No. 03-4787 _________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _________________________________________ UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. HAARMANN & REIMER, Defendant-Appellee. ______________________________________________ On Appeal from the United States District Court for the District of New Jersey ______________________________________________ Reply Brief of the U.S. Equal Employment Opportunity Commission as Plaintiff-Appellant Seeking Reversal of Grant of Defendant-Appellee's Motion for Summary Judgment ______________________________________________ ERIC S. DREIBAND U.S. EQUAL EMPLOYMENT General Counsel OPPORTUNITY COMMISSION Office of General Counsel CAROLYN L. WHEELER 1801 L Street, N.W., 7th Floor Acting Associate General Counsel Washington, D.C. 20507 (202) 663-4724 ANNE NOEL OCCHIALINO Attorney TABLE OF CONTENTS Table of Authorities . . . . . . . . . . . . . . . . . . . . . ii Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 1. The district court's conclusion that Banquecer satisfied the posted qualifications gives rise to an inference of pretext because the record establishes beyond dispute that Delgado did not. . . . . . . . . . . . . . . . . . . .4 2. Despite the opportunity, H&R did not initially provide four of the reasons for Banquecer's non-promotion that H&R asserted fifteen months later after litigation began..6 3. The record raises a genuine issue of material fact about Delgado's supervisory experience. .. . . . . . .9 4. The EEOC refuted Wildenstein's contention that Banquecer had no inventory control experience. . . . . . . . . 10 5. H&R's employment of older managers does not negate a finding of age discrimination. . . . . . . . . . . . 11 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Certificate of Compliance Certificate of Service TABLE OF AUTHORITIES CASES Abramson v. William Paterson Coll., 260 F.3d 265 (3d Cir. 2001)3, 4, 12 EEOC v. Sears Roebuck & Co., 243 F.3d 846 (4th Cir. 2001). . . 12 Evans v. City of Bishop, 238 F.3d 586 (5th Cir. 2000). . . . . 12 Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994) . . . . . . . . .3 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000)2, 4, 11, 12 Seay v. Tennessee Valley Auth., 339 F.3d 454 (6th Cir. 2003).5, 6 Suders v. Easton, 325 F.3d 432 (3d Cir. 2003), cert. granted on other grounds, 124 S. Ct. 803 (Dec. 1, 2003) .9 No. 03-4787 _________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _________________________________________ UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. HAARMANN & REIMER, Defendant-Appellee. ______________________________________________ On Appeal from the United States District Court for the District of New Jersey ______________________________________________ Reply Brief of the U.S. Equal Employment Opportunity Commission as Plaintiff-Appellant Seeking Reversal of Grant of Defendant-Appellee's Motion for Summary Judgment ______________________________________________ In its opening brief, the Commission argued that the district court properly found that the Commission had established a prima facie case of age discrimination with respect to Banquecer's non-promotion to Mailroom Supervisor. Br. at 16-18. The Commission contended, however, that the district court erred in holding that the EEOC had failed to establish a genuine issue of material fact as to whether H&R's stated reasons for failing to promote Banquecer were a pretext for age discrimination. Citing to the Supreme Court's decision in Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000), and cases from this Court, the Commission argued that a reasonable factfinder may find unlawful discrimination when a plaintiff establishes a prima facie case and offers sufficient evidence that an employer's proffered justifications for taking an employment action were false, unless the record conclusively establishes that the employer acted for a lawful reason. Br. at 18-19. Applying that standard here, the Commission argued that this case should be remanded for trial because the Commission had established a prima facie case of age discrimination and had offered substantial evidence casting doubt on the veracity of H&R's reasons for not promoting Banquecer. In its response brief, H&R fails to respond to the Commission's argument that the district court properly found that the Commission had established a prima facie case. Therefore, H&R has conceded this point. H&R also concedes in its brief that under Reeves a jury "may, but is not required to, infer a discriminatory intent from proof that the employer's explanation for the employment decision is false." Resp. at 16 (citing Reeves, 530 U.S. at 147). Thus, H&R and the Commission disagree only upon the application of that standard to the facts of this case. H&R concedes many of the factual points