___________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT ___________________________________________ No. 06-1270 ___________________________________________ DARRELL HARE, Plaintiff-Appellant, v. DENVER MERCHANDISE MART, INC., et al., Defendants-Appellees. __________________________________________________ On Appeal from the United States District Court for the District of Colorado, the Hon. Phillip S. Figa, Presiding __________________________________________________ BRIEF OF EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE __________________________________________________ RONALD S. COOPER General Counsel LORRAINE C. DAVIS Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel PAUL D. RAMSHAW Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., Room 7040 Washington, DC 20507 (202) 663-4737 TABLE OF CONTENTS TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . .ii TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . .iii STATEMENT OF INTEREST . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUE . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . 2 A. Statement of Facts . . . . . . . . . . . . . . . . . . 2 B. District Court's Decisions . . . . . . . . . . . . . . . 8 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . .11 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 THE DISTRICT COURT ERRED IN RULING THAT A REASONABLE JURY COULD NOT FIND THE DEFENDANTS' EXPLANATION PRETEXTUAL. . . . . . . . . . . . . . . . . . . 13 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . .20 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . 21 TABLE OF AUTHORITIES FEDERAL CASES Branson v. Price River Coal Co., 853 F.2d 768 (10th Cir. 1988) 13 Cox v. Dubuque Bank & Trust Co., 163 F.3d 492 (8th Cir. 1998) 13 EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184 (10th Cir. 2000) 13 Ingels v. Thiokol Corp., 42 F.3d 616 (10th Cir. 1994) . . . . . .13 Jaramillo v. Colorado Judicial Department, 427 F.3d 1303 (10th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . .14 Kendrick v. Penske Transportation Services, Inc., 220 F.3d 1220 (10th Cir. 2000) . . . . . . . . . . . . . . . . . . 9, 13 Lucas v. Dover Corp., 857 F.2d 1397 (10th Cir. 1988) . . . . . . 13 McDonnell Douglas v. Green, 411 U.S. 792 (1973) . . . . . . 1, 5 Miller v. Eby Realty Group LLC, 396 F.3d 1105 (10th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . .15, 16 Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000) . . . . . . . . . . . . . . . . . . . . . . . . 11, 16 Townsend v. Lumbermens Mutual Casualty Co., 294 F.3d 1232 (10th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . .18 STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency established by Congress to interpret, administer and enforce Title VII of the Civil Rights Act of 1964 and other federal laws prohibiting employment discrimination. Most employment discrimination plaintiffs lack direct evidence of discrimination and accordingly must establish discriminatory intent by the indirect method outlined by the Supreme Court in McDonnell Douglas v. Green, 411 U.S. 792 (1973), and subsequent cases. To survive summary judgment under this standard, a plaintiff must point to evidence on the basis of which a reasonable fact-finder can find pretext. Notwithstanding evidence that the defendants offered inconsistent explanations for the plaintiff's termination, the district court in this case held that there was insufficient evidence of pretext. If affirmed by this Court, this ruling would undermine a vital tool in the enforcement of Title VII and other discrimination laws. Acccordingly, we offer our views to the Court. STATEMENT OF THE ISSUE Whether the district court erred in ruling that evidence that company officials gave fundamentally different accounts of the events leading up to the plaintiff's termination, including conflicting statements as to what was done, by whom, and why, could not support a finding of pretext. STATEMENT OF THE CASE A. Statement of Facts Darrell Hare became general manager of the Denver Merchandise Mart in 1974, and continued to run it for almost 30 years, until he was terminated in December 2003. Appellant's Addendum ("Aplt. Add.") 2. During this period the Mart was owned by a series of corporations headquartered in Dallas, Texas, including, during the recent period, American Realty Investors ("ARI"). Appellant's Appendix ("Aplt. App.") 80-81 (112, 118-20), 227 (34).