Case No. 04-10317 __________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT __________________________________________________________ IVOR KEELAN and DAVID SULLIVAN, Plaintiffs/Appellants, v. MAJESCO SOFTWARE, INC., Defendant/Appellee. ________________________________________________________ On Appeal from the United States District Court For the Northern District of Texas, No. 3:02CV1670L, The Honorable Sam A. Lindsay, Presiding _________________________________________________________ Brief of the U.S. Equal Employment Opportunity Commission as Amicus Curiae Supporting Plaintiff-Appellant and Reversal _________________________________________________________ ERIC S. DREIBAND General Counsel U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION CAROLYN L. WHEELER Office of General Counsel Acting Associate General Counsel 1801 L Street, N.W., Room 7020 Washington, DC 20507 JOSEPH A. SEINER (202) 663-4772 Attorney TABLE OF CONTENTS Page TABLE OF CONTENTS.................................... i TABLE OF AUTHORITIES .................................. iii STATEMENT OF INTEREST................................ 1 STATEMENT OF RELATED CASES............................. 1 STATEMENT OF THE ISSUES................................. 2 STATEMENT OF FACTS AND PROCEEDINGS BELOW .............. 2 STANDARD OF REVIEW..................................... 7 SUMMARY OF ARGUMENT.................................... 7 ARGUMENT................................................. 9 KEELAN PRESENTED SUFFICIENT EVIDENCE OF NATIONAL-ORIGIN DISCRIMINATION TO SURVIVE SUMMARY JUDGMENT ................................ 9 A. The District Court Erred in Requiring Plaintiffs to Show That Similarly Situated Indian Employees Were Treated More Favorably............................. 9 B. The Evidence was Sufficient to Preclude Summary Judgment ................................... 18 C. The District Court Erred in Failing to Analyze the Evidence Under the Mixed-Motive Standard ..... 23 CONCLUSION ............................................. 27 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES FEDERAL CASES Ackel v. Nat'l Comm. Inc., 339 F.3d 376 (5th Cir. 2003) . . . . . . . . . . . . . . . . . . .19 Amburgey v. Cohart Refractories, 936 F.2d 805 (5th Cir. 1991) . . . . . . . . . . . . . . . . . . .12 Arenson v. S. Univ. Law Ctr., 911 F.2d 1124 (5th Cir. 1990) . . . . . . . . . . . . . . . . . . .19 Barnes v. Yellow Freight Sys., Inc., 778 F.2d 1096 (5th Cir. 1985) . . . . . . . . . . . . . . . . . . .12 Benchmark Elecs. v. J.M. Huber Corp., 343 F.3d 719 (5th Cir.), modified on denial of reh'g, (5th Cir. 2003) . . . . . . . . . . . 7 Bernard v. Gulf Oil Corp., 841 F.2d 547 (5th Cir. 1988) . . . . . . . . . . . . . . . . . . .22 Bodenheimer v. PPG Indus., Inc., 5 F.3d 955 (5th Cir. 1993) . . . . . . . . . . . . . . . . . . . .14 Brown v. CSC Logic, Inc., 82 F.3d 651 (5th Cir. 1996) . . . . . . . . . . . . . . . . . . . .14 Byrd v. Roadway Express, Inc., 687 F.2d 85 (5th Cir. 1982) . . . . . . . . . . . . . . . . . .11, 14 Byrnie v. Town of Cromwell, 243 F.3d 93 (2d Cir. 2001) . . . . . . . . . . . . . . . . . . . .21 Conward v. Cambridge Sch. Comm., 171 F.3d 12 (1st Cir. 1999) . . . . . . . . . . . . . . . . . . . .16 Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003) . . . . . . . . . . . . . . . .1, 5, 18-19, 24-25 EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184 (10th Cir. 2000) . . . . . . . . . . . . . . . . . .16 Elliott v. Group Med. & Surgical Serv., 714 F.2d 556 (5th Cir. 1983) . . . . . . . . . . . . . . . . . . .15 Evans v. City of Bishop, 238 F.3d 586 (5th Cir. 2000) . . . . . . . . . . . . . . . . . 22-23 Fierros v. Tex. Dep't of Health, 274 F.3d 187 (5th Cir. 2001). . . . . 19 Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). . . . . . . . . . . . . . . . . . . . . . . . .10 Guthrie v. Tifco Indus., 941 F.2d 374 (5th Cir. 1991) . . . . . . . . . . . . . . . . . . .15 Herrero v. St. Louis Univ. Hosp., 109 F.3d 481 (8th Cir. 1997) . . . . . . . . . . . . . . . . . . . .17 Jones v. W. Geophysical Co. of Am., 669 F.2d 280 (5th Cir. 1982) . . . . . . . . . . . . . . . . . . .12 Kosereis v. Rhode Island, 331 F.3d 207 (1st Cir. 2003) . . . . . . . . . . . . . . . . . . .16 Mayberry v. Vought Aircraft Co., 55 F.3d 1086 (5th Cir. 1995) . . . . . . . . . . . . . . . . . . .13 McCorstin v. U.S. Steel Corp., 621 F.2d 749 (5th Cir. 1980) . . . . . . . . . . . . . . . . . 12-14 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) . . . . . . . . . . . . . . . . . . . . .passim McGuinness v. Lincoln Hall, 263 F.3d 49 (2d Cir. 2001) . . . . . . . . . . . . . . . . . . . .16 Nieto v. L&H Packing Co., 108 F.3d 621 (5th Cir. 1997) . . . . . 9, 13 Owens v. Excel Mgmt. Servs., Inc., Case No. 04-10322 (5th Cir.). . . . . .1 Page v. U.S. Indus., Inc., 726 F.2d 1038 (5th Cir. 1984) . . . . . . . . . . . . . . . . . . .10 Palasota v. Haggar Clothing Co., 342 F.3d 569 (5th Cir. 2003), cert. denied, 124 S. Ct. 1441 (2004) . . . . . . . . . . .10, 13, 22 Patterson v. McLean Credit Union, 491 U.S. 164 (1989) . . . . . . . . . . . . . . . . . . . . . . 21-22 Peterson v. Hewlett-Packard Co., 358 F.3d 599 (9th Cir. 2004) . . . . . . . . . . . . . . . . . . .17 Pivirotto v. Innovative Sys., Inc., 191 F.3d 344 (3d Cir. 1999) . . . . . . . . . . . . . . . . . . . .17 Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) . . . . . . . . . . . . . . . . . . . . . . . .25 Ramirez v. Sloss, 615 F.2d 163 (5th Cir. 1980) . . . . . . . . . . . . . . . . . . .12 Reeves v. Sanderson Plumbing Prods., 530 U.S. 133 (2000) . . . 