No. 09-3093 _______________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff/Appellant, v. THE GEO GROUP, INC., Defendant/Appellee. _______________________________________________________ On Appeal from the United States District Court for the Eastern District of Pennsylvania _______________________________________________________ PETITION OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION FOR REHEARING EN BANC _______________________________________________________ P. DAVID LOPEZ General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ELIZABETH E. THERAN Attorney New York State Bar No. 4020079 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 PURSUANT TO FED. R. APP. P. 35(b)(1). . . . . . . . . . . . . . . . . . 1 FACTUAL STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 THE MAJORITY DECISION AND THE DISSENT. . . . . . . . . . . . . . . . . . . . . . . . 3 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 CERTIFICATE OF BAR MEMBERSHIP. . . . . . . . . . . . . . . . . . . . . . . . . . 17 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 CERTIFICATE OF VIRUS CHECK. . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 CERTIFICATE OF SERVICE EXHIBIT: PANEL OPINION & JUDGMENT EEOC v. GEO Group, Inc., No. 09-3093 (3d Cir. Aug. 2, 2010) TABLE OF AUTHORITIES CASES Aman v. Cort Furniture Rental Corp., 85 F.3d 1074 (3d Cir. 1996). . . . . . . . . . 15 Anderson v. Liberty Lobby, 477 U.S. 242 (1986). . . . . . . . . . . . . . . . passim EEOC v. GEO Group, Inc., No. 07-cv-04043-JF, 2009 WL 1382914 (E.D. Pa. May 18, 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Lawrence v. City of Phila., 527 F.3d 299 (2008). . . . . . . . . . . . . . . . . . 15 Marino v. Indus. Crating Co., 358 F.3d 241 (3d Cir. 2004). . . . . . . . . . . . . .15 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). .1, 12, 14, 15 Protos v. Volkswagen of Am., Inc., 797 F.2d 129 (3d Cir. 1986). . . . . . . . passim Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1976). . . . . . . . . . . . 12 Webb v. City of Phila., 562 F.3d 256 (3d Cir. 2009). . . . . . . . . . . . . . passim STATUTES & RULES 42 U.S.C. § 2000e(j). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Fed. R. App. P. 32(a)(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Fed. R. App. P. 32(a)(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Fed. R. App. P. 35(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Fed. R. App. P. 35(b)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 3d Cir. L.A.R. 28.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 3d Cir. L.A.R. 31.1(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 STATEMENT PURSUANT TO FED. R. APP. P. 35(b)(1) The undersigned counsel expresses a belief, based on a reasoned and studied professional judgment, that the panel decision is contrary to decisions of the United States Court of Appeals for the Third Circuit and the Supreme Court of the United States, and that consideration by the full court is necessary to secure and maintain uniformity of decisions in this court, i.e., the panel's decision is contrary to: Webb v. City of Philadelphia, 562 F.3d 256 (3d Cir. 2009); Protos v. Volkswagen of America, Inc., 797 F.2d 129 (3d Cir. 1986); Anderson v. Liberty Lobby, 477 U.S. 242 (1986); and Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). The undersigned counsel also expresses a belief, based on a reasoned and studied professional judgment, that this appeal involves a question of exceptional importance, i.e., whether Title VII of the Civil Rights Act of 1964 permits an employer to deny a reasonable accommodation to an employee's sincerely held religious belief based on "undue hardship" where a reasonable jury could find that the asserted hardship is not proved. FACTUAL STATEMENT<1> This appeal was taken on behalf of three Muslim female claimants who wear khimars, or headscarves, in public as a matter of religious observance. All three worked at the George W. Hill Correctional Facility ("GWHCF") in Thornton, Pennsylvania, which was run by the defendant, The GEO Group, Inc. ("GEO"), during the relevant time period: Carmen Sharpe-Allen, a nurse in the prison infirmary; Marquita King, an intake specialist; and Rashemma Moss, a correctional officer. In October 2005, GEO instituted a "zero-tolerance" policy for all headgear, including religious garb, within the secured areas of the prison. Although the three claimants had already been wearing their khimars without incident while employed at GWHCF, in some cases for years, they were presented with the choice of removing their khimars at work or immediate termination. Sharpe-Allen refused to abandon her khimar and was terminated; the other two claimants reluctantly complied. The parties filed cross-motions for summary judgment in late 2008. GEO argued that allowing any religious accommodation to its policy would constitute an undue hardship for two main reasons. The first and primary reason was security, specifically relating to smuggling contraband into