EEOC v. Maricopa County (9th Cir.) Reply brief Mar. 15, 2006 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 REPLY BRIEF OF THE PLAINTIFF-APPELLANT U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION JAMES L. LEE Deputy General Counsel VINCENT J. BLACKWOOD 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 . . . . . . . . . . . . . . . . . . . . . ii INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . .1 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 A. The EEOC Offered Admissible Direct Evidence of Discrimination. The District Court Erred in Ruling to the Contrary.. . . . . . . 2 B. The EEOC Easily Proffered Sufficient Evidence to Survive Summary Judgment on Establishing a Prima Facie Case. 10 C. The EEOC Proffered Enough Evidence to Create a Genuine Issue As to Pretext under the McDonnell Douglas Framework. The District Court Misapplied This Paradigm. 20 CONCLUSION28 CERTIFICATE OF COMPLIANCE29 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . 30 TABLE OF AUTHORITIES Cases Bergene v. Salt River Project Agr. Imp. & Power Dist., . . . . . . . . . . . . . .272 F.3d 1136 (9th Cir. 2001)8, 9, 19 Bradley v. Harcourt, Brace & Co., . . . . . . . . . . . . . . . . . 104 F.3d 267 (9th Cir. 1996)21 Breneman v. Kennecott Corp., . . . . . . . . . . . . . . . . . .799 F.2d 470 (9th Cir. 1986)9 Castaneda v. Partida, . . . . . . . . . . . . . . . . . . . . . .430 U.S. 482 (1977)21 Coghlan v. Am. Seafoods Co. LLC, . . . . . . . . . . . . .413 F.3d 1090 (9th Cir. 2005)15, 21, 26 Coleman v. Quaker Oats Co., . . . . . . . . . . .232 F.3d 1271 (9th Cir. 2000)10, 16, 18, 21 Cordova v. State Farm Ins. Co., . . . . . . . . . . . . .124 F.3d 1145 (9th Cir. 1997)15, 17, 18 Cotton v. City of Alameda, . . . . . . . . . . . . . . . . .812 F.2d 1245 (9th Cir. 1987)11 Diaz v. Am. Tel. & Tel., . . . . . . . . . . . . .752 F.2d 1356 (9th Cir. 1985)15, 17, 19 Douglas v. Anderson, . . . . . . . . . . . . . . . . . 656 F.2d 528 (9th Cir. 1981)15 EEOC v. Ins. Co. of N. Am., . . . . . . . . . . . . . . . . . 49 F.3d 1418 (9th Cir. 1995)11 EEOC v. Pape Lift, Inc., . . . . . . . . . . . . . . . . . .115 F.3d 676 (9th Cir. 1997)6 TABLE OF AUTHORITIES (con't) Enlow v. Salem-Keizer Yellow Cab Co., Inc., . . . . . . . . . . . . . . . . . .389 F.3d 802 (9th Cir. 2004)6 Fonseca v. Sysco Food Servs. of Ariz., Inc., . . . . . . . . . . . . . . . .374 F.3d 840 (9th Cir. 2004)9, 12 Furnco Constr. Corp. v. Waters, . . . . . . . . . . . . . . . . . . . . . .438 U.S. 567 (1978)16 Gay v. Waiters' & Dairy Lunchmens' Union, Local No. 30, . . . . . . . . . . . . . . . 694 F.2d 531 (9th Cir. 1982)16, 18 Gilligan v. Jamco Dev. Corp., . . . . . . . . . . . . . . . . . 108 F.3d 246 (9th Cir. 1997)16 Godwin v. Hunt Wesson, Inc., . . . . . . . . . . . . . . . . . 150 F.3d 1217 (9th Cir. 1998)9 Lam v. Univ. of Haw., . . . . . . . . . . . . . . . . . 40 F.3d 1551 (9th Cir. 1994)11 Lindahl v. Air France, . . . . . . . . . . . . . . . . .930 F.2d 1434 (9th Cir. 1991)11 Lowe v. City of Monrovia, . . . . . . . . . . . . . . . . . 775 F.2d 998 (9th Cir. 1986)15 Lyons v. England, . . . . . . . . . 307 F.3d 1092 (9th Cir. 2002)10-11, 15, 16, 17 McDonnell Douglas Corp. v. Green, . . . . . . . . . . . . . . . . . . . 411 U.S. 792 (1973)passim Nidds v. Schindler Elevator Corp., . . . . . . . . . . . . . 113 F.3d 912 (9th Cir. 1997)11, 23, 27 O'Connor v. Consol. Coin Caterers Corp., . . . . . . . . . . . . . . . . . . . . . .517 U.S. 308 (1996)21 TABLE OF AUTHORITIES (con't) Oncale v. Sundowner Offshore Servs., Inc., . . . . . . . . . . . . . . . . . . . . . . 523 U.S. 75 (1998)21 Palmer v. Pioneer Inn Assocs., Ltd., . . . . . . . . . . . . . 338 F.3d 981 (9th Cir. 2003)15, 16, 18 Pejic v. Hughes Helicopter, Inc., . . . . . . . . . . . . . . . . . 840 F.2d 667 (9th Cir. 1988)13 Pottenger v. Potlatch Corp., . . . . . . . . . . . . . . . . . 329 F.3d 740 (9th Cir. 2003)10 Raad v. Fairbanks N. Star Borough Sch. Dist., . . . . . . . . . . . . . . . . .323 F.3d 1185 (9th Cir. 2003)15 Reeves v. Sanderson Plumbing Prods., Inc., . . . . . . . . . . . . . . . . . . . .530 U.S. 133 (2000)26, 27 Robinson v. Adams, . . . . . . . . . . . . . . . . .847 F.2d 1315 (9th Cir. 1988)16 Rose v. Wells Fargo & Co., . . . . . . . . . . . . .902 F.2d 1417 (9th Cir. 1990)11, 16, 18 Schnidrig v. Columbia Mach., Inc., . . . . . . . . . . . . . . . . . 80 F.3d 1406 (9th Cir. 1996)18 Sischo-Nownejad v. Merced Cmty. Coll. Dist., . . . . . . . . . . . . . . . . .934 F.2d 1104 (9th Cir. 1991)15 St. Mary's Honor Ctr. v. Hicks, . . . . . . . . . . . . . . . . . .509 U.S. 502 (1993)15, 16, 27 Steckl v. Motorola, Inc., . . . . . . . . . . . . . . . . . 703 F.2d 392 (9th Cir. 1983)13 Stegall v. Citadel Broad. Corp., . . . . . . . . . . . . . . . . . 350 F.3d 1061 (9th Cir. 2004)9 TABLE OF AUTHORITIES (con't) Sutton v. Atl.-Richfield Co., . . . . . . . . . . . . . . . . . 646 F.2d 407 (9th Cir. 1981)17 Swierkiewicz v. Sorema, N.A., . . . . . . . . . . . . . . . . . . . . . .534 U.S. 506 (2002)16 Tex. Dep't of Cmty. Affairs v. Burdine, . . . . . . . . . . . . . . . . . . . .450 U.S. 248 (1981)15, 16 U.S. Postal Serv. Bd. of Governors v. Aikens, . . . . . . . . . . . . . . . . . . . . . .460 U.S. 711 (1983)16 Vasquez v. County of Los Angeles, . . . . . . . . . . . . . . . 