Jones v. Robinson Property Group (5th Cir.) Brief as amicus Dec. 17, 2004 No. 04-60688 ____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________________________________ RALPH JONES, Plaintiff/Appellant, v. ROBINSON PROPERTY GROUP, L.P., d/b/a HORSESHOE CASINO & HOTEL, Defendant/Appellee. ________________________________________________ On Appeal from the United States District Court For the Northern District of Mississippi _________________________________________________ Brief of the U.S. Equal Employment Opportunity Commission as Amicus Curiae Supporting Plaintiff-Appellant and Reversal __________________________________________________ ERIC S. DREIBAND U.S. EQUAL EMPLOYMENT General Counsel OPPORTUNITY COMMISSION Office of General Counsel LORRAINE C. DAVIS 1801 L Street, NW, Room 7014 Acting Associate General Counsel Washington, DC 20507 (202) 663-4549 VINCENT J. BLACKWOOD Associate General Counsel JASON M. MAYO Attorney No. 04-60688, Jones v. Robinson Property Group, LP, Page C-1 of 1 d/b/a Horseshoe Casino & Hotel, SUPPLEMENTAL CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT The undersigned counsel of record certifies that the following listed persons and entities as described in the fourth sentence of Rule 28.2.1 have an interest in the outcome of this case. These representations are made in order that the judges of this court may evaluate possible disqualification or recusal. David A. Burns, Burns Law Firm, Attorney of record for Robinson Property Group, LP R. Pepper Crutcher, Balch & Bingham, LLP, Attorney of record for Robinson Property Group, LP Harrah's Entertainment, Inc. Horseshoe Gaming Holding Corp. Ralph Jones, Plaintiff-Appellant Robinson Property Group, LP, d/b/a Horseshoe Casino & Hotel, Defendant- Appellee Marc L. Schatten, Glankler Brown, PLLC, Attorney of record for Ralph Jones Pursuant to the Federal Rule of Appellate Procedure 26.1(a), the U.S. Equal Employment Opportunity Commission, as a government agency, is not required to file a corporate disclosure statement. Jason M. Mayo Attorney of Record for the EEOC, Amicus Curiae TABLE OF CONTENTS Page SUPPLEMENTAL CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT. . . . . . . . . . . . . . . . .C-1 TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . .i TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . ii STATEMENT OF INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE ISSUE . . . . . . . . . . . . . . . . . . . . . . . . . .2 STATEMENT OF FACTS AND PROCEEDINGS BELOW . . . . . . . . . . . . . . . . .2 STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 ARGUMENT A PLAINTIFF MAY MAKE OUT A PRIMA FACIE CASE OF RACE DISCRIMINATION IN HIRING EVEN IF SOME INDIVIDUALS OF THE SAME RACE WERE HIRED BY THE DEFENDANT. . . . . . . . . . . . . 11 CONCLUSION . . . . .19 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . 20 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES FEDERAL CASES Page(s) Byers v. Dallas Morning News, Inc., 209 F.3d 419 (5th Cir. 2000) . . . . . . . . . . . . . . . . . . .16 Dibidale of La., Inc. v. Am. Bank & Trust Co., 916 F.2d 300 (5th Cir. 1990) . . . . . . . . . . . . . . . . . . . 17 Doe v. Cutter Biological, Inc., 971 F.2d 375 (9th Cir. 1992) . . . . . . . . . . . . . . . . . . . 17 Fierros v. Texas Dep't of Health, 274 F.3d 187 (5th Cir. 2001) . . . . . . . . . . . . . . . . . . .10 Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978) . . . . . . . . . . . . . . . . . . . . . . . .15 Gibson v. Atlantic Southeast Airlines, No. 3:00cv2712, 2002 WL 24259 (N.D. Tex. Jan. 7, 2002) . . . . . . 14 Hornsby v. Conoco, Inc., 777 F.2d 243 (5th Cir. 1985). . . . . . . . . . . . . . . . . . . .14 Industrias Magromer Cueros y Pieles, S.A., v. Louisiana Bayou Furs Inc., 293 F.3d 912 (5th Cir. 2002) . . . . . . . 10 Johnson v. Louisiana, 351 F.3d 616 (5th Cir. 2003) . . . . . . . . . . . . . . . . . . . 15 Jones v. Western Geophysical Co. of Am., 669 F.2d 280 (5th Cir. 1982) . . . . . . . . . . . . . . . . . 