the prison and the use of headgear to obscure the wearer's identity. The second was safety, i.e., the potential for inmates to use a khimar to grab or choke a prison employee. The prison wardens also stated that they disapproved of what they termed employees wearing "inappropriate" headgear on the job, such as an unauthorized New York Yankees baseball cap or baseball caps being worn backwards and sideways. The EEOC introduced an expert report authored by George M. Camp of the Criminal Justice Institute. Camp reviewed various evidence, including the prison's own records of incident reports involving contraband between 2003 and 2008 and the testimony of the prison officials, and concluded that GEO's reasons for refusing to permit any of its female Muslim employees to wear a khimar lacked merit and substance. Camp pointed out, inter alia, that the prison's own data did not reflect that khimars or any form of headgear had ever presented a safety or security problem at the prison with respect to prison employees; that there were no reports of a khimar ever presenting a safety or security problem at any prison anywhere; and that khimars presented no more of a safety or security threat than items such as jackets, shirts, and towels that were already present in the prison on a daily basis. While this case was pending, in April 2009, this Court issued its decision in Webb v. City of Philadelphia, 562 F.3d 256 (3d Cir. 2009). Webb held that, in light of the Philadelphia Police Department's critical interest in maintaining a uniform and neutral appearance before the general public it served, allowing the plaintiff police officer to wear a khimar on duty would constitute an undue hardship and was not required by Title VII. After the Webb decision, the district court accepted supplemental briefing from the parties on the impact of Webb on this case. Shortly thereafter, the district court granted summary judgment to GEO, reasoning that the facts and circumstances of this case were indistinguishable from those in Webb. EEOC v. GEO Group, Inc., No. 07-cv-04043-JF, 2009 WL 1382914, at *1 (E.D. Pa. May 18, 2009) (unpublished). THE MAJORITY DECISION AND THE DISSENT The majority first rejected GEO's argument that it proffered the class members a reasonable accommodation by offering to permit them to wear a "hairpiece" instead of a khimar. Slip op. at 9. Noting the absence of record evidence about the proposed hairpiece, the majority stated, "We are unwilling to delve into any matters of theology, and will therefore decline GEO's invitation to decide on our own what might constitute a reasonable substitute for a khimar under the Islamic faith." Id. at 9-10. The majority next observed that, "[i]n response to the EEOC's motion for summary judgment, which relied primarily on the Camp Report and the deposition testimony of the three female employees, GEO proffered the testimony of the two GEO wardens." Slip op. at 10. The majority then summarized the testimony of Warden Holm at length (noting his previous experience as a "lead investigator for GEO at the Taft Correctional Institution in Taft, California"), as well as Warden Nardolillo's, about the security and safety risks presented by hats and other headgear in prisons. Id. at 10-12. The majority observed that "Holm had significant prior experience in prison administration, and that practical experience adds weight to the concerns that he expressed as the basis for the no-headgear policy." Id. at 12. According to the majority, "[w]e must therefore decide whether GEO made the necessary showing of the undue hardship defense." Id. The majority observed that "[a] religious accommodation that creates a genuine safety or security risk can undoubtedly constitute an undue hardship for an employer- prison." Slip op. at 12-13. The majority noted that "[w]e agree with the EEOC that the Webb court did not purport to establish a per se rule of law about religious head coverings or safety 'that would govern in all religious discrimination cases, all "paramilitary organization" cases, or even all police department cases,'" but observed that "Webb is relevant to this case by analogy, as some security and uniformity interests held by the police force are also implicated in the prison context." Id. at 13. The majority then turned to GEO's argument that "the costs that it would incur were it to adopt the accommodation requested by the Muslim employees of allowing them to wear khimars would 'cause an undue burden with respect to prison resources.'" Slip op. at 14. The majority observed, "[a]lthough GEO has not entirely convinced us that adopting the proposed accommodations of allowing female Muslim employees to wear khimars but removing them at each checkpoint would require locking down the prisoners in each such location, we recognize that adopting the proposed procedure would necessarily require some additional time and resources of prison officials." Id. The majority reasoned: In the last analysis, GEO's no headgear policy must stand