the E3 pay band, and Epps's annual salary in that position was $122,100; the maximum annual pay for the E3 salary band was $133,500. R.27-3 (Pl.'s Resp. to Def.'s First Set of Interrogs., #16, at 19; Pl.'s Resp. to Def.'s First Set of Reqs. for Admis., #37, at 13). Epps testified that, on approximately November 20, 2006, her supervisor, Mike Werner, informed her that the management responsibilities of her position as Manager IT, MRSO were being given to another manager, Peggy Black, who previously held the E3 position of Manager of Projects/Process. R.27-3 (Epps dep. 61-62). (Black's race is Caucasian.) Werner testified that he "was informed by executive management that [Black] would be moved into my group" because "the bulk of Peggy's activities and projects that she brought with her supported the Express side of the business and therefore they thought it was just a much better alignment with the project management from an operating company perspective to move her into my group." R.27-4 (Werner dep. 13). According to Epps, when she asked Werner the reason for the change, he told her it was a "strategic business decision." R.27-3 (Epps dep. 62). In his declaration, Werner testified: When I became the Director of IT, I decided to consolidate Linda Epps's management position with Peggy Black's management position and retain Ms. Black as the manager of this consolidated position. One reason that I decided to consolidate these positions was to make the managing of the collective projects under these positions more efficient. For instance, executive level management would only have to communicate with one manager to obtain status reports on all five projects. R.27-8 at 2 (Werner decl. ¶ 5). See also R.27-4 (Werner dep. 10) ("During that time period in November I learned that the reorganization of Peggy Black was coming under my organization . . . and I needed to look for a way to consolidate the groups to make sure that the people were much more efficient, the management chain was much more efficient.") Werner also testified that "this was at the end of the calendar year. In that time frame we were also being challenged and asked to look for ways to reduce expenses." R.27-4 (Werner dep. 10-11).<3> Epps was not terminated as a result of her nonselection for the consolidated position. R.27-4 (Werner dep. 28) ("Q. When Ms. Epps was displaced did that essentially mean she didn't have a job at that time? A. No."). Instead, as Werner testified, he "created a Business Applications Advisor position at FedEx Services for Ms. Epps, which she accepted on December 18, 2006." R.27-8 at 2 (Werner decl. ¶ 5); see also R.27-3-108 (Werner-Epps e-mail exchange). The Business Applications Advisor position was a non-managerial position in FedEx's E2 pay band, with a maximum annual salary of $100,056. R.27-3 (Pl.'s Resp. to Def.'s First Set of Interrogs., #11, at 15; Pl.'s Resp. to Def.'s First Set of Reqs. For Admis., #37, at 13). In her new, downgraded position, Epps continued to work on the MRSO project, but now reported to Black, who assumed management responsibility for the MRSO in addition to the four other projects she had managed previously. R.27-4 (Werner dep. 14, 15). In accordance with FedEx's policy regarding demotions, Epps's salary was downgraded from the E3 level to the E2 level when she changed positions, but the decrease in her pay was extended over an eighteen-month period in order to give her time to look for another E3 level position within the company. R.27-4 (Werner dep. 40); R.27-3 (Epps dep. 74-75). Epps subsequently applied for various posted E3 level management positions, but she was not selected for any of the positions she sought. R.38-3 at 4 (Epps aff. ¶ 16); R.27-3 at 138-170 (application correspondence). She remains employed at FedEx in the E2 Business Applications Advisor position. B. District Court's Decision In relevant part, the district court found that Epps failed to establish a prima facie case of race discrimination because "this case involves a RIF" and because Epps failed to make the "heightened showing" required by this Court under the modified version of the fourth prong of the McDonnell Douglas test that applies to RIF cases. The court began by taking note of what it termed this Court's explanation of "what constitutes a RIF case": A work force reduction . . . occurs when business considerations cause an employer to eliminate one or more positions within the company. An employee is not eliminated as part of a work force