14-16 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) . . . . . . .8-9, 11, 15 Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) . . . . . . . . . . . . . . . . . . . . . . . .12 Nieto v. L&H Packing Co., 108 F.3d 621 (5th Cir. 1997). . . . . . . . . . . . . . . . . .14, 16 Palasota v. Haggar Clothing Co., 342 F.3d 569 (5th Cir. 2003) . . . . . . . . . . . . . . . . . . .16 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000) . . . . . . . . . . . . . . . . . . . . . . . .10 Rivers-Frison v. Southeast Mo. Cmty. Treatment Ctr., 133 F.3d 616 (8th Cir. 1998) . . . . . . . . . . . . . . . . . . .16 Rubinstein v. Adm'rs of Tulane, 58 F. Supp. 2d 702 (E.D. La. 1998), aff'd, Rubinstein v. Adm'rs of the Tulane Educ. Fund, 218 F.3d 392 (5th Cir. 2000) . . . . . . 14 Shager v. Upjohn Co., 913 F.2d 398 (7th Cir. 1990) . . . . . . . . . . . . . . . . . . .18 Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981) . . . . . . . . . . . . . . . . . . . . . . . .15 Thornbrough v. Columbus & Greenville R.R. Co., 760 F.2d 633 (5th Cir. 1985) . . . . . . . . . . . . . . . . . 9, 12 Waggoner v. City of Garland, 987 F.2d 1160 (5th Cir. 1993) . . . . . . . . . . . . . . . . . . .11 FEDERAL STATUTES AND RULES Page(s) Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. . . . . . . . . . . . . . passim 42 U.S.C. 2000e-2(a)(1) . . . . . . . . . . . . . . . . 11 42 U.S.C. 2000e-5(e)(1) . . . . . . . . . . . . . . . . 12 Fed. R. App. P. 28(e) . . . . . . . . . . . . . . . . . . . . . . . . . 2 Fed. R. App. P. 29(a) . . . . . . . . . . . . . . . . . . . . . . . . . 2 Fed. R. Civ. P. 56(c) . . . . . . . . . . . . . . . . . . . . . . . . .11 No. 04-60688 ____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________________________________ RALPH JONES, Plaintiff/Appellant, v. ROBINSON PROPERTY GROUP, L.P., d/b/a HORSESHOE CASINO & HOTEL, Defendant/Appellee. ________________________________________________ On Appeal from the United States District Court For the Northern District of Mississippi _________________________________________________ Brief of the Equal Employment Opportunity Commission as Amicus Curiae Supporting Plaintiff-Appellant and Reversal __________________________________________________ STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency established by Congress to interpret, administer and enforce Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., and other federal anti-discrimination laws. In this private Title VII action, the district court erred by summarily holding that Plaintiff Ralph Jones could not establish a prima facie case of discrimination under the McDonnell Douglas burden-shifting framework because the Defendant treated other members of the Plaintiff's race more favorably. Because of the importance of this issue to enforcement of Title VII, we offer our views to the Court pursuant to Fed. R. App. P. 29(a). STATEMENT OF THE ISSUE Whether the district court erred in holding that, because the Defendant had hired a few members of the Plaintiff's protected class, it was "impossible" for the Plaintiff to establish a prima face case under the McDonnell Douglas test. STATEMENT OF FACTS AND PROCEEDINGS BELOW Robinson Property Group, LP, ("RPG") first opened the Horseshoe Casino and Hotel ("Horseshoe") in Tunica County, Mississippi, in 1995. (R. 864). Ken Lambert has served as the Horseshoe's poker room manager from the time the casino opened. (R. 864). In December 1994, Ralph Jones, an African-American male and a casino-certified poker dealer, applied for a poker floor person position at RPG and met with Lambert. (R. 864; Plaintiff's Opposition to Defendant's Motions for Summary Judgments ("Plaintiff's Opp."), Ex. 2, Declaration of Ralph Jones ("Jones Dec.") 5). A poker floor person assists the poker room manager and supervises a shift of poker dealers. Lambert claims that, when he informed Jones that the position was taken, Jones demanded that the incumbent employee be fired and Jones hired in his place because of Jones' superior qualifications. (R. 559). According to Lambert, he denied Jones' request, but he claims he offered Jones a position as a poker dealer which Jones declined. (R. 559). Jones stated in a sworn declaration that he did not demand that a poker floor person be fired. (Plaintiff's Opp., Ex. 2, Jones Dec. 5). He also denied that Lambert offered him a poker dealer position. (Plaintiff's