UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT ______________________ No. 01-1359 ______________________ ETHEL LOUISE HILL, Plaintiff-Appellant, vs. LOCKHEED MARTIN LOGISTICS MANAGEMENT, INC., Defendant-Appellee. _____________________________________________________ ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA, Case No. 99-CV-2343 REHEARING EN BANC _____________________________________________________ BRIEF OF U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF APPELLANT _____________________________________________________ NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel SUSAN R. OXFORD Attorney EQUAL EMPLOYMENT OPPORTUNITY COMM. 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4791 TABLE OF CONTENTS TABLE OF CONTENTS i TABLE OF AUTHORITIES ii STATEMENT OF INTEREST 1 STATEMENT OF THE ISSUES 3 STATEMENT OF THE CASE 3 A. Statement of Facts 3 B. District Court Decision 7 C. Panel Decision 8 SUMMARY OF ARGUMENT 11 ARGUMENT THE DISCRIMINATORY ANIMUS OF A SUBORDINATE WHO HAS NO FORMAL DECISIONMAKING AUTHORITY IS PROPERLY IMPUTED TO THE EMPLOYER WHEN THE BIASED SUBORDINATE SUBSTANTIALLY INFLUENCES THE EMPLOYMENT DECISION 12 CONCLUSION 23 CERTIFICATE OF COMPLIANCE 24 CERTIFICATE OF SERVICE APPENDIX (Panel Decision) TABLE OF AUTHORITIES FEDERAL CASES Bergene v. Salt River Proj. Agricul. Improvement & Power Dist., 272 F.3d 1136 (9th Cir. 2001) 21 David v. Caterpillar, Inc., 324 F.3d 851 (7th Cir. 2003) 15 Dey v. Colt Constr. & Devel. Co., 28 F.3d 1446 (7th Cir.), reh’g en banc denied (1994) 18, 19 Griffin v. Washington Convention Ctr., 142 F.3d 1308 (D.C.Cir. 1998) 22 Hill v. Lockheed Martin, 314 F.3d 657 (4th Cir. 2003) passim Mateu-Anderegg v. School Dist. of Whitefish Bay, 304 F.3d 618 (7th Cir. 2002) 22 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) 9 O’Connor v. Consolidated Coin Caterers Corp., 56 F.3d 542 (4th Cir. 1995), rev’d on other grounds, 517 U.S. 308 (1996) 12 Ostrowski v. Atlantic Mutual Ins. Cos., 968 F.2d 171 (2nd Cir. 1992) 21 Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) 10 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000) 20 Russell v. McKinney Hosp. Venture, 235 F.3d 219 (5th Cir. 2000) 21 Simpson v. Diversitech General, Inc., 945 F.2d 156 (6th Cir.), reh’g den. (1991), cert. dismissed 502 U.S. 1083 (1992) 21, 22 Stacks v. Southwestern Bell Yellow Pages, Inc., 27 F.3d 1316 (8th Cir. 1994) 21 Wallace v. SMC Pneumatcs, Inc., 103 F.3d 1394 (7th Cir. 1977) 15 FEDERAL STATUTES 29 U.S.C. §§ 621 et seq passim 29 U.S.C. §623(a)(1) 12, 22 29 U.S.C. §623(d) 12, 22 42 U.S.C. §§ 2000e, et seq. passim 42 U.S.C. § 2000e-2(a)(1) 12, 22 42 U.S.C. § 2000e-3(a) 12, 22 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT ______________________ No. 01-1359 ______________________ ETHEL LOUISE HILL, Plaintiff-Appellant, vs. LOCKHEED MARTIN LOGISTICS MANAGEMENT, INC., Defendant-Appellee. ____________________________________________________ ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA _____________________________________________________ BRIEF OF U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF APPELLANT IN REHEARING EN BANC _____________________________________________________ STATEMENT OF INTEREST The 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. (“Title VII”), the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. (“ADEA”), and other federal employment discrimination laws. This case raises important questions concerning an employer’s liability under Title VII and the ADEA for the discriminatory acts of its employee where the biased employee, although not a formal decisionmaker, was effectively vested with substantial influence over employment decisions affecting a worker who is protected under anti-discrimination laws. Plaintiff Ethel Louise Hill alleges that she was subjected to discriminatory terms and conditions of employment because of her age and gender based, in large part, on the disparaging comments and negative reports of the safety inspector assigned to review her work. She further alleges that the inspector’s deficiency reports (following directly on the heels of her complaints) resulted in her termination. The majority concluded that the biased safety inspector’s statements were attributable to Lockheed as direct evidence of age and sex discrimination because the inspector “substantially influenced” Lockheed’s decision to fire Hill. As a result, the majority found that Hill raised disputed issues of fact concerning whether her termination was because of her sex or age or in retaliation for her complaints of discriminatory treatment based on sex and age. The dissent, having concluded that Lockheed terminated Hill only after her immediate supervisor independently verified the biased inspector’s various performance deficiency reports, argued that the biased subordinate was not “principally responsible” for the decision and, therefore, that the inspector’s discriminatory animus was not causally connected to Hill’s termination. It is the Commission’s position that the panel majority correctly held that a subordinate’s discriminatory motive should be imputed to the decisionmaker when the subordinate has substantially influenced the employment decision (i.e., whenever a subordinate has exerted sufficient influence to be considered a “cause” of the employment action), even if the formal decisionmaker cannot be said to have simply “rubber stamped” the biased subordinate’s recommendation. Because of the importance of this issue to the proper enforcement of the statutes within EEOC’s purview, we offer our views for the Court’s consideration. STATEMENT OF THE ISSUE Whether the bias of the safety inspector in this case is properly imputable to Lockheed Martin because the biased inspector substantially influenced Lockheed’s decision to terminate Hill. STATEMENT OF THE CASE Statement of Facts Plaintiff-Respondent Ethel Louise Hill was terminated by Defendant-Petitioner Lockheed Martin Logistics Management, Inc., in May of 1998 at the age of 58, after having worked for Lockheed as a sheet metal mechanic for over 11 years. Hill v. Lockheed Martin, 314 F.3d 657, 660 (4th Cir. 2003).1 Hill worked at various Lockheed sites during her tenure, the last being Lockheed’s Fort Drum, New York, operation. Id. At the time of her termination, Hill was the oldest person and the only female on her team of eight workers. At each location, Hill’s work was checked by a safety inspector who submitted reports to Hill’s immediate supervisor. Id. at 662.Hill’s Fort Drum assignment began in January 1998 and proceeded without incident for the first month. Starting in February 1998, Fultz was assigned to inspect Hill’s work. Fultz had served as Hill’s safety inspector during a Fort Drum assignment three years earlier, at which time “Hill overheard Fultz say that he did not like to have women working under him.” Id. at 660. During the next three months, Fultz made a number of derogatory comments about Hill’s age and gender, and commented to Hill that she was too old for this kind of work. Id. After Hill complained to Dixon the first time about Fultz’s treatment, Fultz reported Hill for misplacing one of her tools under circumstances which led Dixon to suspend Hill for three days. Id. at 661. Although tool accountability is important to Lockheed, Dixon later explained that he did not suspend Hill because she misplaced her tool, but because he believed, based on Fultz’s statements, that Hill had lied about the misplaced tool. Lockheed’s tool control policy requires employees to account for their tools at all times and to report any missing tools to their immediate supervisor. To facilitate compliance, all tools contain a label identifying their owner, and toolboxes are “shadowed” so that missing tools can be easily spotted. Id. at 661, 686. Hill had three identical pairs of four-inch cutters; in April 1998, an Army employee found one of them on a maintenance stand and gave it to Fultz. Id. at 661. Fultz then gave the tool to Dixon, stating that he [Fultz] had checked Hill’s toolbox at the end of her shift and asked her where her missing cutters were, to which Hill replied (according to Fultz), “I told Richard [Dixon] I took [them] home.” The conversation made Dixon believe that Hill had lied to Fultz about the missing tools, since she had not said anything to Dixon. Id. The next morning, Dixon showed the tool to Hill and asked if it was hers. Hill acknowledged that the cutters had her number on them, but she was otherwise unaware that a pair of her cutters was missing, because (according to Hill) Fultz never said anything to her about it. Hill was also unaware that Fultz had falsely told Dixon that Hill said she reported to Dixon that she had taken the cutters home. Therefore, Hill said nothing to correct Dixon’s belief that she had lied to Fultz the day before. As a result, Dixon was left with the impression not only that Hill had lied to Fultz the day before (claiming she had reported the missing cutters to Dixon when she hadn’t), but also that Hill was less than forthcoming with Dixon in his conversation with her about the missing tool the next morning. According to Hill’s evidence, Fultz manufactured the information that led Dixon to believe Hill had lied about the tool’s whereabouts. Id. When Hill returned from her suspension, she again complained to Dixon about Fultz’s discriminatory treatment. Dixon raised the issue with Fultz, and Fultz reacted with noticeable anger towards Hill. Id. Starting the next day, Fultz submitted a “flurry” of discrepancy reports concerning Hill’s performance (six separate reports in three consecutive work days, all for performance deficiencies that