reduction when he or she is replaced after discharge. However, a person is not replaced when another employee is assigned to perform the plaintiff's duties in addition to other duties, or when work is redistributed among other existing employees already performing related work. A person is replaced only when another employee is hired or reassigned to perform the plaintiff's duties. R.45 at 7 (Order Granting Defendant's Motion for Summary Judgment ("Order")) (quoting Barnes v. GenCorp, Inc., 896 F.2d 1457, 1465 (6th Cir. 1990)). According to the district court, because Epps "does not dispute that Werner made a 'strategic business decision' to consolidate the two management positions," because Werner was acting as "part of a company-wide initiative to 'cut[] significant amount[s] of projects in dollars,'" because Epps's salary "decreased after her demotion," and because "Black took over Plaintiff's project while continuing to perform her pre-consolidation duties," "this is a RIF case." Id. at 7- 8. The court then stated that, because this is a "RIF case," "Plaintiff must make a heightened showing as to the fourth element" of McDonnell Douglas. R.45 at 10 (Order) (citing Rowan v. Lockheed Martin Energy Sys., Inc., 360 F.3d 544, 547 (6th Cir. 2004)). The court gave no explanation of what this "heightened showing" would entail; instead, it simply observed that "Plaintiff has not offered any evidence on this point," and concluded that she "has not established the fourth element of a prima facie case." Id. ARGUMENT THE DISTRICT COURT ERRED IN CHARACTERIZING THE PLAINTIFF'S DEMOTION IN THIS CASE AS OCCURRING PURSUANT TO A RIF AND IN HOLDING THAT PLAINTIFFS IN RIF CASES ARE REQUIRED TO MAKE A "HEIGHTENED SHOWING" TO ESTABLISH A PRIMA FACIE CASE OF DISCRIMINATION. In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), the Supreme Court explained the prima facie case of discrimination as follows: The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he belonged to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications. See also Barnes, 896 F.2d at 1464 n.6. The Court then observed, in footnote 13, that "[t]he facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof required from respondent is not necessarily applicable in every respect to differing factual situations." Id. at 802 n.13. This Court has recognized repeatedly that a reduction in force, or RIF, constitutes a situation of the type contemplated by the Supreme Court in McDonnell Douglas footnote 13: the standard formulation of the prima facie case of discrimination does not apply because the employer is not looking to re-fill the employee's position and because "'the most common legitimate reason[]' for the discharge [is] the work force reduction[]." Barnes, 896 F.2d at 1465; see also, e.g., Rowan, 360 F.3d at 547; Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 350 (6th Cir. 1998). In such cases, this Court has held that, in lieu of evidence of replacement by a member outside her protected class, or that the defendant continued to seek applicants, the plaintiff must adduce "'additional direct, circumstantial, or statistical evidence tending to indicate that the employer singled out the plaintiff for discharge for impermissible reasons.'" Ercegovich, 154 F.3d at 350 (quoting Barnes, 896 F.2d at 1465). As the Ercegovich Court put it, "[a] plaintiff satisfies the fourth prong where he or she demonstrates that a 'comparable non-protected person was treated better.'" Id. (quoting Mitchell v. Toledo Hosp., 964 F.2d 577, 582-83 (6th Cir. 1992)). In light of the Supreme Court's and this Court's law on this issue, the district court made two fundamental errors in its analysis of this case. The first was in its characterization of the plaintiff's nonselection for the consolidated E3 management position and her demotion to the E2 Business Applications Advisor position as a "RIF." Although this may be a case where, in certain respects, the traditional fourth prong of the McDonnell Douglas prima facie case requires some modification and flexibility, the employer lost neither positions nor employees in its demotion of the plaintiff, and it was therefore inappropriate to characterize this employment action as a RIF. Second, the district court misconstrued this Court's case law when it held that, because this case ostensibly involved a RIF, the plaintiff was required to make a "heightened showing" in establishing her prima facie case. While this Court has certainly acknowledged that a RIF