IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________________ No. 11-30914 _______________________ KIMBERLY M. JOHNSON, Plaintiff-Appellant, v. MAESTRI MURRELL PROPERTY MANAGEMENT, Defendant-Appellee. _______________________________________________ On Appeal from the United State District Court for the Middle District of Louisiana The Honorable James T. Trimble, Jr. _______________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE _______________________________________________ P. DAVID LOPEZ General Counsel EQUAL EMPLOYMENT OPPORTUNITY COMMISSION CAROLYN L. WHEELER Acting Associate General Counsel Office of General Counsel 131 M Street, N.E., 5th Floor DANIEL T. VAIL Washington, D.C. 20507 Acting Assistant General Counsel 202-663-4721 barbara.sloan@eeoc.gov BARBARA L. SLOAN (FAX) 202-663-7090 Attorney TABLE OF CONTENTS Page(s) TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . .ii STATEMENT OF INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings . . . . . . . . . . . . . 3 2. Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . .4 3. District Court’s Decision . . . . . . . . . . . . . . . . . . . . . . . 7 STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 ARGUMENT SUMMARY JUDGMENT WAS IMPROPERLY GRANTED BECAUSE THE EVIDENCE, ANALYZED CORRECTLY AND VIEWED IN THE LIGHT MOST FAVORABLE TO THE PLAINTIFF, WAS SUFFICIENT TO SUPPORT A FINDING THAT DEFENDANT FAILED TO CONSIDER PLAINTIFF FOR THE ASSISTANT MANAGER’S POSITION BECAUSE OF HER RACE. . . . . . . . . . . . . . . . . . . . . . . 10 A. The court applied an inappropriate formulation of the McDonnell Douglas prima facie case . . . . . . . . . . . . 11 B. The district court erred in according Kimball’s comments no weight. . . . . . . . . . . . . . . . . . . . . . . . . 20 C. The district court erred in requiring Johnson to prove her case to withstand summary judgment rather than merely to raise a triable issue of fact. . . . . . . . . . . 24 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . 27 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Page(s) Alvarado v. Texas Rangers, 492 F.3d 605 (5th Cir. 2007) . . . . . . . . . . . . . . . . . . . . 9, 13 Anderson v. Liberty Lobby, 477 U.S. 242 1986) . . . . . . . . . . . . . . . . . . . . . . . . 10, 24 Bauer v. Albemarle Corp., 169 F.3d 962 (5th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . 14 Blow v. City of San Antonio, 236 F.3d 293 (5th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . 15 Davis v. Chevron 14 F.3d 1082 (5th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . 15 Dediol v. Best Chevrolet, 655 F.3d 435 (5th Cir 2011) . . . . . . . . . . . . . . . . . . 10, 24 Diaz v. Pan American World Airways, 442 F.2d 385 (5th Cir. 1971) . . . . . . . . . . . . . . . . . . . . . 21 EEOC v. WC&M Enterprises, 496 F.3d 393 (5th Cir. 2007) . . . . . . . . . . . . . . . . 9-10, 21, 24 Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978) . . . . . . . . . . . . . . . . . . . . . . . 15, 18 Hawn v. Executive Jet Management, 615 F.3d 1151 (9th Cir. 2010) . . . . . . . . . . . . . . . . . . 17 Johnson v. Louisiana, 351 F.3d 616 (5th Cir. 2003) . . . . . . . . . . . . . . . . . . . . 7, 14 Jones v. Robinson Property Group, 427 F.3d 987 (5th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . 12 Lake v. Yellow Transportation, Inc., 596 F.3d 871 (8th Cir. 2010) . . . . . . . . . . . . . . . . . . . . 19-20 McCorstin v. U.S. Steel Corp., 621 F.2d 749 (5th Cir. 1980) . . . . . . . . . . . . . . . . . . . . . 14 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) . . . . . . . . . . . . . . . . . . . . . passim McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . 16 Portis v. First National Bank of New Albany, 34 F.3d 325 (5th Cir. 1994)) . . . . . . . . . . . . . . . . . . . 12, 15 Rachid v. Jack in the Box, 376 F.3d 305 (5th Cir. 2004) . . . . . . . . . . . . . . . . . . . .8, 13 Reeves v. Sanderson Plumbing Products, 530 U.S. 133 (2000) . . . . . . . . . . . . . . . . . . . . . 12-13, 18 Rutherford v. Harris County, 197 F.3d 173 (5th Cir. 1999) . . . . . . . . . . . . . . . . . . 15-16 Patrick v. Ridge, 394 F.3d 311 (5th Cir. 2004) . . . . . . . . . . . . . . . 16, 18, 19, 21 Sandstad v. CB Richard Ellis, 309 F.3d 893 (5th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . 24 Smith v. Xerox, 602 F.3d 320 (5th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . 13 St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993)) . . . . . . . . . . . . . . . . . . 12, 13, 14, 18 Swint v Pullman-Standard, 624 F.2d 525 (5th Cir. 1980), rev’d on other grounds, 456 U.S. 273 (1982) . . . . . . . . . . . . . .21 Teamsters v. United States, 431 U.S. 324 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981) . . . . . . . . . . . . . . . . . . . . . . . . passim STATUTES and RULES Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e set seq. . . . . . . . . . . . . . . . . . . passim 42 U.S.C. § 2000e(m) . . . . . . . . . . . . . . . . . . . . . . . . 24 42 U.S.C. § 2000e-2(a) . . . . . . . . . . . . . . . . . . . . . . passim 42 U.S.C. § 2000e-2(m) . . . . . . . . . . . . . . . . . . . . . . . .20-21 Federal Rule of Civil Procedure 56(a) . . . . . . . . . . . . . . . . . . 21 Federal Rule of Civil Procedure 56(c)) . . . . . . . . . . . . . . . . . . 10 Federal Rule of Civil Procedure 59(e) . . . . . . . . . . . . . . . . . . . . 