18, 22-23 Russell v. McKinney Hosp. Venture, 235 F.3d 219 (5th Cir. 2000) . . . . . . . . . . . . . . . . . 22-23 Rutherford v. Harris County, 197 F.3d 173 (5th Cir. 1999) . . . . . . . . . . . . . . . . . . .11 Scales v. Slater, 181 F.3d 703 (5th Cir. 1999) . . . . . . .22 Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981) . . . . . . . . . . . . . . . . . . . . 10, 19-20 Urbano v. Cont'l Airlines, 138 F.3d 204 (5th Cir. 1998) . . . . . . . . . . . . . . . . . . .11 White v. FCI USA, Inc., 319 F.3d 672 (5th Cir. 2003) . . . . . . . . . . . . . . . . . . . 7 FEDERAL STATUTES AND RULES Age Discrimination in Employment Act, 29 U.S.C. 621 et seq. . . . . . . . . . . . . . . . . . . . . 13-15 Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. . . . . . . . . . . . . . . . . . . .passim Fed. R. App. P. 29(a) . . . . . .1 STATEMENT OF INTEREST The U.S. Equal Employment Opportunity Commission (EEOC or Commission) is the federal agency charged with administering, interpreting, and enforcing Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq., and other federal laws barring employment discrimination. This appeal raises important questions about the formulation of a prima facie case in Title VII litigation; the quantum of evidence needed to prove discrimination; and the role of mixed-motive analysis after the Supreme Court's recent decision in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). Because the resolution of these issues will have a significant impact on litigation under Title VII, we offer our views to the Court in accordance with Fed. R. App. P. 29(a), which authorizes a government agency to file an amicus curiae brief "without the consent of the parties or leave of court." STATEMENT OF RELATED CASES The Commission is aware of another appeal pending in this Court, Owens v. Excel Mgmt. Servs., Inc., Case No. 04-10322, which raises one of the same issues whether a plaintiff must show that similarly situated employees were treated more favorably to establish a prima facie case of discrimination. The Commission recently filed an amicus brief in that case as well. STATEMENT OF THE ISSUES 1. Did the district court err in requiring the plaintiffs to show that similarly situated Indian employees were treated more favorably to establish a prima facie case of discrimination? 2. Was the evidence of national-origin discrimination, including national-origin-related comments by company officials and statistical data, sufficient to create a triable issue of fact? 3. Did the district court err in failing to apply a mixed-motive analysis? STATEMENT OF FACTS AND PROCEEDINGS BELOW Ivor Keelan, a citizen of the United Kingdom who was born in Belfast, Ireland, worked for Majesco as a regional sales director from August 2000 until his termination in November 2001. Defendant's Appendix in Support of Motion for Summary Judgment (Def. App.) at 22; 57; 85 (Keelan Deposition at 14; Keelan Offer Letter; Charge of Discrimination). David Sullivan, a United States native, worked for the company from March to July 2001 as a director of alliances. Def. App. at 5; 61 (Sullivan Deposition at 15-16; Sullivan Offer Letter); Plaintiff's Appendix in Opposition to Summary Judgment (Pltf. App.) at 237 (Sullivan Affidavit). Sullivan alleges that he was constructively discharged by Majesco. Majesco is a wholly owned United States subsidiary of Mastek Ltd., a foreign software/IT solutions outsourcing corporation located in Bombay, India. Def. App. at 100-01 (Declaration of Ketan Mehta). Majesco sells Mastek products and services to its customers. Id. at 101. The overwhelming majority of Majesco's employees are Indian nationals. Indeed, in August 2003, only 8 out of 137 Majesco employees (5.8%) were non-Indian. Pltf. App. at 264-69 (Current Employee Data). These unusual demographics at Majesco were not a coincidence. To the contrary, plaintiffs presented substantial evidence that the company had deliberately set out to create a virtually all-Indian workforce. In November 2000, shortly before becoming president of Majesco, Atul Vohra stated that "this is an Indian company, it was Indian from the start, the majority of the employees are Indian, and I could see this, in the future, being a wholly Indian company." Pltf. App. at 73; 202; 207-08; 259 (Keelan Deposition at 116; Hogan Deposition at 10; Kennedy Deposition at 6-11; Email from Ketan Mehta). In April 2001, in response to a question about whether there was a policy of forcing Americans out of the company, Keelan's supervisor, the Vice President of Sales, responded, "Is there a document out there somewhere that states that, no; is it practice, of course it is." Pltf. App. at 74-75; Pltf. App. at 96 (Keelan Deposition at 118-19; Keelan Offer Letter). This supervisor, a non-Indian, was replaced by an Indian employee. Pltf. App. at 21, 24, 36, 74-75; 174 (Keelan Deposition at 37, 40, 55, 118-19; Email from Ketan Mehta). While Keelan was employed at Majesco, the company's management and employees repeatedly voiced concerns about American workers and discriminated against them. In addition to the explicit policy set forth by Majesco management above: The Chief Technology Officer for Mastek stated that the accounting and administration departments consisted largely of