Fultz designated as “minor”). Id. at 661-62, 677. After refusing to endorse one of the reports that Fultz issued against Hill, Dixon gave Hill a written reprimand (her third since September 1997). Id. at 662. Lockheed’s Standard Operating Procedure (SOP) permitted, but did not require, termination of an employee who received three written reprimands in twelve months where at least one of the reprimands resulted in a suspension. Id. at 660. The decision to discharge Hill was formally made by Archie Griffin, Lockheed’s east coast senior site representative who was located in Georgia, and Thomas Prickett, Lockheed’s program manager in charge of contract field teams who was located in Texas. Id. at 662. Neither Griffin nor Prickett ever talked to Hill during this time or personally examined her work. Id. at 662, 671. It is unclear whether Griffin ever talked with Dixon about Hill, but he talked with Fultz several times, and Fultz provided Griffin a written statement of Fultz’s observations about Hill’s work performance. Prickett, who said the decision to fire Hill was “based entirely on information ... gathered from people that work[ed] at the [Fort Drum] site,” talked about Hill with Fultz but did not remember any conversations with Dixon. Id. at 662, 672.2 Griffin and Prickett relied on Fultz to write and sign Hill’s termination statement listing the reasons why Hill was fired, all of which were based on Fultz’s observations of, and dissatisfaction with, Hill’s job performance. Id. at 662, 672. District Court DecisionThe district court granted Lockheed’s motion for summary judgment. The court concluded that Hill presented no direct evidence of sex or age discrimination (discounting Fultz’s derogatory comments because Fultz did not make the final decision to fire Hill), and found Hill’s circumstantial evidence insufficient to withstand summary judgment. The court further concluded that Hill established a prima facie case of retaliatory discharge, but did not establish that Lockheed’s assertion that it discharged Hill for poor job performance was a pretext for retaliation. Id. at 662. Panel Decision A divided panel of this Court reversed. The panel majority rejected the district court’s conclusion that Fultz’s derogatory statements did not constitute “direct” evidence of discrimination because he was not the final decisionmaker. The majority stated: [A] biased subordinate who does not make the final or formal employment decision may still count as a decisionmaker in a Price Waterhouse mixed-motive case .... if he has a substantial influence on the employment decision. Consequently, evidence of the subordinate’s discriminatory animus may constitute direct evidence in a mixed-motive case. Id. at 670.3 The majority concluded that because Hill had proffered “considerable evidence” that Fultz had a substantial influence on Lockheed’s decision to fire her, Lockheed must be denied summary judgment on Hill’s claim of discrimination based on sex and age. Id. at 671-76.4 Since Hill did not allege any direct evidence of retaliation, the majority analyzed Hill’s retaliatory discharge claim under the framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and concluded that Hill had presented sufficient evidence to create a material issue of fact concerning her claim that Fultz acted with a retaliatory motive in issuing the flurry of discrepancy reports that led to her discharge. 314 F.3d at 677-80. The majority explained: [T]he question is not whether Fultz could have written up Hill’s mistakes. The question is whether Hill creates a genuine issue as to whether Fultz would have written the reports absent a retaliatory animus. ... Hill has offered sufficient evidence to allow a reasonable factfinder to conclude that had Fultz not been gunning for her, he would not have written a discrepancy report on every minor mistake that she made [during her last three days]. Id. at 678 [emphasis in original]. Finding that, under Lockheed’s SOP, Fultz’s discrepancy reports were the basis for Hill’s discharge and that Hill had created a genuine issue concerning whether these discrepancy reports were generated in retaliation for Hill’s discrimination complaints, the majority held that Lockheed was not entitled to summary judgment on Hill’s retaliation claim. Id. at 679-80. In the dissent’s view, the majority’s decision “expands the scope of the discrimination statutes and Price Waterhouse[v. Hopkins, 490 U.S. 228 (1989),] beyond their intended limits.” Id. at 680. In order to impute the discriminatory motives of a subordinate employee to the formal decisionmakers of an employer, the dissent said it would require a plaintiff to establish that the subordinate was the “actual decisionmaker” because the formal decisionmakers merely “rubber-stamped” or acted as a “cat’s paw” for the subordinate’s