349 F.3d 634 (9th Cir. 2004)12, 13 Wallis v. J.R. Simplot Co., . . . . . . . . . . . . . .26 F.3d 885 (9th Cir. 1994)11, 15, 18 Warren v. City of Carlsbad, . . . . . . . . . . . . . . . . . .58 F.3d 439 (9th Cir. 1995)19 Washington v. Garrett, . . . . . . . . . . . . . . . 10 F.3d 1421 (9th Cir. 1994)16, 27 TABLE OF AUTHORITIES (con't) Statutes Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq.passim Rules Fed. R. Evid. 801(c) . . . . . . . . . . . . . . . . . . . . . .8 Fed. R. Evid. 801(d)(2)(A) . . . . . . . . . . . . . . . . . . .9 Fed. R. Evid. 801(d)(2)(D) . . . . . . . . . . . . . . . . . . .9 Fed. R. App. P. 32(a)(5) . . . . . . . . . . . . . . . . . . . 29 Fed. R. App. P. 32(a)(6) . . . . . . . . . . . . . . . . . . . 29 Fed. R. App. P. 32(a)(7)(B). . . . . . . . . . . . . . . . . . 29 Fed. R. App. P. 32(a)(7)(B)(iii) . . . . . . . . . . . . . . . 29 INTRODUCTION In the EEOC's opening brief, we argued that the district court committed reversible error in ruling that the EEOC had not offered admissible direct evidence of discrimination. We also explained that we easily had offered enough evidence to survive summary judgment on whether we had established a prima facie case of age discrimination under the McDonnell Douglas paradigm. We further contended that the district court misapplied this evidentiary framework by imposing a heightened "pretext plus" burden on the EEOC. Finally, we argued that the district court contravened well-established summary judgment principles in concluding that the EEOC's circumstantial evidence was insufficient to create a genuine issue of material fact as to whether Maricopa's rationale for refusing to rehire Toth was a pretext for age discrimination. ARGUMENT In its brief, Maricopa disputes that the EEOC provided admissible direct evidence and claims that the EEOC could not survive summary judgment under the McDonnell Douglas framework. In making these arguments, Maricopa essentially urges this Court to affirm the district court's reversible legal errors, misrepresents the evidence, and propagates several legal red herrings. Most notably, Maricopa ignores this Court's definition of direct evidence, creates a contrived "identically situated" prima facie case requirement that has no basis in law or common sense, criticizes the EEOC for failing to rebut "reasons" Maricopa never asserted actually motivated Mabery, and attempts to defend the district court's imposition of an indefensible heightened "pretext plus" burden. A. The EEOC Offered Admissible Direct Evidence of Discrimination. The District Court Erred in Ruling to the Contrary. Maricopa on appeal, like the district court below, misrepresents the record and misapplies this Court's case law on "direct evidence." This Court should reject Maricopa's arguments, recognize that the district court erred in concluding that the EEOC did not present admissible direct evidence, and reverse the district court's summary judgment ruling premised on this legal error. The district court concluded that "the Plaintiff has not presented any admissible evidence that Mabery used the word ‘old' or made any other ageist comment regarding Toth" and that the EEOC's evidence "does not meet with the definition of direct evidence." (E.R.249.) Maricopa similarly insists that the EEOC "does not now, and never has had, any witness to testify that Mabery ever uttered the word ‘old'" Maricopa Br. 15; 18 ("There is no witness who testified they heard Mabery use the word ‘old.'"); 23 n.7 (". . . [N]one of the witnesses ever said Mabery used the term ‘old.'"). Thus, Maricopa contends, the EEOC "has no evidence that Mabery made any unambiguous reference to age." Id. at 22. In short, Maricopa argues, "[t]he evidence the EEOC offers does not satisfy the definition of direct evidence, and hence there is no direct evidence." Id. at 21 n.6. To the contrary, as we pointed out in our opening brief, both Conchos and Anderson stated that Mabery may very well have called Toth an "old" government employee right after interviewing her. See EEOC Br. 9-11, 29. Conchos testified that Mabery "said something like ‘She's a tired government employee' or ‘She's an old government employee' or she looks like it." (E.R.154.) When Conchos was asked in her deposition whether she had ever heard Mabery refer to Toth as an "old, tired government employee," Conchos said "I guess it's a yes, sort of." (E.R.153.) Maricopa argues, incredibly, that this does not constitute Conchos's testimony about what Mabery said, but rather that "Conchos used the word ‘old' when thinking out loud to try to recall what Mabery said." Maricopa Br. 18 n.5, 16 n.4. But that is precisely our point: When Conchos was asked and thought about what Mabery said, she remembered that Mabery may have described Toth as "old." Maricopa's concession supports the EEOC's position (i.e., there is evidence that Conchos heard Mabery refer to Toth pejoratively as "old" immediately after interviewing her). Maricopa alleges that "Anderson never claims to have heard Mabery call Toth ‘old.'" Maricopa Br. 18 n.5. Maricopa contends that when the EEOC interviewed Anderson, Anderson "was merely asked whether Mabery made a statement which contained language similar to ‘tired, burned out government employee'" and "was not asked whether she could say the word ‘old' was used." Id. at 14, 14 n.3. Maricopa asserts that