Opp., Ex. 2, Jones Dec. 5). In May 1995, Jones again applied for a poker floor person and a poker dealer position with RPG. (Plaintiff's Opp., Ex. 2, Jones Dec. 6). Two weeks later, Jones returned to the casino and asked RPG's employment office if the casino had a problem with hiring "blacks" as poker dealers since the casino employed no African-American poker dealers at the time. (R. 561-62; Plaintiff's Opp., Ex. 2, Jones Dec. 7-8). Lambert was called back to the casino's employment office to respond to Jones' question. (R. 561-62). Lambert responded that there were no qualified African-American poker dealers in the Tunica area. (R. 864; Plaintiff's Opp., Ex. 2, Jones Dec. 8). Jones informed him that there were at least five qualified African-American dealers in the area including himself. (R. 864; Plaintiff's Opp., Ex. 2, Jones Dec. 8). Lambert confirmed that the May 1995 meeting occurred and that Jones raised an allegation of race discrimination. (R. 561-62). Lambert testified he became indignant at Jones' accusation and asked Jones why he would accuse Lambert of racism since Lambert was new to the Tunica area and Jones knew nothing about him. (R. 561-62). Nevertheless, Lambert claimed he again offered Jones a poker dealer position at this meeting. (R. 562). When Jones refused and persisted in his racial allegations, Lambert testified that his feelings became hurt and he ended the conversation. (R. 562). Jones denies that he was offered a poker dealer position at this meeting. (Plaintiff's Opp., Ex. 2, Jones Dec. 5). Over the years between his initial application and the filing of his charge of discrimination, Jones applied for a poker dealer position no less than 10 times. (Plaintiff's Opp., Ex. 2, Jones Dec. 2). While RPG employed him in other departments and on a temporary basis in the poker room when the need was particularly acute, as for example during a high profile poker tournament, it never hired him on a permanent basis in a poker dealer position. (Plaintiff's Opp., Ex. 2 Jones Dec. 3). Between 1995 and 2002, the Horseshoe employed no more than a handful of African-American poker dealers on a permanent basis at any given time out of the 40 to 45 poker dealers it regularly employed. (R. 1363-68; Plaintiff's Opp., Ex. 2, Jones Dec. 10). Three of the African-American poker dealers retained by the Horseshoe were among those named by Jones at his second encounter with Lambert. (R. 864). From March 7, 2002, to the day Jones filed his charge of discrimination with the EEOC on September 3, 2002, RPG hired four permanent poker dealers none of whom was African-American. (R. 1363-68). In the approximately nine months after Jones' charge was filed, RPG hired an additional thirteen permanent poker dealers. (R. 1363-68). Of these thirteen, ten were Caucasian, one was Asian-American, and the remaining two were African- American. (R. 1363-68). Lambert testified that his refusal to hire Jones rested on his conclusion that "Ralph Jones is not a well-liked person." (R. 569). Denying that he personally disliked Jones, Lambert claimed he relied on the opinion of other casino staff members, including past and present RPG supervisors Terry Bargy and Brooks Bradley. (R. 566-67, 569). However, both Bargy and Bradley denied ever giving a negative opinion of Jones to Lambert. (Plaintiff's Opp., Ex. 7, Deposition of Terry Bargy ("Bargy Depo.") p. 34:14-20; Plaintiff's Opp., Ex. 16, Deposition of Brooks Bradley ("Bradley Depo.") p. 40:9-21). To the contrary, Bargy testified he liked Jones, and Bradley stated that Jones was a "nice guy." (Plaintiff's Opp., Ex. 7, Bargy Depo. p. 34:14-17; Plaintiff's Opp., Ex. 16, Bradley Depo. p. 38:19-21). Lambert also testified that his decision not to hire Jones was based in part on his own assessment of Jones' "pushiness" exhibited at their first encounter when Jones allegedly requested a floor person be fired and Jones hired in his place. (R. 567). Additionally, Lambert testified that he had doubts about Jones' integrity based on the fact that Jones "misjudged" Lambert by accusing him of race discrimination in May 1995. (R. 562, 569-70). Lesley Mims who had worked at the Horseshoe since 1994 