the Commission made in its opening brief. Nevertheless, H&R argues that these facts do not establish pretext when viewed in light of the entire record. Resp. at 19, 25, 29, 31. The Commission disagrees. As set out in the Commission's opening brief, "the record as a whole" includes evidence establishing a genuine issue of material fact as to pretext: 1) only Banquecer met the posted qualifications; 2) H&R gave shifting and new reasons for Banquecer's non-promotion; 3) H&R's reasons for promoting Delgado were untrue or exaggerated; 4) Wildenstein never interviewed Banquecer; and 5) Banquecer is thirty years older than Delgado. Abramson v. William Paterson Coll., 260 F.3d 265, 284 (3d Cir. 2001) (stating that when record as a whole showed such weaknesses and inconsistencies that a factfinder could disbelieve the employer's reasons, "this alone could support the inference that [the employer]'s motive was discriminatory"). This evidence, combined with the Commission's prima facie case, is sufficient to allow a jury to infer that H&R's "actions were discriminatory." Id. at 283 (citing Reeves, 530 U.S. at 147). For this reason, and the reasons set forth below, this Court should remand this case for trial. 1. The district court's conclusion that Banquecer satisfied the posted qualifications gives rise to an inference of pretext because the record establishes beyond dispute that Delgado did not. H&R gives two reasons to support its argument that pretext cannot be inferred from H&R's selection of Delgado who did not meet the posted job qualifications over Banquecer, who did. Resp. at 20-21. First, H&R makes the baseless assertion that Delgado satisfied the posted qualifications. See Resp. at 21 ("H&R has never conceded that Delgado was unqualified"). To support this assertion, H&R cites to Wildenstein's EEOC interview and his deposition testimony. Resp. at 21 (citing A87, A54-55). Nothing on the cited pages supports the contention that Delgado had five years of experience running a mailroom operation. To the contrary, both Wildenstein's interview and deposition testimony establish that Delgado did not have five years of experience working in a mailroom or as a supervisor. Wildenstein stated in his EEOC interview that neither candidate had five years experience operating a mailroom. (A87, Interview at 88) At his deposition, Wildenstein was asked how Delgado met the requirement of five years running a mailroom. (A54, Depo. at 57) He responded with a review of Delgado's work history, which makes clear that she had not spent five years working in a mailroom, much less "operating" one. (A54-55, Depo. at 57-58) Even if the "5 years running a mailroom operation" requirement can be construed as H&R attempts to do as referring to "supervisory" experience, Wildenstein admitted that Delgado did not have that. (A55, Depo. at 58, ll. 14-15) ("So overall she had supervisory capacity, not necessarily five years.") Delgado's personnel documents and her own deposition testimony also confirm that she lacked five years of experience running a mailroom or as a supervisor. See Br. at 7-9. The second argument H&R makes about qualifications is that the Commission cannot create a factual issue by arguing that H&R's hiring decision does not comport with the district court's finding that only Banquecer met the posted qualifications. Resp. at 21. To the contrary, however, the plaintiff successfully did just that in Seay v. Tennessee Valley Auth., 339 F.3d 454, 465- 468 (6th Cir. 2003). In that case, which the Commission cited in its opening brief, the employer argued that two of the selectees for a position had satisfied the minimum posted requirements. See id. at 466-67. The Sixth Circuit disagreed. See id. at 467. After reviewing the minimum posted requirements and evaluating the selectees' qualifications, the court concluded that neither selectee met the posted qualifications. See id. The Sixth Circuit further held that pretext could be inferred because the employer claimed it had reduced its large applicant pool by eliminating applicants who failed to meet unposted qualifications (supervisory or managerial experience) but retained in the applicant pool, and ultimately selected, individuals who failed to meet the posted qualifications. See id. at 467-68. Therefore, the court reversed summary judgment. See id. at 468. Seay supports reversal of summary judgment in this case as well. As in Seay, the district court in this case evaluated the applicants' qualifications and determined that Banquecer satisfied them but Delgado did not. (A7-9, opinion at 7-9) Thus, although H&R claims it has never thought Banquecer was qualified, the district court and this Court may find pretext based on the fact that H&R selected the only unqualified applicant for the job. 2. Despite the opportunity, H&R