report, decision, or recommendation. Id.; see also at id. 685 (aggrieved employee should be required to make threshold showing that subordinate was either “actual decisionmaker” or “principally responsible” for decision because “‘[formal] decisionmaker followed the biased recommendation [of a subordinate] without independently investigating the complaint against the employee’ and making his own determination as to the propriety of the employment action”). Applying this narrower standard, the dissent concluded that Hill did not present sufficient evidence that the actions of the formal decisionmakers were tainted by Fultz’s bias because, in the dissent’s view, Dixon had investigated and independently corroborated Fultz’s reports of Hill’s misconduct or performance deficiencies. Id. at 686-97. SUMMARY OF ARGUMENT A plaintiff alleging intentional discrimination based on sex under Title VII and based on age under the ADEA establishes a statutory violation by proving that gender or age were motivating factors in an employment decision. In response to a defendant’s motion for summary judgment, a plaintiff must present sufficient evidence to demonstrate the existence of genuine issues of disputed fact with regard to her claim that the reason(s) proffered by the employer are unworthy of credence or that the employer’s decision was motivated by unlawful discrimination. In this case, Plaintiff Hill demonstrated the requisite disputed material facts with evidence that (a) Fultz, the safety inspector assigned to review Hill’s work, exhibited discriminatory animus toward Hill at the workplace based on her gender and age, and (b) Fultz substantially influenced the decision to fire Hill through his involvement in the “misplaced tool” incident, the discrepancy reports he generated concerning the quality of Hill’s work, and his discussions with Prickett and Griffin preceding their decision to terminate Hill. In reversing the district court’s grant of summary judgment, the panel majority correctly held that Fultz’s discriminatory animus should be imputed to Lockheed because Fultz substantially influenced Lockheed’s decision to terminate Hill. ARGUMENT THE DISCRIMINATORY ANIMUS OF A SUBORDINATE WHO HAS NO FORMAL DECISIONMAKING AUTHORITY IS PROPERLY IMPUTED TO THE EMPLOYER WHEN THE BIASED SUBORDINATE SUBSTANTIALLY INFLUENCES THE EMPLOYMENT DECISION. The panel majority correctly held that the district court erred in declining to take Fultz’s bias into account. In determining whether Lockheed disciplined and then terminated Hill “because of” her sex, 42 U.S.C. § 2000e-2(a)(1), “because of” her age, 29 U.S.C. §623(a)(1), or in retaliation for having complained of sex and age discrimination, 42 U.S.C. § 2000e-3(a); 29 U.S.C. §623(d), Fultz’s bias is appropriately considered because (a) Fultz’s derogatory comments about Hill’s gender and age “clearly demonstrate that Fultz had a discriminatory attitude towards Hill at the workplace,” 314 F.3d at 665,5 and (b) Fultz’s bias bore directly on Hill’s termination because Fultz exercised substantial influence on the employment decisions that resulted in Hill’s discipline and then termination. Id. at 666-73.6 The majority’s analysis properly takes into account two important principles recognized by the dissent, as well: that an employer, on the one hand, should not be “‘unfairly tagg[ed] ... with the discriminatory motives of subordinate employees who have not been entrusted with formal decision-making authority’” and, on the other hand, should not be able to “insulate itself from liability by hiding behind a formal decisionmaker.” Compare id. at 670-71 with id. at 684 (Traxler, J., dissenting). In our view, the standard set forth by the majority fulfills these principles and, at the same time, fully reflects Congress’s goal to make the workplace free from discrimination. The dissent’s narrower proposed standard would leave much actual discrimination unabated. The majority in Hill concluded that Fultz’s derogatory comments toward Hill – referring to her, among other things, as a “damn woman,” “troubled old lady,” and a “useless old lady” who needed to go home and retire – constitute direct evidence of a discriminatory attitude at the workplace. 