Anderson "never made any such claim" – "never told the EEOC or anyone else that Mabery ever called Toth ‘old.'" Maricopa Br. 14, 15-16. This distorts the evidence. According to Anderson's own deposition testimony, the EEOC's investigator did ask Anderson if Mabery used the word "old" and Anderson did tell the EEOC's investigator that Mabery called Toth "old." (E.R.140, 146.) At Anderson's deposition, Maricopa's counsel even acknowledged that Anderson testified that she initially told the EEOC's investigator that Mabery called Toth old. (E.R.146 ("[Y]ou called back [the EEOC's investigator] and said, ‘She said it.'").) Anderson also testified that after Maricopa's investigator came to visit her and "educated me that the whole issue with EEOC was the fact that ‘old' was in there" she "could no longer be certain that the old element was present" and could not "say for sure at this moment that ‘old'" was part of Mabery's remark. (E.R.140.)<1> However, Anderson has never recanted the statement she gave initially to the EEOC's investigator – and has never said she is now sure Mabery did not refer to Toth as "old."<2> The EEOC thus proffered the testimony of two separate witnesses indicating that Mabery may have made this ageist remark immediately after interviewing Toth. The EEOC also pointed to the deposition testimony of Conchos and Bieghler, both of whom testified to having concluded after hearing this comment that Mabery would not be rehiring Toth. See EEOC Br. 11, 29-30. When viewed in the light most favorable to the EEOC, this evidence tends to show that Mabery decided not to rehire Toth because Mabery believed Toth's age was a negative factor. As we explained in our opening brief, this qualifies as direct evidence of age discrimination under this Court's precedent. See EEOC Br. 25- 31; see also Enlow v. Salem-Keizer Yellow Cab Co., Inc., 389 F.3d 802, 812 (9th Cir. 2004) (internal quotations and citations omitted) (emphasis in original) (explaining, in an age discrimination case, that direct evidence is any "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"); EEOC v. Pape Lift, Inc., 115 F.3d 676, 684 (9th Cir. 1997) (concluding that direct evidence need not be as blatant as the decision maker saying "something to the effect of ‘I'm firing you because you are too old'").<3> This evidence would support a finding that Mabery was motivated to take the adverse action at issue because of age. Maricopa also argues that the district court correctly concluded that the EEOC's direct evidence is inadmissible hearsay. However, as we explained in our opening brief, the district court did not properly evaluate the evidence the EEOC proffered at summary judgment. See EEOC Br. 28-29. 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.'" (E.R.249.) The district court ruled that this was "inadmissible as a classic example of double hearsay" and concluded that the EEOC "has not presented any admissible direct evidence that Mabery used the word ‘old' or made any other ageist comment regarding Toth." (Id.) Maricopa urges this Court to reach the same mistaken conclusion. It emphasizes, as the district court did, that Toth "learned from Chris Lange that someone told Lange that Mabery supposedly made a comment about Toth." Maricopa Br. 13. Maricopa then contends that "[t]his is classic hearsay." Id. at 14. Indeed, throughout its brief, Maricopa advances the misleading mantra that the EEOC presented no admissible direct evidence and relied merely on hearsay – as if reiterating this fallacy will make it so. See Maricopa Br. 1, 14, 15, 23. The problem with Maricopa's argument of course is that the EEOC's case does not rest in any way on "a person not present at Toth's interview, hear[ing] from someone else that Mabery allegedly described Toth" as "old." See EEOC Br. 29. Similarly, we never relied on any "inadmissible hearsay witness interviews," either. See Maricopa Br. 14. Rather, as explained above, at summary judgment we pointed to the deposition testimony of witnesses (Anderson, Conchos, and Bieghler) all of whom were present precisely when Mabery made the remarks at issue and heard Mabery's comments first-hand. Clearly, evidence such as this is not hearsay. In Bergene v. Salt River Project Agricultural Improvement & Power District, 272 F.3d 1136, 1142 (9th Cir. 2001), a retaliation case, this Court found that the same district court judge who granted summary judgment in this matter abused his discretion in ruling that certain comments were hearsay. According to a declaration the plaintiff-employee proffered at summary judgment, the plaintiff-employee's former supervisor told the plaintiff-employee that if she refused to settle a pending pregnancy discrimination claim against the defendant-employer for an acceptable amount, the defendant-employer would not promote her. Id. at 1141. The district court ruled that the supervisor's statement was hearsay and therefore inadmissible. Id. at 1142. In reversing the district court's grant of the defendant-employer's motion for summary judgment, this Court noted that, under Federal Rule of Evidence 801(c), a statement cannot be hearsay unless it is "offered in evidence to prove the truth of the matter asserted." Id.; see also Fed R. Evid. 801(c). This Court found that the supervisor's remark "was not offered to prove the