on the testimony of Holm and Nardolillo that (1) khimars, like hats, could be used to smuggle contraband into and around the Hill Facility, (2) that khimars can be used to conceal the identity of the wearer, which creates problems of misidentification, and (3) that khimars could be used against a prison employee in an attack. To be sure, GEO acknowledges that "there were no reports of these types of incidents at [the Hill Facility] during Warden Nardolillo's and Warden Holm's tenure[s] at the facility," but we agree with GEO that a prison "should not have to wait for a khimar to actually be used in an unsafe or risky manner, risking harm to employees or inmates, before this foreseeable risk is considered in determining undue hardship." (Slip op. at 15.) The majority went on to observe that "[t]he arguments presented by the parties make this a close case. The EEOC has an enviable history of taking steps to enforce the prohibition against religious discrimination in many forms and its sincerity in support of its arguments against the application of the no headgear policy to Muslim employees wearing khimars is evident. On the other hand, the prison has an overriding responsibility to ensure the safety of its prisoners, its staff, and the visitors. A prison is not a summer camp and prison officials have the unenviable task of preserving order in difficult circumstances." Id. The dissent began by observing that, in relying nearly exclusively on the testimony of the prison wardens, the majority "chooses to give credence to the testimony of Warden Raymond Nardolillo and Deputy Warden Matthew Holm that khimars pose a threat to safety within the prison ... and to ignore the ample evidence in the record contradicting and undermining that testimony. In doing so, the majority fails to apply our summary judgment standard of review, which requires us to conduct a plenary review of the record and draw all inferences in favor of the non-moving party." Dissent at 1. The dissent then noted that, "[w]hen considered as a whole, the record before us would allow a reasonable jury to find that GEO did not make a good-faith effort to reasonably accommodate the religious practice of its Muslim women employees ... [and] that allowing its Muslim women employees to continue wearing their khimars at work would not work an undue hardship upon GEO." Id. at 2. The dissent observed: The majority clearly finds the testimony of Nard[oli]illo and Holm to be persuasive, and believes that, as the testimony of "experienced prison officials on the site at issue," it should be given great weight.... A trier of fact might very well agree, but "at the summary judgment stage, the judge's function is not himself to weight [sic] the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).... We must not engage in the making of "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts" as these "are jury functions, not those of a judge, [when] he is ruling on a motion for summary judgment." Id. at 254. Thus, the purpose of my "cynical" analysis of the facts is simply to follow the Supreme Court's mandate that "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. (Dissent at 2-3.) The dissent observed that "Nardolillo and Holm have provided shifting testimony about their rationales for the prison's change in dress code policy." Id. at 11. The dissent then observed that "GEO presented no evidence whatsoever that any employee head covering has ever been used in the prison to smuggle contraband, to conceal a prisoner's identity, or as a weapon," and that the EEOC had "presented expert testimony that called into question whether the safety risk that Nardolillo and Holm feared from Khimars actually existed." Id. at 12. The dissent also noted the testimony in the Camp report that "khimars would not create difficulty in identifying employees because they can 'be worn in such a manner so as not to inhibit visual identification of the employee, and even if it were, the temporary removal of the khimar to verify/confirm the employee's identification could be easily accomplished.'" Dissent at 12. The dissent pointed out Camp's testimony that "GEO's concerns that a khimar could be used as a strangulation device were similarly unsupported, as any item of clothing can similarly be used for strangulation." Id. at 13. The dissent also took note of the evidence that jurisdictions in eight states, the District of Columbia, and the Federal Bureau of Prisons permitted staff to wear uniform caps and/or hats within their facilities, noting particularly that "'[b]oth New York City and the District of Columbia correctional systems permit correctional officers and other female employees to wear the khimar within the secure perimeter of their facilities without adverse consequences.'" Id. The dissent then observed that the majority's holding in this case "represents an unexplained shift from our established jurisprudence." Dissent at 14. According to the dissent, "[t]he majority's approach allows an employer facing