314 F.3d at 665-66. The majority therefore proceeded to consider whether the requisite nexus exists between Fultz’s discriminatory attitude and the contested employment decision, and properly determined that it did. Id. at 666, 671-73. We agree that on these facts, a reasonable jury could conclude that Fultz’s actions directly and substantially influenced not just the process that led to Hill’s termination, but Lockheed’s decision to fire Hill, as well. Indeed, Fultz’s involvement meets this standard in at least three separate and distinct points, each of which, standing alone, warrant imputation of Fultz’s bias to Lockheed. Lockheed’s SOP permitted (but did not require) termination of an employee who has had three written reprimands in a twelve-month period, one of which resulted in a suspension. The second and third reprimands were, therefore, both necessary predicates for termination under Lockheed’s SOP,7 and both are tied directly to Fultz’s actions. Hill received reprimand #2 for misplacing one of her tools. This is not a case, however, where a particular consequence was mandated as soon as the supervisor learned of this infraction. Rather, Dixon had the discretion to impose a range of consequences for a misplaced tool, id. at 675, and he testified in his deposition that he suspended Hill solely because he believed Hill was being untruthful when asked about the tool - a belief based entirely on statements made by Fultz that Hill says were untrue. Id. at 661. As the majority explained, construing the facts in the light most favorable to Hill, as is appropriate in a summary judgment context, this incident would have never resulted in a suspension (or, indeed, any form of discipline) if Fultz had not lied to Dixon about his conversation with Hill concerning the missing tool. Without this suspension, Hill would not have met the criteria for termination in Lockheed’s SOP. Under these circumstances, Fultz’s bias is properly imputed to Lockheed. See David v. Caterpillar, Inc., 324 F.3d 851, 861 (7th Cir. 2003)(discriminatory motive of nominative nondecisionmaker may be imputed to company where “‘nondecisionmaker’ influenced the employment decision by ... feeding false information to[] the ultimate decisionmaker.”)(citing Wallace v. SMC Pneumatcs, Inc., 103 F.3d 1394, 1400 (7th Cir. 1977)). Even with the suspension, however, Hill did not meet the criteria for termination under Lockheed’s SOP until the third written reprimand which, in this instance, was also caused directly by Fultz’s actions. Reprimand #3 was based solely on the “flurry” of discrepancy reports that Fultz issued over a three-day period. Fultz had been inspecting Hill’s work for almost three months prior to that point, and had not yet issued a single discrepancy report concerning her work. These six “minor” discrepancy reports were issued over a very short period of time that began the day after Dixon told Fultz that Hill had again complained about Fultz’s discriminatory treatment. Given the evidence that Fultz was extremely angry toward Hill when Dixon told him of Hill’s complaint, a reasonable jury could conclude that Fultz was motivated by retaliation in issuing these six “minor” discrepancy reports, and that the reports would never have been issued by Fultz (and, therefore, would never have resulted in a third written reprimand) if it were not for the fact that Fultz wanted to retaliate against Hill. The fact that Dixon may have independently verified five of the six discrepancy reports8 is immaterial if, as a jury could conclude on these facts, these minor performance deficiencies would never have been written up and submitted to Dixon but for Fultz’s discriminatory and retaliatory animus. Since the discrepancy reports were all admittedly “minor,” the actions for which Hill was being criticized were not the kind of performance deficiencies that would inevitably result in a written reprimand if Fultz had not chosen to write them up. See 314 F.3d at 676, 678-79 (Lockheed inspectors have discretion on whether to write up minor mistakes).9 Most significantly and, again, construing the facts in the light most favorable to Hill, once Dixon forwarded the three disciplinary actions to Griffin and Prickett, Dixon’s involvement ceased as a practical matter and the formal decisionmakers looked exclusively to Fultz for additional information as they determined how to proceed. Lockheed’s SOP permitted, but did not require, termination under these circumstances. In deciding how to proceed, Prickett and Griffin did not speak directly to Hill or observe her work personally. Indeed, it is questionable whether either decisionmaker ever conferred with Dixon.10 Both decisionmakers, however, solicited Fultz’s views, and Fultz not only discussed the matter with Griffin and Prickett, but provided an additional written statement of his observations of Hill’s work. After conferring with Fultz, Griffin and Prickett decided to terminate Hill, and then relied on Fultz to write and sign Hill’s termination statement listing the reasons for termination, all of which were based on Fultz’s dissatisfaction with Hill’s job performance. Thus, in deciding how to proceed under the SOP, Prickett and Griffin turned to Fultz, and not Dixon, for additional information and then relied on Fultz, not Dixon, to draft and sign the notice terminating Hill’s employment. See Dey v. Colt Constr. & Devel. Co., 28 F.3d 1446, 1459 (7th Cir.), reh’g en banc denied (1994)(summary judgment improper where plaintiff’s sexual harassment claim may have affected alleged harasser’s “unflattering assessment of [plaintiff’s] job performance) (collecting cases).11 As the majority observed, on these facts a reasonable jury could conclude that Fultz was “principally responsible” for Hill’s termination because Griffin and Prickett simply “rubber-stamped” Fultz’s recommendations. Thus, Fultz’s discriminatory actions are properly imputed to Lockheed even under the more restrictive standard advocated by the dissent. 