scenario may require modification of the fourth prong of the McDonnell Douglas prima facie case, it has never held-nor should it-that a RIF plaintiff must adduce more or better evidence to support her claim than any other Title VII plaintiff. A. Epps's Demotion is not a RIF and Did Not Occur Pursuant to a RIF. By its very nature, a RIF, or reduction in force, involves a diminution of the number of employment positions at the company conducting it. See Webster's Third New Int'l Dictionary 1953 (1976 ed.) (defining "RIF" as: "1. a process of reduction of personnel . . . esp. for reasons of economy; 2. the act of dismissing a person . . . for reasons of economy. Also: a notice of such dismissal."). As a result of a RIF, some individuals remain employed and others do not-whether the individuals who are ultimately discharged are the ones who lose the most senior positions or whether, as in some cases, the more senior employees are allowed to "bump" more junior employees from their positions until, ultimately, someone downstream from them is displaced. See, e.g., Wilson v. Firestone Tire & Rubber Co., 932 F.2d 510, 512-13 (6th Cir. 1991) (explaining that managerial level employee whose position was eliminated had option of "bumping down and displacing any of the three persons [he] directly and immediately supervised"). Indeed, this concept is the animating force behind this Court's language in Barnes and other RIF cases, in which the Court reasoned that the traditional fourth prong of McDonnell Douglas is inapposite to RIFs precisely because the positions in question have been eliminated and so replacement-by anyone-is not at issue. See, e.g., Barnes, 896 F.2d at 1465 ("'The mere termination of a competent employee when an employer is making cutbacks due to economic necessity is insufficient to establish a prima facie case of age discrimination.'") (quoting LaGrant v. Gulf & W. Mfg. Co., 748 F.2d 1087, 1090 (6th Cir. 1984)); Allen v. Diebold, Inc., 33 F.3d 674, 677-78 (6th Cir. 1994) (discussing nature of modification to fourth prong of prima facie case of discrimination in RIF and plant closing/relocation cases, respectively). Accordingly, as this Court has observed, in cases where the plaintiff was discharged as a result of her position being eliminated, and no external hire or internal reassignment is made as a replacement, the plaintiff is required to adduce "additional direct, circumstantial, or statistical evidence tending to indicate that the employer singled out the plaintiff for discharge for impermissible reasons." Barnes, 896 F.2d at 1465. This case contains a critical factual distinction from the cases that this Court has characterized as involving RIFs. Not only was the plaintiff not discharged (nor did her demotion "bump" anyone else from a position resulting in someone else's discharge), but her supervisor testified that, after she was not selected for the consolidated management position, he "created a Business Applications Advisor position at FedEx Services for Ms. Epps." R.27-8 at 2 (Werner decl. ¶ 5). Thus, the plaintiff continued to work full-time at FedEx in a new position, albeit a lesser paid and non-management position, that had not existed before, and not a single individual lost a job as a result of the employment action in this case. There is no legal or logical support for characterizing a demotion of an existing employee into a new position at the same company as a RIF, even if her demotion happened to save the company some money. Compare, e.g., Rowan, 360 F.3d at 546-47 (RIF where multiple employees were laid off as part of budgetary cutbacks); Ercegovich, 154 F.3d at 348-49 (plaintiff terminated as part of RIF where his position was one of several eliminated); Barnes, 896 F.2d at 1461-62 (RIF where multiple employees were permanently discharged). Even apart from the fact that FedEx created a new position for the plaintiff and continued to employ her full-time, the factual scenario in this case, including the plaintiff's nonselection for the single consolidated position at issue here, does not constitute a true RIF of the type contemplated by this Court's existing case law. There was no testimony in the record to support the notion that this particular circumstance was part of a broader RIF at FedEx; at most, Werner testified that "this was at the end of the calendar year" and that "we were . . . asked to look for ways to reduce expenses." R.27-4 (Werner dep. 10-11). There was no testimony at all regarding any