Infante v. Ambac Financial Group (2d Cir.) Amicus brief July 26, 2006 06-0576-cv ___________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _________________________________________ MARIA INFANTE, Plaintiff-Appellant, v. AMBAC FINANCIAL GROUP, Defendant-Appellee. ______________________________________________________________ On Appeal from the U.S. District Court for the Southern District of New York Hon. Kimba M. Wood, Judge ______________________________________________________________ BRIEF OF THE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF INFANTE AND IN FAVOR OF REVERSAL ______________________________________________________________ JAMES L. LEE U.S. EQUAL EMPLOYMENT Deputy General Counsel OPPORTUNITY COMMISSION Office of General Counsel CAROLYN L. WHEELER 1801 L Street, NW, Room 7034 Acting Associate General Counsel Washington, DC 20507 (202) 663-4055 GAIL S. COLEMAN gail.coleman@eeoc.gov Attorney TABLE OF CONTENTS Table of Authorities . . . . . . . . . . . . . . . . . . . . . ii Statement of Interest. . . . . . . . . . . . . . . . . . . . . .1 Statement of the Issue . . . . . . . . . . . . . . . . . . . . .1 Statement of the Case. . . . . . . . . . . . . . . . . . . . . .1 A. Statement of Facts. . . . . . . . . . . . . . . . . . . . .1 B. District Court Decision . . . . . . . . . . . . . . . . . .4 Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . .5 A reasonable jury could infer gender discrimination from the questions that Ambac asked Infante when she sought to return to work following her maternity leave . . . . . . . . . . . . . . .5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Anti-Virus Certification Form Certificate of Service TABLE OF AUTHORITIES Cases Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107 (2d Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . .5, 7, 8 Colavito v. N.Y. Organ Donor Network, Inc., 438 F.3d 214 (2d Cir. 2006). . . . . . 9 Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003) . . . . . . . . . . . . . . . . . 5 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) . . . . . . . . . . . . . . .4 Nevada Dep't of Human Resources v. Hibbs, 538 U.S. 721 (2003). . . . . . . . 5, 6, 7 Sheehan v. Donlen Corp., 173 F.3d 1039 (7th Cir. 1999). . . . . . . . . . . . . . .5 Statutes and Rules 42 U.S.C. § 2000e . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .passim 42 U.S.C. § 2000e-2(m) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5 Fed. R. App. P. 29(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Miscellaneous Joan C. Williams, Litigating the Glass Ceiling and the Maternal Wall: Using Stereotyping and Cognitive Bias Evidence to Prove Gender Discrimination, 7 Employee Rts. & Emp. Pol'y J. 287 (2003). . . . . . . . . . . .6 Parental and Medical Leave Act of 1986: Joint Hearing Before the Subcommittee on Labor-Management Relations and the Subcommittee on Labor Standards of the House Committee on Education and Labor, 99th Cong., 2d Sess. (1986) . . . . . . . . . 6 STATEMENT OF INTEREST The Equal Employment Opportunity Commission ("EEOC") is charged by Congress with interpreting, administering, and enforcing Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. This case raises an important issue related to Title VII involving the inferences that a reasonable jury may draw when an employer asks an employee seeking to return from maternity leave how her job will "fit into the mix" of her new status as a mother of two. Given the importance of this issue to effective enforcement of Title VII, the EEOC offers its views to the Court. The EEOC files this brief pursuant to Rule 29(a) of the Federal Rules of Appellate Procedure. STATEMENT OF THE ISSUE Did the district court err in refusing to allow a jury to consider whether gender bias was at least partly responsible for Ambac's refusal to reinstate Infante following her maternity leave? STATEMENT OF THE CASE A. Statement of Facts<1> Maria Infante began working for Ambac in 1988 as an administrative assistant. She became a staff accountant approximately two years later. She took her first maternity leave in 1996, extended her leave by one month, and then returned to her staff accountant position. (R.24, Slip Op. at 3.) Her performance reviews over the next three years described her as "exceptional," hard-working, and committed. (Id. at 6.) In 2000, Infante was promoted to Assistant Vice President of Finance. (Id. at 3.) Her performance review in December 2001 described her overall performance as "exceeds/meets expectations." The review specified that she met or exceeded expectations in all areas of responsibility of her former staff accountant position, but it gave her lower marks in areas unique to the assistant vice president position. (Id. at 6-7.) In early 2002, Infante told her supervisors that she was pregnant. Pursuant to Ambac's maternity leave policy, Infante took 14 weeks of paid leave beginning in mid-June. At the end of this time, Infante, on the advice of her doctors, extended her leave to October 7, 2002. She subsequently extended her leave again, first to the end of October, then to December 2, and then to December 19. During this time, she sought treatment for her hyperthyroidism, which had been aggravated by her pregnancy. (Id. at 3-4.) Ambac held Infante's position open for her until November, but at that point it began to seek a new staff accountant (rather than an assistant vice president) as a permanent replacement. In mid-December, Ambac offered the staff accountant position to an external candidate who accepted but then withdrew her acceptance. Ambac decided to re-open its search. At about the same time, Infante informed Ambac that her doctor had cleared her to return to work on December 19. (Id. at 4.) Ambac's policy is to reinstate