3 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________________ No. 11-30914 _______________________ KIMBERLY M. JOHNSON, Plaintiff-Appellant, v. MAESTRI MURRELL PROPERTY MANAGEMENT, Defendant-Appellee. ______________________________________________ On Appeal from the United State District Court for the Middle District of Louisiana The Honorable James T. Trimble, Jr. ______________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE _______________________________________________ STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency charged by Congress with administering and enforcing Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e set seq., and other federal employment discrimination statutes. This case raises important questions concerning the proper interpretation and application of the three-step burden-shifting proof scheme under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the most common method of showing intentional discrimination under Title VII and other anti-discrimination statutes. Although the prima facie case under McDonnell Douglas is designed to be flexible, the district court required plaintiff to fit the evidence into a particular formulation of the prima facie case that was ill-suited to the facts of the case. In so doing, the court collapsed the carefully structured three-step scheme into a single step, essentially requiring plaintiff to prove her entire case in order to make out a prima facie case. Because this decision, if upheld on appeal, would muddy the McDonnell Douglas proof scheme and could undermine enforcement of the anti- discrimination laws, we offer our views to this Court. STATEMENT OF THE ISSUES 1. Did the district court err in requiring plaintiff to prove that she was “rejected” and that the employer continued seeking applicants after the rejection in order to establish a McDonnell Douglas prima facie case on summary judgment where the requirements essentially forced plaintiff to disprove the employer’s proffered legitimate, nondiscriminatory explanation at step one of the three-step proof scheme? 2. Did the district court err in according no weight to testimony suggesting that the employer did not consider plaintiff’s resume because the company did not want a black person for the job at issue? 3. Did the district court err in requiring plaintiff on summary judgment to “demonstrate” that she was the victim of discrimination rather than simply to present sufficient evidence to support a finding in her favor? STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings This is an appeal from an order of the United States District Court for the Middle District of Louisiana granting summary judgment and dismissing this action under Title VII. In August 2009, Plaintiff Kimberly Johnson brought suit against Defendant Maestri Murrell Property Management alleging that the company violated Title VII by refusing to hire her as assistant manager for the Azalea Point apartment complex because of her race. District court docket entry (“R.”)1, USCA5-2. In February 2011, defendant moved for summary judgment. R.41. On August 29, 2011, over plaintiff’s objection (R.45, 51 (corrected document)), the district court granted defendant’s motion, ruling that plaintiff failed to establish a prima facie case under McDonnell Douglas and to prove that alleged race-based comments by the property manager were made while the manager still had hiring authority. R.70(Memorandum Order), USCA5-1098-1110. Judgment was entered the same day. R.71. On September 7, plaintiff timely moved for reconsideration under Federal Rule of Civil Procedure 59(e). R.72. On September 26, while the motion was pending, plaintiff filed a notice of appeal. R.76. On October 27, 2011, the district court denied plaintiff’s motion. R.82. 2. Statement of Facts Azalea Point is an apartment complex some four or five miles from Louisiana State University; most of the residents, many of whom are white, attend LSU. See USCA5-347, 840. In late fall of 2006, Stacy Curtis, the assistant property manager of Azalea Point, decided to leave her job and use her GI benefits to return to school, beginning in January 2007. USCA5-312, 719-20. The company began seeking a replacement for Curtis, but at some point thereafter the property manager, Connie Kimball, told Curtis that she was not finding qualified applicants. USCA5-318-19. A friend of Curtis’s, Nicki Paul, suggested that an acquaintance, plaintiff Kimberly Johnson, might be interested, so Curtis recommended to Paul that Johnson apply. USCA5- 317-18. On December 19, Johnson’s resume was faxed to Kimball. USCA5-437. About “a week or so” later, Paul called Curtis to check on the status of Johnson’s application. USCA5-320. In response, Curtis testified, Curtis entered Kimball’s office, found the resume on Kimball’s desk, and asked Kimball about Johnson. USCA5-321. According to Curtis, Kimball looked at the resume and asked whether Johnson was black. USCA5-322. Although Curtis had not met Johnson, she assumed Johnson was black because she was a friend of Paul’s husband, who is black, and Johnson’s resume states that she graduated from Southern University & A&M College, a historically black college/university. USCA5-322-23. Accordingly, Curtis answered: “I think so. Why?” USCA5-322. Kimball, Curtis testified, responded something like, “I don’t think they are going to hire somebody who is black” for that property. USCA5-322-23. Curtis testified that the conversation took place while she was still employed but she did not recall exactly when. Some time before she left Azalea Point in early January, Curtis told Paul