other employment positions being consolidated or eliminated. In true RIF scenarios, the "additional" McDonnell Douglas evidence required by this Court makes some sense, because a RIF does not target a single person or a single position; rather, a RIF is a broader economic initiative that affects multiple positions. The broader initiative is therefore the most likely explanation for the employment action in question, and the burden of articulating a nondiscriminatory reason for the selection of a particular person for the RIF should not arise absent some evidence to raise an inference of discrimination. As this Court has recognized, however, when only a single position is at issue and when the job function is not eliminated but is simply assigned to another employee, the inferences to be drawn are less similar to a RIF than they are to a simple nonselection or termination scenario. See Tye v. Bd. of Educ. of the Polaris Joint Vocational Sch. Dist., 811 F.2d 315, 318 n.1 (6th Cir. 1987); Shah v. Gen. Elec. Co., 816 F.2d 264, 269 (6th Cir. 1987) (discussing Tye). In Tye, the female plaintiff was a vocational guidance counselor who worked at a school where two out of the four guidance counselor positions were slated for elimination. 811 F.2d at 316. One position was eliminated via attrition, and as to the second position, the school superintendent made the decision not to renew the plaintiff's contract and, instead, to renew the contract of her male coworker. Id. at 316-17. This Court termed it "obvious that Ms. Tye established a prima facie case" of discrimination. Id. at 317 (emphasis added). In response to the defendant's argument that the plaintiff should have been required to adduce the "additional evidence" demanded of plaintiffs in RIF cases pursuant to LaGrant, 748 F.2d at 1091, this Court explained: The plaintiff in LaGrant failed to prove an essential element of his prima facie case, namely, that he was replaced by a younger person. . . . In this case, Ms. Tye has conclusively established that she was replaced by a male . . . . Thus, the circumstances that led the LaGrant court to add an additional element to the plaintiff's prima facie case are not present here. Tye, 811 F.2d at 318 n.1 (internal citation omitted); see also Shah, 816 F.2d at 269 (noting that, in Tye, although two guidance counselor positions were consolidated into one, "the task previously performed by the Title VII plaintiff was still being performed by someone," and observing that "[w]e held that for purposes of establishing a prima facie case, the remaining counselor replaced the fired counselor"). Even more so than in Tye, it strains logic, as well as the record, to characterize the scenario in this case as a RIF. Epps and Black were both potential candidates for the consolidated management position at issue, and Werner made the decision to award it to Black, the Caucasian candidate, over Epps. As a result, Epps was demoted to a new, non-managerial position at FedEx, where she still works to this day. There is no evidence that any other positions were affected. Calling this scenario a RIF essentially opens the door to characterizing any employment decision involving alleged economic considerations on the part of the company as a RIF, which is both inaccurate and inappropriate. This Court should reverse the district court's holding on this point. B. The Modified Fourth Prong of the McDonnell Douglas Prima Facie Case Applicable in RIF Cases Should Not be Construed as a "Heightened Burden" Demanding a Greater Quantity or Quality of Evidence. If this Court should find that the factual scenario in this case somehow constitutes a RIF, this Court should nonetheless clarify that the district court has misconstrued its case law to require an overly strict legal standard. While the fourth prong of McDonnell Douglas may require modification to make it applicable to RIF cases, that modification should not impose a "heightened burden" on plaintiffs in the sense of requiring them per se to introduce a greater quantity or quality of evidence than non-RIF plaintiffs. Rather, the modified fourth prong simply requires, as this Court has stated repeatedly, that RIF plaintiffs adduce different evidence-evidence additional to that in the first three prongs of McDonnell Douglas, and evidence other than replacement by someone outside the protected class-to establish their prima facie case of discrimination. As the Supreme Court put it, and this Court has recognized, "[t]he burden of establishing a prima facie case of disparate treatment is not onerous." Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981); see also, e.g., Jackson v. FedEx Corp. Servs., Inc., 518 F.3d 388 (6th Cir. 2008) ("The prima facie showing requirement is not onerous, as mandated by the Supreme Court in Burdine."); Bacon v. Honda of Am. Mfg., Inc., 370 F.3d 565, 572 (6th Cir. 2004) (observing that "the Court has been cognizant of the difficulties inherent in proving discrimination and therefore set a relatively low bar for establishing a prima facie case"). This Court explained: The prima facie requirement for making a Title VII claim "is not onerous," Burdine, 450 U.S. at 253, and poses "a burden easily met." Wrenn v. Gould, 808 F.2d 493, 500 (6th Cir. 1987). The prima facie phase "merely serves to raise a rebuttable presumption of discrimination by 'eliminat[ing] the most common nondiscriminatory reasons for the [employer's treatment of the plaintiff].'" Hollins v. Atlantic Co., 188 F.3d 652, 659 (6th Cir. 1999) (quoting Burdine, 450 U.S. at 253-54). It is "only the first stage of proof in a Title VII case," and its purpose is simply to "force [a] defendant to proceed with its case." EEOC v. Avery Dennison Corp., 104 F.3d 858, 861-62 (6th Cir. 1997). This division of intermediate evidentiary burdens is not meant to stymie plaintiffs, but simply serves to "bring the litigants and the court expeditiously and fairly to the ultimate question." Burdine, 450 U.S. at 253. Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 660 (6th Cir. 2000). Cases challenging a termination during a RIF, whether arising under Title VII, the ADEA, or any other antidiscrimination statute, are discrimination cases like any other and are not subject by statute, regulation, or rule to any heightened burden of proof. Cf. Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 388 (2008) (refusing to adopt a bright-line rule as to the admissibility of "other- supervisor" evidence in ADEA/RIF cases because "[t]he question whether evidence of discrimination by other supervisors is relevant in an individual ADEA case is fact based and depends on many factors, including how closely related the evidence is to the plaintiff's circumstances and theory of the case"). Rather, as the Supreme Court and this Court have emphasized, the McDonnell Douglas standard was meant to be applied flexibly, and that includes tailoring that standard to cases involving scenarios like RIFs and plant closures where replacement by a nonmember of the protected class is frequently, but not always, inapposite. See, e.g., Furnco Construction Corp. v. Waters, 438 U.S. 567, 575 (1978) (observing that the prima facie case test under McDonnell Douglas "was not intended to be an inflexible rule"); McDonnell Douglas, 411 U.S. at 802 n.13 ("The facts necessarily will vary in Title VII cases, and the specification . . . of the prima facie proof required from respondent is not necessarily applicable in every respect to differing factual situations."); Allen, 33 F.3d at 678 (observing that "McDonnell Douglas standard is flexible depending on factual situation"); Shah, 816 F.2d at 268 ("Case law subsequent to McDonnell Douglas has emphasized that the prima facie method 'was never intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination.'" (quoting Furnco, 438 U.S. at 577)). This Court's case law addressing how to establish a prima facie case of discrimination in a RIF case generally adheres to the Supreme Court's mandate of flexibility in McDonnell Douglas itself and in later cases. This Court has stated over and over again that, in lieu of demonstrating replacement by a member outside the protected class, a RIF plaintiff must adduce "additional direct, circumstantial, or statistical evidence tending to indicate that the employer singled out the plaintiff for discharge for impermissible reasons." E.g., Schoonmaker v. Spartan Graphics Leasing, LLC, 595 F.3d 261, 265 (6th Cir. 2010); Rowan, 360 F.3d at 547; Ercegovich, 154 F.3d at 350; Barnes, 896 F.2d at 1465. This Court has declined to issue bright-line mandates about the form that evidence must take or how much of it there must be, and for good reason. See Blair v. Henry Filters, Inc., 505 F.3d 517, 529 (6th Cir. 2007) (observing that different formulations of prima facie case "are merely various context-dependent ways by which plaintiffs may establish a prima facie case, and not rigid requirements that all plaintiffs with similar claims must meet regardless of context"). As this Court explained in Barnes, the "additional" evidence required in RIF cases is "additional" in two senses: first, that it must be adduced in addition to the evidence supporting the first three prongs of the McDonnell Douglas showing, and, second, that it would also be required in addition to a showing "that younger persons were retained in other jobs which the plaintiff was qualified to perform." 