EEOC v. Maricopa County (9th Cir.) Brief as appellant Nov. 21, 2005 ________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ________________________________________________ No. 05-15403 ________________________________________________ U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant v. MARICOPA COUNTY, Defendant-Appellee. ________________________________________________ On Appeal from the United States District Court for the District of Arizona (2:02-cv-01874-PGR) The Honorable Paul G. Rosenblatt, Presiding ________________________________________________ OPENING BRIEF OF THE PLAINTIFF-APPELLANT U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ________________________________________________ JAMES L. LEE Deputy General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7020 Washington, D.C. 20507 (202) 663-4571 daniel.vail@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . iv STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . .1 STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . .2 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . .2 A. . . . . . . . . . . . . . . . . . . . . . . . . . . . The Nature of This Case and the Course of Proceedings 2 B. . . . . . . . . . . . . . . . . .Statement of Facts 3 C. . . . . . . . . . . . . . . . . .Proceedings Below 15 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . .19 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . 23 A. Standard of Review . . . . . . . . . . . . . . . 23 B. . . . .The EEOC Offered Sufficient Direct Evidence of Age Discrimination to Survive Summary Judgment . 25 C. . . . . . . . . . . . . . . . . . . . . . . . . . . . The EEOC Proffered Enough Circumstantial Evidence of Age Discrimination to Preclude Summary Judgment . 31 1. The District Court Erroneously Imposed a Heightened "Pretext Plus" Burden on the EEOC. 36 2. The District Court Contravened Summary Judgment Principles in Evaluating the EEOC's Evidence of Pretext . . . . . . . . . . . . . 41 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . 51 TABLE OF CONTENTS (con't) STATEMENT OF RELATED CASES . . . . . . . . . . . . . . . . . 52 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . .53 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . 54 TABLE OF AUTHORITIES Cases Altera Corp. v. Clear Logic, Inc., 424 F.3d 1079 (9th Cir. 2005) . . . . . . . . . . . . . . . 23 Am. Bankers Ass'n v. Gould, 412 F.3d 1081 (9th Cir. 2005) . . . . . . . . . . . . . .23-24 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) . . . . . . . . . . . . . . . . . . . . 23 Aragon v. Republic Silver State Disposal, Inc., 292 F.3d 654 (9th Cir. 2002) . . . . . . . . . . . . . . . .25 Bergene v. Salt River Project Agr. Imp. & Power Dist., 272 F.3d 1136 (9th Cir. 2001) . . . . . . . . . . . . . 25, 36 Blue v. Widnall, 162 F.3d 541 (9th Cir. 1998) . . . . . . . . . . . . . . . .26 Bodet v. CoxCom, Inc., 366 F.3d 736 (9th Cir. 2004) . . . . . . . . . . . . . . . .26 Brown v. City of Tuscon, 336 F.3d 1181 (9th Cir. 2003) . . . . . . . . . . . . . . . 36 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) . . . . . . . . . . . . . . . . . . . . 23 Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115 (9th Cir. 2000) . . . . . . . . . . . . . passim Coghlan v. Am. Seafoods Co., 413 F.3d 1090 (9th Cir. 2005) . . . . . . . . . . . . . passim Coleman v. Quaker Oats Co., 232 F.3d 1271 (9th Cir. 2000) . . . . . . . . . 24, 30, 34, 35 Cordova v. State Farm Ins. Co., 124 F.3d 1145 (9th Cir. 1997) . . . . . . . . . . . . . 27, 35 Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003) . . . . . . . . . . . . . . . . . . . . .32 Dominguez-Curry v. Nev. Transp. Dep't, 424 F.3d 1027 (9th Cir. 2005) . . . . . . . . . . . . . passim EEOC v. Pape Lift, Inc., 115 F.3d 676 (9th Cir. 1997) . . . . . . . . . . . . 27-28, 30 EEOC v. United Parcel Serv., Inc., 424 F.3d 1060 (9th Cir. 2005) . . . . . . . . . . . . . . . 23 Enlow v. Salem-Keizer Yellow Cab Co., Inc., 389 F.3d 802 (9th Cir. 2004) . . . . . . . . . . 20, 25, 31-32 Freeman v. Arpaio, 125 F.3d 732 (9th Cir. 1997) . . . . . . . . . . . . . . . .23 Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994) . . . . . . . . . . . . . . . . .49 Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978) . . . . . . . . . . . . . . . . . . . . 32 Godwin v. Hunt Wesson, Inc., 150 F.3d 1217 (9th Cir. 2005) . . . . . . . . . 25, 36, 38, 48 Kang v. U Lim Am., Inc., 296 F.3d 810 (9th Cir. 2000) . . . . . . . . . . . . . . . .26 Lindahl v. Air France, 930 F.2d 1434 (9th Cir. 1990) . . . . . . . . . . . . . 25, 36 Lowe v. City of Monrovia, 775 F.2d 998 (9th Cir. 1985) . . . . . . . . . . . . . .24, 36 Lyons v. England, 307 F.3d 1092 (9th Cir. 2002) . . . . . . . . . . . 24, 38, 40 Manatt v. Bank of Am., N.A., 339 F.3d 792 (9th Cir. 2003) . . . . . . . . . . . . . . . .36 Mangold v. Cal. Pub. Util. Comm'n, 67 F.3d 1470 (9th Cir. 1995) . . . . . . . . . . . . . . . .50 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986) . . . . . . . . . . . . . . . . . . 23, 50 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) . . . . . . . . . . . . . . . . . . passim McGinest v. GTE Serv. Corp., 360 F.3d 1103 (9th Cir. 2004) . . . . . . . . . . . . . . . 32 Menotti v. City of Seattle, 409 F.3d 1113 (9th Cir. 2005) . . . . . . . . . . . . . . . 23 Merrick v. Farmers Ins. Group, 892 F.2d 1434 (9th Cir. 1990) . . . . . . . . . . . . . . . 30 Nesbit v. Pepsico, Inc., 994 F.2d 703 (9th Cir. 1993) . . . . . . . . . . . . . . . 30 Nidds v. Schindler Elevator Corp., 113 F.3d 912 (9th Cir. 1996) . . . . . . . . . .17, 30, 39, 48 O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308 (1996) . . . . . . . . . . . . . . . . . . 32, 43 Orr v. Bank of Am., 285 F.3d 764 (9th Cir. 2002) . . . . . . . . . . . . . .17, 31 Palmer v. Pioneer Inn Assocs., Ltd., 338 F.3d 981 (9th Cir. 2003) . . . . . . . . . . 26-27, 34, 35 TABLE OF AUTHORITIES (con't) Payne v. N.W. Corp., 113 F.3d 1079 (9th Cir. 1987) . . . . . . . . . . . . . 48-49 Pottenger v. Potlatch Corp., 329 F.3d 740 (9th Cir. 2003) . . . . . . . .30, 32, 34, 36, 38 Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185 (9th Cir. 2003) . . . . . . . . . . . . . . . 34 Raytheon Co. v. Hernandez, 540 U.S. 44 (2003) . . . . . . . . . . . . . . . . . . . . .32 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000) . . . . . . . . . . . . 22, 32, 40, 41, 50 Rose v. Wells Fargo & Co., 902 F.2d 1417 (9th Cir. 1990) . . . . . . . . . 24, 30, 33, 35 Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406 (9th Cir. 1996) . . . . . . . . . . . .24, 28, 30 Sischo-Nownejad v. Merced Cmty. Coll. Dist., 934 F.2d 1104 (9th Cir. 1991) . . . . . . . . . 28, 30, 38, 42 St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993) . . . . . . . . . . . . . . . . . . . . 32 Stead v. U.S., 419 F.3d 944 (9th Cir. 2005) . . . . . . . . . . . . . . . .24 Stegall v. Citadel Broad. Co., 350 F.3d 1061 (9th Cir. 2003) . . . . . . . . . . . . . 21, 36 Strother v. S. Cal. Permanente Med. Group, 79 F.3d 859 (9th Cir. 1996) . . . . . . . . . . . . . . 38, 42 Sutton v. Atl.-Richfield Co., 646 F.2d 407 (9th Cir. 1981) . . . . . . . . . . . . . . . .33 TABLE OF AUTHORITIES (con't) Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981) . . . . . . . . . . . . . . . . . . 32, 35 Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985) . . . . . . . . . . . . . . . . . . . . 31 U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711 (1983) . . . . . . . . . . . . . . . . . . . . 32 Wallis v. J.R. Simplot Co., 26 F.3d 885 (9th Cir. 1994) . . . . . . . . .17, 23-33, 34, 36 Warren v. City of Carlsbad, 58 F.3d 439 (9th Cir. 1995) . . . . . . . . . . . . . . 24, 36 Wileman v. Frank, 979 F.2d 30 (4th Cir. 1992)18 Winarto v. Toshiba Am. Elec. Components, Inc., 274 F.3d 1276 (9th Cir. 2001)26 Statutes Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq. passim Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 107128 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . 2 28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1337 . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1343 . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1345 . . . . . . . . . . . . . . . . . . . . . . 1 29 U.S.C. § 626(b) . . . . . . . . . . . . . . . . . . . . . 1 TABLE OF AUTHORITIES (con't) Rules Fed. R. App. P. 4(a)(1)(B) . . . . . . . . . . . . . . . . . 2 Fed. R. App. P. 32(a)(5) . . . . . . . . . . . . . . . . . .53 Fed. R. App. P. 32(a)(6) . . . . . . . . . . . . . . . . . .53 Fed. R. App. P. 32(a)(7)(B) . . . . . . . . . . . . . . . . 53 Fed. R. App. P. 32(a)(7)(B)(iii) . . . . . . . . . . . . . .53 Fed. R. App. P. 34(a)(1) . . . . . . . . . . . . . . . . . . 1 Fed. R. Civ. P. 56(c) . . . . . . . . . . . . . . . . . . . .23 Circuit Rule 28-2.6 . . . . . . . . . . . . . . . . . . . . .52 STATEMENT REGARDING ORAL ARGUMENT This appeal raises significant issues involving direct evidence and the correct application of summary judgment standards, including whether the district court imposed an erroneous "pretext plus" standard on the EEOC, in violation of Supreme Court jurisprudence. This appeal will address principles that are critical to civil rights enforcement, and the EEOC believes that further exploration of these issues at oral argument would assist this Court in properly resolving this appeal. See Fed. R. App. P. 34(a)(1). STATEMENT OF JURISDICTION Plaintiff-Appellant the U.S. Equal Employment Opportunity Commission (the "EEOC") filed this lawsuit against Defendant-Appellee Maricopa County ("Maricopa") under the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §§ 621 et seq. (the "ADEA"). (R.1; R.6; E.R. 1-5.)<1> This action is authorized and was instituted under 29 U.S.C. § 626(b). (R.6; E.R. 2) The district court thus had jurisdiction over the EEOC's suit under 28 U.S.C. §§ 1331, 1337, 1343, and 1345. The district court entered final judgment against the EEOC on January 7, 2005. (R.104; E.R. 256.) The EEOC filed a timely notice of appeal on March 4, 2005. (R.111; E.R. 257-58.) See Fed. R. App. P. 4(a)(1)(B). This Court now has appellate jurisdiction under 28 U.S.C. § 1291. STATEMENT OF THE ISSUES 1. Whether the district court committed error in ruling that the EEOC had not proffered any direct evidence of age discrimination. 