did not initially provide four of the reasons for Banquecer's non-promotion that H&R asserted fifteen months later after litigation began. H&R does not dispute that inconsistent reasons for an employment action can give rise to a finding of pretext. Nor does H&R mention, much less distinguish, the cases the Commission cited to support the proposition that pretext can be inferred when an employer offers new reasons for an employment decision that it did not originally provide especially when the subsequent explanations are straightforward and conspicuously absent from the job posting. Br. at 20-25. Finally, H&R does not deny that Wildenstein offered in his deposition four reasons for Banquecer's non-selection that he failed to mention during his EEOC interview and that H&R failed to mention in its position statement. H&R does, however, make two unconvincing factual arguments about why its shifting reasons for not promoting Banquecer do not give rise to an inference of pretext. First, H&R tries to blame the EEOC for Wildenstein's failure to provide in his EEOC interview the four reasons he gave fifteen months later for why Banquecer was unqualified. Resp. at 23-24. H&R asserts that the EEOC's investigator "pursued only the issue of supervisory experience and did not ask for any other reasons why H&R deemed Banquecer to be less qualified." Resp. at 24; see also Resp. at 25 ("prior to suit, the EEOC investigated only Banquecer's supervisory experience and not his experience with computers or inventory control"). The record does not support this assertion. During Wildenstein's interview, the investigator asked two open-ended questions about Banquecer's non-promotion: 1) "How was his overall performance?"; and 2) "What did you feel his weaknesses were?" (A85-86) In response, Wildenstein did not mention Banquecer's alleged deficient computer skills, inability to implement new policies, lack of inventory control experience, or failure to follow mailroom procedures. Wildenstein's failure to mention these alleged deficiencies in response to the investigator's simple and open-ended questions cannot be explained away by blaming the EEOC. H&R's failure to include in its position statement these four straightforward reasons for Banquecer's non-promotion is similarly inexplicable. The second unconvincing factual argument H&R makes is that whether Banquecer was less qualified (as H&R's position statement asserts) or unqualified (as Wildenstein testified) is "an exercise in semantics." Resp. at 23. Whether the different positions H&R has taken about why it did not promote Banquecer constitute an "exercise in semantics" or contradictory and shifting reasons is a question the jury should decide. And however H&R characterizes Wildenstein's post-litigation testimony, H&R cannot and does not deny that he offered four additional reasons for Banquecer's non-selection that he did not state in his EEOC interview and that H&R did not include in its position statement. See Br. at 22-23. 3. The record raises a genuine issue of material fact about Delgado's supervisory experience. Contrary to the record and the law of this circuit defining "supervisor," H&R persists in asserting that as a matter of law Delgado had supervisory experience as Inventory Control Coordinator and Facilities Coordinator. Resp. at 26-28. H&R fails to address the Commission's argument, however, that nothing in the record supports the assertion that Delgado had supervisory duties as Inventory Control Coordinator. Br. at 26-27. Although H&R argues that training three employees on the "SAP" system for an undisclosed amount of time constituted supervisory duty, H&R cites no legal or factual support for the proposition that training is tantamount to supervising. Nor does H&R explain how the SAP training can be called "supervisory experience" when Delgado herself denied that she supervised any warehouse personnel as Inventory Control Coordinator. See Br. at 26. Finally, training employees does not meet this Court's definition of "supervisor." See Suders v. Easton, 325 F.3d 432, 450 n.11 (3d Cir. 2003) (individual who taught sexual harassment training class was not a "supervisor" for purpose of imposing employer liability for harassment), cert. granted on other grounds, 124 S. Ct. 803 (Dec. 1, 2003). H&R argues not only that Delgado had supervisory duties as Inventory Control Coordinator but also that she had supervisory duties as Facilities Coordinator. Resp. at 27. Trying to minimize the factual dispute concerning Delgado's supervisory duties as Facilities Coordinator, H&R asserts that Banquecer's testimony that "other persons supervised him [ ] does not alter the fact that Wildenstein gave Delgado supervisory duties and that he considered those duties when he selected her." Resp. at 27. H&R misses the point. Not only did Banquecer state that Colon handled mailroom complaints, answered questions, and signed time sheets, but Banquecer specifically denied that Delgado ever had any supervisory duties in the mailroom. (A153, Aff. at  8) Thus, the Commission created a classic question of fact for a jury to decide. If a jury believes Banquecer's testimony and relies upon his time sheets (all signed by Colon or Wildenstein, not Delgado), a jury could find that Delgado had no supervisory duties as Facilities Coordinator. Therefore, a jury could infer that H&R acted for a discriminatory reason. See Br. at 27-28. 