truth of what he said" since "the district court was not asked to believe that [the defendant-employer] in fact would deny the promotion if Bergene continued to seek a favorable settlement." Bergene, 272 F.3d at 1142. Instead, the evidence was proffered as evidence of a retaliatory motive. Id. This Court concluded that the supervisor's "statement is therefore not hearsay" and that the "district court abused its discretion in finding it to be inadmissible." Id. Similarly here, the EEOC did not proffer Conchos's or Anderson's testimony recounting Mabery's remark to prove that Toth was in fact an "old tired government employee." Rather, we introduced it to reveal Mabery's real motive. As in Bergene, this type of evidence is not hearsay. Bergene, 272 F.3d at 1142; see also Fonseca v. Sysco Food Servs. of Ariz., Inc., 374 F.3d 840, 846 (9th Cir. 2004) (under Federal Rule of Evidence 801(d)(2)(D), statements within a deponent's personal knowledge are not hearsay); Stegall v. Citadel Broad. Corp., 350 F.3d 1061, 1071 n.8 (9th Cir. 2004) (Federal Rule of Evidence 801(d)(2)(A) could also apply); Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir. 1998) (finding that a statement made by one decision maker to a third party that another decision maker "did not want to deal with another female" was "an admission by an agent within the scope of his employment" and thus admissible); cf. Breneman v. Kennecott Corp., 799 F.2d 470, 473 (9th Cir. 1986) (even multiple hearsay statements are admissible if each of the speakers was involved in the employment decision). In sum, the EEOC offered evidence which was direct and plainly admissible. Maricopa's contrary arguments are unavailing, and the district court abused its discretion (as it did in Bergene) in concluding otherwise. B. The EEOC Easily Proffered Sufficient Evidence to Survive Summary Judgment on Establishing a Prima Facie Case The EEOC also proffered sufficient evidence to survive summary judgment under a correct application of the McDonnell Douglas circumstantial evidentiary paradigm. Maricopa insists that the EEOC cannot even create a prima facie case of age discrimination under this framework. Maricopa Br. 19, 26-29. Maricopa is wrong. A s we pointed out in our opening brief, a plaintiff may establish a prima facie case of age discrimination by showing that (1) the charging party was a member of the protected age group (i.e., was forty 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 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); see also Pottenger v. Potlatch Corp., 329 F.3d 740, 745-46 (9th Cir. 2003); Coleman v. Quaker Oats Co., 232 F.3d 1271, 1281 (9th Cir. 2000); Lyons v. England, 307 F.3d 1092, 1112 (9th Cir. 2002); Nidds v. Schindler Elevator Corp., 113 F.3d 912, 917 (9th Cir. 1997); EEOC v. Ins. Co. of N. Am., 49 F.3d 1418, 1420 n.1 (9th Cir. 1995); Lam v. Univ. of Haw., 40 F.3d 1551, 1559 (9th Cir. 1994); Wallis v. J.R. Simplot Co., 26 F.3d 885, 891 (9th Cir. 1994); Lindahl v. Air France, 930 F.2d 1434, 1437 (9th Cir. 1991); Rose v. Wells Fargo & Co., 902 F.2d 1417, 1421 (9th Cir. 1990); Cotton v. City of Alameda, 812 F.2d 1245, 1248 (9th Cir. 1987). Here, Toth was fifty when Maricopa refused to rehire her. (E.R.131-32.) Toth twice applied for available VWA I positions. (Id.) 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). (Id.)<4> Mabery did not hire Toth. And finally, Mabery continued to consider and ultimately hired other, comparably qualified and substantially younger applicants for open VWA positions after rejecting Toth. (E.R.49-50, 207.)<5> The EEOC thus met this traditional multi-factor method for creating a prima facie case of age discrimination. Maricopa argues that the EEOC did not satisfy the fourth prong of the prima facie case because it cannot show that any "similarly situated" applicants outside Toth's protected class were treated more favorably. See Maricopa Br. 26. Maricopa's argument is patently without merit. To be sure, this Court has often recognized that a plaintiff may make out a prima facie case of discrimination by showing that "similarly situated" comparators outside the protected class were treated more favorably. See, e.g., Fonseca, 374 F.3d at 847 (for just one recent example in a Title VII case). However, none of this Court's ADEA cases cited above require a plaintiff to point to any "similarly situated" candidate to create a prima facie case.<6> Under the traditional multi-factor test provided by this Court's precedent, the EEOC may show that Maricopa considered and/or selected candidates whose qualifications were "comparable" or "equal or inferior" to Toth's. In fact, some other cases from this Circuit do not even require the plaintiff to make such a showing, and hold that the plaintiff can create a prima facie case of age discrimination merely by demonstrating that someone simply "younger" was selected instead. See, e.g., Pejic v. Hughes Helicopters, Inc., 840 F.2d 667, 674 (9th Cir. 1988); Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir. 1983). Without question, the EEOC has done that. Moreover, even if a variant of the "similarly situated" criterion were applied here (e.g., as a proxy for the "comparable" or "equal or inferior qualifications" showing), Maricopa's self-made version of the rule, which has no basis in law or common