2. Whether the district court erred by imposing a "pretext plus" burden of proof on the EEOC. 3. Whether the district court erred in concluding that the EEOC had not proffered sufficient evidence of pretext to survive summary judgment. STATEMENT OF THE CASE A. The Nature of This Case and the Course of Proceedings The EEOC filed this lawsuit on September 25, 2002. (R.1.) In its amended complaint, filed October 17, 2002, the EEOC claimed that Maricopa violated the ADEA by refusing to rehire charging party Teresa Toth for the position of Victim Witness Advocate because of Toth's age. (R.6; E.R. 1-5.) The EEOC sought a permanent injunction prohibiting Maricopa from refusing to hire individuals because of their age, an order requiring Maricopa to "institute and carry out policies, practices and programs which provide equal employment opportunities for individuals 40 years of age and older and which eradicate the effects of its past and present unlawful employment practices," back pay and liquidated damages (and interest), reinstatement of Toth (or front pay), costs, and "such further relief as the court deems necessary and proper in the public interest." (E.R. 3-4.) The EEOC also requested a jury trial. (E.R. 4.) On January 7, 2005, the district court granted Maricopa's motion for summary judgment and entered judgment against the EEOC. (R.103; R.104; E.R. 247-56.) This appeal followed. (R.111; E.R. 257-58.) B. Statement of Facts In June of 1993, when Toth was 43, she went to work at the Maricopa County Attorney's Office ("MCAO") as a "Victim Witness Advocate." (E.R. 130.) A Victim Witness Advocate ("VWA") informs crime victims about their rights under the Arizona constitution, explains to the victims how the criminal justice system operates, helps to prepare these victims for trial, and refers victims to appropriate mental health counseling (if necessary). (E.R. 192.) At MCAO, Victim Witness "Bureau Chiefs" supervised VWAs and a Victim Witness "Division Chief" supervised the Bureau Chiefs. (E.R. 16-17.) For a time, Toth's Bureau Chief (and first-line supervisor) was Chris Lange ("Lange"). (E.R. 176, 191.) Lange's Division Chief (and Toth's second- line supervisor) was Jan Jennings ("Jennings"). (E.R. 175-76.) In June of 1999, Toth was promoted from VWA I to VWA II (a higher paid position). (E.R. 52, 167.) First-line supervisor Lange stated in her deposition that Toth was "a good advocate [and] conscientious." (E.R. 192.) Second-line supervisor and Division Chief Jennings testified she believed Toth was "a great advocate." (E.R.179.) Toth consistently received positive performance evaluations. In 1993, on her probationary evaluation, Toth "exceed[ed] minimum standards." (E.R. 73.) In 1994, she was rated "exceptional." (E.R. 84-85.) In 1995, her overall evaluation, including her evaluation for "professionalism" specifically, was also "exceptional." (E.R. 86, 89.) This review stated that Toth "performed each different duty in a very positive manner." (E.R. 86.) Toth's 1996 performance evaluation noted that she was "very ‘adaptable to change,'" "treats her coworkers and others with respect and courtesy," "values good working relationships in the office," and "accepts constructive criticism from her supervisor with a positive attitude." (E.R. 98.) On Toth's 1997 review, Lange stated that Toth "presents a professional image in her appearance and demeanor," "is very much a team player and often assists the other members of the Bureau if they have any conflicts," and "accepts criticism well . . . ." (E.R. 108.) On Toth's 1998 review – Toth's last MCAO evaluation – Lange rated Toth's performance, including her performance for "professionalism," as "exceptional." (E.R. 114, 119.) Lange noted that Toth was a "vital component" of the division. (E.R. 114.) Lange also stated that: Terri presents a professional image in both her appearance and demeanor . . . . Terri is very much a team player and readily assists her co-workers if they have a conflict . . . . Terri is a valuable resource for the newer members of the bureau, and willingly shares her knowledge and expertise with them. Terri has exercised considerable initiative during the evaluation period to promote the well-being of both the bureau and the division. [She] spearheaded the Victim Rights Rally, which . . . was a great morale booster, and served to increase the team spirit and cohesiveness [in the workplace]. (E.R. 119.) Jennings had to approve the evaluations of VWAs prepared by first-line supervisors. (E.R. 176.) Jennings signed Toth's 1998 performance evaluation, asserting no objections, (E.R. 157, 193), and later agreed that all of Toth's performance evaluations "represent[ed] a true and accurate assessment of [Toth's] ability" as a VWA. (E.R. 177.) Toth never received a single negative performance appraisal and never was given any written reprimand of any kind. Her personnel file does not reflect any written complaints regarding her attitude or personality. (E.R. 179, 183, 203.) According to Toth, "[d]uring my employment with MCAO, there was never a problem with my ‘attitude.' I had a positive attitude." (E.R. 130, 21.) Lange agreed. Lange testified that Toth "was professional in her dealings with victims and with other professionals that she had to come in contact with." (E.R. 193.) Lange also testified that Toth was not disruptive, not a divisive force within the office, not obstinate, and not insubordinate. (E.R. 196.) Toth ultimately applied for and was offered a position at the office of the Maricopa County Clerk of Court (another position within Maricopa County government). (E.R. 17-18.) <2> Toth accepted this job, which included a pay raise, and left MCAO in June of 1999. (E.R. 18, 130.) There was never any indication in Toth's personnel file that she should not be rehired by MCAO. To the contrary, the "not eligible for rehire" block on Toth's exit form was not checked, indicating she was eligible for rehire. (E.R. 181.) Before long, Toth began to miss her work and friends at MCAO and decided she wanted to return to the VWA job she had enjoyed for six years. (E.R. 159-60.) MCAO advertised openings for VWA I positions around February 28, 2000. (E.R. 40.) The vacancy announcement indicated that the "position qualifications" included a Bachelor's degree in Criminal Justice, one of the social sciences, or a related field, and two years experience in criminal justice, social work, crisis intervention, or a related field. (E.R. 40.) The vacancy announcement also indicated that "[p]reference will be given to applicants who have background/experience in a criminal justice environment providing crime victim advocacy and assistance and to those who possess bilingual (English/Spanish) skills." (E.R. 40.) Toth applied for this vacancy. (E.R. 65-67.) There were three available positions. (E.R. 46.) Toth made the "certification list" <3>. and was called for an interview. (E.R. 204.). The first round of interviews took place on March 13, 2000. (E.R. 162.) Toth was called back for a second interview. (E.R. 162.) The interviewers for Toth's second round included three current Bureau Chiefs – Sylvia Conchos ("Conchos"), Sally Anderson ("Anderson"), and Tracy Bieghler ("Bieghler"). (E.R. 47, 57.) The fourth interviewer on the second round panel was Jamie Mabery ("Mabery") – who had taken over from Jennings as Division Chief. (E.R. 47, 57, 17.) While the entire panel gave recommendations, Mabery was the selecting official and sole decision maker. (E.R. 47, 152.) There is a dispute about Toth's performance in the second interview. Mabery testified that Toth's interview performance was "very poor" – even "horrible." (E.R. 169, 29.) Mabery said she was "surprised at her appearance" because Toth allegedly wore jeans to the interview. (E.R. 169.) Mabery also noted that Toth "never had eye contact with me" and "sat sideways in [her] chair." (E.R. 169.) Mabery testified that after she interviewed Toth, she "form[ed] an impression that [Toth] had an attitude problem" – that Toth had a "negative," "unprofessional" attitude. (E.R. 171.) Mabery said "[t]here didn't appear to be any enthusiasm about the job and it was just real unprofessional." (E.R. 171.) According to Mabery, Toth did not "sell herself" or "promote herself" during the interview. (E.R. 172.) Although Mabery took contemporaneous notes of the interview, not once did she record a negative critique of Toth's interview performance. Mabery's notes contain no reference to Toth's dress, eye contact, seated posture, answers to interview questions, or attitude. (E.R. 71-72.) Moreover, none of the other three interviewers shared Mabery's impression of Toth's interview performance. Bieghler testified that Toth wore pants to the interview, but could not say what color they were or whether they were jeans. (E.R. 189.) Conchos does not recall there being any question about the way Toth was dressed during the interview. (E.R. 151.) Toth herself testified that she wore "a green tailored suede shirt with black denim dress pants" to the interview. (E.R. 26.) Anderson described Toth's "attitude . . . in the interview process" as "pleasant." (E.R. 139.) Anderson also stated that Toth "answered all questions appropriately." (E.R. 137.) Conchos likewise thought that Toth "interviewed well." (E.R. 150.) She told Lange soon after the interview that the interview "was fine" and "had gone well" and that Toth "knows all the responses" and "answered all her questions appropriately" (E.R. 154.) In fact, Conchos said Toth's answers to interview questions were "very appropriate." (E.R. 154.) Conchos also testified that Toth appeared "genuine," "sincere," and "humble" during the interview. (E.R. 151, 153.) Bieghler likewise concluded that Toth "answered the questions correctly," "knew the information," and "did fine" in her interview. (E.R. 185.) Bieghler believed that Toth knew the answers to interview questions, knew the job, had been a good advocate before, and would be a good advocate again. (E.R. 186.) The other interviewers all recall that right after the interview, Mabery made a negative comment about Toth. Conchos testified that: I don't remember what [Mabery] said, but she said something like "She's a tired government employee" or "She's an old government employee" or "she looks like it." Then I said, you know, ‘It really sounds to me like she said she was a tired government employee.' (E.R. 154.) In her deposition, Conchos was specifically asked whether she "ever heard anyone refer to Terry Toth as an old, tired government employee." (E.R. 153.) Conchos replied "I guess it's a yes, sort of." (E.R. 153.) She then explained that Mabery definitely referred to Toth as "tired." (E.R. 153.) She also said she thought Mabery also said that Toth "didn't seem enthusiastic enough." (E.R. 153.) Bieghler remembers Mabery saying "I don't want to go down that road again" and that Toth was "a burned out government employee." (E.R. 186.) Bieghler testified "I don't know that [Mabery] said ‘old' or ‘tired' . . . . I just remember – burned-out government employee is what I recall." (E.R. 187.) Conchos does not remember Mabery using the term "burned out" or "burned out government employee," but does "remember tired." (E.R. 153.) Anderson testified in her deposition that she was later asked by an EEOC investigator whether Mabery had said that Toth was an "old" employee. Anderson said she had to think about whether Mabery had said that. After thinking about it, Anderson called the EEOC's investigator back "and reported that, in fact, the statement she had read to me was accurate, and I truly believe that." (E.R. 140.) However, when the EEOC's investigator asked Anderson if she would sign a statement to this effect Anderson told her "[n]o, because obviously you've got somebody else that's saying this. Bother them. Leave me alone." (E.R. 146.) Sometime later, MCAO sent an investigator to Anderson's home and "educated" Anderson about the importance of Mabery's remark and, specifically, whether Mabery