about Kimball’s remarks. USCA5-323-24. Curtis’s last day was January 7 or 8, 2007. USCA5-618. On January 8, Jamie Cedatol completed an application, which does not reflect any property management or leasing experience. USCA5-462-65 (copy of application). Cedatol was the daughter of Kimball’s supervisor, Lisa Theriot. USCA5-355. Linda Jackson, Kimball’s second-level supervisor, testified that she did not recall when Cedatol’s mother approached her asking that Cedatol be considered, but Jackson assumed it was some time in December. USCA5-437. Jackson stated that she initially was “reluctant” to hire Cedatol because of the family connection (USCA5-460), and Kimball testified that she was “not happy” about supervising her supervisor’s daughter. USCA5-356-57; USCA5-944. Nevertheless, “in the end,” Jackson said, she agreed to give Cedatol “a chance” based on Cedatol’s interview as well as Jackson’s knowledge that Cedatol had assisted her mother when she managed Varn Villa, another rental property. See USCA5-180 (Varn Villa); USCA5-460 (give her a chance). Jackson cautioned, however, that her agreement was conditioned on obtaining the “client’s consent” (USCA5-460), which she knew would take time. USCA5-384 (approved hiring); USCA5-388-92 (experience); USCA5- 437 (getting client’s approval would take time). Cedatol started work almost immediately after completing her application on January 8, but evidently never overlapped with Curtis, who denied knowing who ultimately had been hired. USCA5-747. Aside from knowing that it was after she heard from the client, Jackson did not recall exactly when she offered Cedatol the job or when she made the decision to hire her. USCA5-460. Neither Cedatol nor Theriot testified in this case; both had been terminated for misconduct in 2007. USCA5-379-80. Having learned from Paul about Kimball’s remarks, Johnson filed a discrimination charge in early spring 2007. During the investigation (and later during discovery) defendant produced a number of resumes; on all but Johnson’s, there is writing such as “no exp.” or “got fired!”; some also have a giant “X” across them. See USCA5-658-670 (applications). Nothing is written on Johnson’s resume. USCA5-657 (Johnson’s resume). In moving for summary judgment, defendant argued that Johnson could not show that she was qualified for the assistant manager job. The company argued that it had discovered that Johnson had misrepresented facts on her resume. In addition, although there was no formal job description for the position, Kimball stated that she was seeking applicants with property management experience and a stable employment history, and Johnson’s resume did not reflect these traits. Defendant also argued inter alia that, although Kimball did not make the alleged race-based remarks, even if she had, plaintiff could not establish a prima facie case under McDonnell Douglas because she could not show that the position was still open when these remarks were made. 3. District Court’s Decision The district court granted defendant’s motion. Under the “well- established” framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the court stated, to establish a prima facie case in a failure to hire claim such as this one, the plaintiff “must demonstrate” inter alia “that she was rejected for [an available] position” and thereafter “the employer continued to seek applicants with plaintiff’s qualifications.” USCA5-1102 (citing Johnson v. Louisiana, 351 F.3d 616, 621-22 (5th Cir. 2003) (citing McDonnell Douglas, 411 U.S. at 802)). The court concluded, however, that plaintiff “has not met her burden of proof” as to these two elements. USCA5- 1106 (but also rejecting defendants’ argument that plaintiff could not show another element, qualifications). The court reasoned that the “unrefuted” evidence “establishes” that “at some point during the application process, Theriot obtained permission from Jackson to hire Cedatol and, thus, the hiring decision was removed from Kimball’s purview and exercised by Theriot.” Id. According to the court, plaintiff made “no showing that this occurred after Kimball’s alleged remark” or “that Theriot or Jackson were [sic] aware of plaintiff’s application at the time the decision was made.” USCA5-1106. Because rejection “necessarily must precede a continued search by defendants for applicants,” the court held, plaintiff “fail[ed] to carry her burden of proof as to [these] elements of her prima facie case.” The court also rejected plaintiff’s argument that the defendant should be required to show that Cedatol was hired before Kimball’s alleged discriminatory comment, holding that it was part of plaintiff’s burden of proof. USCA5-1105-06. The court then commented that, having found that plaintiff had not “successfully established a prima facie case,” it could end its analysis at that point. “[O]ut of an abundance of caution,” however, the court went on to address the other two steps in the McDonnell Douglas framework: defendant’s articulation of a legitimate, nondiscriminatory explanation for the failure to hire and plaintiff’s evidence that the explanation either “is merely pretext for impermissible discrimination” or, “while true is not the actual motivating factor as to the refusal to hire.” USCA5-1107 (citing Alvarado v. Texas Rangers, 492 F.3d 605, 611 (5th Cir. 2007) (citing Rachid v. Jack in the Box, 376 F.3d 305 (5th Cir. 2004)). In the court’s view, defendant successfully rebutted the prima facie case by articulating “nepotism” as its legitimate, nondiscriminatory reason for selecting Cedatol over plaintiff. USCA5-1107-08. In contrast, the court concluded, plaintiff did not carry her burden of proving pretext. The court disagreed with plaintiff’s argument that Curtis’s testimony that Kimball told her “‘something like “I don’t think they are going to hire somebody who is black”’ was evidence that the proffered explanation was pretextual. The court rejected in part defendant’s argument that Kimball was not a decisionmaker, but then assumed that “she was cut short by the intervention of a higher level supervisor.” USCA5-1109. The court then concluded that because plaintiff “failed to demonstrate that the decision to hire Cedatol was made after the occurrence of the alleged discriminatory comment,” plaintiff “failed to demonstrate a causal connection between [Kimball’s race-based comments] and defendants’ selection of Cedatol for the job.” Id. STANDARD OF REVIEW The appellate court reviews a grant of summary judgment de novo, applying the same standard as the district court. See, e.g., EEOC v. WC&M Enters., 496 F.3d 393, 397-98 (5th Cir. 2007). A party is entitled to summary judgment only if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Id. (citing Fed. R. Civ. P. 56(c)). A genuine issue of material fact exists when the evidence is such that, viewing the record as a whole, a reasonable jury could return a verdict for the non-moving party. See Dediol v. Best Chevrolet, 655 F.3d 435, 439 (5th Cir. 2011). In reviewing a summary judgment motion, the court must “refrain from making credibility determinations or weighing the evidence,” WC&M, 396 F.3d at 398, and must view the facts in the light most favorable to the non-moving party and draw all reasonable inferences in its favor. See id.; see also Anderson v. Liberty Lobby, 477 U.S. 242, 249-52 (1986) (noting that summary judgment is inappropriate if the evidence is such that disputed issues can be resolved in favor of either party). ARGUMENT SUMMARY JUDGMENT WAS IMPROPERLY GRANTED BECAUSE THE EVIDENCE, ANALYZED CORRECTLY AND VIEWED IN THE LIGHT MOST FAVORABLE TO THE PLAINTIFF, WAS SUFFICIENT TO SUPPORT A FINDING THAT DEFENDANT FAILED TO CONSIDER PLAINTIFF FOR THE ASSISTANT MANAGER’S POSITION BECAUSE OF HER RACE. In this case, Kimberly Johnson, who is black, alleges that defendant failed or refused to consider her for the position of assistant manager of the Azalea Point apartment complex because of her race. She bases this claim largely, though not exclusively, on testimony that the property manager, Connie Kimball, set her application aside, stating that she doubted the company would hire a black person to manage that particular property. Analyzing the claim under the McDonnell Douglas proof scheme, the district court granted summary judgment to defendant, finding that plaintiff failed to demonstrate a prima facie case and according no weight to Kimball’s alleged statement. The district court reasoned that Johnson could not prove that Kimball’s statement was made before the company selected an employee’s daughter, Jamie Cedatol, for the position. In reaching this decision, however, the court improperly applied the law to the facts and contravened well-established summary judgment standards. Under a proper analysis, there is sufficient evidence to support a finding in plaintiff’s favor, thereby rendering summary judgment inappropriate. A. The court applied an inappropriate formulation of the McDonnell Douglas prima facie case. The critical question in this case involves timing: Did Kimball review Johnson’s resume and set it aside because she doubted the company would hire a black person as assistant manager at the Azalea Point complex before or after Cedatol was hired? The court considered this issue at both the prima facie case and the pretext stages in its analysis of the McDonnell Douglas proof scheme. Its approach and evaluation of the record evidence on this point were flawed. Under Title VII, employers may not “fail or refuse to hire” or “otherwise … discriminate” against any individual “because of such individual’s race.” 42 U.S.C. § 2000e-2(a). In cases such as this one where the allegation is that the employer intentionally discriminated against the individual based on her race, discrimination can be established either circumstantially or directly. See, e.g., Jones v. Robinson Prop. Group, 427 F.3d 987, 992 (5th Cir. 2005) (citing Portis v. First Nat’l Bank, 34 F.3d 325, 328 (5th Cir. 1994)). Typically, there is no direct evidence of discrimination — that is, “evidence which if believed proves the fact without inference or presumption.” Jones, 427 F.3d at 992-93. Absent direct evidence, an intentional discrimination claim like this one is normally analyzed using the three-step burden-shifting proof scheme set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). This framework “‘established an allocation of the burden of production and an order for the presentation of proof’” in “‘discriminatory-treatment cases.’” Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 142 (2000) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993)). Under this scheme, the plaintiff first makes out a prima facie case, usually consisting of four elements. That burden is “not onerous.