testified that either Lambert or Jim Presley, a poker floor person and Lambert's assistant poker room manager, had stated at least once that "good old white boys don't want blacks touching their cards." (Declaration of Lesley Mims ("Mims Dec.") 16; Plaintiff's Opp., Ex. 10, Deposition of Lesley Mims ("Mims Depo.") pp. 32:16-20, 34:8-11; R. 963-64, Mims Depo. pp. 54:4-55:8). During Mims' deposition she could not be more precise as to who made the comment and when. (R. 963-64, Mims Depo. p 54:4-15). Mims also stated in her declaration that Lambert "would also use the word 'nigger' very often." (Mims Dec. 16; R. 963-64, Mims Depo p. 54:20-21). At her deposition, Mims stated that she was "sure [Lambert] used the word with no qualms whatsoever, but I wouldn't say very often." (R. 963-64, Mims Depo. p. 54:23-24). She also could not recall when the statement was made and conceded that her memory concerning the matter was "vague." (R. 963-64; Mims Depo. pp. 54:16-55:8). Sam Thomas, another employee at the Horseshoe, testified that Lambert stated in 1994 or 1995, "Maybe I've been told not to hire too many blacks in the poker room." (Plaintiff's Opp., Ex. 13, Declaration of Sam Thomas ("Thomas Dec.") 5). On September 3, 2002, Jones filed a charge of discrimination with the EEOC alleging that RPG refused to hire him as a poker dealer because of his race. (Plaintiff's Opp., Ex. 1, Complaint, Charge of Discrimination of Ralph Jones). After obtaining a notice of right to sue, he filed suit on January 6, 2003, alleging race discrimination under, inter alia, Title VII and 42 U.S.C. 1981. (Plaintiff's Opp., Ex. 1, Complaint p. 1). The complaint also alleged race discrimination against another plaintiff, Nathaniel Allen. (Plaintiff's Opp., Ex. 1, Complaint p. 1). On January 28, 2004, Jones petitioned the court for leave to amend his complaint to include an allegation that RPG refused to hire him in retaliation for his complaints of race discrimination. (R. 501). On February 18, 2004, the court denied the plaintiff's motion for leave to amend as not "well taken." (R. 1096-97). On July 6, 2004, the district court granted the defendant's motions for summary judgment with respect to both plaintiffs. (R. 2189). The district court initially held that "a rational jury" could not find that Mims' testimony regarding statements by Lambert or Presley was "direct evidence" that Jones was not hired because of his race. (R. 2183). The court first concluded that Mims' "testimony requires too many inferences to stand as direct evidence that Jones was rejected [for] employment on the basis of race." (R. 2183). Secondly, the court found that "Mims, in effect, recanted these statements at a later date." (R. 2183). Accordingly, the court ruled, the plaintiffs could not survive summary judgment under a direct evidence approach. (R. 2183). The court then analyzed Jones' claim under the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), burden-shifting framework. (R. 2184.) The court stated that: [u]nder the McDonnell Douglas formulation, the plaintiff must first show: (1) that he belongs to a protected class; (2) that he applied and was qualified for a job for which the employer was seeking applicants; (3) that, despite his qualifications, he was rejected; and (4) that after his rejection, the position remained open and the employer continued to seek applications from persons with the plaintiff's qualifications. (R. 2181 (citing McDonnell Douglas, 411 U.S. at 802)). The court also noted "[a] plaintiff may present a prima facie case of race discrimination by showing that he was within the protected class, that he was qualified for the position, and that employees outside the protected class were more favorably treated." (R. 2181 (citing Thornbrough v. Columbus & Greenville R.R. Co., 760 F.2d 633, 639 (5th Cir. 1985)). The court concluded that Jones met the first and third elements of the prima facie case, i.e., he was a member of a protected class and he was rejected for employment. (R. 2184). The court concluded that it was unnecessary to consider whether Jones was qualified for the positions he sought because "Jones has failed to show that RPG was seeking applicants