used the word "old." (E.R. 140.) After this visit, Anderson "could no longer be certain the old element was present" in Mabery's remark. (E.R. 140.) However, Anderson did not categorically recant her earlier position (i.e., that Mabery did in fact call Toth an "old employee"). As of the time of her deposition, she simply could no longer say for certain that Mabery specifically used the word "old." (E.R. 140, 146.) Anderson also indicated that Mabery definitely said that Toth was "a tired, worn-out government employee." (E.R. 138.) Anderson also testified that she recalled Mabery referring to Toth as a "tired, burned-out government employee." (E.R. 146.) <4> Conchos testified that, after hearing Mabery's comment, Conchos concluded that Mabery would not be rehiring Toth. (E.R. 153.) When asked in her deposition why she thought that, Conchos specifically responded "[b]ecause of [Mabery's] comments or a comment regarding the – you know, tired" and because "ultimately it was [Mabery's] decision." (E.R. 153.) Similarly, Bieghler testified that after Mabery said "I don't want to go down that road again" and called Toth a "burned out government employee," it appeared that Mabery "had her mind made up." (E.R. 186.) By saying "I don't want to go down that road again" Bieghler thought Mabery meant that "we weren't going to bring [Toth] back" – that Mabery "didn't want to bring her back." (E.R. 186.) On or around June 5, 2000, MCAO posted another vacancy announcement for additional VWA I positions. (E.R. 41.) The position qualifications and preferences for this vacancy announcement were identical to the vacancy announcement posted in February of 2000. Toth again applied to return to MCAO as a VWA I. (E.R. 68- 70.) Toth again made the certification list. (E.R. 200, 205.) Bieghler was involved in screening applicants, and told Mabery "I think we should hire her. I think we should let her interview. She's got the qualifications that meet the minimum, so we should give her an interview." (E.R. 187.) Mabery refused even to let Toth interview again. Mabery testified that she did not "want to go down that road again." (E.R. 171.) Mabery said "because [Toth] was so negative and so unprofessional, I was not willing to interview her. I mean, it hadn't been that long and I just wasn't willing to interview her again." (E.R. 171.) Bieghler similarly recalls Mabery saying "I don't want to go down that road. I don't want to go there,' kind of thing again, the same comments from before" (i.e., after Toth had been interviewed by Mabery before). (E.R. 187-88.) Thus, despite having again made the certification list, Toth was not even interviewed for the second round of VWA postings. (E.R. 57.) Between the February 2000 and June 2000 postings, MCAO hired thirteen new VWAs. (E.R. 49-50.) Of these, only one was over forty. The ages of the others hired were 35, 33, 32 31, 30, 29, 28, 28, 27, 25, 25, 25. (E.R. 207.) The average age of those hired as new VWAs in 2000 was roughly 30. (E.R. 207.) Indeed, except for the one hire over forty, all of the successful applicants were at least fifteen years younger than Toth. (E.R. 207.) None of the successful candidates had ever worked for MCAO before (much less for six years) as a VWA. (E.R. 219-20.) Of the three hired after the February 2000 announcement, only two were bilingual. (E.R. 48, 63, 168.) Of the other ten hired after the June 2000 announcement, four, at most, were bilingual. (E.R. 48-50, 168.) Toth testified in her deposition that sometime after her second interview, Lange informed Toth that "someone told her that [Mabery] made the statement, ‘Looks like I've just interviewed an old tired government employee.'" (E.R. 163-64.) On October 30, 2000, Toth filed a timely charge of discrimination against MCAO with the EEOC, alleging age discrimination. (E.R. 203-04.) During the EEOC's investigation of this charge, MCAO submitted a "position statement" indicating that its reasons for refusing to rehire Toth included, but were not limited to, her "poor performance during her interview, and input from her former supervisor." (E.R. 43; E.R. 48-49 ("Based on a variety of factors, including [Toth's] poor interview . . . [she] was not selected . . . .")). According to the position statement, before the interviews even began, Jennings told Mabery "that Toth exhibited negative behaviors/interactions before she left" and "her behavior appeared to have an adverse impact on the Division." (E.R. 46-47.) The position statement also indicated that Toth was "not bilingual." (E.R. 50.) It contended that "according to the terms of the [vacancy announcement], [Toth] is clearly less qualified than six of those hired . . . all of whom have English/Spanish bilingual skills." (E.R. 51.) In addition, the position statement noted, the other seven individuals hired "had superior education experience, including degrees in the areas specified by the [vacancy announcement], plus pertinent work experience." (E.R. 55.) The vacancy announcement required a Bachelor's degree in Criminal Justice, one of the social sciences, or a related field. (E.R. 51.) However, "Toth's Bachelor's degree was in Business Administration" and thus "each of the candidates hired arguably had qualifications more desirable under the terms of the [vacancy announcement] than" she did. (E.R. 51.) In short, Toth "did not compete well for the [VWA] positions because of a variety of factors" and "[a]ll of the candidates who were hired performed better than [Toth] during their interview, and none of them had a prior work history with MCAO where they exhibited negative behaviors." (E.R. 53.) All "of the individuals who were hired were well qualified" and "[e]ach was arguably better qualified than Toth either by virtue of their bilingual skills and/or because of their superior combination of education and/or experience." (E.R. 57.) However, the position statement explained, "[t]he primary reason Toth was not hired . . . was her very poor interview, during which she made a bad impression on [Mabery]. Mabery was also aware of the bad reference from [Jennings], although Toth's interview played a greater role in Mabery's decision not to hire her." (E.R. 58.) C. Proceedings Below Maricopa moved for summary judgment on March 19, 2004. (R.64; R.65; R.72; R.73; R.92.) In its motion and accompanying statement of facts (and subsequent response briefs), Maricopa reiterated the reasons it gave in its position statement for why it refused to rehire Toth (e.g., that Toth had had a bad attitude when she had worked at MCAO before and Jennings thus recommended that Mabery not rehire her, that she performed poorly in her interview, and that Maricopa had changed the requirements for the VWA position to emphasize bilingual skills and a different degree). (R.64; R.65; R.72; R.73; R.92.) Maricopa also advanced new reasons for why it failed to hire her back. Maricopa now claimed that because Toth had been unhappy with the pay in her VWA II job and had left MCAO as a result, it would have made no sense to hire her back as a VWA I (especially since the pay of a VWA I was even less than what she was making as a VWA II before she left and since other factors that had frustrated her had not changed since she quit). Maricopa also argued that Toth was actually overqualified for the VWA I job. Notably, however, Maricopa changed its strategy and no longer asserted – as it had in its position statement – that Toth's "poor" interview performance was the "primary reason" Mabery decided not to rehire her. (R.64; R.65; R.72; R.73; R.92.) The EEOC argued in its opposition that it had direct and circumstantial evidence of age discrimination sufficient to withstand summary judgment. (R.83; R.84.) The EEOC argued that the direct evidence was the "substantial evidence that Mabery referred to Toth as an ‘old, tired government employee' after her interview" and that Mabery also "referred to Toth as ‘tired,' ‘burnt out,' ‘worn out,' or not ‘enthusiastic' enough." (R.83; E.R. 31.) The EEOC specifically cited to the direct testimony of Conchos and Anderson as the evidence supporting this argument. (R.83; R.84; E.R. 32-33, 36-39.) The EEOC also argued that this case should survive summary judgment under the circumstantial evidence paradigm developed in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973), because the EEOC had created a prima facie case of age discrimination and presented sufficient proof to create a genuine issue of fact as to whether the reasons Maricopa gave for its actions were pretextual. (R.83.) In an order dated January 7, 2005, the district court granted Maricopa's motion. (R.103; E.R. 247-54.) In its ruling, the district court stated "the alleged direct evidence Plaintiff offers is that a person not present at Toth's interview, heard from someone else that Mabery allegedly described Toth as either an ‘old, tired government employee,' ‘tired, burned out government employee,' ‘or tired, worn out government employee.'" (R.103; E.R. 249.) The district court then found that "not only is such evidence inadmissible as a classic example of double hearsay, but it also does not meet with the definition of direct evidence." (R.103; E.R. 249 (citing Orr v. Bank of Am., 285 F.3d 764, 773 (9th Cir. 2002)).) "It is clear to the Court that the Plaintiff has not presented any admissible evidence that Mabery used the word ‘old' or made any other ageist comment regarding Toth." (R.103; E.R. 249.) The district court then analyzed the case under McDonnell Douglas. "Although there appears to be a dispute as to whether the Plaintiff has actually established a prima facie case of age discrimination, the Court need not address this dispute because . . . the Plaintiff has failed to meet its burden of establishing that the Defendant's reasons for not hiring Toth were pre-textual." (R.103; E.R. 249.) According to the district court, "[i]n response to the Defendant's offer of nondiscriminatory reasons, the Plaintiff must produce ‘specific, substantial evidence of pretext[,]' . . . by producing facts that evidence the employer's discriminatory motive or facts that establish that the employer's explanation is not credible." (R.103; E.R. 249-50 (quoting Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994)).) The district court indicated that "[t]he Plaintiff must show that the reasons provided by the Defendant as to why Toth was not rehired are false and that the real reason was discrimination based on her age." (R.103; E.R. 251-52 (citing Nidds v. Schindler Elevator Corp., 113 F.3d 912, 918 (9th Cir. 1996)).) The district court then concluded that the EEOC had not met this standard, stating: The Plaintiff cannot create a triable issue of fact merely by offering evidence showing that non-decision makers disagreed with the decision maker, Mabery. Mabery's perception of Toth's interview as poor was but one reason the Defendant identified for the decision not to rehire her. The fact that others had a difference in opinion regarding Toth's former employment and interview performance does not create a conflict as to what Mabery perceived nor does it mean that Mabery's subjective