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). The burden then shifts to the defendant to produce evidence that the challenged employment decision was made for a “legitimate, non-discriminatory reason.” Id. at 254. At that point, the burden shifts back to the plaintiff to prove intentional discrimination with evidence, for example, that the legitimate reason offered by the defendant was not the true reason, but was a pretext for discrimination. Reeves, 530 U.S. at 142-43 (citing Hicks, 509 U.S. at 507-08; Burdine, 450 U.S. at 253).<1> Here, in rejecting Johnson’s claim, the district court found that she had failed to carry her burden of “demonstrating” a prima facie case under the McDonnell Douglas proof scheme. The court held that, because the claim involved a failure to hire, plaintiff was required to prove, as the third and fourth elements of the prima facie case, that she was “rejected for the position” and that “the employer continued to seek applicants” after her rejection. See USCA5-1102, 1108 (quoting Johnson v. Louisiana, 351 F.3d at 621-22). The court did not attempt to tailor the elements of the prima facie case to the specific facts here, but simply rigidly followed —and restrictively applied — one particular formulation that includes those two elements. This approach was incorrect for at least two reasons. First, as noted above, the plaintiff’s burden of establishing a prima facie case, even at trial, is “not onerous.” Indeed, both the Supreme Court and this Court have described the requirements as “minimal.” Hicks, 509 U.S. at 506; Bauer v. Albemarle Corp., 169 F.3d 962, 967 (5th Cir. 1999). Moreover, and importantly, there is no one-size-fits-all formulation of the prima facie case. Cf. McCorstin v. U.S. Steel Corp., 621 F.2d 749, 753 (5th Cir. 1980) (noting that this Court has “recognized that the McDonnell test is not the alpha and omega of possible tests” and describing rigid adherence to it as a “Procrustean limitation”). The prima facie case serves to “eliminate[] the most common nondiscriminatory reasons for the plaintiff’s rejection[,]” Burdine, 450 U.S. at 253-54, thus raising an inference that discrimination was the real reason for the adverse action. Id. Accordingly, the requirements for a prima facie case will “vary” depending on the context, McDonnell Douglas, 411 U.S. at 802 n.13, and were “never intended to be rigid, mechanized, or ritualistic.” Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978); see also Burdine, 450 U.S. at 253 n.6 (noting that “standard is not inflexible”); Portis, 34 F.3d at 328 n.6 (noting that McDonnell Douglas “did not purport to create an inflexible formulation” of the prima facie case) (citation omitted). Thus, in a failure-to-hire or promote case like this one, the most common nondiscriminatory reasons would include the fact that there was no position the employer was seeking to fill. See Teamsters v. United States, 431 U.S. 324, 358 n.44 (1977). In such cases, a plaintiff may make out a prima facie case with evidence that she was rejected and the employer continued seeking applicants after her rejection, but that is not the only possible test. Rather, she may raise the inference with evidence, for example, that she did not get a position that she was seeking and the position was filled by someone from outside her protected class. See, e.g., Davis v. Chevron, 14 F.3d 1082, 1087 (5th Cir. 1994) (failure to hire); Blow v. City of San Antonio, 236 F.3d 293, 296 (5th Cir. 2001) (denial of promotion) (citing, e.g., Burdine, 450 U.S. at 252-53). See also Rutherford v. Harris Cty, 197 F.3d 173, 179-80 (5th Cir. 1999) (noting that plaintiff was not promoted and either the position was filled by someone from outside her protected class or she was otherwise not promoted because of her sex).<2> In fact, the Supreme Court in Burdine ruled that in a case like this, a plaintiff may create a prima facie case with evidence that “she applied for an available position for which she was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination.” 450 U.S. at 253. Accordingly, here, the court should have concluded that Johnson satisfied her “minimal” prima facie burden by showing, as the third and fourth elements, that she did not get a job for which she applied and the job was given to Cedatol, who is white. Indeed, those facts are undisputed. By forcing Johnson instead to fit the evidence into its preferred formulation of the prima facie case, the court erroneously elevated form over substance. It consequently failed to recognize that, with those facts, an inference of race discrimination arose, and the burden of production should then have been shifted to the defendant. The court’s ruling is erroneous for a second reason. The particular formulation of the test that the district court adopted and so rigidly applied was ill-suited to the facts of this case because it required Johnson to prove her entire case in order to make out just a prima facie case. Under the district court’s formulation of the prima facie case, Johnson was required to prove that the company continued seeking applicants after she was rejected. As noted above, however, the critical question in the case is whether Cedatol was hired before or after Kimball allegedly commented to Curtis, while looking at Johnson’s resume, that Kimball doubted the company would hire a black person as assistant manager for the Azalea Point complex. USCA5-321-24. In essence, therefore, the proof that the court required for a prima facie case would also prove that the decision to hire Cedatol occurred after Kimball’s race-based remarks — the key factual issue in the case. See USCA5-1105. This collapses the three-step