employees who are on short-term disability leave to their old positions if those positions have not been filled. (Id. at 5.) Rather than simply giving Infante her old job back, however, Ambac offered to interview her for an Operations Specialist position. Infante rescheduled the interview because of a conflict and arrived a few minutes late (after calling ahead) because of traffic. Ambac claims that Infante demonstrated a lack of enthusiasm for the job during her interview. It offered the job to an external candidate with formal accounting training but limited job experience. (Id.) Infante then interviewed for her old job of staff accountant, which would have been a demotion for her. (Id. at 6.) During the interview, Infante was asked: "How does this fit into the mix of you now being a mother of two living in New Jersey, is this really what you want to do? How does that fit into the mix?" "With your situation now, do you want to come back to Ambac, do you really want to come back, is this what you want?" She was also asked whether she would be willing to work long hours, to which she responded that she had always worked long hours. (Id. at 7.) Ambac did not offer her the job. One supervisor admitted that he had never intended to do so. Instead, Ambac hired a man with a degree in accounting but no specific training or work experience in insurance accounting, which was the focus of the position. (Id. at 7-8.) Infante sued Ambac under Title VII and various state laws for pregnancy and gender discrimination. Ambac moved for summary judgment on all counts. (Id. at 1.) B. District Court Decision The district court granted summary judgment to Ambac. Applying the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), the district court held that Infante could not establish a prima facie case because she could not show "circumstances giv[ing] rise to an inference of discrimination." (R.24, Slip Op. at 9, 13.) In the alternative, the district court held, Infante did not offer sufficient evidence that Ambac's articulated non- discriminatory reasons for failing to rehire her were pretextual. (Id. at 13.) Acknowledging the questions that Infante was asked during her interview, the district court said: "The statements offered by Infante are innocuous and do not suggest that anyone at Ambac was discriminating against her either on the basis of her recent pregnancy or on the basis of any assumptions about how women with children structure their lives." (Id. at 17.) The court concluded: "The questions asked of Infante were perfectly reasonable inquiries into her plans and current professional goals, particularly given her repeated extensions of leave . . . . An employer asking an employee who has taken repeated extensions of leave whether she really wants to come back cannot by itself give rise to an inference of discrimination." (Id. at 18.) ARGUMENT A reasonable jury could infer gender discrimination from the questions that Ambac asked Infante when she sought to return to work following her maternity leave. The district court erred because a reasonable jury could infer gender bias from Ambac's questions about how a job would "fit into the mix" with Infante's new status as a mother of two. That inference would, in turn, permit a jury to conclude that discrimination was a motivating factor in Ambac's refusal to reinstate Infante following her maternity leave. If discrimination was a motivating factor, then Ambac would be liable under Title VII even if other factors also motivated its decision. See 42 U.S.C. § 2000e-2(m); Desert Palace, Inc. v. Costa, 539 U.S. 90, 94 (2003). Ambac's specific reference to Infante's two children when asking about her commitment to work is indicative of "widely understood stereotypes the meaning of which is hard to mistake." Sheehan v. Donlen Corp., 173 F.3d 1039, 1045 (7th Cir. 1999). As the Supreme Court, this Court, and Congress have all recognized, our society holds a "pervasive" stereotype that women place family and children first, and work second. Nevada Dep't of Human Resources v. Hibbs, 538 U.S. 721, 731 (2003); Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 121 (2d Cir. 2004); The Parental and Medical Leave Act of 1986: Joint Hearing Before the Subcommittee on Labor-Management Relations and the Subcommittee on Labor Standards of the House Committee on Education and Labor, 99th Cong., 2d Sess. 100 (1986), quoted in Hibbs, 538 U.S. at 736. This stereotype has long been the source of employment discrimination by employers who doubt the commitment of female employees to their jobs. Hibbs, 538 U.S. at 1981 n.10, 1982. As the Supreme Court recently lamented, "the fault line between work and family [is] precisely where sex-based overgeneralization has been and remains strongest." Id. at 1983; see generally Joan C. Williams, Litigating the Glass Ceiling and the Maternal Wall: Using Stereotyping and Cognitive Bias Evidence to Prove Gender Discrimination, 7 Employee Rts. & Emp. Pol'y J. 287, 287-93 (2003) (Symposium) (describing gender discrimination cases brought by women claiming discrimination because they are mothers). Although the district court may be correct that Ambac's questions were motivated solely by Infante's repeated extensions of leave, the way in which Ambac phrased the questions suggests otherwise. Infante's interviewer specifically asked her: "How does this fit into the mix of you now being a mother of two living in New Jersey, is this really what you want to do? How does that fit into the mix?" "With your situation now, do you want to come back to Ambac, do you really want to come back, is this what you want?" (R.24, Slip Op. at 7.) And, despite the fact that Infante had a record of working long hours, the interviewer further asked whether