perception is untrue. In addition, Toth's performance evaluations do not create an issue of fact about whether Mabery's negative assessment of Toth is honest. Such performance evaluations contained no separate rating regarding attitude nor did Mabery have any role in performing or signing such evaluations. Furthermore, even very good performance evaluations are not proof of pretext unless they leave absolutely no room for criticism of any kind which is clearly not the situation regarding Toth. (R.103; E.R. 253) (citing Wileman v. Frank, 979 F.2d 30, 35 (4th Cir. 1992)).) Further, the district court found, the EEOC had not proffered sufficient evidence to cast doubt on any of the other legitimate, non-discriminatory reasons MCAO provided. According to the district court, MCAO "provided evidence showing that the employment decision was also based upon: (a) changes in the job requirements; (b) Toth applying for a VWA I position after having worked as a WVA II hence being likely to experience dissatisfaction in the position as she did before; and (c) Toth's prior dissatisfaction with MCAO pay structure and her continued complaints about it before, during and after her interview." (R.103; E.R. 253.) However, the district court concluded, "[t]he Plaintiff does not even attempt to rebut the[se] other legitimate reasons advanced by the Defendant. In fact, Toth admitted that such reasons could provide a legitimate basis for a decision not to rehire a former employee." (R.103; E.R. 253.) In short, the district court concluded: [T]he Plaintiff has failed to establish that the other nondiscriminatory reasons offered by the Defendant as to why Toth was not hired are false and merely pretext as required under McDonnell Douglas analysis. Moreover, there is insufficient evidence to raise a genuine fact as to whether the actual reason was a discriminatory one; therefore, the ADEA discrimination claim necessarily fails. (R.103; E.R. 254.) SUMMARY OF ARGUMENT This case should be remanded for trial as the district court committed numerous legal errors when it granted summary judgment in favor of Maricopa. First, the district court erred in concluding that the EEOC had not offered admissible direct evidence of discrimination. Second, the district court erred by imposing an improper, heightened "pretext plus" evidentiary burden on the EEOC. Third, the district court contravened well established summary judgment principles in concluding that the EEOC's circumstantial evidence was insufficient to create a genuine issue as to whether Maricopa's shifting explanations for not rehiring Toth were pretext for age discrimination. Each of these errors warrants reversal. This Court has explained that "direct evidence" is "evidence of conduct or statements by persons involved in the decision-making process that may be viewed as directly reflecting the alleged discriminatory attitude . . . sufficient to permit the fact finder to infer that that attitude was more likely than not a motivating factor in the employer's decision." Enlow v. Salem-Keizer Yellow Cab Co., Inc., 389 F.3d 802, 812 (9th Cir. 2004) (internal quotations and citations omitted). The district court's analysis of the EEOC's direct evidence was fundamentally flawed. The EEOC proffered the deposition testimony of two separate individuals – Conchos and Anderson – both of whom testified that Mabery may very well have called Toth an "old employee" immediately after interviewing her. The EEOC also noted that Conchos and Bieghler concluded from Mabery's comments that Mabery had decided not to bring Toth back to MCAO. Viewed in the light most favorable to the EEOC, this testimony would permit a reasonable jury to find that Mabery decided not to rehire Toth because she was old. This Court has "repeatedly held that a single discriminatory comment by a [charging party's] supervisor or decisionmaker is sufficient to preclude summary judgment for the employer." See, e.g., Dominguez- Curry v. Nev. Transp. Dep't, 424 F.3d 1027, 1038 (9th Cir. 2005) (emphasis added). The district court also committed reversible error by misapplying the method, articulated by the Supreme Court in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973), and applied routinely by this Court in ADEA cases, for proving discrimination through circumstantial evidence. Specifically, the district court erred by imposing a "pretext plus" evidentiary burden on the EEOC. To survive summary judgment, a plaintiff must, inter alia, respond to the defendant's non-discriminatory explanation for its actions with "specific and substantial" evidence of pretext. Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1066 (9th Cir. 2003). According to this Court, a plaintiff can prove pretext either indirectly, by showing that the employer's proffered explanation is "unworthy of credence" because it is internally inconsistent or otherwise not believable, or directly, by showing that unlawful discrimination more likely motivated the employer. Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1127 (9th Cir. 2000). However, the district court seems to have ruled that the EEOC had to provide both types of evidence here to survive summary judgment. At the hearing on summary judgment held in this case on November 22, 2004, the district court stated that before the case could be presented to a jury, there has to be a genuine issue of fact as to pretext and "there still has to be some affirmative evidence that she was discriminated against because of her age and I need to hear what that evidence would be." (R.102; R.112; E.R. 234 (emphasis added).) In its decision granting summary judgment, the district court concluded that the EEOC "failed to establish that the . . . nondiscriminatory reasons offered by the Defendant as to why Toth was not hired are false and merely pretext" and "[m]oreover, there is insufficient evidence to raise a genuine fact as to whether the actual reason was a discriminatory one; therefore the ADEA discrimination claim necessarily fails." (R.103; E.R. 254 (emphasis added).) This "pretext plus" standard of proof was resoundingly rejected by the Supreme Court in Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). Accordingly, its application here by the district court was reversible legalerror. Finally, the district court also failed to properly consider the EEOC's evidence under standard pretext analysis. The EEOC proffered significant evidence casting serious doubt on the reasons Maricopa gave for refusing to rehire Toth. The EEOC's "direct evidence" (i.e., the ageist comments Mabery uttered after Toth's interview) alone are strongly probative of pretext. The district court completely ignored this evidence. In addition, while Maricopa claims it did not hire Toth because of her "horrible" interview, the EEOC pointed to testimony from all three non-Mabery interviewers uniformly concluding that Toth interviewed well. Maricopa claimed that Toth's "bad attitude" motivated its actions, too, but the EEOC also provided numerous performance reviews and comments from Lange (Toth's first-line supervisor), all indicating that Toth's attitude was acceptable, if not exceptional. The district court discounted or dismissed all of this probative evidence of pretext. In addition, it is clear from the district court's decision that it consistently weighed the evidence, and drew inferences and resolved credibility assessments in favor of Maricopa – the movant. The district court's failure to properly assess the evidence consistent with well established summary judgment principles necessitates reversal. ARGUMENT A. Standard of Review This Court reviews a district court's grant of a motion for summary judgment de novo. See EEOC v. United Parcel Serv., Inc., 424 F.3d 1060, 1068 (9th Cir. 2005); Altera Corp. v. Clear Logic, Inc., 424 F.3d 1079, 1091 (9th Cir. 2005). Summary judgment is proper only if the pleadings, depositions, answers to interrogatories, and 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. Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (same). In deciding whether there is a genuine issue for trial, this Court, and the district court, cannot weigh the evidence, make credibility determinations, or decide the truth of disputed material facts. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Menotti v. City of Seattle, 409 F.3d 1113, 1120 (9th Cir. 2005); Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). Rather, the court must view the evidence and draw all reasonable inferences in the light most favorable to the nonmoving party (here, the EEOC). See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Am. Bankers Ass'n v. Gould, 412 F.3d 1081, 1086 (9th Cir. 2005); Stead v. U.S., 419 F.3d 944, 947 n.3 (9th Cir. 2005). Moreover, in employment discrimination cases like this one, this Court generally frowns on granting summary judgment for the employer. According to this Court, "summary judgment should be used prudently in ADEA cases involving motivation and intent . . . ." Coleman v. Quaker Oats Co., 232 F.3d 1271, 1282 (9th Cir. 2000) (citing Rose v. Wells Fargo & Co., 902 F.2d 1417, 1420 (9th Cir. 1990)). Indeed, this Court has ruled that "summary judgment for the defendant will ordinarily not be appropriate on any ground relating to the merits because the crux of a[n] [employment discrimination] suit is the elusive factual question of intentional discrimination." Lowe v. City of Monrovia, 775 F.2d 998, 1009 (9th Cir. 1985) (internal quotations omitted); see also Lyons v. England, 307 F.3d 1092, 1113 (9th Cir. 2002) (quoting Warren v. City of Carlsbad, 58 F.3d 439, 443 (9th Cir. 1995)) ("[A]ny indication of discriminatory motive . . . may suffice to raise [a] question that can only be resolved by a fact finder . . . ."); Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1124 (9th Cir. 2000) (quoting Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406, 1410 (9th Cir. 1996)) ("As a general matter, the plaintiff in an employment discrimination action need produce very little evidence in order to overcome an employer's motion for summary judgment . . . because ‘the ultimate question is one that can only be resolved through a searching inquiry – one that is most appropriately conducted by a factfinder, upon a full record.'"); Lindahl v. Air France, 930 F.2d 1434, 1438 (9th Cir. 1990) (same). B. The EEOC Offered Sufficient Direct Evidence of Age Discrimination to Survive Summary Judgment Under this Court's jurisprudence, "direct evidence" of discrimination is "evidence, which, if believed, proves the fact [of discriminatory animus] without inference or presumption." Dominguez-Curry v. Nev. Transp. Dep't, 424 F.3d 1027, 1038 (9th Cir. 2005) (quoting Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir. 2005)); see also Bergene v. Salt River Project Agr. Imp. & Power Dist., 272 F.3d 1136, 1141 (9th Cir. 2001) (same). Such "direct evidence" typically consists of "clearly sexist, racist, or similarly discriminatory statements or actions by the employer." Dominguez-Curry, 424 F.3d at 1038 (quoting Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1095 (9th Cir. 2005)); see