for the position he sought; that the position, if one existed, remained open after Jones applied; or that a person outside the protected class was hired instead or otherwise treated more favorably." (R. 2184). According to the court, even if Jones' testimony that Lambert did not offer him a job as a poker dealer is accepted, Jones cannot establish a prima facie case of race discrimination "because it is uncontested that, subsequent to his refusal to hire Jones, Lambert hired as poker dealers at least three African-Americans who were referred to him by Jones." (R. 2184). Thus, the court stated, since "Jones has failed to show that non-members of the protected class were treated more favorably than members of the protected class," it was "impossible" for Jones to "establish a prima facie case under the McDonnell Douglas test." (R. 2184). Since his initial burden had not been met, the court considered it unnecessary to examine whether RPG's stated reasons for not hiring Jones were pretext for discrimination or whether RPG was acting under mixed motives. (R. 2184). STANDARD OF REVIEW This Court reviews "a district court's grant of summary judgment de novo, applying the same Rule 56 standard as the district court." Fierros v. Texas Dep't of Health, 274 F.3d 187, 190 (5th Cir. 2001). Thus, in considering a district court's grant of summary judgment, this Court must consider all evidence in the light most favorable to the non-movant and "'disregard all evidence favorable to the moving party that the jury is not required to believe.'" Industrias Magromer Cueros y Pieles, S.A., v. Louisiana Bayou Furs Inc., 293 F.3d 912, 918 (5th Cir. 2002) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000)). "Although summary judgment is not favored in claims of employment discrimination, it is nonetheless proper when 'there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.'" Waggoner v. City of Garland, 987 F.2d 1160, 1164 (5th Cir. 1993) (quoting Fed. R. Civ. P. 56(c)). ARGUMENT A PLAINTIFF MAY MAKE OUT A PRIMA FACIE CASE OF RACE DISCRIMINATION IN HIRING EVEN IF SOME INDIVIDUALS OF THE SAME RACE WERE HIRED BY THE DEFENDANT. Title VII makes it unlawful for an employer to refuse to hire any individual because of such individual's race. 42 U.S.C. 2000e-2(a)(1). In McDonnell Douglas, the Supreme Court created a burden-shifting framework as a general tool for the lower courts to use in analyzing Title VII cases where a plaintiff is attempting to use circumstantial evidence as proof of discrimination. McDonnell Douglas, 411 U.S. at 802-805. As the Court noted, a plaintiff must first establish a prima facie case of discrimination. Id. at 802. If a prima facie case is established, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its decision. Id. Once such a reason is proffered, the court must give the plaintiff a "fair opportunity" to demonstrate by a preponderance of the evidence that the defendant's reason is pretext for the true discriminatory reason. Id. at 804. The district court correctly noted the plaintiff's prima facie burden as it is articulated in McDonnell Douglas. (R. 2181). The court below also noted that "[t]he necessary elements of a prima facie case are not inflexible." (R. 2181). These will "vary depending upon the facts of the particular case." (R. 2181 (citing Thornbrough, 760 F.2d at 641)). Although it recognized this fact, the district court nevertheless applied the prima facie case in an overly rigid, formalistic and erroneous manner. The district court erred in holding that Jones could not establish a prima facie case of race discrimination based on RPG's repeated refusals to hire him as a poker dealer simply because the company hired two or three African-American poker dealers after he initially applied for employment nearly ten years ago. This ruling is wrong for two fundamental reasons. First, the court mistakenly focused exclusively on hiring decisions that were made in the years immediately after Jones first applied for a job in 1995, and years before Jones filed his charge of discrimination. (R. 2184). Jones does not challenge those decisions, and any claim based on these hiring decisions was likely time-barred