Indian employees because "the Americans have never worked out" and "[t]hey don't commit to the company in the way that Indians do." Pltf. App. at 30, 65-66 (Keelan Deposition at 49, 102-103). P.N. Prasad, who also assumed a supervisory role over Keelan, stated that "it [is] their company, they can choose whoever they like to staff it" and "Americans have never worked out" at the company. Pltf. App. at 36, 68, 87 (Keelan Deposition at 55, 105, 160). Another salesperson, Jennifer Walsh, was told that "Americans need too much hand-holding" and "if they had an Indian salesperson in [her] position that they would just do their job." Pltf. App. at 182 (Walsh Deposition at 18). After Sullivan discussed the treatment of non-Indian workers with Majesco's CEO, Ketan Mehta, Mehta acknowledged that there was "apparent discrimination" occurring at the company. Pltf. App. at 155 (Sullivan Deposition at 109); Def. App. at 100 (Declaration of Ketan Mehta). After Keelan's termination and Sullivan's alleged constructive discharge, they filed charges of national-origin discrimination with the Commission. They then filed this action on August 6, 2002, alleging national-origin discrimination. The district court granted summary judgment to the company on plaintiffs' national-origin claims. In its decision, the court initially rejected many of Keelan's and Sullivan's claims of discrimination on the basis that they did not rise to the level of "ultimate employment actions." Keelan v. Majesco Software, Inc., 2004 WL 370225 at *5 (N.D. Tex. Feb. 26, 2004) (Lindsay, J.). In analyzing the discharge claims, the court rejected plaintiffs' argument that the case could appropriately be analyzed under the mixed-motive analysis addressed in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). Id. at *4. The district court determined that this is a "pretext" case appropriate for analysis only under the framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), because "there is no evidence that Majesco had legitimate and illegitimate reasons for discharging Keelan and because Plaintiffs do not allege that it had any legitimate reason to terminate Keelan's employment." 2004 WL 370225 at *4 (emphasis in original). The court further indicated that plaintiffs must "rely" on the McDonnell Douglas framework because they "have presented no direct evidence of discrimination based on national origin." Id. The court then determined that Keelan's discharge claim failed because he had not satisfied all of the elements of a prima facie case of national-origin discrimination. Id. at *5-6. More specifically, Keelan did not "set forth any competent summary judgment evidence showing, or establishing, that similarly situated Indian sales employees were treated more favorably than he was treated." Id. at *6. In the alternative, the court concluded that Keelan had not overcome Majesco's legitimate, nondiscriminatory reason for termination poor sales performance. Id. at *6 n.10. In reaching this conclusion, the court did not specifically address any of the national-origin-based comments made by Majesco management and employees, stating that "the alleged statements amount to nothing more than 'stray remarks,' which alone are insufficient to raise a genuine issue of material fact on the issue of pretext." Id. The court also ignored the statistical data presented by the plaintiffs. Finally, the court rejected Sullivan's constructive-discharge claim on the basis that he "failed to present other evidence sufficient to show that Majesco placed him in an intolerable work environment." Id. at *7. The court further indicated that even if Sullivan had been successful in this showing, his claim would fail because he "sets forth no competent summary judgment evidence which shows that similarly situated Indian employees were treated more favorably than he was treated during the short four months that he was employed by Majesco." Id. at *7 n.12. STANDARD OF REVIEW This Court reviews a district court's summary judgment ruling de novo. See Benchmark Elecs. v. J.M. Huber Corp., 343 F.3d 719, 730 n.9 (5th Cir.), modified on denial of reh'g, 355 F.3d 356 (5th Cir. 2003). Summary judgment should be granted only when "the record, viewed in the light most favorable to the non-moving party, shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Id. Thus, a "factual dispute precludes a grant of summary judgment if the evidence would permit a reasonable jury to return a verdict for the nonmoving party." White v. FCI USA, Inc., 319 F.3d 672, 674 (5th Cir. 2003) (citation omitted). SUMMARY OF ARGUMENT The district court's decision is erroneous in that the court strictly adhered to a rigid formulation of the prima facie case and prevented the plaintiffs from proving discrimination through statistical and circumstantial evidence. More specifically, the district court erred in: (1) requiring plaintiffs to show that similarly situated Indian employees were treated more favorably; (2) disregarding evidence of national-origin discrimination, including statistical data and national-origin-related comments of Majesco management; and (3) not analyzing the case under a mixed-motive analysis. The evidence in this case was more than sufficient to warrant submission of the case to a jury. Keelan showed that (1) the president stated that "I could see this, in the future, being a wholly Indian company"; (2) the vice president of sales