314 F.3d at 672-73. It is the Commission’s position that the standard advanced by the dissent is, nevertheless, improperly narrow and could result, in other cases, in unlawful discrimination remaining unaddressed where a subordinate’s discriminatory bias substantially influenced the employment decision.12Under the dissent’s standard, an employer would be liable for the discriminatory actions of a subordinate only where “the subordinate was the ‘actual decisonmaker’ because the formal decisionmakers merely ‘rubber-stamped’ or acted as a ‘cat’s paw’ for the subordinate’s report, decision, or recommendation.” Id. at 680. The dissent relies on Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000), for the proposition that liability should be limited to those situations where the subordinate was “principally responsible” for the adverse employment action. See 314 F.3d at 683, citing Reeves, 530 U.S. at 151-52. As the majority properly noted, however, the Supreme Court was not purporting, in Reeves, to set forth the full extent of situations in which a subordinate’s actions can be imputed to the employer. 314 F.3d at 671. Thus, although a subordinate’s discriminatory bias can be imputed to an employer where the subordinate is “principally responsible” for an adverse action, that does not describe the full scope of such liability, and this Court should likewise reject the dissent’s proposed standard. A number of other circuits have reached the same result as the panel majority in Hill. See, e.g., Ostrowski v. Atlantic Mutual Ins. Cos., 968 F.2d 171, 182 (2nd Cir. 1992)(“statements of a person involved in the decisionmaking process that reflect a discriminatory or retaliatory animus of the type complained of in the suit” are relevant to establish employment action was discriminatorily motivated); Simpson v. Diversitech General, Inc., 945 F.2d 156, 160 (6th Cir.)(where race more likely than not played a role in actions of intermediate supervisor that led substantially to plaintiff’s termination, fact that intermediate supervisor was not “final” decisionmaker was insufficient to establish employer’s Price Waterhouse defense), reh’g den. (1991), cert. dismissed 502 U.S. 1083 (1992); Stacks v. Southwestern Bell Yellow Pages, Inc., 27 F.3d 1316, 1323 (8th Cir. 1994)(“evidence that gender was a motivating factor includes evidence of ‘[c]omments which demonstrate a discriminatory animus ... uttered by individuals closely involved in employment decisions’”); Bergene v. Salt River Proj. Agricul. Improvement & Power Dist., 272 F.3d 1136, 1141 (9th Cir. 2001)(former supervisor’s statement to plaintiff that pursuit of her pregnancy discrimination claim would impede her chances of promotion was direct evidence of retaliation because former supervisor “played an influential role in the selection process”). See also Russell v. McKinney Hosp. Venture, 235 F.3d 219, 227 (5th Cir. 2000)(“it is appropriate to tag the employer with an employee’s age-based animus if the evidence indicates that the worker possessed leverage, or exerted influence, over the titular decisionmaker.”); Mateu-Anderegg v. School Dist. of Whitefish Bay, 304 F.3d 618, 627 (7th Cir. 2002) (Ripple, J., concurring)(“[s]ummary judgment is generally improper where the plaintiff can show that an employee with discriminatory animus provided factual information or other input that may have affected the adverse employment action.”)(citation omitted); Griffin v. Washington Convention Ctr., 142 F.3d 1308, 1312 (D.C.Cir. 1998)(“Thus do we join at least four other circuits in holding that evidence of a subordinate’s bias is relevant where the ultimate decision maker is not insulated from the subordinate’s influence.”).13 These courts have recognized, like the majority in this case, that the fact that the biased subordinate “did not ‘pull the trigger’ is of little consequence.” Simpson, 945 F.2d at 160. What matters in employment discrimination claims like this is causation, i.e., whether the adverse employment action was “because of” gender, age or retaliation. 