she would still be willing to do so. (Id.) Looking at these questions with reference to the "pervasive" gender stereotype that mothers of young children are not committed employees, see Hibbs, 538 U.S. at 731; Back, 365 F.3d at 121, a reasonable jury could conclude that Ambac questioned Infante's wishes at least in part because of her new status as a mother of two. See Back, 365 F.3d at 121 ("Hibbs makes pellucidly clear . . . that, at least where stereotypes are considered, the notions that mothers are insufficiently devoted to work, and that work and motherhood are incompatible, are properly considered to be, themselves, gender-based."). Given that the person who asked Infante these questions was the individual responsible for interviewing and evaluating her when she sought to return to work, it is difficult to understand the district court's characterization of the comments as "innocuous." (R.24, Slip Op. at 17.) Far from being innocuous, the questions provide a window into the mind of one of Ambac's decisionmakers. To the extent that Infante's interviewer harbored gender bias against her as a mother, that bias infected Ambac's refusal to allow Infante to return to work following her maternity leave. Other evidence in this case supports Infante's claim that she was not reinstated because of gender discrimination. Critically, Ambac did not follow its own policy of reinstating employees who are on short-term disability leave to their old positions if those positions have not been filled. (Id. at 5.) One supervisor admitted that even when Infante informed Ambac that her doctor had cleared her to return to work, he had no intention of bringing her back. (Id. at 7.) Although Infante's performance evaluations were positive, (id. at 6-7),<2> Ambac interviewed her only for positions that would represent a demotion. It denied her the operations specialist position because, it said, she seemed insufficiently enthusiastic about the job (id. at 5) – an explanation that is consistent with gender bias against new mothers and is, for that reason alone, suspect. See Back, 365 F.3d at 125 n.16 ("[e]ven a subtle reversal in evaluations that is consistent with stereotypical views about mothers . . . suggests pretext"). It then denied her the staff accountant position although she had previously held that very job and had been rated "exceptional" in performing it. (R.24, Slip Op. at 6.) Moreover, although Ambac appears to claim that Infante's extensions of leave made it question her desire to return to work (id. at 18), the record shows that Infante also extended her maternity leave after her first pregnancy but then returned to work and proved herself to be committed for the next six years. (Id. at 3, 6.) A reasonable jury could look at the evidence in this case and find that gender discrimination was a motivating factor in Ambac's decision not to reinstate Infante. Because the Court must look at all of the evidence in the light most favorable to Infante and must make all reasonable inferences in her favor, Colavito v. N.Y. Organ Donor Network, Inc., 438 F.3d 214, 217 (2d Cir. 2006), it must reverse the award of summary judgment. CONCLUSION The evidence in this case would permit a reasonable jury to find that Ambac relied at least in part on gender discrimination in refusing to reinstate Infante following her maternity leave. The district court erred by removing this question from the jury. For the reasons stated above, the EEOC respectfully asks this Court to reverse the district court's award of summary judgment. Respectfully submitted, JAMES L. LEE Deputy General Counsel CAROLYN L. WHEELER Acting Associate General Counsel _____________________________________ GAIL S. COLEMAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW, Room 7034 Washington, DC 20507 (202) 663-4055 gail.coleman@eeoc.gov ANTI-VIRUS CERTIFICATION FORM (Second Circuit Local rule 32(a)(1)(E)) CASE NAME: Infante v. Ambac Financial Group DOCKET NUMBER: 06-0576-cv I, Gail S. Coleman, certify that I have scanned for viruses the PDF version of the Amicus Brief that was submitted in this case as an email attachment to briefs@ca2.uscourts.gov and that no viruses were detected. NAME AND VERSION OF ANTI-VIRUS DETECTOR USED: Symantec AntiVirus Program 9.0.3.1000, Version 7/18/2006 rev. 18. ________________________________ GAIL S. COLEMAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW, Room 7034 Washington, DC 20507 (202) 663-4055 gail.coleman@eeoc.gov Date: July 19, 2006 CERTIFICATE OF SERVICE I, Gail S. Coleman, hereby certify that I filed one original and nine copies of the foregoing amicus brief with the Court by first-class mail, postage pre-paid, on this 26th day of July, 2006. I also certify that I submitted the amicus brief in PDF format as an e-mail attachment to briefs@ca2.uscourts.gov, and that I e-mailed a copy of the PDF version to all parties. I further certify that I served two paper copies of the foregoing amicus brief this 26th day of July, 2006, by first-class mail, postage pre-paid, to the following counsel of record: Jeffrey M. Bernbach Bernbach Law Firm 245 Main Street, 5th Floor White Plains, NY 10601 Bettina Barasch Plevan Proskauer Rose, LLP 1585 Broadway New York, NY 10036 ________________________________ GAIL S. COLEMAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW, Room 7034 Washington, DC 20507 (202) 663-4055 gail.coleman@eeoc.gov ************************************************************ <> <1> The facts in this brief are taken directly from the district court’s opinion. <2> To the extent that Infante’s supervisors may have had concerns about her performance in the assistant vice president position, those concerns did not jeopardize her job status until after she took maternity leave.