years before Jones filed his charge of discrimination with the EEOC. See 42 U.S.C. 2000e-5(e)(1) ("A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment action occurred . . . ."); Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002) (holding that, although an employee may use prior acts as relevant background evidence in support of a timely claim, "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges"). It is undisputed that the vast majority of the poker dealers hired to permanent positions within the applicable limitations period for this lawsuit were white. (R. 1363-68). All four of the dealers hired in the 180 days before Jones filed his charge were white. (R. 1363-68). Furthermore, of the thirteen positions filled after he filed his charge, ten were filled by whites and one by an Asian-American. (R. 1363-68). Accordingly, fifteen of seventeen hiring decisions made within the limitations period favored applicants who were not African-American. Insofar as Jones' complaint challenges RPG's decision to deny him any of these fifteen positions, there is evidence that the positions were filled by persons of a different race. Accordingly, the district court erred in holding that Jones could not establish a prima facie case with respect to these employment decisions. Even with respect to the two positions at issue which were given to African- Americans, that fact does not foreclose Jones from establishing a prima facie case of race discrimination. See Nieto v. L&H Packing Co., 108 F.3d 621, 624 n.7 (5th Cir. 1997) (noting that, notwithstanding statements in more recent decisions, the law in the Fifth Circuit is "'that the single fact that a plaintiff is replaced by someone within the protected class does not negate the possibility that the discharge was motivated [by] discriminatory reasons'" (quoting Hornsby v. Conoco, Inc., 777 F.2d 243, 246-47 (5th Cir. 1985)); see also Jones v. Western Geophysical Co. of Am., 669 F.2d 280, 284 (5th Cir. 1982) (even if plaintiff was replaced by person of the same race, "this need not mean that the plaintiff failed to establish a prima facie case [of race discrimination] under McDonnell Douglas"). The Supreme Court never intended the McDonnell Douglas prima facie burden to be applied in all cases in a rigid or inflexible manner. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 575-76 (1978) (citing McDonnell Douglas, 411 U.S. at 802 n.13); Johnson v. Louisiana, 351 F.3d 616, 622 (5th Cir. 2003) (noting that "the prima facie case method established in McDonnell Douglas was 'never intended to be rigid, mechanized, or ritualistic'"). As this Court has noted, a Title VII plaintiff satisfies the fourth prong of the McDonnell Douglas prima face case by demonstrating "'circumstances which give rise to an inference of unlawful discrimination.'" Jones, 669 F.2d at 284 (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)). Showing that a non-member of the protected class was treated more favorably is merely one way of raising this inference of unlawful discrimination. Jones, 669 F.3d at 284. However, it is not the only way to create such an inference. Id. Evidence that an employer has hired members of the protected class after the plaintiff complained of race discrimination may be relevant to the ultimate question of whether the employer discriminated, but it does not foreclose the plaintiff from establishing a prima facie case of race discrimination. Nieto, 108 F.3d at 624; Jones, 669 F.2d at 284 (noting that the fact the employer hired a member of the same protected class as the plaintiff could be a "pretextual device, specifically designed by [the employer] to disguise its act of discrimination"). Under Fifth Circuit law, Jones can establish an inference of discrimination with respect to positions filled by other African-Americans if there is additional evidence, beyond Jones' subjective belief, that Lambert's refusal to hire him was based on his race. See Byers v. Dallas Morning News, Inc., 209 F.3d 419, 426-27 (5th Cir. 2000). There is sufficient additional evidence in this case. The evidence that Lambert and his assistant Presley made racially derogatory remarks constitutes