conceded that there was a "practice" of forcing non-Indian employees out of the company; (3) the Chief Technology Officer expressed that "Americans have never worked out" and "they don't commit to the company in the way that Indians do"; (4) additional discriminatory comments targeted non-Indian workers; and (5) by August 2003, only 5.8% of Majesco employees were non-Indians. A reasonable jury could look at this evidence and find that Majesco had engaged in unlawful national-origin discrimination in firing Keelan. At the very least this evidence demonstrated that national origin could have been a motivating factor in his termination, warranting the application of mixed-motive analysis. The district court's decision should therefore be overturned. ARGUMENT KEELAN PRESENTED SUFFICIENT EVIDENCE OF NATIONAL-ORIGIN DISCRIMINATION TO SURVIVE SUMMARY JUDGMENT The district court misapplied the summary judgment standards in evaluating the evidence in this case. The only question the district court had to resolve was whether Keelan presented "competent summary judgment evidence that his national origin was a motivating factor in [Majesco's] decision to terminate him." Nieto v. L&H Packing Co., 108 F.3d 621, 624 (5th Cir. 1997). The evidence in this case, whether viewed through the lens of the McDonnell Douglas pretext framework or the Costa mixed-motive framework, is more than sufficient to create a fact question on whether national origin was a motivating factor in Keelan's discharge. Because the district court imposed rigid evidentiary requirements beyond those required by law, the court's decision should be reversed. A. The District Court Erred in Requiring Plaintiffs to Show That Similarly Situated Indian Employees Were Treated More Favorably The district court believed that the McDonnell Douglas framework was the only one that applied in this case. Even if that were true, the court erred in granting summary judgment. Under the traditional McDonnell Douglas framework, a fired employee can establish a prima facie case of discrimination by submitting evidence that: (1) he was discharged; (2) he was qualified for the position; (3) he was within a protected class at the time of discharge; and (4) he was i) replaced by someone outside the protected class, ii) treated less favorably than a similarly situated employee outside the protected class, or iii) discharged because of his protected characteristic. See, e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981) (Title VII prima facie case satisfied where applicant for available job was qualified but "rejected under circumstances which give rise to an inference of unlawful discrimination"); Palasota v. Haggar Clothing Co., 342 F.3d 569, 574-75 (5th Cir. 2003) (setting forth prima facie case in age discrimination case), cert. denied, 124 S. Ct. 1441 (2004). Establishing a "prima facie case merely 'raises an inference of discrimination . . . because we presume [that the alleged discriminatory] acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.'" Page v. U.S. Indus., Inc., 726 F.2d 1038, 1052 (5th Cir. 1984) (quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978)). If the employee satisfies this standard, the burden then shifts to the employer to articulate a legitimate non-discriminatory reason for the termination. See, e.g., Burdine, 450 U.S. at 253. Finally, the burden shifts back to the employee to show that the employer's proffered reason was pretextual. Id. The district court's conclusion that the plaintiffs' cases fail because they did not show that similarly situated Indian employees were treated more favorably ignores the flexible approach to the prima facie case mandated by the Supreme Court and the Fifth Circuit. This Court has observed that it and the Supreme Court have "repeatedly pointed out" that "no single formulation of the prima facie evidence test may fairly be expected to capture the many guises in which discrimination may appear." Byrd v. Roadway Express, Inc., 687 F.2d 85, 86 (5th Cir. 1982) (citations omitted). "The focus of the inquiry may not be obscured by the blindered recitation of a litany." Id. While this Court has recognized that the fourth element of the prima facie case may be satisfied by showing that similarly situated employees without the protected characteristic were treated more favorably, see, e.g., Rutherford v. Harris County, 197 F.3d 173, 184 (5th Cir. 1999) (including as element of prima facie case that similarly situated employees treated differently); Urbano v. Cont'l Airlines, 138 F.3d 204, 206 (5th Cir. 1998) (same), neither the Supreme Court nor this Court has ever found this showing to be indispensable for establishing a prima facie case of discrimination under Title VII. To the contrary, both Courts have explicitly recognized that there are varied approaches to establishing claims of discrimination, because discrimination "exists in forms as myriad as the creative perverseness of human beings can provide." McCorstin v. U.S. Steel Corp., 621 F.2d 749, 753-54 (5th Cir. 1980) (so observing in an age discrimination case); see also Barnes v. Yellow Freight Sys., Inc., 778 F.2d 1096, 1100 (5th Cir. 1985) ("The Supreme Court has recognized that the facts of Title VII cases necessarily vary, so the specific prima facie proof that was demanded of the McDonnell Douglas plaintiff 'is not necessarily applicable in every respect to differing factual