McDonnell Douglas proof scheme into a single step, essentially requiring plaintiff to prove that the proffered reason was pretextual in order to establish a prima facie case. Cf. Hawn v. Executive Jet Mgmt., 615 F.3d 1151, 1158 (9th Cir. 2010) (in explaining why collapsing the three steps matters, noting that “difference between the first and third steps of the McDonnell Douglas framework is not without some consequence. Among other things, a plaintiff’s burden is much less at the prima facie stage than at the pretext stage.”). To the contrary, as the Supreme Court explained, the three-step burden- shifting McDonnell Douglas proof scheme is a “sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination.” Furnco, 438 U.S. at 577. Each step has a purpose. The first step raises an inference of discrimination. Then, at step two, the burden shifts to the employer to produce “admissible evidence” that it took the challenged employment action — here, plaintiff’s non-selection — for a “legitimate, nondiscriminatory reason.” See Burdine, 450 U.S. at 254-55. This sharpens the inquiry and “frame[s] the factual issue with sufficient clarity so that the plaintiff will have a full and fair opportunity to demonstrate pretext.’” Hicks, 509 U.S. at 516 (quoting Burdine, 450 U.S. at 255-66) (adding that “the inquiry now turns from the few generalized factors that establish a prima facie case to the specific proofs and rebuttals of discriminatory motivation the parties have introduced”); see also Patrick v. Ridge, 394 F.3d 311, 317 (5th Cir. 2004) (employer must articulate reason “with sufficient clarity to afford [plaintiff] a realistic opportunity to show that [it] is pretextual”). Finally, at step three, the burden shifts back to the plaintiff to prove that the proffered reason is false or otherwise “unworthy of credence,” thereby permitting the factfinder to infer that the employer is “dissembling to cover up a discriminatory purpose.” Reeves, 530 U.S. at 147. In this case, however, by inflexibly requiring Johnson to show that the company was still seeking applicants when Kimball made the alleged remarks, the district court short-circuited this carefully designed proof scheme. Had the court recognized that Johnson established a prima facie case, the burden would have shifted to the defendant to produce evidence of a legitimate nondiscriminatory reason for the nonselection. The court identified that reason as “nepotism.” But if Johnson had already proved, as part of her prima facie case, that the position remained open after Kimball set her application aside, then the fact that Cedatol was later hired due to nepotism (or any other criterion) would be a non-sequitur. It would do nothing to sharpen the inquiry so as to allow the plaintiff an opportunity to show pretext, as required by the three-step proof scheme, because nepotism could not explain why Johnson had already been rejected.<3> Rather, for defendant’s reason — nepotism — to make sense, it must be premised on the assumption that plaintiff was not considered because the company had already selected Cedatol. That is something plaintiff should have had the opportunity to rebut as pretextual, at step three, rather than, as the district court required, as part of her prima facie case. See, e.g., Lake v. Yellow Transp., 596 F.3d 871, 874 (8th Cir. 2010) (noting that where proffered reason for discharge is tardiness, plaintiff is “not required to disprove [defendant’s] reason for firing him [— tardiness —] at this stage of the analysis” because “if he were, the burden shifting analysis would collapse into the second element [— qualifications —] of the prima facie case”). The inappropriate formulation of the prima facie case therefore tainted the court’s application of the McDonnell Douglas proof scheme and infected its analysis of the entire case. B. The district court erred in according Kimball’s comments no weight. In addition to its erroneous application of the McDonnell Douglas proof scheme, the district court erred in according no weight to Kimball’s comments doubting that the company would consider hiring a black person, such as Johnson, for the assistant manager position. Whether or not the comments are technically direct evidence, they strongly suggest that Johnson’s race played a role in Kimball’s failure to consider her for the position. See 42 U.S.C. § 2000e-2(a). Thus, the comments should provide persuasive proof to help allow the plaintiff to survive summary judgment. See 42 U.S.C. § 2000e-2(m) (providing that “an unlawful employment practice is established” when plaintiff “demonstrates” that race was “a motivating factor for any employment practice, even though other factors also motivated the practice”); see also Patrick, 394 F.3d at 319-21 (explaining mixed motives burdens).