an asserted safety concern freely to discriminate on the basis of religion by merely inventing a post-hoc safety rationale for its refusal to accommodate its employees' religious practices." Id. The dissent explained that, in a religious accommodation case, "the burden is on the employer to show that accommodating the employee's religious practice 'would impose more than a de minimis cost on the employer.'" Id. at 14 (quoting Webb, 562 F.3d at 260). By "fail[ing] even to perform the necessary inquiry into whether making a religious exception from the general headgear ban to accommodate khimars would, in fact, impose such an undue hardship on GEO," however, according to the dissent, "[t]he majority's approach creates an exception to the normal burden-shifting rule, which is an established part of our Title VII analysis when safety is the employer's asserted rationale." Id. The dissent observed, "[t]he majority, in effect, establishes a per se rule that when an employer asserts that its rationale for denying a religious accommodation is safety, the employer need not adduce any evidence to prove the existence of, let alone the magnitude of, the burden it would suffer by accommodating the religious practice. This is error, especially in light of plaintiffs' evidence to the contrary." Id. at 14-15. The dissent also noted that, while safety is "'undoubtedly an interest of the greatest importance,'" "[t]he importance of the employer's interest [] does not ipso facto relieve the employer of its burden of proof. It is established law in this Circuit that "'[t]he magnitude as well as the fact of hardship must be determined by the examination of the facts of each case.'" ... On this record, a reasonable jury could easily find that GEO has proven neither the fact nor magnitude of its asserted hardship." Id. at 15 (internal citations omitted). The dissent noted that the EEOC had raised a disputed question of fact as to whether safety was even the real reason behind GEO's adoption of the zero-tolerance policy for head coverings. Dissent at 15-16. In any case, though, according to the dissent, "[e]ven assuming that safety was the motivating factor behind the prohibition on hats within the facility, based on the record before us, plaintiffs have raised a disputed question of fact as to whether accommodating the wearing of khimars actually creates a significant safety risk." Id. at 17. The dissent further observed: [W]hether that alleged safety risk can be alleviated by any measure short of banning all khimars worn by Muslim women employees, performing any job function, without working an undue hardship on GEO is an additional disputed question of fact. Moreover, even if the existence of a safety risk had been conceded by plaintiffs, GEO would not be entitled to summary judgment without demonstrating that the safety risk could not be remedied by some other measure short of banning khimars without imposing an undue burden on GEO. The majority does not even proceed to conduct this inquiry. (Id. at 20.) The dissent then noted that the EEOC had raised a material question of fact "as to the magnitude of the burden that an accommodation would impose," and that, in so doing, it had done enough to survive summary judgment. Id. at 21. Next, the dissent rejected the premise that summary judgment could be affirmed based on Webb. Dissent at 22. The dissent observed that "the interest in uniformity that Nardolillo and Holm actually testified to was not akin to the interest recognized in Webb," noting that "Nardolillo and Holm were concerned that their employees looked sloppy wearing whatever they wanted on their heads, whereas "[t]he Philadelphia police department was concerned about 'the safety of officers (so that the public will be able to identify officers as genuine, based on their uniform appearance), morale and esprit de corps, and public confidence in the police.'" Id. (quoting Webb, 562 F.3d at 262). The dissent emphasized that "[p]rison employees, unlike police officers, do not serve as an impartial symbol of law enforcement authority to the general public," and pointed out that "[t]here is no evidence that being a prison guard requires the same level of cohesiveness and esprit de corps of a paramilitary organization such as the police." Id. at 23. The dissent also observed that "[t]here was [] no indication in Webb that the Philadelphia Police Department also sought to prohibit nonuniformed employees who did not regularly interact with the public from wearing khimars, as GEO does. Prison nurses and intake officers certainly do not share the same safety or morale concerns as sworn police officers, because they are not trained or expected to participate in use of force events." Id. The dissent also noted that "[o]n the factors Webb found dispositive, the record was uncontroverted and consisted largely of the affidavit of the Police Commissioner.... Here, the record is highly controverted and the only expert declaration was submitted by plaintiffs." Id. at 23 