situations.'" (quoting McDonnell Douglas Corp., 411 U.S. at 802 n.13 (1973)); Jones v. W. Geophysical Co. of Am., 669 F.2d 280, 284 (5th Cir. 1982) ("The underlying purpose of the fourth element in the McDonnell Douglas formulation is precisely to establish this unlawful inference of discrimination."); Ramirez v. Sloss, 615 F.2d 163, 168 (5th Cir. 1980) ("Courts must not allow the mechanical formula to blind them to the real issue of whether the defendant illegally discriminated against the plaintiff. McDonnell Douglas is only one way to establish a prima facie case of employment discrimination."); Amburgey v. Cohart Refractories, 936 F.2d 805, 812 (5th Cir. 1991) (stating in an age discrimination case that "[t]he necessary elements of a prima facie employment discrimination case are not Platonic forms, pure and unchanging; rather, they vary depending on the facts of a particular case" (quotation omitted)); McCorstin, 621 F.2d at 753 ("[t]his circuit has also recognized that the McDonnell test is not the alpha and omega of possible tests" in age discrimination cases). Such flexibility is consistent with the approach this Court has taken in other contexts. This Court has recognized that a plaintiff need not establish that a similarly situated individual was treated differently where the employer's legitimate non-discriminatory reason can be shown to be false. See Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir. 1995) ("In work-rule violation cases, a Title VII plaintiff may establish a prima facie case by showing 'either that he did not violate the rule or that, if he did, white employees who engaged in similar acts were not punished similarly.'" (emphasis added) (quoting Green v. Armstrong Rubber Co., 612 F.2d 967, 968 (5th Cir. 1980))). Moreover, in a discharge case, this Court has indicated that "the fact that one's replacement is of another national origin 'may help to raise an inference of discrimination, [but] it is neither a sufficient nor a necessary condition.'" Nieto, 108 F.3d at 624 n.7 (citation omitted). Similarly, in the context of the ADEA, this Court has explicitly held that a plaintiff need not show that a similarly situated younger employee was given preferential treatment if he can offer other evidence of discriminatory motivation. See Palasota, 342 F.3d at 575 ("Our reading of the record and the district court's opinions convinces us that it erred by . . . holding that [plaintiff] was required to show that a younger employee was given preferential treatment."); Brown v. CSC Logic, Inc., 82 F.3d 651, 656-57 (5th Cir. 1996) (plaintiff, whose position was terminated and who was unable to show that younger employees were treated more favorably, established prima facie case through age-related comments). All that is required is some showing that gives rise to an inference of discrimination. See, e.g., Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir. 1993) (fourth element of prima facie case can be satisfied by showing plaintiff was "otherwise discharged because of his age"). This Court has suggested that plaintiffs in age cases should not be required to show that similarly situated persons outside the protected group were treated differently because this "mechanistic application" of the McDonnell Douglas test is "especially dangerous" in age cases, where the discrimination may be more subtle. See McCorstin, 621 F.2d at 753. This same principle applies in the Title VII context, because in Title VII as in ADEA cases, the purpose of the fourth element of the prima facie case is simply "to identify actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were based on a discriminatory criterion illegal under the Act." Byrd, 687 F.2d at 86 (citations and internal quotations omitted). Title VII and the ADEA prohibit disparate treatment in identical terms. Compare 42 U.S.C. 2000e-2(a) (it is unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin") with 29 U.S.C. 623(a) (it is unlawful for an employer "to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age"). Therefore, the requirements for establishing a prima facie case should be the same under both statutes. See, e.g., Guthrie v. Tifco Indus., 941 F.2d 374, 376 (5th Cir. 1991) ("The elements of a Title VII case, as set forth in McDonnell-Douglas . . . apply to suits arising under the ADEA."); Elliott v. Group Med. & Surgical Serv., 714 F.2d 556, 565 n.11 (5th Cir. 1983) ("We recognize that McDonnell Douglas, supra, involves a Title VII action. However, the analysis of Title VII cases has been applied to ADEA cases given the common purpose of the statutes and their nearly identical substantive provisions."). Other circuits have specifically concluded that a plaintiff need not establish that a similarly situated employee was treated differently to satisfy the requirements of a Title VII prima facie case. In a recent First Circuit opinion, the court explained why such a requirement collapses the McDonnell Douglas burden-shifting framework: We [have] explicitly rejected the notion that plaintiffs in disparate treatment cases are required to demonstrate that they were treated differently as part of their prima facie case. . . . Rather, we [have] held that '[T]he time to consider comparative evidence in a disparate treatment case is at the third step of the burden-shifting ritual, when the need arises to test the pretextuality vel non of the employer's articulated reason