also Aragon v. Republic Silver State Disposal, Inc., 292 F.3d 654, 662 (9th Cir. 2002) (same). In a recent age discrimination case, this Court explained that "direct evidence" is "evidence of conduct or statements by persons involved in the decision-making process that may be viewed as directly reflecting the alleged discriminatory attitude . . . sufficient to permit the fact finder to infer that that attitude was more likely than not a motivating factor in the employer's decision." Enlow v. Salem-Keizer Yellow Cab Co., Inc., 389 F.3d 802, 812 (9th Cir. 2004) (internal quotations and citations omitted). A plaintiff does not have to offer substantial direct evidence of discrimination to create a triable issue of fact and thus survive summary judgment. Dominguez- Curry, 424 F.3d at 1038 (citing Godwin, 150 F.3d at 1221); see also Bodet v. CoxCom, Inc., 366 F.3d 736, 743 (9th Cir. 2004) (same); Chuang, 225 F.3d at 1128 (same); Blue v. Widnall, 162 F.3d 541, 546 (9th Cir. 1998) (same). "Because direct evidence is so probative, the plaintiff need offer ‘very little' [of it] to raise a genuine issue of material fact." Coghlan, 413 F.3d at 1095; Kang v. U Lim Am., Inc., 296 F.3d 810, 819 (9th Cir. 2000) (citing Godwin, 150 F.3d at 1217) (a plaintiff must only present "very little" direct evidence to show pretext and survive summary judgment); Winarto v. Toshiba Am. Elec. Components, Inc., 274 F.3d 1276, 1284 (9th Cir. 2001) (same). According to this Court, "where a decisionmaker makes a discriminatory remark against a member of the [charging party's] class, a reasonable factfinder may conclude that discriminatory animus played a role in the challenged decision." Dominguez-Curry, 424 F.3d at 1038. Indeed, this Court recently emphasized that "in this circuit we have repeatedly held that a single discriminatory comment by a [charging party's] supervisor or decisionmaker is sufficient to preclude summary judgment for the employer." Id. (emphasis added); see also Palmer v. Pioneer Inn Assocs., Ltd., 338 F.3d 981, 984-85 (9th Cir. 2003) (finding that taken in the light most favorable to the non-movant plaintiff, a plaintiff's own affidavit – claiming that a supervisor told the plaintiff that he could not hire her because she was pregnant – was direct evidence and sufficed to preclude summary judgment for employer); Chuang, 225 F.3d at 1128, n.13 (comment about "two chinks in the pharmacology department" was direct evidence of national origin bias, and sufficed to preclude summary judgment; fact that that faculty member who related this remark was not the plaintiff actually "strengthens its value as direct evidence of discriminator intent"); cf. Cordova v. State Farm Ins. Co., 124 F.3d 1145, 1149 (9th Cir. 1997) (even calling someone other than the plaintiff a "dumb Mexican" is direct evidence – "an egregious and bigoted insult . . . that constitutes strong evidence of discriminatory animus on the basis of national origin" – and enough to create a prima facie case of discrimination; granting summary judgment for failure to make out a prima facie case was error). Contrary to the district court's misapprehension, this Court has ruled that the comments at issue do not have to be as blatant as a decision maker saying "something to the effect of ‘I'm firing you because you are too old'" to be direct evidence or preclude summary judgment. EEOC v. Pape Lift, Inc., 115 F.3d 676, 684 (9th Cir. 1997). Thus, in EEOC v. Pape Lift, Inc., 115 F.3d 676 (9th Cir. 1997), this Court found there was direct evidence of age bias where a witness testified that a manager said that the plaintiff was "old and burnt out [and] . . . was hurting the store image . . . because [he] did not fit the Pape mold of a young, aggressive type manager like they had in most other management position[s]." Pape Lift, Inc., 115 F.3d at 679 (emphasis added). In Schnidrig v. Columbia Machine, Inc., 80 F.3d 1406 (9th Cir. 1996), this Court found that summary judgment was inappropriate given the direct evidence that plaintiff was told on three occasions that decision makers wanted someone "younger" for the job. Schnidrig, 80 F.3d at 1410-11. Similarly, in Sischo- Nownejad v. Merced Community College District, 934 F.2d 1104 (9th Cir. 1991), this Court reversed a grant of summary judgment on an ADEA claim where the plaintiff provided direct evidence consisting of statements by superiors that the plaintiff was an "old warhorse" and that the plaintiff's students were "little old ladies." Sischo- Nownejad, 934 F.2d at 1112, superseded by statute on other grounds, Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071, 1075, as recognized in Dominguez- Curry, 424 F.3d at 1041. Here, the district court did not apply these cases and this Court's "direct evidence" principles properly. In a short one-paragraph dispensation of this issue, the district court stated that "the alleged direct evidence Plaintiff offers is that a person not present at Toth's interview, heard from someone else that Mabery allegedly described Toth as either an ‘old, tired government employee,' ‘tired, burned out government employee,' ‘or tired, worn out government employee.'" (R.103; E.R. 249.) The district court then concluded that "not only is such evidence inadmissible as a classic example of double hearsay, but it also does not meet with the definition of direct evidence." (R.103; E.R. 249.) "It is clear to the Court that the Plaintiff has not presented any admissible evidence that Mabery used the word ‘old' or made any other ageist comment regarding Toth." (R.103; E.R. 249.) These conclusions are erroneous. The EEOC did not rely on "a person not present at Toth's interview, hear[ing] from someone else that Mabery allegedly described Toth" using ageist references. It appears that in reaching the conclusion that the EEOC did rely on this evidence, the district court was referring to Toth's testimony indicating that Lange told Toth that someone told Lange that Mabery called Toth "old" after the interview. Whether this is actually "double hearsay," as the district court found, is irrelevant. This is not the direct evidence the EEOC proffered on this point. Instead, the EEOC specifically referenced excerpts from the deposition testimony of two separate individuals – Conchos and Anderson – both of whom testified that the decision maker in this case may very well have called Toth an "old employee" immediately after interviewing her. The EEOC also pointed out that Conchos and Bieghler both testified that they concluded from Mabery's comments that Mabery had decided not to rehire Toth. Viewed in the light most favorable to the EEOC, this testimony demonstrates that Mabery (1) concluded immediately after interviewing Toth that Toth's age rendered her an undesirable candidate, and (2) decided not to bring Toth back because she was old. This ageist remark was thus made by a decision maker in the process of deciding not to rehire Toth. This admissible testimony clearly meets this Court's definition of "direct evidence" and should have precluded summary judgment.<5> However, the district court completely ignored Conchos's, Anderson's, and Bieghler's testimony in summarily concluding that the EEOC had "not presented any admissible evidence that Mabery used the word ‘old' or made any other ageist comment regarding Toth." (R.103; E.R. 249.) In addition, in reaching this conclusion, the district court did not cite any of this Court's precedents on age-related direct evidence, or any case law on direct evidence in an employment discrimination case. Instead, the district court cited Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002)) – a case dealing with RICO, the Sherman Act, and the Employee Polygraph Protection Act. (R.103; E.R. 249.) The district court's failure to apply the proper legal analysis and credit the EEOC's clearly admissible direct evidence of age discrimination (i.e., its erroneous conclusion that the EEOC had only proffered "double hearsay" instead) constitutes reversible error. See, e.g., Schnidrig, 80 F.3d at 1410-11; Pape Lift, Inc., 115 F.3d at 679, 684; Sischo-Nownejad, 934 F.2d 1104 at 1112. C. The EEOC Proffered Enough Circumstantial Evidence of Age Discrimination to Preclude Summary Judgment Plaintiffs may also rely on the "burden-shifting" framework first articulated by the Supreme Court in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973) to prove their ADEA claims using circumstantial evidence.<6> Under this paradigm, the plaintiff carries an initial burden to put forth a prima facie case of unlawful discrimination. If the plaintiff successfully proves a prima facie case, the defendant must articulate legitimate, non-discriminatory reasons for its challenged conduct. If the defendant offers such a lawful explanation, the plaintiff must then show that the explanation offered is but a pretext for the defendant's true, prohibited discriminatory intent. Under this framework, the burden of persuasion – of proving intentional discrimination – rests at all times on the plaintiff. See id.; see also Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711 (1983); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308 (1996); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000); Raytheon Co. v. Hernandez, 540 U.S. 44 (2003). This Court has long-applied this McDonnell Douglas paradigm in ADEA cases like this one. See, e.g., Coghlan, 413 F.3d 1090 (9th Cir. 2005); Enlow, 389 F.3d 802 (9th Cir. 2005); Pottenger v. Potlatch Corp., 329 F.3d 740 (9th Cir. 2003); Wallis v. J.R. Simplot Co., 26 F.3d 885 (9th Cir. 1994); Rose, 902 F.2d 1417 (9th Cir. 1990); Sutton v. Atl.