<1> Hare's superiors in Dallas during the last portion of his tenure were Gene Phillips, John Cook and Karl Blaha. Aplt. App. 316 (8), 414 (311). Hare's second-in-command in Denver for decades was Roger Klein, the Mart's controller. Aplt. App. 387 (59-61). The record contains conflicting evidence about Hare's performance and conduct as the Mart's general manager. Cook, one of his superiors in Dallas, testified that Hare was "an extremely competent, excellent manager" of the Mart, that he was "very smart," and prepared and informative at meetings, and that he did "an outstanding job at growing the [Mart's] revenue." Aplt. App. 386 (56), 388 (62-63). Some employees admired his management style and saw him as a caring and accommodating boss. Aplt. App. 299-303 (5-7, 10-11, 18-19), 333-34 (¶¶ 12-17). On the other hand, some of Hare's superiors testified that they believed that he worked only about half time and did not really manage the Mart (Aplt. App. 148 (71), 158 (269)), engaged in financial irregularities (Aplt. App. 462-65), had a despotic and intimidating management style (Aplt. App. 148 (71- 72)), and engaged in sexual harassment and favoritism (Aplt. App. 274). The defendants concede that these criticisms of Hare's performance and conduct came to their attention relatively recently. With one exception, there is no evidence that Hare's Dallas superiors complained to Hare about these alleged problems before 2003. Some of the allegations they admittedly learned about only during 2003. Aplt. App. 148 (70-72), 409-11 (261-68). The one exception to this generalization is the bonus controversy. During the late 1990s, the bonuses that the Mart paid Hare and Klein tended to constitute about half of their total annual compensation. Aplt. App. 236 (15-16), 265-66 (245-49), 373. Cook testified that he instructed Klein near the end of 2001 not to pay Hare or himself (Klein) bonuses in 2002 using the formula that the Mart had been using up until then. Aplt. App. 149-50 (84-86). In addition, the record contains a number of letters between Cook and Hare in April and May 2002 in which Cook directed Hare not to pay himself or Klein a bonus for the first quarter of 2002, and Hare explained why he believed they had already earned those bonuses and why Colorado law therefore required the company to pay them. Aplt. App. 337-54. Hare and Klein met with Phillips, Cook, and Blaha in early December 2002 in Dallas to discuss the Mart's performance and related topics. Aplt. App. 399 (199). Phillips and Hare did almost all the talking. Aplt. App. 399-400 (200-04). The conversation was cordial at first, but either Phillips or Hare (depending on the witness) became visibly upset at one point. Aplt. App. 240 (90-92), 401 (210-11). It is undisputed that Phillips brought up the topic of Hare's age during this meeting. According to Hare and Klein, Phillips asked Hare, "You're sixty-five or -six, right?" Aplt. App. 100 (117), 163, 236 (13-14). The other three participants did not remember Phillips' guessing a specific age, but agreed that Phillips asked Hare how old he was. Aplt. App. 285, 327-28 (65, 71), 402 (216). Hare responded that he was 63. Aplt. App. 100 (117). Phillips next asked Hare how long he planned to continue working. Aplt. App. 403 (221). Hare responded either that he might retire in five to ten years or that he had not thought at all about retiring because he enjoyed working and had a daughter in college. Aplt. App. 101 (123), 403 (221). Phillips then asked Hare to select some appropriate younger employee and train that person as his replacement. Aplt. App. 101 (123), 163, 327 (66-67).<2> Hare had been informed before this meeting that the management contract he had with ARI would not be renewed. Aplt. App. 355. Hare told Phillips at the meeting that he wanted some kind of management contract, and Phillips responded, according to Hare and Klein, that there would be no contract and no discussion of a contract, and that Hare and Klein were "just employees." Aplt. App. 162-63, 166, 238 (81-83). A few days after the meeting, Hare received a phone call from Oscar Cashwell, who had formerly been Hare's superior and was a close associate of Phillips. Aplt. App. 233 (137). Cashwell, who Hare believed was in his 70s, told Hare that Phillips had asked him to call. Id. (138). One of the first things Cashwell said was: "You're starting to get old, like I am." Id. He told Hare that ARI could perhaps enter a two- to three-year consulting contract with Hare. Id. (139). He stressed that "we've worked together too long" and that Phillips did not "want you to go off pissed off." Id. (139-40). Early in January 2003, Hare sent ARI's general counsel a letter resigning his positions as officer of three corporations