for having acted adversely to the plaintiff's interests.' Kosereis v. Rhode Island, 331 F.3d 207, 213 (1st Cir. 2003) (quoting Conward v. Cambridge Sch. Comm., 171 F.3d 12, 19 (1st Cir. 1999)). The Tenth Circuit has also concluded that a Title VII plaintiff "can satisfy the fourth element of her prima facie case in a number of ways." EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1195 n.6 (10th Cir. 2000). That Court made clear that "[n]othing in the case law in this circuit requires a plaintiff to compare herself to similarly-situated co-workers to satisfy the fourth element of her prima facie case." Id. Other appellate courts have reached the same conclusion. See McGuinness v. Lincoln Hall, 263 F.3d 49, 54 n.2 (2d Cir. 2001) ("a Title VII plaintiff may establish a prima facie case of discrimination in a number of different ways depending on the specific facts of a given case" and the case law "does not require that a plaintiff always be able to show disparate treatment of an otherwise similarly situated employee as a necessary prerequisite to a prima facie case under Title VII"); Herrero v. St. Louis Univ. Hosp., 109 F.3d 481, 483-84 (8th Cir. 1997) (stating that fourth element of prima facie case requires plaintiff to "produce some additional evidence that a prohibited criterion such as age, race, or ethnic origin was a factor in [plaintiff's] termination"); Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir. 2004) (stating that fourth element of prima facie case requires showing that "similarly situated individuals outside his protected class were treated more favorably, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination" (emphasis added)); see also Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 357 (3d Cir. 1999) ("We [have] held [in an ADA case] that a plaintiff could make out a prima facie case even without demonstrating that employees outside of the relevant class were treated more favorably, let alone that the plaintiff herself was replaced by someone outside of the relevant class."). The district court erred, then, in requiring plaintiffs to show, as part of their prima facie case, that similarly situated employees were treated more favorably. This Court's precedent makes it clear that such an offer of proof is one of the ways in which a plaintiff can demonstrate an inference of discrimination. But the law is equally clear that it is not the only way to show discrimination. B. The Evidence was Sufficient to Preclude Summary Judgment In granting summary judgment in this case, the district court "disregarded critical evidence favorable to [Keelan] namely, the evidence supporting [his] prima facie case and undermining [the employer's] nondiscriminatory explanation." Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 152-53 (2000). In Reeves, the Supreme Court unanimously reaffirmed the probative value of circumstantial evidence in proving intentional discrimination. Id. Though Reeves involved the issue of whether there was sufficient evidence to uphold a jury verdict, the Supreme Court made it clear that "the standard for granting summary judgment mirrors the standard for judgment as a matter of law, such that the inquiry under each is the same." Id. at 150 (citation and internal quotations omitted). The Supreme Court in Costa similarly acknowledged the value of circumstantial evidence in proving intentional discrimination. The Court stressed that the statute's silence on the type of evidence required "suggests that we should not depart from the conventional rule of civil litigation that generally applies in Title VII cases . . . [namely, that] a plaintiff [must] prove his case by a preponderance of the evidence . . . using direct or circumstantial evidence." Costa, 539 U.S. at 99 (citations, internal quotations, and internal brackets omitted). The rationale for "treating circumstantial and direct evidence alike is both clear and deep-rooted: Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence." Id. at 100 (citation and internal quotations omitted). The district court erred in evaluating the sufficiency of the evidence necessary to establish a prima facie case and pretext. Notably, the Supreme Court and this Court have emphasized that the plaintiff's burden in establishing a prima facie case is not difficult. See Burdine, 450 U.S. at 253 ("The burden of establishing a prima facie case of disparate treatment is not onerous."); Arenson v. S. Univ. Law Ctr., 911 F.2d 1124, 1127 (5th Cir. 1990) ("The burden of establishing a prima facie case, however, is 'not onerous', but only requires proof that the plaintiff applied for an available position for which he was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination.") (quoting Burdine). Indeed, the showing necessary to establish a prima facie case "is 'much less stringent' than a 'but for' causation standard." Ackel v. Nat'l Comm. Inc., 339 F.3d 376, 385 (5th Cir. 2003) (quoting Fierros v. Tex. Dep't of Health, 274 F.3d 187, 191 (5th Cir. 2001)). Keelan presented enough evidence to establish a prima facie case of national-origin discrimination. It is undisputed that (1) he was terminated; (2) he was qualified to perform his duties; and (3) he is in a protected class (a citizen of the United Kingdom born in Belfast, Ireland). To satisfy the fourth element of his prima facie case, Keelan presented evidence that he was discharged because of his national origin through a statistical analysis of the disproportionate representation of Indian employees in Majesco's workforce and testimony about discriminatory comments made by his superiors and colleagues. Moreover, Keelan's evidence of national-origin discrimination was sufficient to establish that the employer's stated reason for the termination (poor performance) was pretextual. See Burdine, 450 U.S. at 256 (pretext can be shown "either directly by [showing] that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence" (emphasis added)). The district court disregarded the comments made by Keelan's superiors as "stray remarks" that are "insufficient to raise a genuine issue of material fact on the issue of pretext." 