-Richfield Co., 646 F.2d 407, 412 (9th Cir. 1981). Under an appropriate application of this McDonnell Douglas circumstantial evidence framework, the EEOC's evidence was sufficient to withstand summary judgment. The EEOC created a prima facie case of age discrimination and proffered sufficient evidence to create a genuine issue of material fact as to whether Maricopa's justification for its actions was pretextual. In concluding the EEOC failed to proffer sufficient evidence of pretext, the district court misinterpreted and misapplied the pretext prong of the McDonnell Douglas burden-shifting method. First, the district court appears to have imposed an impermissible "pretext plus" burden on the EEOC. Second, the district court contravened well-established summary judgment principles by failing to draw inferences and view the evidence on pretext in the light most favorable to the EEOC (the non-movant). These errors require reversal of the district court's grant of summary judgment. As a threshold matter, the EEOC notes that although the district court did not address this issue, (R.103; E.R. 249), the EEOC easily created a prima facie case of age discrimination. This Court recently reiterated that "[t]he requisite degree of proof necessary to establish a prima facie case for . . . ADEA claims on summary judgment is minimal and does not even need to rise to the level of a preponderance of the evidence." Coghlan, 413 F.3d at 1094 (quoting Wallis, 26 F.3d at 889); see also Palmer, 338 F.3d at 984 (same); Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1196 (9th Cir. 2003) (same). One way a plaintiff may create a prima facie case of age discrimination is by showing that (1) the charging party was a member of the protected age group (i.e., was 40 or older); (2) the charging party applied for and was qualified for an available position; (3) the employer did not hire the charging party, despite the charging party's qualifications; and (4) the employer instead hired someone with equal or inferior qualifications who was substantially younger than the charging party – or the position remained available and the employer continued to review applicants possessing comparable qualifications. See, e.g., Pottenger, 329 F.3d at 745-46; Coleman, 232 F.3d at 1281. In this case, Toth was 50 when Maricopa refused to rehire her. Toth twice applied for available VWA I positions. Toth was obviously qualified to be a VWA I (indeed, she had performed successfully as a VWA II for years, consistently received positive to superlative performance evaluations during her previous tenure at MCAO, and was placed on the "certification list" both times she applied to return). Maricopa did not hire Toth. And finally, Maricopa continued to consider and ultimately hired other, substantially younger applicants for open VWA positions after it had rejected Toth. The EEOC thus passed the traditional multi-factor test for creating a prima facie case of age discrimination. Moreover, in this Circuit, another way to create a prima facie case of age discrimination is simply to offer evidence that "give[s] rise to an inference of unlawful discrimination." Palmer, 338 F.3d at 984 (quoting Burdine, 450 U.S. at 253); Coleman, 232 F.3d at 1281 (same); cf. Rose, 902 F.2d at 1421 n.1 (the burden of creating a prima facie case is not onerous, and "only requires that production of evidence which ‘suggests' that the employment decision was based on age"). The testimony from Conchos, Anderson, and Bieghler that Mabery called Toth "old," "tired out," "burned out," and/or "worn out" at the least suggests that Mabery may have been motivated by an age-based bias. See, e.g., Palmer, 338 F.3d at 984 ("The prima facie case may be based either on a presumption arising from the factors such as those set forth in McDonnell Douglas . . . or by more direct evidence of discriminatory intent."); Cordova, 124 F.3d at 1148 (same). In addition, the fact that the average age of the selectees was 30 – and that all of them except one were at least 15 years younger than Toth – also indicates that Mabery wanted to hire younger workers. These facts all support an inference that Mabery rejected Toth because ofher age. In short, the EEOC clearly created a prima facie case here. 1. The District Court Erroneously Imposed a Heightened "Pretext Plus" Burden on the EEOC Once a defendant responds to the prima facie case with a legitimate explanation for its adverse actions, a plaintiff must proffer "specific and substantial" evidence of pretext to survive summary judgment. Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1066 (9th Cir. 2003) (citing Godwin, 150 F.3d at 1222); see also Manatt v. Bank of Am., N.A., 339 F.3d 792, 801 (9th Cir. 2003) (same); Brown v. City of Tuscon, 336 F.3d 1181, 1188 (9th Cir. 2003) (same); Bergene, 272 F.3d at 1142 (same). However, at the summary judgment stage, a plaintiff's burden on pretext "is not high." Pottenger, 329 F.3d at 746 (citing Wallis, 26 F.3d at 889). The Plaintiff "must only show that a rational trier of fact could, on all the evidence, find that [the employer's] explanation was pretextual and that therefore its action was taken for impermissibly discriminatory reasons." Id. If the plaintiff "does so, then summary judgment for [the employer] is inappropriate." Id; see also Warren, 58 F.3d at 443 (explaining that a plaintiff's burden at the summary judgment stage on pretext "is not great"); Lindahl, 930 F.2d at 1438 (quoting Lowe, 775 F.2d at 1009) (emphasizing that once a plaintiff has established a prima facie case of discrimination, "summary judgment for the defendant will ordinarily not be appropriate on any ground relating to the merits because the crux of [an employment discrimination] dispute is the ‘elusive factual question of discrimination'"). This Court has explained that the plaintiff may meet this relatively low burden to show pretext in two ways. The plaintiff may make an affirmative case that the employer is biased (e.g., by pointing to statistics, previous incidents, or other evidence tending to show that an unlawful discriminatory bias was at work). Coghlan, 413 F.3d at 1095. Alternatively (or in addition), the plaintiff may demonstrate pretext by showing that the employer's explanation is simply not credible. Id.<7> According to this Court: We have stated that a plaintiff can prove pretext in two ways: (1) indirectly, by showing that the employer's proffered explanation is "unworthy of credence" because it is internally inconsistent or otherwise not believable, or (2) directly, by showing that unlawful discrimination more likely motivated the employer . . . . These two approaches are not exclusive; a combination of the two kinds of evidence may in some cases serve to establish pretext so as to make summary judgment improper . . . . [W]hile the indirect evidence and direct evidence [may be] independently sufficient to allow the [plaintiff] to proceed to trial, it is the cumulative evidence to which a court ultimately looks. Chuang, 225 F.3d at 1127 (quoting Godwin, 150 F.3d at 1220-22)); see also Pottenger, 329 F.3d at 746 (similarly stating that an ADEA plaintiff "may establish pretext through evidence showing that [the employer's] explanation is unworthy of belief or through evidence showing that discrimination more likely motivated its decision"; also noting that the plaintiff "need not rely on only one type of evidence, and [may offer] evidence both to cast doubt on [the employer's] credibility and to show a discriminatory motive"); Lyons, 307 F.3d at 1112 (explaining that in assessing the plaintiff's proof of pretext "we look ultimately to the cumulative evidence, and so consider indirect with direct evidence to the extent that both are available"); Strother v. S. Cal. Permanente Med. Group, 79 F.3d 859, 870 n. 15 (9th Cir. 1996) (quoting Sischo-Nownejad, 934 F.2d at 1112) (noting that direct evidence of discrimination can be "sufficient not only to establish [plaintiff's] prima facie case, but also to create a genuine issue of material fact regarding whether the defendants' articulated reasons are pretextual"). The district court must have misunderstood these pretext precepts. The above discussion makes clear that a plaintiff may provide either affirmative evidence showing age-based animus or negative evidence undercutting the defendant's explanation (or both) to prove pretext and preclude summary judgment. It appears, however, that the district court was of the view that the EEOC had to provide both types of evidence here to survive summary judgment. During the summary judgment hearing held in this case on November 22, 2004, the district court stated that before the case could be presented to a jury: [T]here has to be a basis on which they can return a verdict in favor of the plaintiff. So you've now said that there may be some question as to whether [the reasons given by the Defendant] are pretextural [sic], but there still has to be some affirmative evidence that she was discriminated against because of her age and I need to hear what that evidence would be. (R.102; R.112; E.R. 234 (emphasis added); cf. E.R. 235 (emphasis added) (where the district court similarly observed "[s]o we still haven't gotten to an age discretion [sic] issue for that jury to consider, even if they were to determine all of the reasons given by [the Defendant] . . . were pretextural [sic]").) The district court applied this mistaken view of the EEOC's evidentiary burden in its ruling granting Maricopa's motion for summary judgment. In its decision, the district court stated that the EEOC "must show that the reasons provided by the defendant as to why Toth was not rehired are false and that the real reason was discrimination based on her age." (R.103; E.R. 251-52 (emphasis added) (citing Nidds v. Schindler Elevator Corp., 113 F.3d 912, 918 (9th Cir. 1996)) (a case actually holding that, to survive summary judgment, a plaintiff must merely produce enough evidence for a reasonable fact finder to conclude either that the alleged reason was false or that the real reason was discrimination)).) In ruling that the EEOC had not met this burden, the district court concluded that: [T]he Plaintiff has failed to establish that the . . . nondiscriminatory reasons offered by the Defendant as to why Toth was not hired are false and merely pretext . . . . Moreover, there is insufficient evidence to raise a genuine fact as to whether the actual reason was a discriminatory one; therefore the ADEA discrimination claim necessarily fails. (R.103; E.R. 254.) The above language from the summary judgment hearing transcript and the district court's opinion strongly suggests that the district court imposed a "pretext plus" burden on the EEOC. That is, the district court believed that the EEOC had to introduce independent, affirmative evidence of age bias, over and above evidence establishing a prima facie case and proof that Maricopa's explanation is unworthy of credence, to survive summary judgment. However, in Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000), the Supreme Court rejected this view resoundingly. In Reeves, the Supreme Court held that a plaintiff does not necessarily have to provide affirmative, additional independent evidence of discrimination (beyond the prima facie case and proof that the asserted justification is false) to survive judgment as a matter of law. Reeves, 530 U.S. at 148-49; see also Lyons, 307 F.3d at 1112-13 (noting that in Reeves, "the Supreme Court held that the factfinder may infer ‘the ultimate fact of intentional discrimination' without additional proof once the plaintiff has made out her prima facie case if the factfinder believes that the employer's proffered nondiscriminatory reasons lack credibility"); Chuang, 225 F.3d at 1127 (acknowledging that after Reeves, a "disparate treatment plaintiff can survive summary judgment without producing any evidence of discrimination beyond that constituting his prima facie case, if that evidence raises a genuine issue of material fact regarding the truth of the employer's proffered reasons," and that "‘[w]hile the plaintiff always retains the burden of persuasion . . . he does not necessarily have to introduce ‘additional, independent evidence of discrimination' at the pretext stage"'). Because the district court, contrary to the Supreme Court's express teaching in Reeves, required the EEOC to meet a heightened, "pretext plus" standard, the grant of summary judgment must be reversed. 