42 U.S.C. §§ 2000e-2(a)(1), 2000e-3(a); 29 U.S.C. §§ 623(a)(1), 623(d). Where, as here, the biased subordinate had a substantial influence on the decision, “causation” is clearly satisfied and Lockheed’s motion for summary judgment should have been denied, as the panel majority properly concluded. CONCLUSION For the foregoing reasons, we urge this Court to affirm the majority’s holding that, under these facts, the discriminatory animus of Safety Inspector Fultz is properly imputed to Lockheed Martin and that, as a result, Hill has presented sufficient evidence, in response to Lockheed’s summary judgment motion, to permit her claims of gender and age discrimination and retaliatory discharge to go to trial. Respectfully submitted, NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ________________________________ SUSAN R. OXFORD Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4791 DATED: May 6, 2003 CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation set forth in Fed.R.App.P. 32(a)(7)(B), I certify that this brief has been prepared in monospaced (nonproportionally spaced) typeface using Corel Word Perfect 9, Courier New 12-point font, and the textual portion contains 5,337 words. SUSAN R. OXFORD CERTIFICATE OF SERVICE I hereby certify that on this date one copy of the within brief was sent by electronic facsimile to the Clerk of the Court for the Fourth Circuit Court of Appeals and an original and 20 copies of the within brief are being hand-delivered to the Clerk this same date. With consent of both counsel of record in this matter, one copy of the within brief is being served on counsel by electronic facsimile to the respective fax numbers noted below, and two copies are being served on counsel on this date by hand-delivery to the Commonwealth Park Suites Hotel in Richmond, Virginia. Ronald A. Rayson, Esq. BURKHALTER, RAYSON & ASSOCIATES, P.C. 111 S. Central Street Knoxville, Tennessee 37902 fax # (865) 524-0172 Andreas N. Satterfield, Jr., Esq. HAYNSWORTH, BALDWIN, JOHNSON & GREAVES, LLC 918 South Pleasantburg Drive Greenville, South Carolina 29607 fax # (864) 241-1861 ________________________________ Susan R. Oxford, Esq. U.S. EQUAL EMPLOYMENT OPPORTUNITY COMM. 1801 L Street, N.W. Washington, D.C. 20507 1 EEOC’s factual statement is drawn exclusively from the panel’s opinion, and we have not conducted any independent review of the factual record in this case. 2 Thus, apart from the fact that Dixon forwarded the disciplinary actions against Hill to Griffin and Prickett, it is unclear to what extent Dixon was involved in Griffin’s and Prickett’s decision to terminate Hill pursuant to the SOP. Prickett did not remember having any conversations with Dixon, and Dixon told inconsistent stories about his conversations with Griffin. Although at one point Dixon attested that he told Griffin he did not think Hill could do the job, at another point he attested that he submitted Hill’s file without any recommendation and, when Griffin asked for a recommendation, responded, “That’s up to you.” 314 F.3d at 672. The panel majority concluded that “[w]hen the facts are taken in the light most favorable to Hill, Dixon’s role was limited to the two reprimands he issued. But these reprimands, which led to Hill’s termination, were based on information (some of it false, according to Hill) provided by Fultz.” Id. 3 The majority noted that its standard focused on a subordinate’s influence on the decision, not his or her influence on the process that led to the employment decision. See 314 F.3d at 671 & n.10. The majority explained that this distinction reflects its agreement with the dissent’s concern “that employers [should] not be ‘unfairly tagg[ed] ... with the discriminatory motives of subordinate employees who have not been entrusted with formal decision-making authority.’” Id. at 671, quoting id. at 684 (Traxler, J., dissenting). 4 The court expressly declined to consider whether Hill could also proceed under a pretext theory. 314 F.3d at 676 n.13. 5 The court noted that Fultz, on various occasions, called Hill “useless,” a “useless old lady,” “a troubled old lady” and a “damn woman” and, on other occasions, said that Hill was “useless and they need to retire her” and that she needed to go home and retire. 314 F.3d at 665. The court said that these comments could not be construed as “humorous, jocular, or general ‘commentary on the fact that all people age,’” citing O’Connor v. Consolidated Coin Caterers Corp., 56 F.3d 542, 549-50 (4th Cir. 1995), rev’d on other grounds, 517 U.S. 308 (1996), nor could they be discounted as not sufficiently connected to Hill, since they were specifically directed at her while she was on the job. 314 F.3d at 665-66. 