<4> The district court disregarded the remarks because, in its view, Johnson failed to “demonstrate that the decision to hire Cedatol was made after the occurrence of the alleged discriminatory comment” and, so, Johnson “failed to demonstrate a causal connection between such remark and defendant’s selection of Cedatol for the job.” USCA5-1109. Initially, we note that because the case is about Johnson’s non-selection, the requisite connection should be between the comments and her non-selection, rather than Cedatol’s selection. And, because this case was before the court on a motion for summary judgment, Johnson was not required to prove a causal connection but simply to present sufficient evidence to raise a triable issue of fact on that issue. See Fed. R. Civ. P. 56(a). Furthermore, on summary judgment, the court was required to view the evidence and draw all reasonable inferences from the evidence in the light most favorable to Johnson. WC&M, 396 F.3d at 397-98. Under that standard, there is evidence that a jury could consider in deciding whether Cedatol was hired after Kimball stopped processing Johnson’s application. The district court simply failed to acknowledge it. Specifically, it is undisputed that Cedatol’s application was dated January 8, 2007 (USCA5-465), the same day or the day before she started working, while Johnson’s resume arrived by FAX on December 19, 2006. USCA5-437. Curtis testified that she talked to Kimball about Johnson’s application about one week after the FAX arrived (USCA5-320) — which would have been December 26 or, if the office was closed that day, December 27 — some 10 or 11 days before Cedatol completed her application. A jury could infer that if Cedatol had already been hired when Curtis asked about Johnson’s application, Kimball (as the person responsible for supervising the selectee) would have known about the selection and thus would have responded that the position had been filled, rather than that she doubted the company would hire a black person for the job.<5> Furthermore, Curtis attested that, although she knew Theriot had a daughter, she did not know who had been hired as her replacement. USCA5- 747. This strongly suggests that Cedatol’s selection was not announced while Curtis was still employed (i.e., not announced until at least January 7, 2007). In addition, as the district court noted, Jackson did not recall when she talked to Theriot about her daughter or when she approved hiring her. Jackson testified that she had probably interviewed Cedatol by the time she completed her application (USCA5-460), but she did not explain why she did not have Cedatol complete the application at or before the interview. Moreover, Jackson also stated that she was reluctant to hire a family member and that she told Theriot that they would have to clear the hiring with “the client,” which would take time. USCA5-435. Jackson could only speculate when those conversations and actions occurred. Viewing all of this evidence and drawing all reasonable inferences from it in plaintiff’s favor, a jury could find that the company was still accepting applications when Kimball and Curtis discussed Johnson’s resume. A jury also could reasonably find that Kimball had screened Johnson out based on race before Cedatol was hired, and that Cedatol – nobody’s first choice – was hired only at the last minute because Kimball had forwarded no other viable applications and the position had to be filled. It would be unreasonable to insist, as the district court did, that Johnson adduce additional evidence on this point where, as here, confusion over the actual date of the relevant decision stems from defendant’s lack of records or recollection on something as basic as Cedatol’s hiring date. Thus, regardless of whether the remarks were direct evidence, a jury could and presumably would find them highly relevant in deciding why Johnson was never seriously considered for the assistant manager position. The district court’s refusal to accord them any weight was erroneous. C. The district court erred in requiring Johnson to prove her case to withstand summary judgment rather than merely to raise a triable issue of fact. Finally, while correctly stating the summary judgment standard, USCA5-1100-01, the district court apparently misapplied that standard. Summary judgment is appropriate only where the employer demonstrates an absence of any genuine issue of material fact — i.e., that, viewing the record as a whole, a reasonable jury could not return a verdict for the non-moving party. To withstand a motion for summary judgment, the plaintiff need not carry the burden of persuasion but simply adduce sufficient evidence, viewed in the light most favorable to her, to allow the jury to find in her favor. See Dediol, 655 F.3d at 439; WC&M, 396 F.3d at 397-98; see also Anderson, 477 U.S. at 249- 51. Here, the court’s decision is peppered with terms such as “demonstrate,” “establish,” and “meet her burden of proof.” All of these terms refer to evidentiary standards after trial, rather than on summary judgment. See, e.g., 42 U.S.C. § 2000e(m) (“The term ‘demonstrates’ means meets the burdens of production and persuasion.”). The court’s language suggests it required the plaintiff to carry a burden of persuasion rather than merely to raise a triable issue of fact. See Sandstad v. CB Richard Ellis, 309 F.3d 893, 897 (5th Cir. 2002) (stating that “plaintiff can survive summary judgment by producing evidence that creates a jury issue as to the employer’s discriminatory animus or the falsity of the employer’s legitimate nondiscriminatory explanation”). Accordingly, this Court should hold that the district court improperly applied both the McDonnell Douglas proof scheme and the summary judgment standard. Properly analyzed, the evidence is sufficient to support a finding that defendant failed to consider Johnson’s application because she is black. Summary judgment was therefore inappropriate. CONCLUSION For the foregoing reasons, the district court’s decision should be reversed and the case remanded to the court for further proceedings consistent with this ruling. Respectfully submitted, P. DAVID LOPEZ General Counsel