sense, would prove impossible to meet. In Maricopa's view, to show "similarly situated," EEOC has to point to younger applicants with the following "set of negatives": "[A]pplying for a lower position than previously held; planning to leave a higher paying position with better benefits; having left a similar MCAO position a short while before due to complaints about it; complaining about the department's pay structure during the interview; complaining to numerous supervisors and the County Attorney after not being selected for a previous position; coming to the interview in jeans; receiving a negative reference from a former supervisor; making a comment about feeling like a ‘whipping post' when talking with clients; lacking bilingual skills; failing to meet the education requirement; and being perceived by the decision maker as interviewing poorly." Maricopa Br. 29. Maricopa's restrictive reading of this requirement is hopelessly at odds with prevailing law governing the prima facie case. Maricopa sets the standard for "similarly situated" so high that few, if any, plaintiffs could ever satisfy it. Maricopa's definition of "similarly situated" would essentially require the EEOC to show that a younger applicant ultimately hired was "identically situated" to the most minute detail to Toth and actually replicated Toth's work history, experiences, and interactions. Under Maricopa's approach, a plaintiff could never establish a prima facie case via reference to comparators unless such a virtual (albeit younger) clone of the charging party happened to apply and be selected for the job in question. This cannot be, and is not, the law. The Supreme Court has ruled that "[t]he burden of establishing a prima facie case of disparate treatment is not onerous." Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981); see also St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993) (referring to the "minimal requirements of a prima facie case"). This Court has similarly held time and again that clearing the prima facie case hurdle is relatively easy. This Court recently reiterated that the requisite degree of proof needed 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 v. Am. Seafoods Co. LLC, 413 F.3d 1090, 1094 (9th Cir. 2005) (quoting Wallis, 26 F.3d at 889); see also Palmer v. Pioneer Inn Assocs., Ltd., 338 F.3d 981, 984 (9th Cir. 2003) (same); Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1196 (9th Cir. 2003) (same). Indeed, creating a prima facie case requires "very little" evidence. Sischo-Nownejad v. Merced Cmty. Coll. Dist., 934 F.2d 1104, 1111 (9th Cir. 1991); Cordova v. State Farm Ins. Co., 124 F.3d 1145, 1148 (9th Cir. 1997) (same); Lowe v. City of Monrovia, 775 F.2d 998, 1009 (9th Cir. 1986) (same). Maricopa's stringent "identically situated" rule simply cannot be squared with this long-standing precedent. In fact, the EEOC did not have to point to any comparators (let alone "identically situated" ones) to create a prima facie case. See, e.g., Lyons, 307 F.3d at 1116; Diaz v. Am. Tel. & Tel., 752 F.2d 1356, 1359-61 (9th Cir. 1985); Douglas v. Anderson, 656 F.2d 528, 532 (9th Cir. 1981). The Supreme Court has explained that the "precise requirements of a prima facie case can vary depending on the context." Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 512 (2002) (citing McDonnell Douglas, 411 U.S. at 802 n.13) (providing that "the prima facie proof required" is "not necessarily applicable in every respect to differing factual situations")). The Supreme Court has also cautioned that the prima facie case method established in McDonnell Douglas "was ‘never intended to be rigid, mechanized, or ritualistic.'" U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983) (quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978)); see also St. Mary's Honor Ctr., 409 U.S. at 519 (same). This Court has also recognized this. See, e.g., Lyons, 307 F.3d at 1114 (same); Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 250 (9th Cir. 1997) (same); Robinson v. Adams, 847 F.2d 1315, 1316 (9th Cir. 1988) (same); cf. Washington v. Garret, 10 F.3d 1421, 1433 (9th Cir. 1994) (explaining that the "four-part test established in [McDonnell Douglas] is not intended to be an inflexible rule"); Gay v. Waiters' & Dairy Lunchmens' Union, Local No. 30, 694 F.2d 531, 546 n.10 (9th Cir. 1982) (same). Hence, in this Circuit, all a plaintiff has to do to establish a prima facie case is 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 the "production of evidence which ‘suggests' that the employment decision was based on age"); Lyons, 307 F.3d at 1114 (the plaintiff may rely on any "circumstantial evidence that tends to raise an inference of discrimination"); Cordova, 124 F.3d at 1148 (the McDonnell Douglas framework is one way to create the inference of discrimination); Diaz, 752 F.2d at 1361 (a plaintiff can create an inference of discrimination "in whatever manner is appropriate in the particular circumstances"). Maricopa alleges that the EEOC has not introduced enough evidence even under this flexible alternative to the traditional four-prong prima facie framework. Maricopa Br. 29-32. Maricopa again discounts (as it does throughout its brief) the significance – the very existence – of the direct evidence the EEOC provided. Id. at 31-32. However, even if this evidence is not deemed by this Court to be "direct evidence," it is nonetheless relevant to establishing Mabery's motive and creates an inference of bias. As we indicated in our opening brief, the fact that Conchos and Anderson testified that Mabery might have called Toth "old" right after interviewing her at the least suggests that Mabery had an age-based animus. See EEOC Br. 35. Indeed, if this admissible testimony regarding Mabery's ageist statement is not enough to at least raise an inference of discrimination, we do not know what sort of evidence ever would suffice to do so. See, e.g., Sutton v. Atl.