related to the Mart and as trustee of its 401(k) plan, but he continued to work as its general manager. Aplt. App. 229-30 (80-83). The compensation he received, however, declined drastically from approximately $300,000 in 2002 to approximately $150,000 in 2003, largely due to the fact that the defendants paid Hare no bonus in 2003. Aplt. App. 406-07 (245-48). After Klein retired, his duties as controller were assumed first by Carrie Davis. Aplt. App. 409-10 (261-62). Cook testified that Davis reported to him that Hare was rude, mean, and dismissive towards her and often unavailable. Aplt. App. 410 (262). Davis resigned, and Cook hired Lisa Fogg to replace Davis in June or July. Aplt. App. 410-11 (265-66). Fogg worked in Denver. In theory she reported to Hare, but she considered Cook her boss, and she usually transmitted her observations, criticisms, and suggestions about the Mart to Cook without discussing them first with Hare. Aplt. App. 170-73 (18-19, 24-27, 33-36). According to Cook and Fogg, she observed various problems at the Mart and reported them to Cook, including financial irregularities (payroll advances, vacation payouts) and problems with Hare's dedication to his job (working short hours and accomplishing little) and his management style (yelling at Mart employees and leaving them terrified of him). Aplt. App. 148 (70-72), 158 (268- 69), 175-76 (60-63, 88-91). Hare was terminated in December 2003. Aplt. App. 309 (38). Company officials gave conflicting testimony about who made this decision. Phillips testified that no one decided to "terminate" Hare, because he was not terminated. Aplt. App. 323 (49-51), 329-30 (128-30). According to Phillips, Hare submitted his resignation in January 2003 (via the letter resigning his corporate-officer positions), and the defendants accepted that resignation effective December 2003. Aplt. App. 323-24 (49-55). According to Phillips, it was Cook and Blaha who made this decision. Aplt. App. 316-17 (8-12), 325-26 (60-62). Phillips testified that Cook and Blaha discussed this decision with him, and that they decided to accept Hare's resignation for the following reasons: the Mart's profits had plateaued; Hare was insubordinate toward his Dallas superiors and refused to accept their decisions with respect to his compensation and his contract; he did not get much done; and Mart employees complained about his intimidating manner. Aplt. App. 317-18 (11-15), 326 (61-64). Cook testified that Phillips decided to fire Hare, and that he (Cook) merely made recommendations to Phillips. Aplt. App. 394 (160), 414 (311). According to Cook, Phillips fired Hare for two reasons: first, while acting as controller, Davis found Hare to be rude, mean, and unavailable; and second, Fogg reported to Cook that Hare worked short hours and got little done, and that the de facto general manager – until he left – had been Klein. Aplt. App. 409-11 (261-62, 268- 69). With respect to the other criticisms of Hare – including that he was despotic and intimidating, that he took unauthorized advances on his compensation, that he used Mart employees for his personal benefit on company time, and that he may have harassed a female employee sexually – Cook testified that the Dallas people did not learn about these criticisms until after they had already decided to terminate Hare, and he accordingly denied that the decision to terminate him was based on any of those factors. Aplt. App. 415-16 (331-37).<3> Blaha gave an entirely different version of events. He agreed with Phillips that he (Blaha) and Cook made the relevant decision. Aplt. App. 295. According to Blaha, however, the decision was not based at all on any problems with Hare's performance, conduct or management style. Rather, they decided that they could eliminate the position of on-site general manager and run the Mart from Dallas. Aplt. App. 277, 280. Blaha stated that this decision was made in December 2003 or thereabouts, and that when the decision was made, Blaha had no reason to doubt that Hare "was dedicating his time and efforts and energies toward the operation of the Mart." Aplt. App. 280, 294. B. District Court's Decisions The parties agreed that Hare had satisfied the first three elements of a traditional prima facie case: that he belongs to a protected class, was qualified, and was fired. Aplt. Add. 7. The defendants maintained that Hare failed to establish a prima facie case, however, because Hare conceded that his position was eliminated. Hare responded that an ADEA plaintiff does not have to show that he was replaced by a younger person as long as