896 F.2d at 1465. But see Blair, 505 F.3d at 529 n.11 (observing that, even though the plaintiff was terminated as part of a RIF, and therefore could not show replacement by a younger employee, the defendant's "decision to shift [the plaintiff's] former duties to a younger salesman is not necessarily irrelevant. In appropriate cases, such evidence might constitute a circumstance, among others, giving rise to an inference of age discrimination . . . ."). In other words, the evidence in question is not "additional" to that required of a non-RIF plaintiff, but is "additional" to the first three prongs of McDonnell Douglas and to a showing of retention of non-protected individuals in other jobs. On a few occasions, this Court has stated, with little or no elaboration or explanation, that RIF plaintiffs bear a "greater," "heavier," or "heightened" burden vis-à-vis other discrimination plaintiffs. See, e.g., Geiger v. Tower Automotive, 579 F.3d 614, 623-24 (6th Cir. 2009); Wilson, 932 F.2d at 517; Ridenour v. The Lawson Co., 791 F.2d 52, 57 (6th Cir. 1986). It is not clear exactly what these statements mean. For example, in Ridenour, this Court wrote that a RIF plaintiff, "in addition to proving that he fell within the protected class, that he was terminated and that he was replaced by a younger individual, must come forward with additional direct, circumstantial, or statistical evidence that age was a determining factor in his termination"-an inaccurate statement of this Court's standard that has not been followed since. 791 F.2d at 57 (emphasis added). In Wilson, the entire discussion of the "heavier" burden was essentially dicta, since Wilson was a jury trial appeal that did not address the prima facie case issue. 932 F.3d at 517. And in Geiger, this Court stated, without further explanation, that a "heightened" standard applied, and then went on to apply the same "additional direct, circumstantial, or statistical evidence" standard that this Court has always applied. Apart from these isolated references, however, there is no substantive support in this Court's case law for the district court's conclusion that RIF plaintiffs should be subjected to a "heightened" evidentiary burden in the form of a per se requirement that they adduce more or better evidence than other plaintiffs in order to establish a prima facie case of discrimination. The district court's reading of precedent would place this Court at odds with the Supreme Court and with the other courts of appeals, none of which have adopted or endorsed such a burden in RIF cases. Other courts of appeals have handled scenarios that have some RIF-like characteristics, but are not true RIFs, like the one in this case, in a flexible manner that dovetails with the Supreme Court's approach and without imposing a heightened burden on RIF plaintiffs. For example, the Seventh Circuit has developed a specific line of case law dealing with what it terms a "mini-RIF," a scenario where "the dismissed worker's duties have been absorbed by another employee rather than eliminated." Merillat v. Metal Spinners, Inc., 470 F.3d 685, 690 (7th Cir. 2006); see also, e.g., Petts v. Rockledge Furniture LLC, 534 F.3d 715 (7th Cir. 2008); Ritter v. Hill 'N Dale Farm, Inc., 231 F.3d 1039 (7th Cir. 2000); Paluck v. Gooding Rubber Co., 221 F.3d 1003 (7th Cir. 2000). In these cases, the Seventh Circuit has explained, it applies a different modified version of the fourth prong of McDonnell Douglas: "[T]he fourth prong of the prima facie case is met by showing simply that the plaintiff was 'constructively replaced,' in other words that his responsibilities were absorbed by employees not in the protected class." Ritter, 231 F.3d at 1043 (internal citations omitted). Although the Seventh Circuit has held that whether a given case involves a mini-RIF does not turn per se on the number of employees affected, it has recognized that targeting only one employee's position for consolidation or elimination takes the scenario further away from a true RIF paradigm. See, e.g., Ritter, 231 F.3d at 1043 ("Ritter's case is