2004 WL 370225 at *6 n.10. However, the president's announcement that "the majority of the employees are Indian, and I could see this, in the future, being a wholly Indian company," combined with the Vice President of Sales' concession that it was the practice of the company to force out non-Indian workers, could be taken by a reasonable jury at face value. Together, these statements easily give rise to an inference of discrimination and call into question any purportedly legitimate non-discriminatory reason offered for Keelan's termination. Moreover, the additional discriminatory comments outlined above and the statistical evidence (also ignored by the court) in this case further suggest that the issue is one for the jury to resolve. The evidence rejected by the district court falls squarely within the type of circumstantial evidence approved by the Supreme Court and is sufficient to establish national-origin discrimination in this case. The remarks of Majesco management and the statistical evidence are probative of Majesco's "general policy and practice" with respect to non-Indian workers and demonstrate discriminatory bias on the part of the individuals responsible for setting company personnel policy and with decisionmaking authority over Keelan's employment. See McDonnell Douglas, 411 U.S. at 804-05 & n.19 (proof of the employer's "general policy and practice" with respect to employment of individuals in protected class, including statistical data, "may be helpful" in demonstrating pretext); see also Patterson v. McLean Credit Union, 491 U.S. 164, 188 (1989) (recognizing that there are many ways that a plaintiff "might seek to prove intentional discrimination"); Bernard v. Gulf Oil Corp., 841 F.2d 547, 568 (5th Cir. 1988) ("Statistics establishing a great disparity" in treatment of employees may "justify an inference of discriminatory motive."). By discounting this evidence, the district court effectively denied Keelan any opportunity to prove discrimination circumstantially. See Evans v. City of Bishop, 238 F.3d 586, 591-92 (5th Cir. 2000) (noting that in discrimination case "any evidence that could shed light on an employer's true motive must be considered" (emphasis added)). In any event, the district court's determination that the national-origin related comments were merely "stray remarks" is flawed. In reaching this conclusion, the court relied only on a single, pre-Reeves decision. See 2004 WL 370225 at *6 n.10 (citing Scales v. Slater, 181 F.3d 703 (5th Cir. 1999)). This Court's precedent subsequent to Reeves has made it clear, however, that discriminatory comments made by company officials with supervisory authority constitute evidence of illegal motive. See Palasota, 342 F.3d at 578 (stating that discriminatory remarks are "probative of discriminatory intent" and noting that "[p]ost-Reeves, this court has taken a more 'cautious' view of the stray remark doctrine"); Russell v. McKinney Hosp. Venture, 235 F.3d 219, 229 (5th Cir. 2000) (discriminatory "remarks are appropriately taken into account . . . (even if not in the direct context of the decision and even if uttered by one other than the formal decisionmaker, provided that the individual is in a position to influence the decision)"); Evans, 238 F.3d at 591-92 ("Reeves emphatically states that requiring evidence of discriminatory animus to be 'in the direct context' of the employment decision is incorrect"). The comments by Keelan's superiors, combined with the statistical data, are sufficient to give rise to an inference of discrimination and to present a jury question on the issue of whether the employer's legitimate non-discriminatory reason was pretextual. C. The District Court Erred in Failing to Analyze the Evidence Under the Mixed-Motive Standard Under the mixed-motive paradigm a plaintiff need only show that the protected characteristic was a "motivating factor for any employment practice." 42 U.S.C. 2000e-2(m). If the employee makes this showing, the employer can avail itself of a limited defense if it can show that it "would have taken the same action in the absence of the impermissible motivating factor." Id. 2000e-5(g)(2)(B). This limited defense applies to damages, backpay, and reinstatement, but not to declaratory or injunctive relief or attorneys' fees. Id. Regardless of whether Keelan can establish that Majesco's reason for discharging him was pretextual, his evidence raises a question of fact as to whether his national origin was a motivating factor in his termination. Thus, even assuming that the evidence is not sufficient to demonstrate a jury question on pretext, a jury should be allowed to consider the case under the mixed-motive framework. The district court rejected the application of this analysis because "there is no evidence that Majesco had legitimate and illegitimate reasons for discharging Keelan and because Plaintiffs do not allege that it had any legitimate reason to terminate Keelan's employment." 