he presents some evidence suggesting age discrimination. Aplt. Add. 7. Although the district court distinguished the cases on which Hare relied as cases involving substantial reductions in force, the court agreed that the critical inquiry at the prima facie case stage is whether the plaintiff offered evidence showing "‘that the adverse employment action occurred under circumstances which give rise to an inference of unlawful discrimination.'" Aplt. Add. 8 (quoting Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1227 (10th Cir. 2000)). The court ruled that Hare failed to meet this standard because: (a) Phillips' "alleged ageist remarks" were just good corporate planning, and not discriminatory; (b) Hare resigned his corporate positions soon after the December 2002 meeting; and (c) Hare was not terminated until more than a year after Phillips made those remarks. Aplt. Add. 8. Assuming arguendo that Hare had established a prima facie case, the district court also addressed whether Hare offered sufficient evidence of pretext. According to the court, the defendants relied on the following legitimate nondiscriminatory reasons for terminating Hare: the low level of his commitment to, and involvement in, managing the Mart; his insubordination with respect to his superiors' 2002 bonus directives and his violation of the company's policy against vacation payouts; and his superiors' confusion about whether he wanted to continue working as general manager. Aplt. Add. 9. The court ruled that Hare failed to offer sufficient evidence of pretext. Phillips' inquiry into Hare's future plans, the court reasoned, was legitimate, given Hare's long tenure with the Mart; and a reasonable jury "would not find" pretext based on that inquiry, especially since, although Phillips suggested he would replace Hare with a younger person, the defendants actually decided to eliminate his position. Aplt. Add. 10-11. The court rejected Hare's argument that the defendants' shifting and inconsistent testimony about what happened and why showed pretext. The court agreed that the defendants' witnesses disagreed about who made the decision to terminate Hare and even about whether he was in fact terminated. Aplt. Add. 12 ("Mr. Phillips's description of Mr. Hare as voluntarily resigning from his operational duties rather than being terminated is troubling and not borne out by the evidence."). These discrepancies, however, did not, the court ruled, "support an inference that defendants were motivated by age animus in terminating Mr. Hare." Aplt. Add. 12-13. Hare filed a motion to reconsider arguing that the district court had used the discredited pretext-plus standard and had relied only on cases decided before Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). The district court denied that motion, stating that it had applied the correct standard and found that "the plaintiff failed to present evidence of pretext at all." Aplt. App. 630. The court acknowledged that there were inconsistencies in the testimony of the defendants' top officials, but these inconsistencies, the court ruled, "do not go to an issue of material fact – here, the proffered legitimate reason for termination." Aplt. App. 631. SUMMARY OF ARGUMENT In the McDonnell Douglas paradigm, once the plaintiff has established a prima facie case of discrimination, the defendant has the burden of articulating the reasons it took the challenged adverse action. The plaintiff then bears the burden of proving that those reasons are pretextual. One of the principal ways in which the plaintiff can show pretext is by pointing to material issues relevant to the defendant's articulated reasons on which the decision-makers have given testimony that is inconsistent, contradictory or implausible. In this case Hare directed the district court's attention to such issues. Hare deposed Phillips, Cook, and Blaha. Based on their testimony, a reasonable jury could find that any of those three witnesses made – or participated in making – the challenged decision, and that one or more of them lied about who made the decision. More important, as discussed below, a reasonable jury could find that two of these three witnesses gave testimony inconsistent in significant ways with the defendants' explanation that they decided to fire Hare because of certain performance and conduct problems, and that the central thrust of the testimony of one of these witnesses was inherently incredible. The Commission believes that a reasonable jury could therefore find the defendants' articulated reasons pretextual. The district court acknowledged