4. The EEOC refuted Wildenstein's contention that Banquecer had no inventory control experience. In its opening brief, the Commission argued that a jury could disbelieve Wildenstein's testimony that Banquecer was unqualified in part because he did not know "inventory control." Br. at 29. In response, H&R tries to sidestep this issue by arguing that the record shows Delgado had "superior qualifications in inventory control." Resp. at 27. H&R does not deny, however, that Banquecer had inventory control experience and that Wildenstein knew it. Therefore, a reasonable jury could conclude that H&R's "inventory control" justification is false. 5. H&R's employment of older managers does not negate a finding of age discrimination. Finally, H&R argues that the thirty-year age gap between Delgado and Banquecer cannot contribute to an inference of age discrimination because H&R has a number of older supervisors. Resp. at 30-31. The Supreme Court has rejected this argument. See Reeves, 530 U.S. at 153 (holding that although evidence that an employer has many older managers is relevant to determining motivation, such evidence "is certainly not dispositive"). Therefore, a jury could find that H&R discriminated against Banquecer because of his age despite H&R's employment of other older supervisors. In summary, the evidence does not support H&R's contention that "the record as a whole is devoid of any indication of discriminatory animus." Resp. at 29. The EEOC made out a strong prima facie case and offered ample evidence to discredit H&R's proffered reasons for promoting Delgado over Banquecer. The record does not conclusively reveal a non-discriminatory reason for Banquecer's non-selection. "Under Reeves, this showing is sufficient to permit a trier of fact to 'infer the ultimate fact of discrimination from the falsity of [H&R]'s explanation.'" EEOC v. Sears Roebuck & Co., 243 F.3d 846, 854 (4th Cir. 2001) (quoting Reeves, 530 U.S. at 147); see also Abramson, 260 F.3d at 283 (citing Reeves for the proposition that if the plaintiff demonstrates pretext, "she need not present affirmative evidence of discrimination beyond her prima facie showing if a rational factfinder could conclude from the evidence of pretext that [the employer]'s actions were discriminatory"); Evans v. City of Bishop, 238 F.3d 586, 592 (5th Cir. 2000) ("evidence of the prima facie case plus pretext may, and usually does, establish sufficient evidence for a jury to find discrimination"). Therefore, this Court should reverse the district court's entry of summary judgment in favor of H&R and remand this case for trial. CONCLUSION Because the EEOC raised a genuine issue of material fact with respect to whether H&R's proffered reasons for failing to promote Banquecer were a pretext for age discrimination, this Court should reverse the district court's entry of summary judgment in favor of H&R and remand this case for trial. Respectfully submitted, ERIC S. DREIBAND General Counsel CAROLYN L. WHEELER Acting Associate General Counsel __________________________ ANNE NOEL OCCHIALINO Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., 7th Floor Washington, D.C. 20507 (202) 663-4724 April 28, 2004 CERTIFICATE OF COMPLIANCE WITH RULE 32(a) 1. I certify that this brief complies with the type-volume limitation set forth in Fed. R. App. P. 32(a)(7)(B) because this brief contains 2459 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. I certify that 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 this brief has been prepared in a proportionally spaced typeface using WordPerfect 9 in 14-Point Font in Times New Roman Style. ____________________________ ANNE NOEL OCCHIALINO Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., 7th Floor Washington, D.C. 20507 (202) 663-4724 Dated: April 28, 2004 CERTIFICATE OF SERVICE I certify that on April 28, 2004, I served two copies of this brief by mailing them first-class, postage prepaid, to the following: Timothy P. Smith Timothy I. Duffy McElroy, Deutsch & Mulvaney 1300 Mount Kemble Avenue P.O. Box 2075 Morristown, NJ 07962 ____________________________ ANNE NOEL OCCHIALINO Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., 7th Floor Washington, D.C. 20507 (202) 663-4724