2004 WL 370225 at *4 (emphasis in original). This somewhat confusing formulation appears to mean that the district court thought Keelan had no evidence of an illegitimate reason for his discharge and that it is the plaintiff's burden to concede a legitimate reason for the employment decision before a case can be analyzed as a mixed-motive case. The court was wrong on both counts. First, in concluding that the plaintiffs lacked evidence of illegitimate reasons for discharging Keelan, the court was apparently guided by its erroneous view that because "Plaintiffs have presented no direct evidence of discrimination based on national origin" they "must rely on the burden- shifting framework articulated by the Supreme Court in McDonnell Douglas to create a presumption of intentional discrimination." 2004 WL 370225 at *4. The Supreme Court clearly held in Costa, however, that Title VII "unambiguously states that a plaintiff need only 'demonstrat[e]' that an employer used a forbidden consideration" whether by direct or indirect evidence. Costa, 539 U.S. at 98-99. In this case, there is sufficient evidence to demonstrate that national origin was a "motivating" factor in the decision to terminate Keelan. Id. at 93-95. The evidence in the case reveals that (1) the president stated that the "future" of the company could be "wholly Indian"; (2) the vice president of sales conceded that it was the practice of the company to force out non-Indian workers; (3) the Chief Technology Officer stated that "Americans have never worked out" and "they don't commit to the company in the way that Indians do"; (4) additional discriminatory comments targeted non-Indian workers; and (5) in August 2003, only 5.8% of Majesco employees were non-Indians. This evidence is sufficient for a reasonable jury to conclude that national origin was, at a minimum, a motivating factor in the decision to terminate Keelan. Second, the district court's conclusion that the case could not be evaluated as a mixed-motive case because Keelan did not concede that Majesco had a legitimate reason for terminating him has no basis in the law. See generally Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (applying mixed-motive analysis even though plaintiff did not concede legitimate reason for termination). A plaintiff who demonstrates that an illegitimate reason motivated an employment decision shifts the burden to the defendant to prove that it would have made the same decision absent the discriminatory reason. It is the defendant, not the plaintiff, who asserts legitimate reasons for the employment decision, whether those reasons are analyzed under a McDonnell Douglas pretext or Costa mixed- motive framework. The mixed-motive analysis with its burden on the defendant to prove the same-decision defense is used not because the plaintiff concedes the legitimate reasons of the employer, but because the defendant recognizing the force of the plaintiff's evidence of an illegitimate reason seeks the benefit of the affirmative defense. In this case, the district court erred in concluding that the case lacked the essential elements to be sent to the jury with a mixed-motive instruction. CONCLUSION The district court improperly required plaintiffs to show that similarly situated Indian employees were treated more favorably, inappropriately discounted significant evidence of national-origin discrimination, and erroneously declined to analyze the case under a mixed-motive analysis. For the foregoing reasons, this Court should reverse the district court's ruling. Respectfully submitted, ERIC S. DREIBAND General Counsel CAROLYN L. WHEELER Acting Associate General Counsel _________________________ JOSEPH A. SEINER Attorney Equal Employment Opportunity Commission Office of General Counsel 1801 L Street, N.W., Room 7020 Washington, D.C. 20507 (202) 663-4772 CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation set forth in Fed. R. App. P. 29(d) and 32(a)(7)(B). This brief contains 5941 words. See Fed. R. App. P. 29(d) and 32(a)(7)(B)(i). The brief was prepared using the WordPerfect 9 processing system, in 14-point proportionally spaced Times New Roman type for text and 14-point Times New Roman type for footnotes. See Fed. R. App. P. 32(a)(5). _____________________ JOSEPH A. SEINER June 3, 2004 CERTIFICATE OF SERVICE I, Joseph A. Seiner, hereby certify that on the 3rd day of June, 2004, I caused: (1) copies of the attached brief; (2) a diskette containing the brief in an Adobe Acrobat PDF format; and (3) a copy of my appearance form to be sent via first- class U.S. mail to: Clerk of Court John L. Ross Durwood Crawford U.S. Court of Appeals Lisa Ann Royee Goins, Underkofler, for the Fifth Circuit Thompson, Coe, Cousins Crawford & Langdon 600 Camp Street & Irons Suite 4800 New Orleans, LA 70130 700 N. Pearl Street 1201 Elm Street 25th Floor Renaissance Tower Dallas, TX 75201-2832 Dallas, TX 75270 Attorneys for Appellee Attorneys for Appellant __________________________ JOSEPH A. SEINER Attorney Equal Employment Opportunity Commission Office of General Counsel 1801 L Street, N.W., Room 7020 Washington, D.C. 20507 (202) 663-4772 June 3, 2004