n.4. The dissent observed: The record before us indicates that GEO's interest in uniformity only encompassed an aesthetic disapproval of employees starting a "fad or fashion statement" by wearing khimars.... That concern is not equivalent to those we found to be "'of the greatest importance'" in Webb.... GEO is free to ban its employees from wearing Yankees caps backwards and sideways if they just do not like the way they look. But they are not free to ban khimars for the same reason. (Id. at 24.) ARGUMENT The majority's opinion, as the dissent notes, contravenes governing precedent of this Court and of the Supreme Court in at least two critical respects. First, in affirming the district court's grant of summary judgment to GEO on this record, the majority disregards this Court's established precedent holding that undue hardship is a factual issue that must be determined with reference to "the specific context of each case, looking to both the fact as well as the magnitude of the alleged undue hardship." Webb, 562 F.3d at 260 (citing Protos v. Volkswagen of Am., Inc., 797 F.2d 129, 134 (3d Cir. 1986)). Second, in choosing to credit the testimony of the prison wardens and, in at least one instance, the bald statement of defense counsel over the testimony of the EEOC's expert and the class members, at the summary judgment stage, the majority engaged in impermissible weighing of the evidence, made credibility determinations, and disregarded basic summary judgment principles established by the Supreme Court and reaffirmed by this Court. E.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). This Court has recognized that Title VII places the burden of establishing undue hardship on the employer as an affirmative defense. Webb, 562 F.3d at 259; 42 U.S.C. § 2000e(j) ("The term 'religion' includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate an employee's ... religious observance or practice without undue hardship on the conduct of the employer's business.") (emphasis added). As the moving party on summary judgment bearing the burden of proof on this issue, in order to prevail GEO was required to present evidence that would compel a reasonable jury to find that GEO had proven "the fact as well as the magnitude of the alleged undue hardship" such that any accommodation "would impose more than a de minimis cost on the employer." Webb, 562 F.3d at 259 (citing Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1976)). As the dissent noted, however, the majority appears to have disregarded entirely the standards enunciated by this Court in Webb and Protos in failing to require GEO to prove either the fact or the magnitude of the hardship it claims, because the workplace involved is a prison and the interests it invokes involve security and/or safety. The majority itself admitted as much when it stated that, although the proposed accommodations would require "some additional time and resources of prison officials," GEO had failed to convince even the majority of the hypothetical hardships it asserted-i.e., that it would have to "[lock] down the prisoners at each [checkpoint] location" each and every time a khimar-wearing employee passed through. Slip op. at 14. Nonetheless, the majority went on to affirm the district court's grant of summary judgment because, in its own words, khimars merely "could" be used in the manner described by GEO's witnesses (slip op. at 15), without regard to the actual likelihood of their being so used, with or without the reasonable accommodations proposed by the EEOC. In so ruling, the majority failed to hold GEO to the standards of proof for undue hardship enunciated by this Court in Webb and Protos, and effectively created an entirely new standard for cases involving prisons as employers or safety and/or security as the asserted concerns. The majority's mistaken or flawed understanding of the evidence in the record, and of the EEOC's arguments about that evidence, appears to have further fueled its faulty impression that GEO either was not required to demonstrate the magnitude of the hardship it alleged or had successfully done so as a matter of law. For example, the majority states (slip op. at 12) that the EEOC characterized Warden Holm's testimony in general as "utterly speculative and conclusory," but this discussion in the EEOC's opening brief (page 39) refers to the specific testimony in Holm's affirmation regarding the magnitude of the asserted hardship. This particular testimony was in fact purely speculative, as we argued to the panel, for several reasons. First, as we noted above, the majority itself acknowledged that it found this part of Holm's testimony "not entirely convinc[ing]." Slip op. at 14. Second, as we explained to the panel, Holm's affirmation testimony made no attempt to address the specific and material facts at issue in this case. It failed to address how many employees would have been affected, what their daily routines were and how much they moved about within the secured areas of the