admissible evidence of racial animus by RPG's management, whether or not this Court concludes that it is direct evidence of discrimination against Jones personally. See Palasota v. Haggar Co., 342 F.3d 569, 577 (5th Cir. 2003) (noting that, under the ADEA, "so long as remarks [indicating animus] are not the only evidence of pretext, they are probative of discriminatory intent"); Rivers-Frison v. Southeast Mo. Cmty. Treatment Ctr., 133 F.3d 616, 621 (8th Cir. 1998) (noting that statements suggesting a backdrop of racial animus, though falling short of direct evidence of discrimination, "tend to prove that any pretextual reasons for discharge were proffered to hide intentional race discrimination"). The district court also improperly disregarded the sworn testimony and sworn statements of Jones, Bargy, Bradley and Mims. Jones denies Lambert's claim that Lambert offered him a job as a poker dealer, and Jones also denies Lambert's claim that he demanded that Lambert fire a poker floor person. (Plaintiff's Opp., Ex. 2, Jones Dec. 5). Bargy and Bradley both contradict, indeed they both deny, Lambert's claim that Lambert relied on their negative opinion for the proposition that Jones was "not a well-liked person." (Plaintiff's Opp., Ex. 7, Bargy Depo. p. 34:14-20; Plaintiff's Opp., Ex. 16, Bradley Depo. pp. 38:19-21, 40:9-21; R. 566-67, 569). Mims stated under oath that Lambert used the word "nigger" and that he used the word "with no qualms whatsoever." (Mims Dec. 16; R. 963-64, Mims Depo p. 54:20-24). If a jury believes these witnesses and at summary judgment their statements must be taken as true then it could find that Lambert is both a liar and a racist. The jury could find that Lambert rejected Jones because of his race and then invented legitimate reasons for not hiring Jones to cover up discriminatory motives. In addition, Lambert's admission that his decision not to hire Jones was influenced by his subjective view that Jones was too "pushy" and lacked integrity could support an inference that Jones was rejected because he was an outspoken African-American, and, in particular, that Jones was outspoken about race discrimination. See Shager v. Upjohn Co., 913 F.2d 398, 403 (7th Cir. 1990) (noting, under the ADEA, "if the employer would not fire an uppity worker unless he was also an old worker if it admired high spirits and an independent attitude only in the young then age would be a causal factor in the worker's termination"). CONCLUSION For the foregoing reasons, this Court should reverse the judgment and remand this case to the district court for further proceedings. Respectfully submitted, ERIC S. DREIBAND General Counsel LORRAINE C. DAVIS Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel JASON M. MAYO Attorney U.S. Equal Employment Opportunity Commission Office of General Counsel 1801 L Street, NW, Rm. 7014 Washington, DC 20507 (202) 663-4549 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). This brief contains 4,253 words. See Fed. R. App. P. 32(a)(7)(B)(i). The brief was prepared using the WordPerfect 9 processing system, in 14-point proportionally spaced type for text and 14-point type for footnotes. See Fed. R. App. P. 32(a)(5). Jason M. Mayo December 17, 2004 CERTIFICATE OF SERVICE I, Jason M. Mayo, hereby certify that on the 17th day of December, 2004, I caused: (1) two copies of the attached brief; and (2) a diskette containing the brief in an Adobe Acrobat PDF format to be sent via U.S. First-Class mail postage prepaid to the following counsel of record: Marc L. Schatten, Attorney for Appellant Glankler Brown, PLLC One Commerce Square, 17th Floor Memphis, TN 38103 R. Pepper Crutcher, Esq., Attorney for Appellee Balch & Bingham, LLP 401 E. Capitol Street, Ste. 200 Jackson, MS 39201 David A. Burns, Attorney for Appellee The Burns Law Firm 40 S. Main St. Water Valley, MS 38965 JASON M. MAYO Attorney U.S. Equal Employment Opportunity Commission Office of General Counsel 1801 L Street, NW, Rm. 7014 Washington, D.C. 20507 (202) 663-4549 December 17, 2004 __________________________________________________________ 1 We take no position on any other issue raised in this appeal. 