- Richfield Co., 646 F.2d 407, 412 (9th Cir. 1981) (plaintiff's testimony that a management official told the plaintiff he wanted to replace the plaintiff with a younger man was enough to create a prima facie case of discrimination); cf. Palmer, 338 F.3d at 984 (the prima facie case may be based either on a presumption arising from the factors in McDonnell Douglas "or by more direct evidence of discriminatory intent."); Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406, 1410 (9th Cir. 1996) (same); Cordova, 124 F.3d at 1148 (same); Wallis, 26 F.3d at 889 (same). Maricopa also faults the EEOC for pointing out that the average age of the selectees was thirty and that all of them except one were at least fifteen years younger than Toth. Maricopa does not dispute these facts. Instead, it claims that this "‘statistical' information is utterly meaningless." Maricopa Br. 30. However, contrary to Maricopa's misrepresentations, the EEOC is not attempting to present a statistical case here. We are not trying to create a prima facie case or show pretext merely by proffering this data. Cf. Coleman, 232 F.3d at 1283 (quoting Rose, 902 F.2d at 1423) (to establish a prima facie case based solely on statistics "the statistics ‘must show a stark pattern of discrimination unexplainable on grounds other than age'"); Gay, 694 F.2d at 533 (quotations omitted) (the best prima facie case using statistical data "is that in which the plaintiff's statistical proof is bolstered by other circumstantial evidence of discrimination"). Nonetheless, evidence of the relative age of individuals selected by Mabery is certainly relevant to the question of whether Mabery prefers hiring younger workers. This type of circumstantial evidence, along with all of the EEOC's other evidence (such as Mabery's ageist comments), is quite probative of whether Mabery was motivated by a bias against older workers. See Diaz, 752 F.2d at 1363 ("Statistical data is relevant because it can be used to establish a general discriminatory pattern in an employer's hiring or promotion practices. Such a discriminatory pattern is probative of motive and can therefore create an inference of discriminatory intent with respect to the individual employment decision at issue."); cf. Bergene, 272 F.3d at 1143 (evidence that there were no other female managers at a particular plant should be considered with all of the evidence "in the aggregate" to determine whether plaintiff was not promoted because of her sex); Warren v. City of Carlsbad, 58 F.3d 439, 443-44 (9th Cir. 1995) (finding, in another failure-to-promote case, the fact that only one of twenty-five fire captains had ever been a minority was probative of national origin discrimination). In short, Maricopa's prima facie case arguments all fail. A fact finder could easily conclude that the EEOC satisfied all of the prima facie factors typically invoked and/or presented sufficient affirmative evidence to raise an inference of unlawful age discrimination. Given the minimal amount of evidence required to create a prima facie case, the EEOC clearly should have survived summary judgment on this issue. C. The EEOC Proffered Enough Evidence to Create a Genuine Issue As to Pretext under the McDonnell Douglas Framework. The District Court Misapplied This Paradigm. Maricopa also claims that the EEOC did not proffer enough evidence of pretext to survive summary judgment. For example, Maricopa asserts that the EEOC cannot prove pretext in part because Toth was forty-three when she was first hired at MCAO, never previously experienced age discrimination while at MCAO, and secured another position elsewhere in Maricopa County government at age forty- nine – as if these facts should somehow inoculate Maricopa from liability or immunize Mabery's explanation or conduct from scrutiny. See Maricopa Br. 3, 4, 18; see also id. at 33 n.8 (citing, again, only out-of-Circuit and distinguishable precedent to advance its argument). Maricopa argues as if these facts establish that Mabery could not have discriminated in her non-selection of Toth. Of course, this is not at all the case. In this lawsuit, the EEOC is contending that Mabery refused to rehire Toth due to age-based bias. Mabery is not the Maricopa official who originally hired Toth. Toth never worked for or with Mabery. Mabery had nothing to do with the decision to select Toth for the Clerk of Court position. Therefore, the fact that Toth was not a victim of age discrimination at the time Maricopa originally hired her as a VWA or while she worked at MCAO or when she was later chosen for a position in a completely different part of Maricopa County government is neither surprising nor relevant. No "same