not a true RIF-only one position (Ritter's) was eliminated and the duties of that position were simply absorbed by other employees."); Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687, 693 (7th Cir. 2000) ("Because of the fear that employers might misuse the RIF description to recharacterize ordinary terminations as reductions in force when they terminate an individual with a unique job, we have dispensed with the requirement that the plaintiff show 'similarly situated' employees who were treated more favorably."). The Seventh Circuit has thus recognized, correctly, that there are different inferences to be drawn at the prima facie case stage when an employer eliminates only one position - that occupied by a member of a protected class - and reassigns that person's duties to nonmembers of that class.<4> The Fourth Circuit has given great leeway to non-terminated plaintiffs in RIF cases with respect to establishing a prima facie case of discrimination, recognizing both that they must adduce evidence giving rise to an inference of discrimination and that they have no particular burden as to the manner in which they fashion that proof. See Dugan v. Albemarle County Sch. Bd., 293 F.3d 716, 720-21 (4th Cir. 2002) ("[I]n order to establish a prima facie case of discrimination in a RIF context where the plaintiff is not discharged entirely, Ms. Dugan had to establish (1) that she was in a protected class, (2) she was selected for demotion, (3) she was performing her job at a level that met the employer's expectations, and (4) that her employer did not treat the protected status neutrally, or there were other circumstances giving rise to an inference of discrimination."). Other courts of appeals have framed the burden of proof for a prima facie case in the RIF context, as this Court has done, in very general terms, recognizing that the specifics and weight of the proof will necessarily vary in each case. See, e.g., EEOC v. The Boeing Co., 577 F.3d 1044, 1049-50 (9th Cir. 2009) (in order to demonstrate prima facie case "[i]n RIF cases, a plaintiff can 'show through circumstantial, statistical or direct evidence that the discharge occurred under circumstances giving rise to an inference of . . . discrimination.'"); Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1195 (10th Cir. 2008) ("[O]ur case law requires a plaintiff affected by a RIF to show that he or she (i) was within a protected [class], (ii) was doing satisfactory work, (iii) was discharged despite the adequacy of his or her work, and (iv) has some evidence the employer intended to discriminate against him or her in reaching its RIF decision.") (emphasis in original); Ward v. Int'l Paper Co., 509 F.3d 457, 460 (8th Cir. 2007) ("In cases involving a reduction-in-force (RIF), a plaintiff makes a prima facie case by establishing: (1) he is [in a protected class]; (2) he met the applicable job qualifications; (3) he suffered an adverse employment action; and (4) there is some additional evidence that age was a factor in the employers [sic] action."); Watkins v. Sverdrup Tech., Inc., 153 F.3d 1308, 1314 (11th Cir. 1998) ("Where, as here, the employer produces evidence that it discharged the plaintiff during a RIF, "the plaintiff establishes a prima facie case by demonstrating (1) that he was in a protected age group and was adversely affected by an employment decision, (2) that he was qualified for his current position or to assume another position at the time of discharge, and (3) evidence by which a fact finder reasonably could conclude that the employer intended to discriminate on the basis of age in reaching that decision."); Amburgey v. Corhart Refractories Corp., 936 F.2d 805, 812 (5th Cir. 1991) (describing the fourth prong of the prima facie case in RIF cases as requiring the plaintiff to "produce some evidence that an employer has not treated [protected status] neutrally . . . . Specifically the evidence must lead the factfinder reasonably to conclude either (1) that defendant consciously refused to consider retaining or relocating a plaintiff because of his [protected status], or (2) that defendant regarded [protected status] as a negative factor in such consideration. . . . Thus, a prima facie case is fairly easily made out.") (internal citations and quotation marks omitted). With the record viewed in the correct light, Epps has adduced "additional direct, circumstantial, or statistical evidence tending to indicate that [FedEx] singled [her] out for [demotion] for