that the testimony of these witnesses was inconsistent and in part implausible, but ruled that the testimony was not inconsistent and implausible with respect to the defendants' reasons for terminating Hare. The Commission believes that the inconsistencies and implausibilities in the decision-makers' testimony are relevant to whether a jury could find pretext. Moreover, since most employment-discrimination plaintiffs use the McDonnell Douglas paradigm and have to show pretext, a decision by this Court affirming the district court's pretext ruling would narrow the grounds on which future plaintiffs could show pretext and endanger the enforcement of the anti-discrimination statutes. ARGUMENT THE DISTRICT COURT ERRED IN RULING THAT A REASONABLE JURY COULD NOT FIND THE DEFENDANTS' EXPLANATION PRETEXTUAL. The district court erred in finding that Hare failed to offer sufficient evidence of pretext.<4> A plaintiff can demonstrate pretext, this court has stated, "by producing evidence of such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons." Jaramillo v. Colorado Judicial Dep't, 427 F.3d 1303, 1308 (10th Cir. 2005) (citations and punctuation omitted). Accordingly, the issue before the district court was whether, assuming arguendo that Hare established a prima facie case of age discrimination, and viewing the evidence in the light most favorable to Hare, the record contains sufficient evidence to support a finding that the explanation the defendants gave for Hare's termination was not true. The district court acknowledged in its initial decision that the "defendants' depositions indicate varying descriptions of who was the real decision maker," and that "Mr. Phillips's description of Mr. Hare as voluntarily resigning from his operational duties rather than being terminated is troubling and not borne out by the evidence." Aplt. Add. 12. The court ruled, however, that "these inconsistencies do not support an inference that defendants were motivated by age animus in terminating Mr. Hare." Aplt. Add. 12-13. In its decision denying reconsideration, the district court elaborated that the inconsistencies in the defendants' testimony "do not go to . . . the proffered legitimate reason for termination," because Hare failed to point to evidence showing that "his employer's asserted justification" for the termination was "false" or "implausib[le]." Aplt. App. 630-31. The record, however, when viewed in the light most favorable to Hare, contains ample evidence on the basis of which a reasonable jury could find that the explanation the defendants offered (in their motion for summary judgment) for his termination was pretextual. First, as the district court acknowledged, Phillips, Cook, and Blaha disagreed about who made the relevant decision. Aplt. Add. 12. Phillips and Blaha said the decision was made jointly by Cook and Blaha, while Cook testified that he merely made a recommendation, and the ultimate decision- maker was Phillips. This discrepancy would probably not by itself be sufficient to show pretext – especially if the three managers' testimony were otherwise consistent about what action was taken and why – but it is relevant to Hare's showing of pretext in this case for two reasons. First, a jury could find that one or more of the three managers was lying about who made the decision, and on that basis question the credibility of the remainder of their testimony. See Miller v. Eby Realty Group LLC, 396 F.3d 1105, 1111 (10th Cir. 2005) ("‘[T]he factfinder is entitled to consider a party's dishonesty about a material fact as affirmative evidence of guilt.'" (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000)). Secondly, since any one of the three managers might have been the ultimate decision-maker (or one of two ultimate decision-makers), the inconsistencies in their descriptions of the action taken and the reasons for it cannot be discounted or ignored. The defendants' three central witnesses also had striking disagreements about the nature of the action they took with respect to Hare. Cook testified that the defendants decided to fire Hare because of perceived problems with his performance and conduct, Blaha said they eliminated his position because they realized it was unnecessary, and Phillips insisted that all they did was accept his voluntary resignation. If the jury credits the testimony of either Blaha or Phillips on this point, it could reasonably question the defendants' current description of the transaction, that they fired Hare because of performance and conduct problems. See, e.g., Miller, 396 F.3d at 