actor" inference applies here. Cf. Coghlan, 413 F.3d at 1096-97 (quoting Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270-71 (9th Cir. 1996) (emphasis added) ("[W]here the same actor is responsible for both the hiring and firing of a discrimination plaintiff, and both actions occur within a short period of time, a strong inference arises that there was no discriminatory action."); Coleman, 232 F.3d at 1286 (same). Similarly, the fact that Mabery herself was within the same protected class as Toth is also of no import. An older individual (i.e., someone over forty) could certainly plausibly harbor and act on a bias against other older individuals. See, e.g., Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998) (quoting Castaneda v. Partida, 430 U.S. 482, 499 (1977)) ("‘Because of the many facets of human motivation, it would be unwise to presume as a matter of law that human beings of one definable group will not discriminate against other members of their group.'"). In any event, Mabery was still almost a decade younger than Toth. Cf. O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 313 (1996) ("Because the ADEA prohibits discrimination on the basis of age and not class membership, the fact that a replacement is substantially younger than the plaintiff is a far more reliable indicator of age discrimination than is the fact that the plaintiff was replaced by someone outside the protected class [i.e., under forty]."). Accordingly, Maricopa's emphasis on these inconsequential facts does nothing to advance its argument that the EEOC failed to proffer enough evidence of pretext to survive summary judgment. Maricopa also alleges that the EEOC "misconstrues the standard for finding ‘pretext' in discrimination cases." Maricopa Br. 34. Maricopa criticizes the EEOC's reliance on evidence discrediting Maricopa's articulated reasons, asserting that "Mabery had the right to make her own decision, regardless of the opinion of others." Id. at 39. Maricopa notes that Mabery only needed to be honest, not correct, in her assessment of Toth, and claims that the EEOC wants this Court to act as a "superpersonnel department." Id. at 33, 37-38. Maricopa completely misses the point. The EEOC is not, as Maricopa suggests, trying to convince this Court that Mabery made the wrong decision. The EEOC is not "focused on trying to prove that Toth did not have a bad attitude and did not perform poorly in her interview." Maricopa Br. 37. The EEOC does not seek to have this Court "re-examine an entity's business decisions" or pass judgment on the "overall correctness or desirability of the reasons proffered" or decide whether Mabery should have hired Toth. Id. at 38. Rather, the EEOC is merely asking this Court to recognize there is a genuine issue as to whether Mabery really refused to rehire Toth for the various (and shifting) reasons Maricopa has given for Mabery's actions,<7> or whether instead she was motivated by a bias against Toth because she was older. To that end, and in spite of what Maricopa says and the district court concluded, the EEOC can and did create a triable issue by offering evidence showing that Maricopa's explanation is unworthy of credence and thus may have been a pretext for age discrimination. See EEOC Br. 41-51. There is at least a genuine issue of fact as to whether Mabery actually could have believed Toth interviewed poorly – all three of the other interviewers had a vastly different impression of Toth's interview performance. It simply is not credible to claim that Mabery did not hire Toth because she was not bilingual – Toth had six years of VWA experience and Mabery ultimately hired younger applicants who were not bilingual and had no VWA experience. And it is highly questionable whether Toth actually could have displayed a bad attitude – years of positive-to-superlative performance reviews (and the testimony of Toth's own boss) indicated just the opposite. See EEOC Br. 43-48. In short, because the record reflects such conflicting proof on the plausibility or honesty of Mabery's expressed motivations, this case should have gone to a jury. Maricopa also criticizes the EEOC for failing to rebut each rationale it now asserts to explain Mabery's decision. Maricopa Br. 19, 41. As we noted in our opening brief, we are not obligated to do so. See EEOC Br. 49-50. We were required to, and did, proffer evidence casting doubt on each of the principal factors Mabery supposedly relied upon (Toth's alleged "horrible" interview performance, deficient qualifications, and bad attitude) in deciding not to rehire Toth. The additional "reasons" Maricopa now argues the EEOC needed to refute were not factors Mabery has ever claimed actually motivated her not to rehire Toth. Instead, these "reasons" are theoretical explanations justifying Maricopa's decision on policy grounds. The law does not obligate the EEOC to cast doubt on such hypothetical "reasons." Most notably, Maricopa repeatedly stresses that it would have been a bad idea to hire Toth because she would be leaving a job at the Clerk of Court that paid more than the VWA I position would pay and because she had just quit her VWA II job months before. See Maricopa Br. 17-19, 29, 40. The district court accepted this as a "reason" the EEOC had to refute. (E.R.253 ("The Plaintiff does not even attempt to rebut the other legitimate reasons advanced by the Defendant" such as that "Toth [was] applying for a VWA I position after having worked as a VWA II hence being likely to experience dissatisfaction in the position as she did before.")). However, Mabery never alleged that these considerations, specifically, influenced her decision not to rehire Toth.