2 As the Commission will not have access to the full paginated record on appeal prior to the deadline for filing its amicus brief, citations are to the original documents as submitted to the district court below and to documents contained in the Record Excerpt in Support of Brief of Appellant (“R.”) where appropriate. See Fed. R. App. P. 28(e). 3 These poker dealers and respective hire dates are: Lemin Lester (04/05/02); Myron Cullum (04/15/02); Jason Tate (08/02/02); and Huicha Quintana (08/27/02). (R. 1363-68). 4 These poker dealers, in order of date of hire, are: Todd Tucker (10/22/02); Jimmy Sommerfield (10/30/02); Jacqueline Eddins (11/26/02), Joseph Tankersley (12/16/02); Dock Coleman (12/17/02); Clarence Fisher (12/23/02); Brian Taylor (12/30/02); Shaun Johnston (03/06/03); Nathan Forrest (04/03/03); Jessica Barratt-Smith (04/08/03); Dennis Jones (05/20/03); Jay Macken (05/27/03), and Rhonda Roberts (06/23/03). (R. 1363-68). 5 There is sufficient evidence to support a finding that Jones established the other three elements of a prima facie case. It is undisputed that Jones was a member of a protected class; Jones’ race is African-American. (R. 2184). Jones applied for poker dealer positions consistently during the entire relevant time period. (Plaintiff’s Opp., Ex. 2, Jones Dec. ¶ 2). Although the district court did not reach the question, there is also sufficient evidence that Jones was qualified to be a poker dealer. He became a casino-certified poker dealer and served in that capacity during the course of a three-year period from 1993 to 1997. (Plaintiff’s Opp., Ex. 2, Jones Dec. ¶ 3). In addition, RPG itself employed Jones as a temporary poker dealer during tournaments when additional poker dealers were required, RPG conceded his technical skill as a poker dealer, and Lambert conceded that Jones was a good dealer. (R. 568, 866.) RPG argued before the district court that Jones did not establish a prima facie case because he was unable to identify a non-black individual who was hired under circumstances substantially similar to those under which Jones was not hired, i.e., Jones had not identified a white applicant who was hired after “aggressively” demanding another person’s job from Lambert in an “in-your-face” manner. Defendant’s Brief Supporting Motion for Summary Judgment Dismissing All Claims of Plaintiff Ralph Jones (“Def. Brief”) at 5 (citing Gibson v. Atlantic Southeast Airlines, No. 3:00cv2712, 2002 WL 24259 (N.D. Tex. Jan. 7, 2002)). However, Jones was not required, as part of his prima facie case, to disprove every reason RPG advanced for refusing to employ him. To show that he was qualified, Jones need only establish that he possessed the basic qualifications for the position in question. Rubinstein v. Adm’rs of Tulane, 58 F. Supp. 2d 702, 711-12 (E.D. La. 1998) (noting that a jury could find that the plaintiff was “minimally qualified” for the position he sought), aff’d, Rubinstein v. Adm’rs of the Tulane Educ. Fund, 218 F.3d 392 (5th Cir. 2000). He has clearly done that. In any event, Jones denies Lambert’s assertion that he demanded another person’s job from Lambert in 1994. (Plaintiff’s Opp, Ex. 2 Jones Dec. ¶ 5). For purposes of summary judgment, Jones’ denial must be taken as true. 6 Read in the light most favorable to Jones, Mims’ deposition testimony merely explained and qualified her declaration and does not render her statements recanted or inadmissible. See Doe v. Cutter Biological, Inc., 971 F.2d 375, 386 (9th Cir. 1992) (holding that the district court erred by excluding a witness’ affidavit because the affidavit and the witness’ deposition testimony were not in direct conflict with each other). Even if this Court were to conclude that Mims’ declaration conflicts with her deposition testimony, this Court must assume that the statements in Mims’ declaration are true. Dibidale of La., Inc. v. Am. Bank & Trust Co., 916 F.2d 300, 307 (5th Cir. 1990) (“In reviewing a motion for summary judgment the court must consider all of the evidence before it, including affidavits that conflict with deposition testimony.”). “To the extent they exist, discrepancies in those averments present credibility issues properly put to the trier-of-fact.” Id.