1112 (where defendant maintained at trial that it terminated plaintiff as part of a RIF, jury could find pretext based in significant part on plaintiff's evidence that management had twice given different, and untrue, reasons for the termination). Hare's superiors also disagreed about the reasons that they took whatever action they took with respect to Hare. Blaha testified that the decision he and Cook made was based not on any performance or conduct problems on Hare's part, but rather on their realization that the position was no longer necessary. Indeed, Blaha did not want to use the word "fire" to describe the action, because he believes that word implies a decision based on something negative about the person who has been fired, and that was not true here. Aplt. App. 291. Blaha believed that Hare "was dedicating his time and efforts and energies toward the operation of the Mart" during 2003. Aplt. App. 280. Cook and Phillips, on the other hand, agreed that the defendants' decision was based – at least in substantial part – on perceived performance and conduct deficiencies on Hare's part, but they disagreed about which deficiencies their decision was based on and about what action those deficiencies led them to take. Cook testified that the defendants decided to fire Hare because Davis told them that he was mean and rude to her and unavailable, and because Fogg told them that he had essentially abandoned his position and turned his responsibilities over to Klein. Phillips agreed with Cook about these problems, but added several other alleged problems to the list: various Mart employees had complained that Hare intimidated them (an allegation that Cook testified he did not learn about until after the decision was made), the Mart's profits had leveled off, and Hare had been insubordinate towards his superiors by refusing to accept their decisions about his bonus and his contract. In spite of this list of substantial problems, however, Phillips testified that the defendants did not fire Hare, but merely decided to accept his resignation. A reasonable jury could reject the core of Phillips' testimony as not credible. Phillips portrayed Hare as an extraordinarily ineffective and untrustworthy manager, and it is inherently implausible that the defendants would have continued to employ such a problematic employee as general manager had he not resigned. It is also improbable that the action they took in December 2003 was accepting his resignation, when his resignation letter, dated a year earlier, was expressly limited to his corporate positions, and he continued to work as general manager for almost a year after submitting that letter. See Aplt. Add. 12 ("Mr. Phillips's description of Mr. Hare as voluntarily resigning from his operational duties rather than being terminated is troubling and not borne out by the evidence."). In addition, Cook and Phillips had some substantial disagreements about the reasons for Hare's termination, and Blaha testified that Hare's separation was not based at all on the performance and conduct problems that Cook and Phillips pointed to. Accordingly, since the testimony of the decision-makers contains substantial inconsistencies, contradictions and implausibilities, a reasonable jury could find the defendants' articulated justification for Hare's termination pretextual, and the district court therefore erred in granting summary judgment with respect to that issue. See, e.g., Townsend v. Lumbermens Mut. Cas. Co., 294 F.3d 1232, 1242 (10th Cir. 2002) (plaintiff established pretext by showing that one manager's explanation for his termination was inconsistent with another manager's explanation). CONCLUSION The Commission therefore urges this Court not to affirm the district court's ruling that Hare failed to offer evidence on the basis of which a reasonable jury could find the defendants' reasons for firing him pretextual. Respectfully submitted, RONALD S. COOPER General Counsel LORRAINE C. DAVIS Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel ______________________________ PAUL D. RAMSHAW Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7040 Washington, D.C. 20507 (202) 663-4737 CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 29 and 32(a)(7)(B) because it contains 4,377 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. All required privacy redactions have been made, and with the exception of those redactions, the digital submission is an exact copy of the written document filed with the clerk (except that I have added typed signature notations to the digital submission), and it has been scanned for viruses with the most recent version of a commercial virus-scanning program, Symantec AntiVirus, version 9.0.3.1000, updated January 23, 2007, and according to that program is free of viruses. Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7040 Washington, D.C. 20507 Dated: January 25, 2007 CERTIFICATE OF SERVICE I hereby certify that two paper copies of this brief were mailed today to the following counsel of record, and that I have also today sent them a copy of the digital submission by electronic mail: James M. Dieterich Brett M. Wendt White & Steele, P.C. 950 17th Street, Suite 2100 Denver, CO 80202 jdieterich@wsteele.com bwendt@wsteele.com Darold W. Killmer Mari Newman Sara J. Rich Killmer, Lane & Newman, LLP 1543 Champa Street, Suite 400 Denver, CO 80202 DKillmer@killmerlane.com MNewman@killmerlane.com SRich@killmerlane.com Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7040 Washington, D.C. 20507 Date: January 25, 2007 *********************************************************************** <> <1> References to the appellant’s appendix are to the appendix page numbers, with the numbers of the deposition pages in parentheses. Thus “Aplt. App. 80 (112)” refers to deposition page 112 on appendix page 80. <2> Hare and Klein testified that Phillips specified that this trainee be “younger” than Hare. Aplt. App. 101 (123), 163, 236 (13). Cook did not recall that Phillips made this requirement explicit but agreed it was implicit. Aplt. App. 404 (223-25). <3> Cook’s deposition also suggests that Hare’s decision in the spring of 2002 to pay Klein and himself bonuses during that year according to the traditional formula, in spite of orders from Phillips and Cook to the contrary, did not contribute to the defendants’ decision to terminate him. According to Cook, neither Phillips nor Cook got upset about that decision by Hare, and they decided to do nothing about it. Aplt. App. 395-98 (163-76). <4> The district court also held that Hare failed to establish a prima facie case of age discrimination. We believe this ruling is also flawed. The plaintiff cited Branson v. Price River Coal Co., 853 F.2d 768, 771 (10th Cir. 1988), Lucas v. Dover Corp., 857 F.2d 1397, 1401 (10th Cir. 1988), and Ingels v. Thiokol Corp., 42 F.3d 616, 621 (10th Cir. 1994), in arguing that he could establish a prima facie case of age discrimination without showing that he was replaced by a younger worker. Aplt. App. 210. The district court distinguished these decisions on the implicit ground that their alternative formulation of the prima facie case applies only when a substantial number of employees are terminated. Aplt. Add. 7. But the rationale behind the prima facie case is to allow a plaintiff to raise an inference of discrimination by eliminating the most common nondiscriminatory explanations for the termination: that the plaintiff was not meeting the defendant’s legitimate expectations, or that the defendant no longer needed the position filled. Kendrick v. Penske Transp. Servs., 220 F.3d 1220, 1227 (10th Cir. 1990). Branson, Lucas, and Ingels held that when the plaintiff’s position is eliminated, the plaintiff is allowed to offer some other type of evidence that raises an inference of discrimination. Branson, Lucas, and Ingels did involve substantial RIFs, but the logic behind allowing an alternative formulation of the prima facie case applies whenever the plaintiff’s position has been eliminated. See, e.g., EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1192 (10th Cir. 2000) (plaintiff can satisfy fourth element of prima facie case by showing that defendant took adverse action “under circumstances which give rise to an inference of unlawful discrimination”); id. at 1195 n.6 (plaintiff “can satisfy the fourth element . . . in a number of ways”). In addition, while several courts have ruled that an employer may legitimately ask about an employee’s retirement plans without raising an inference of age discrimination, see, e.g., Cox v. Dubuque Bank & Trust Co., 163 F.3d 492, 497 (8th Cir. 1998) (“[M]any courts have recognized that an employer may make reasonable inquiries into the retirement plans of its employees.”), Hare’s evidence here showed more than a bare inquiry: Phillips first asked Hare how old he was, Aplt. App. 236 (13); after Hare said he had no plans to retire soon, Phillips still instructed him to select and train a younger employee to replace him, Aplt. App. 163; and after this discussion Phillips refused to discuss the other agenda items and in effect terminated the meeting, Aplt. App. 240 (90-91).