6 Having first concluded that Fultz was an “actual decisionmaker” in this case because of his extensive influence on the contested decision, 314 F.3d at 671-73, the court then found a sufficient nexus between Fultz’s negative attitude and the employment action taken against Hill. The court noted that Fultz’s remarks “disparaged Hill’s professional abilities and reflected Fultz’s harsh judgment that such a ‘useless old lady’ should not be allowed to remain at Lockheed.” Id. at 673. The court concluded that because these remarks were contemporaneous with the reprimands that triggered Hill’s termination, they reflect Fultz’s state of mind at the time he took the steps that led directly to the adverse employment action against Hill. Id. 7 Hill received reprimand #1 several months before she was assigned to Fort Drum, and she did not contest that reprimand in this litigation. 8 The extent to which Dixon exercised any independent review over the six discrepancy reports is unclear. The dissent states that “Dixon, in accordance with his job duties, personally investigated the discrepancy records and checked each before it was corrected.” 314 F.3d at 691. The majority, on the other hand, found that “[t]he summary judgment record does not permit th[e] conclusion” that “Dixon ... reviewed the facts and decided independently to issue the [third] reprimand[].” Id. at 672. 9 Thus, we agree with the panel majority that the minor performance deficiencies reported by Fultz are very different from the employee wrongdoing in the majority’s “theft” example. 314 F.3d at 673 n.11. For this reason, the dissent is wrong when it asserts that the majority’s standard for imputing a subordinate’s bias to an employer would hamstring employers from taking appropriate disciplinary action. Id. at 694. If a biased subordinate reports a colleague for wrongdoing, such as theft, out of a discriminatory motivation, the subordinate’s bias would not be imputable to the employer where “unbiased decisionmakers independently investigate and verify the violation, ... the employer has a preexisting policy of taking the precise employment action as a consequence of the reported violation, and there is no evidence that the employer enforces that policy in a discriminatory fashion.” See id. Under those circumstances, the “cause” of the discipline would be the employee’s wrongdoing, as established by the company’s independent investigation or the employee’s admission, not the subordinate’s bias. That is clearly not the case here, however. Lockheed inspectors have discretion on whether to write up minor mistakes, id. at 678, so it cannot be said, in the terminology of the dissent, that Lockheed had “a preexisting policy of taking the precise employment action as a consequence of the reported violation,” id., with respect to the third reprimand that Dixon issued to Hill following Fultz’s six discrepancy reports. 10 Dixon provided inconsistent statements about his involvement with Griffin. He attested, at one point, that he told Griffin he did not think Hill could do the job. At another point, he attested that he submitted Hill’s file without any recommendation and, when asked for a recommendation by Griffin, responded, “That’s up to you.” 314 F.3d at 672. 11 In Dey, the Seventh Circuit reversed a district court’s grant of summary judgment where the formal decisionmaker had an independent familiarity with the plaintiff’s job performance and claimed he decided independently to terminate the plaintiff for performance deficiencies, but admitted having solicited the opinionof a subordinate against whom the plaintiff had lodged a complaint of sexual harassment. 28 F.3d at 1451. The court of appeals concluded that even if the decisionmaker was unaware of the pending harassment complaint and thus could not have harbored any retaliatory animus, “[s]ummary judgment is generally improper where the plaintiff can show that an employee with discriminatory animus provided factual information or other input that may have affected the adverse employment action.” Id. at 1459. Summary judgment is even more improper here, where Griffin and Prickett not only spoke to Fultz, but admit that Fultz provided the primary source of information on which they based the termination decision. 12 See, e.g., the majority’s explanation that, taken literally, “‘cat’s paw’ would cover only the situation when a biased subordinate dupes a formal decisionmaker into taking adverse action against another employee,” and “‘rubber stamp’ would apply only to the situation when the formal decisionmaker automatically endorses the biased subordinate’s recommendation without exercising independent judgment.” 314 F.3d at 669 n.6. Even though some courts that use these terms do not appear to apply them literally, id., the potential ambiguity based on the literal meaning renders these terms an inappropriate standard for imputing a subordinate’s bias to an employer. 13 We agree with the majority that it is immaterial whether these decisions address the issue in the context of a “pretext” or a “mixed motive” analysis, as “the question of who counts as a relevant decisionmaker is the same” in both circumstances. 314 F.3d at 668.