CAROLYN L. WHEELER Acting Associate General Counsel DANIEL T. VAIL Acting Assistant General Counsel /s/ Barbara L. Sloan BARBARA L. SLOAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., 5th Floor Washington, D.C. 20507 202-663-4721 barbara.sloan@eeoc.gov (FAX) 202-663-7090 CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Federal Rule of Appellate Procedure 32(a)(7)(B) because it contains 5751 words from the Statement of Interest through the Conclusion, excluding the parts of the brief exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(ii). This brief complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and the type style requirements of Federal Rule of Appellate Procedure 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 with Times New Roman 14-point font. /s/ Barbara L. Sloan_______ Barbara L. Sloan Attorney for Equal Employment Opportunity Commission Dated: 19 December, 2011 CERTIFICATE OF SERVICE I certify that I filed the foregoing Brief as Amicus Curiae of the Equal Employment Opportunity Commission with the Clerk of the Court this 19th day of December, 2011, by uploading an electronic version of the brief via this Court’s Case Management/Electronic Case Filing System (CM/ECF). the following participants of the case are registered CM/ECF users and will be served by the Court’s CM/ECF system. Susan W. Furr Kathleen Joseph Green Betty Burke Uzee PHELPS DUNBAR LLP 400 Convention Street, Suite 1100 II City Plaza Baton Rouge, LA 70802 Charlotte C. McDaniel McGehee 6513 Perkins Road Baton Rouge, LA 70808 /s/ Barbara L. Sloan________ Barbara L. Sloan Attorney for EEOC ********************************************************************************** <> <1> The district court noted (though it did not accurately articulate) this Circuit’s modified McDonnell Douglas framework. USCA5-1102, 1108. Under that approach, after the defendant has proffered its legitimate nondiscriminatory explanation, the plaintiff may show, alternatively, that even if the proffered explanation were true, discrimination also motivated the employer. See, e.g., Alvarado, 492 F.3d at 611 (proffered reason “is not the only reason for the conduct, and another ‘motivating factor’ is the plaintiff’s protected characteristic”). Plaintiffs using this modified framework need not concede that the employer was actually motivated even in part by the proffered reason. Smith v. Xerox, 602 F.3d 320, 332-33 (5th Cir. 2010) (explaining that the claim that the employer acted for a lawful reason is “best viewed as a defense for an employer”). If the plaintiff carries her burden under this alternative, the defendant must prove that “the same adverse employment decision would have been made regardless of discriminatory animus.” Rachid v. Jack in the Box, 376 F.3d 305, 312 (5th Cir. 2004) (citation omitted). The district court cited Alvarado and Rachid but erroneously stated that plaintiff must show that “the employer’s proffered reason, while true is not the actual motivating factor as to the refusal to hire” — a variant of the original pretext standard but also requiring plaintiff to concede that the proffered reason is true. USCA5-1108 (emphasis added). Because the court rejected plaintiff’s claim at the first and third steps of the traditional McDonnell Douglas proof scheme, its decision does not turn on accurate application or articulation of the “modified” framework. Thus, the district court’s error in articulating the motivating-factor burdens did not affect the ultimate result the district court reached. In any event, as discussed above, the Commission believes summary judgment was inappropriate under the traditional McDonnell Douglas approach. <2> The district court correctly rejected defendant’s argument that plaintiff was not qualified because, defendant contends, she misrepresented facts in her resume. Even assuming defendant could prove that this was true, it is not part of the prima facie case, nor would it justify the non-selection decision, because defendant did not have that information at the time it made the decision. Rather, at most, it might constitute “after-acquired evidence.” As such, it would not be relevant to liability, although it might affect relief. See McKennon v. Nashville Banner Publ’g Co., 513 U.S. 352, 360 (1995); see also Patrick v. Ridge, 394 F.3d 311, 319-21 (5th Cir. 2004) (applying similar analysis to promotion claim). <3> Indeed, the explanation arguably would not even carry defendant’s burden of production. Cf. Patrick, 394 F.3d at 319-20 (noting that, especially on summary judgment, offering a justification that could not have motivated the employer at the time the challenged decision was made “is tantamount to offering no reason at all”). <4> This is true even if Kimball personally had no racial animus but was simply doing what she thought the employer or client preferred. There is no “customer preference” defense to a claim of race discrimination. Swint v Pullman-Standard, 624 F.2d 525, 535 (5th Cir. 1980), rev’d on other grounds, 456 U.S. 273 (1982); cf. Diaz v. Pan Am. World Airways, 442 F.2d 385, 389 (5th Cir. 1971) (sex discrimination). <5> We also note that Johnson’s resume, unlike others the company supplied during the EEOC investigation and discovery, had nothing written on it, suggesting that Kimball simply rejected it out of hand. While that could be because the position was already filled, a jury could also reasonably find that it was because Kimball never looked past Johnson’s race.