prison, and why they would have needed to be searched continually within the secured area of the facility while other employees wearing equally problematic garments for security purposes (such as jackets and socks) would not. (EEOC reply brief at 13-15). Furthermore, the majority even chose to rely on defense counsel's statement (slip op. at 17) that new sets of lockers would need to be constructed to store khimars, when, as we pointed out to the panel (EEOC reply brief at 13 n.4), there is literally no record support for this proposition. These evidentiary shortcomings, themselves, are enough to demonstrate that GEO failed to demonstrate undue hardship with the level of specificity required by Webb and Protos; viewed in conjunction with the record evidence adduced by the EEOC (i.e., the Camp Report and the testimony of the class members), they make it abundantly clear that the majority failed to apply the requisite legal standard. In any case, in relying on and crediting the testimony of the prison wardens, flawed as it was, and virtually disregarding the evidence adduced by the EEOC as the nonmoving party on summary judgment, the majority flatly contravened the basic summary judgment principles established by the Supreme Court in Matsushita and Liberty Lobby and recognized repeatedly by this Court. See Liberty Lobby, 477 U.S. at 255 ("Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict. The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor."); Matsushita, 475 U.S. at 587 (observing that "[o]n summary judgment the inferences to be drawn from the underlying facts ... must be viewed in the light most favorable to the party opposing the motion") (internal citation and quotation marks omitted); see also, e.g., Lawrence v. City of Phila., 527 F.3d 299, 310 (2008) ("It is well established that the court must view all evidence and draw all inferences in the light most favorable to the non-moving party, ... and may affirm a grant of summary judgment only if no reasonable juror could find for the non-movant.") (emphasis added) (internal citations omitted); Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004); Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1077 n.1, 1080-81 (3d Cir. 1996) ("[T]he facts asserted by the nonmoving party, if supported by affidavits or other evidentiary material, must be regarded as true, . . . and the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion.") (emphasis in original) (internal citations and quotation marks omitted). The dissent's analysis on this point is correct. CONCLUSION For the foregoing reasons, the EEOC respectfully requests rehearing en banc. Respectfully submitted, P. DAVID LOPEZ General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel s/Elizabeth E. Theran ELIZABETH E. THERAN Attorney New York State Bar No. 4020079 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 BAR MEMBERSHIP Pursuant to Third Circuit L.A.R. 28.3(d), I certify that, as an attorney representing an agency of the United States, I am not required to be admitted to the bar of this Court. I also certify that all other attorneys whose names appear on this petition likewise represent an agency of the United States and are also not required to be admitted to the bar of this Court. See 3d Cir. L.A.R. 28.3, comm. cmt. September 16, 2010 s/Elizabeth E. Theran Elizabeth E. Theran Counsel for Appellant EEOC CERTIFICATE OF COMPLIANCE This petition complies with the page limitation of Fed. R. App. P. 35(b)(2) because it does not exceed 15 pages, excluding the parts of the brief exempted by Fed. R. App. P. 32. This petition 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 Garamond 14 point. September 16, 2010 s/Elizabeth E. Theran Elizabeth E. Theran Counsel for Appellant EEOC CERTIFICATE OF VIRUS CHECK Pursuant to 3d Cir. L.A.R. 31.1(c), I certify that a virus check using Trend Micro OfficeScan version 10.0 was performed on the electronic version of this petition on September 16, 2010, prior to electronic filing with the Court, and that no virus was detected. September 16, 2010 s/Elizabeth E. Theran Elizabeth E. Theran Counsel for Appellant EEOC CERTIFICATE OF SERVICE I, Elizabeth E. Theran, hereby certify that I filed the foregoing petition electronically with the Court via the appellate CM/ECF system, as per L.A.R. 35.2(a) and L.A.R. Misc. 113, this 16th day of September, 2010. I also certify that the following counsel of record, who have consented to electronic service, will be served the foregoing petition via the appellate CM/ECF system: Counsel for Defendant/Appellee: Walter F. Kawalec III, Esq. Marshall, Dennehey, Warner, Coleman & Goggin 200 Lake Drive East, Suite 300 Cherry Hill, NJ 08002 (856) 414-6024 wfkawalec@mdwcg.com September 16, 2010 s/Elizabeth E. Theran Elizabeth E. Theran Counsel for Appellant EEOC Exhibit: Panel Opinion & Judgment EEOC v. GEO Group, Inc., No. 09-3093 (3d Cir. Aug. 2, 2010) A more detailed discussion of the record evidence may be found at pages 2-22 of the EEOC's opening brief.