2. The District Court Contravened Summary Judgment Principles in Evaluating the EEOC's Evidence on Pretext Maricopa provided various (and shifting) explanations for refusing to rehire Toth, including Toth's "negative" attitude, her "horrible" interview performance, her inadequate degree, and her lack of bilingual skills. The EEOC responded by offering evidence undermining the credibility of Maricopa's asserted rationales and additional, affirmative, independent proof that an age bias motivated Mabery. Viewed in the light most favorable to the EEOC and taken all together, this evidence on pretext was sufficient to survive summary judgment. In holding to the contrary, the district court contravened well established summary judgment principles by failing to evaluate the record in the light most favorable to the EEOC, and, in fact, by weighing the evidence, and drawing inferences and making credibility determinations in Maricopa's favor. As discussed above, the EEOC proffered direct evidence in this case which suggests that Mabery's real reason for refusing to rehire Toth was her age – not her attitude, interview performance, educational degree, or language skills. The district court did not even acknowledge the existence of this direct evidence, let alone recognize its probative value in proving pretext.<8> See, e.g., Sischo-Nownejad, 934 F.2d at 1112 (holding that direct evidence of discrimination can be "sufficient not only to establish [plaintiff's] prima facie case, but also to create a genuine issue of material fact regarding whether the defendants' articulated reasons are pretextual"); Strother, 79 F.3d at 870 n. 15 (quoting Sischo- Nownejad, 934 F.2d at 1112) (same). In addition, the district court ignored other evidence the EEOC proffered tending to show affirmatively that age motivated Mabery – that the average age of the 13 selectees was 30, and that only one of them was over 40. Cf. O'Connor, 517 U.S. at 313 ("Because the ADEA prohibits discrimination on the basis of age . . . the fact that a replacement is substantially younger than the plaintiff is a . . . reliable indicator of age discrimination."). The district court also dismissed the EEOC's circumstantial evidence rebutting Maricopa's allegation that Toth had a negative attitude when she worked at MCAO before. At summary judgment, Maricopa argued, based largely on Jennings's testimony, that "Toth had a negative attitude, was vocal about disliking the office, and . . . negatively impacted employee morale." (R.64 at 4; R.65 at 7 ¶ 36.) However, the EEOC provided ample evidence casting serious doubt on this allegation. Toth never received a single oral or written reprimand of any kind regarding her attitude. She was never disciplined or suspended over this issue. According to Toth, "[d]uring my employment with MCAO, there was never a problem with my ‘attitude.' I had a positive attitude." Toth's immediate supervisor, Lange, testified that Toth "was professional in her dealings with victims and with other professionals that she had to come in contact with." Lange also testified that Toth was never disruptive, was not a divisive force in the office, was not obstinate, and was not insubordinate. Curiously, all of the allegations about Toth's negative attitude appear to have arisen after Toth left MCAO and filed an age discrimination charge. Toth's contemporaneous performance evaluations paint a much different picture of Toth's attitude. Toth consistently received positive, even superlative, reviews. In 1993, Toth "exceed[ed] minimum standards." In 1994, she was "exceptional." In 1995, her overall evaluation, including her rating for "professionalism" specifically, was also "exceptional." In fact, in 1995 her reviewers specifically stated that Toth "performed each different duty in a very positive manner." In 1996, Toth's evaluation noted that she was "very ‘adaptable to change,'" "treats her coworkers and others with respect and courtesy," "values good working relationships in the office," and "accepts constructive criticism from her supervisor with a positive attitude." In 1997, Lange wrote that Toth "presents a professional image in her appearance and demeanor," "is very much a team player," and "accepts criticism well . . . ." And in 1998, Lange rated Toth's performance, including her performance for "professionalism," as "exceptional." Lange also noted that Toth was a "vital component" of the division, "presents a professional image in both her appearance and demeanor," "is very much a team player," and "readily assists her co-workers if they have a conflict." The 1998 review also stated that "Terri is a valuable resource for the newer members of the bureau," "willingly shares her knowledge and expertise with them," "was a great morale booster," and "served to increase the team spirit and cohesiveness [in the workplace]." This evidence was enough to create a question of fact as to whether Toth really had a negative attitude. However, despite this evidence, the district court appears simply to have accepted Maricopa's allegations about Toth's attitude as true. According to the district court, "Toth's performance evaluations do not create an issue of fact about whether Mabery's negative assessment of Toth is honest" since the evaluations "contained no separate rating regarding attitude" and Mabery did not "have any role in performing or signing such evaluations." (R.103; E.R. 253.) The district court was obviously weighing the evidence here – discounting the EEOC's evidence and drawing inferences and making credibility determinations in Maricopa's favor. Whether Mabery's negative assessment of Toth is "honest" is a – the – quintessential jury question here. Further, even though Toth's reviews did not have a separate rating for "attitude," some of them specifically applaud Toth's positive attitude (and not a single one hints that she ever had any negative attitude at all). In addition, while Mabery did not sign any of these reviews, Jennings did sign Toth's very favorable (and final MCAO) 1998 evaluation. And, moreover, Jennings was the one who Maricopa alleges told Mabery that Toth had a bad attitude and recommended that Mabery refuse to rehire Toth. If Jennings really believed Toth's attitude was so poor, why – as Division Chief – did she sign Toth's very favorable 1998 review? Why did she not document Toth's performance difficulties or insist that Toth be disciplined? The district court completely ignored the fact that this evidence contradicts Maricopa's assertions that Toth had attitude problems.<9> The district court also improperly dismissed the evidence the EEOC offered to refute Maricopa's claim that Toth's interview was "horrible." The EEOC pointed out that Mabery's interview notes do not contain a single reference to Toth's dress, eye contact, seated posture, answers to interview questions, or attitude. In addition, the EEOC showed that all of the other interviewers thought Toth's interview went well. Anderson described Toth's "attitude . . . in the interview process" as "pleasant." Anderson also stated that Toth "answered all questions appropriately." Conchos concluded that Toth "interviewed well." She told Lange that Toth's interview "was fine" and "had gone well" and that Toth "knows all the responses" and "answered all her questions appropriately" Conchos even testified that Toth appeared "genuine," "sincere," and "humble" during the interview. Bieghler similarly concluded that Toth "answered the questions correctly," "knew the information," and "did fine" in her interview. Nevertheless, the district court went out of its way, again, to discount the probative value of this evidence. The district court stated that "[t]he Plaintiff cannot create a triable issue of fact merely by offering evidence showing that non-decision makers disagreed with the decision maker, Mabery." (R.103; E.R. 253.) This statement by the district court reflects precisely how errant its analysis is. The contemporaneous evidence that the three other individuals at the interview all were of the view that Toth's interview went well is highly probative of pretext. What better way to show Mabery's purported perception of Toth's interview was not credible than to show that all three of the others present during the interview were of the same opinion – one starkly different from Mabery's? The district court stated that "[t]he fact that others had a difference in opinion regarding Toth's . . . interview performance does not create a conflict as to what Mabery perceived nor does it mean that Mabery's subjective perception is untrue." (R.103; E.R. 253.) This is not a proper assessment of the import of the EEOC's evidence. Again, the EEOC's evidence that the other interviewers held an opposite view from Mabery casts doubt on the veracity of Maricopa's assertion that Mabery in fact believed Toth interviewed poorly. The question of whether Mabery's assertion as to her subjective beliefs is worthy of credence, a central factual inquiry at the pretext stage, has thus been placed in doubt. It therefore should be left for a jury to resolve. The district court's willingness at summary judgment to credit Mabery's statements reveals that the district court was, once again, impermissibly weighing the evidence, and drawing inferences and resolving credibility issues in Maricopa's favor. The district court also stated that "Mabery's perception of Toth's interview as poor was but one reason the Defendant identified for the decision not to rehire her." (R.103; E.R. 253.) But in its position statement, Maricopa itself specifically declared that "[t]he primary reason Toth was not hired . . . was her very poor interview, during which she made a bad impression on [Mabery]." The fact that Maricopa has shifted its explanation for its actions over time, from emphasizing the poor interview as the "primary reason" for refusing to rehire Toth in its position statement to providing a laundry list of other potential (and some new) reasons at summary judgment, itself can be persuasive proof of pretext. See, e.g., Nidds, 113 F.3d at 918 (suggesting that "shifting reasons" for an employer's adverse action can raise a genuine issue of material fact on pretext); Godwin, 150 F.3d at 1222 (quoting Payne v. N.W. Corp., 113 F.3d 1079, 1080 (9th Cir. 1987)) (similarly stating that where there are such "shifting explanations" a jury should be allowed to evaluate them). The district court's eagerness to discount the significance of the interview to Mabery's decision – despite Maricopa's own admission to the contrary – again demonstrates the district court's propensity for inappropriately drawing inferences in Maricopa's favor. This is obviously improper at summary judgment. Finally, the district court stated that the EEOC did "not even attempt to rebut the other legitimate reasons advanced by the Defendant for the employment decision," such as the fact that Toth was not bilingual. (R.103; E.R. 253.) This is inaccurate. At summary judgment, the EEOC pointed out that not all the selectees were bilingual, and that in fact most were not, thus raising doubt as to whether this criterion was actually dispositive. In any event, at summary judgment the EEOC did not have to categorically rebut every reason Maricopa offered for its actions. See