impermissible reasons" sufficient to satisfy the fourth prong of McDonnell Douglas. Just as this Court observed in Blair, supra page 18, 505 F.3d at 529 n.11, a reasonable jury could find that Epps was literally singled out as the only employee affected by the so-called RIF in this case, which consisted of her management position being taken away from her and given to a Caucasian replacement while she was demoted and required to continue working on the exact same MRSO project, only as a subordinate to her new Caucasian superior and for less pay. See supra pages 3-5. This is circumstantial evidence, additional to the first three prongs of McDonnell Douglas, from which a reasonable jury could infer that FedEx had singled Epps out for demotion for discriminatory reasons. Accordingly, should this Court find that a RIF is at issue in this case, we respectfully urge this Court to clarify that, in accordance with both Supreme Court and its own precedent, the "additional direct, circumstantial, or statistical evidence" standard applicable to the fourth prong of the McDonnell Douglas prima facie case in RIF cases does not constitute a per se greater evidentiary burden on RIF plaintiffs vis-à-vis other disparate treatment plaintiffs. While modification of the flexible McDonnell Douglas test to adapt to the factual realities of a RIF is both legally and logically appropriate, imposing an arbitrary heightened evidentiary burden on RIF plaintiffs simply is not. CONCLUSION For the foregoing reasons, the judgment of the district court should be reversed and the case remanded for further proceedings. Respectfully submitted, P. DAVID LOPEZ General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel /s/ Elizabeth E. Theran ELIZABETH E. THERAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St., N.E., 5th Floor Washington, D.C. 20507-0001 (202) 663-4720 elizabeth.theran@eeoc.gov CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 6,123 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point. /s/ Elizabeth E. Theran ELIZABETH E. THERA Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St., N.E., 5th Floor Washington, D.C. 20507-0001 (202) 663-4720 elizabeth.theran@eeoc.gov Dated: March 2, 2011 CERTIFICATE OF SERVICE I, Elizabeth E. Theran, hereby certify pursuant to 6th Cir. R. 25(f) that on March 2, 2011, I electronically filed the foregoing brief with the Clerk of Court for the United States Court of Appeals for the Sixth Circuit by using the appellate CM/ECF system. I certify that the following participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system: Counsel for Plaintiff/Appellant: Edgar Davison, Esq. Davison Law Firm 6000 Poplar Ave., Suite 250 Memphis, TN 38119 (901) 271-5566 edgar@davisonlawfirm.net Counsel for Defendant/Appellee: Terrence O. Reed, Esq. Federal Express Corporation 3620 Hacks Cross Road Second Floor, Building B Memphis, TN 38125 (901) 434-8680 terrence.reed@fedex.com /s/ Elizabeth E. Theran ELIZABETH E. THERAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St., N.E., 5th Floor Washington, D.C. 20507-0001 (202) 663-4720 elizabeth.theran@eeoc.gov ********************************************************************************** <> <1> We take no position with respect to any other issue presented in this appeal. <2> Citations to the record are abbreviated "R." and refer to the district court docket entry number. Pincites refer to the internal pagination of the document (e.g., deposition transcript pages or affidavit pages), not PACER pagination, except where the document in question is otherwise unpaginated. <3> Epps testified that she believed that Black was chosen over her for the consolidated management position because of her race. R.27-3 (Epps dep. 64, 93- 94). Werner testified that he chose Black because, at the time, "Ms. Epps was managing one project, and Ms. Black was managing four projects and one initiative. . . . I thought it would be easier for Ms. Black to acquire the skills needed to manage one additional project, as opposed to having Ms. Epps acquire the skills needed to manage four additional projects." R.27-8 at 2 (Werner decl. ¶ 6). <4> We note, further, that this case is even less of a RIF case than the Seventh Circuit "mini-RIF" cases in that, even in the Seventh Circuit cases, the plaintiff's position was actually eliminated and the plaintiff was discharged, whereas in this case Ms. Epps continues to be employed at FedEx full-time in a position that her supervisor testified he "created" for her.