Fuentes v. Perskie, 32 F.3d 759, 764 n.7 (3d Cir. 1994) ("We do not hold that, to avoid summary judgment, the plaintiff must cast doubt on each proffered reason in a vacuum. If the defendant proffers a bagful of legitimate reasons, and the plaintiff manages to cast substantial doubt on a fair number of them, the plaintiff may not need to discredit the remainder. That is because the factfinder's rejection of some of the defendant's proffered reasons may impede the employer's credibility seriously enough so that a factfinder may rationally disbelieve the remaining proffered reasons, even if no evidence undermining those remaining rationales in particular is available."). Moreover, Maricopa itself stated previously that Toth's interview performance was the "primary reason" Mabery decided not to rehire Toth. The evidence the EEOC proffered casting doubt on this particular assertion alone should have been enough to preclude summary judgment. In sum, in reaching the conclusion that the EEOC had not raised a genuine issue of material fact on pretext, the district court failed to view all of the EEOC's direct and circumstantial evidence on pretext in the light most favorable to the EEOC. Cf. Matsushita, 475 U.S. at 587 (emphasizing that at summary judgment the court must review the record "taken as a whole"); Reeves, 530 U.S. at 150 (emphasis added) (similarly stressing that "the court should review all of the evidence in the record" and cautioning that "[i]n doing so, however, the court must draw all reasonable inferences in favor of the nonmoving party, and . . . may not make credibility determinations or weigh the evidence"); Mangold v. Cal. Pub. Util. Comm'n, 67 F.3d 1470, 1476-77 (9th Cir. 1995) (even if age-related remarks "alone might have been insufficient to withstand summary judgment . . . the remarks were certainly relevant and, along with other substantial evidence, created a strong inference of intentional discrimination"). Had the district court properly reviewed the EEOC's evidence, it would have had to conclude that summary judgment was not warranted here. CONCLUSION For the foregoing reasons, the EEOC respectfully requests that this Court reverse the district court's order granting Maricopa's motion for summary judgment, and remand this case for trial. Respectfully submitted, JAMES L. LEE Deputy General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ______________________________ DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7020 Washington, D.C. 20507 (202) 663-4571 daniel.vail@eeoc.gov STATEMENT OF RELATED CASES Plaintiff-Appellant U.S. Equal Employment Opportunity Commission hereby states that it is not aware of any cases related to this appeal pending before this Court. See Circuit Rule 28-2.6. CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 12,576 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). I certify that this brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point. ______________________________ DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7020 Washington, D.C. 20507 (202) 663-4571 daniel.vail@eeoc.gov CERTIFICATE OF SERVICE I certify that on November 21, 2005, I served the requisite number of copies of this opening brief by mailing them first-class, postage prepaid, to the following: Cathy A. Catterson Clerk of Court United States Court of Appeals for the Ninth Circuit P.O. Box 193939 San Francisco, CA 94119-3939 Katherine Elizabeth Baker Green & Baker Ltd. 7373 North Scottsdale Road Suite C-226 Scottsdale, AZ 85253 ______________________________ DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7020 Washington, D.C. 20507 (202) 663-4571 daniel.vail@eeoc.gov ****************************************************** <> <1> All references to “R.” are to the corresponding Docket Entry on the district court’s docket sheet. All references to “E.R.” are to the corresponding page in the EEOC’s Excerpts of Record. <2> Toth testified that she applied for this job because at the time she “was not happy with the current pay structure [at MCAO], . . . wanted to get experience for an interview, . . . and . . . had thoughts of maybe running for the justice of the peace.” (E.R. 19.) <3> According to Maricopa human resources official Gloria Reich, the “certification list” included applicants who “met [the] stated position qualifications” and “who possessed the experience that was best suited for people in that job.” (E.R. 199.) Toth made this list even though she did not have a Bachelor’s Degree in Criminal Justice or the social sciences (her degree was in Business Administration), and even though she was not bilingual. (E.R. 24-25.) <4> Mabery denied ever making any ageist remark about Toth. (E.R. 28.) However, when asked if she ever said that Toth was “not enthusiastic enough,” Mabery replied “Possibly.” (E.R. 28.) When asked why she hired one of the successful candidates over Toth, Mabery said that it was in part “the flexibility that [this candidate] had, and the eagerness to learn” which “was very refreshing.” (E.R. 173.) <5> Crucial facts in this case – that Mabery was the sole decision maker and made the ageist statement about Toth right after the Toth’s interview – provide a sound basis for distinguishing this case from other Ninth Circuit precedent concluding that various age-related comments were not “direct evidence” and/or were “stray remarks” insufficient to suggest discrimination. See, e.g., Nidds v. Schindler Elevator Corp., 113 F.3d 912, 918-19 (9th Cir. 1996) (use of the phrase “old timers” by supervisor not enough because it “could refer as well to longtime employees or to employees who failed to follow directions” and because it was not “tied directly” to the layoff at issue); Nesbit v. Pepsico, Inc., 994 F.2d 703, 705 (9th Cir. 1993) (manager’s comments that “we don’t necessarily like grey hair” and “we don’t want unpromotable fifty-year olds around” insufficient because, again, the comments could not be linked directly to the adverse action being challenged); Merrick v. Farmers Ins. Group, 892 F.2d 1434, 1438-39 (9th Cir. 1990) (statement that decision maker selected another candidate instead of plaintiff because the other candidate was a “bright, intelligent, knowledgeable young man” was merely a “stray remark” insufficient to show discrimination); cf. Pottenger v. Potlatch Corp., 329 F.3d 740, 747 (9th Cir. 2003) (use of the word “deadwood” was not enough because the dictionary defines the term merely to mean a “person or thing regarded as useless or unprofitable” or a “hindrance or impediment”); Coleman v. Quaker Oats Co., 232 F.3d 1271, 1284 (9th Cir. 2000) (mere use of the word “promotable” does not give rise to “suspicions of age discrimination”); Rose v. Wells Fargo & Co., 902 F.2d 1417, 1423 (9th Cir. 1990) (the phrase “old-boy network” was only a colloquialism, unrelated to age). <6> In Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985), the Supreme Court explained that this McDonnell Douglas framework is unnecessary if a plaintiff offers direct evidence of discrimination. See id. at 121; see also Enlow, 389 F.3d at 812 (quoting Thurston) (similarly noting that “[w]hen a plaintiff alleges disparate treatment based on direct evidence, we do not apply the . . . McDonnell Douglas [framework] . . . in determining whether the evidence is sufficient to defeat a motion for summary judgment” since this schema “is designed to assure that the ‘plaintiff [has] his day in court despite the unavailability of direct evidence’”). However, there is nothing inherently inferior about using circumstantial evidence (instead of direct evidence) to prove discrimination. The Supreme Court recently pointed out that “[c]ircumstantial evidence is not only sufficient, but may be more certain, satisfying and persuasive than direct evidence” as a method of proving discrimination. Desert Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003) (internal citation and quotations omitted); see also McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1122 (9th Cir. 2004) (same). <7> These two methods are sometimes referred to by courts, somewhat confusingly, as “direct” and “indirect” evidence of pretext. This is confusing because a plaintiff who proffers real “direct evidence” of discrimination does not need to use the McDonnell Douglas circumstantial evidence framework in the first place – and hence does not normally need to demonstrate that an employer’s explanation is pretextual to survive summary judgment (since the real “direct evidence” speaks for itself). See n.6, supra. When courts refer to using “direct evidence” in the pretext context, therefore, they typically mean showing pretext directly – that is, providing circumstantial evidence suggesting affirmatively that an impermissible bias infected the decision at issue – as opposed to indirectly (i.e., by proffering circumstantial proof negating the employer’s justification). See, e.g., Coghlan, 413 F.3d at 1094-95. <8> If this testimonial evidence actually meets the definition of “direct evidence,” this evidence alone should preclude summary judgment. However, even if the Ninth Circuit were to find that Mabery’s ageist comment was not “direct evidence” – that is, evidence proving discrimination without the need of inference or presumption – Conchos’s and Anderson’s testimony on this point would still highly probative, affirmative circumstantial evidence of Mabery’s age-based bias. Cf. Coghlan, 413 F.3d at 1095 n.8 (noting that courts, including the Supreme Court, have often used the term “direct evidence” to refer not to evidence establishing discrimination without inference or presumption, but rather to circumstantial evidence tending affirmatively to establish discriminatory bias – as contrasted with circumstantial evidence discrediting an employer’s stated rationale). <9> To be sure, there is evidence in the record indicating that Toth had a negative attitude. For instance, Jennings testified that she told Lange to counsel Toth about Toth’s attitude. (E.R. 178.) But Lange flatly denies ever having been told to counsel Toth. When asked whether Lange recalled if she was “ever instructed by your superiors to meet with . . . Toth regarding her attitude,” Lange replied “[n]o, I can’t say that I do.” (E.R. 193.) When asked if Jennings “ever request[ed] to meet with you and [Toth] to discuss [Toth’s] attitude,” Lange answered “[n]o, not that I recall.” (E.R. 197.) Jennings admitted there was no documentation of these alleged “oral counselings.” (E.R. 178, 183.) Similarly, Jennings testified that she requested that the “not eligible for rehire box” be checked when Toth left. However, this box never was checked. (E.R. 181.) This conflicting evidence establishes a genuine issue as to Toth’s attitude, creating a question of fact best left to the jury. Interestingly, and significantly, the district court even acknowledged as much at the summary judgment hearing. (See R.102; R.112; E.R. 234 (where, after the EEOC pointed out the genuine issue of material fact on this point, the district court agreed, stating “[t]hat might be determined in favor of the plaintiff. Attitude.”).)