<8> These were thus theoretical, not actual, motivating factors. Indeed, Maricopa even indicates that these were merely plausible policy reasons for refusing to rehire Toth. See Maricopa Br. 28 (emphasis added) (Maricopa "presented expert testimony that Toth's departure from MCAO because she was unhappy with MCAO's pay structure was a factor an employer should legitimately consider in evaluating whether to rehire her."); see also id. at 29 (another "expert" testified similarly);<9> id. at 40 n.12. Of course,the EEOC is required to rebut only the reasons Maricopa claims actually caused Mabery to refuse to rehire Toth – not any and all policy rationalizations that might have justified Mabery's actions. The district court erred in ruling otherwise. Finally, Maricopa fails to grasp the gravity of the district court's error in applying a "pretext plus" standard. Maricopa Br. 42-43. This interpretation of the McDonnell Douglas framework is the same erroneous approach some courts (albeit not this one) routinely took before the Supreme Court decided Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). Indeed, the Supreme Court granted certiorari in Reeves to clear up judicial confusion over just this issue. See Reeves, 530 U.S. at 140-41 (Supreme Court was attempting to resolve a conflict among the circuits as to whether a plaintiff's prima facie case of discrimination "combined with sufficient evidence for a reasonable fact finder to reject the employer's nondiscriminatory explanation for its decision, is adequate [on its own] to sustain a finding of liability for intentional discrimination"); Coghlan, 413 F.3d at 1097 n.12 (Supreme Court had to clarify this question "because some lower courts had effectively held that summary judgment was always appropriate unless the plaintiff presented not only a prima facie case and evidence sufficient to show that the employer's proffered legitimate rationale was pretextual, but also additional evidence sufficient to show actual discrimination"). But see Washington, 10 F.3d at 1433 (pre-Reeves, clearly rejecting the "pretext plus" approach, and specifically stating that "no additional proof is required" beyond the prima facie case and enough evidence to enable the fact finder to reject the employer's explanation); Nidds, 113 F.3d at 918 n.2 (same)). Clearly, the imposition of a heightened "pretext plus" burden is reversible legal error. Maricopa does not really deny that the district court did impose a "pretext plus" burden here, despite its half-hearted defense of the district court's reasoning on this point. See Maricopa Br. 42 (merely stating, in a conclusory fashion, that the district court "utilized the proper method of analyzing the evidence").<10> Indeed, Maricopa even acknowledges that a "pretext plus" standard is applied whenever a court requires a plaintiff to provide evidence proving "that the employer's asserted reasons for its adverse action are false and that discrimination was the real reason for the action." Id. That is exactly what the district court in this case did. See EEOC Br. 38-41. For this reason alone, this Court must reverse the district court's summary judgment ruling. CONCLUSION For the foregoing reasons and the reasons provided in the EEOC's opening brief, 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 VINCENT J. BLACKWOOD 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 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 6999 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 March 15, 2006, I served the requisite number of copies of this reply brief by mailing them first-class U.S. Mail, 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 E. Baker Diane L. Bornscheuer 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> Contrary to Maricopa’s baseless assertion, the EEOC never “argue[d] that Anderson recently fabricated her testimony” or intimated that she “changed her story” suspiciously. We simply quoted Anderson’s own undisputed testimony that Maricopa’s investigator “educated” her as to the significance of the “old” statement, and that subsequently she was uncertain whether it was said. See EEOC Br. 10. <2> Maricopa makes much of the fact that Anderson refused to sign an affidavit prepared by the EEOC indicating that Mabery referred to Toth as “old.” See Maricopa Br. 14-15. Maricopa insinuates that Anderson was reluctant to sign this affidavit because the affidavit stated that Mabery called Toth “old,” specifically. That is just not the case. Maricopa has neglected to inform this Court that Anderson herself testified she did not want to sign the EEOC’s affidavit simply because she did not want to be drawn into the matter further – not at all because she was opposed to the affidavit’s content. See EEOC Br. 10. According to Anderson’s testimony, the EEOC’s investigator “asked me if I would sign a statement . . . and I told her, ‘No, because obviously you’ve got somebody else that’s saying this [i.e., that Mabery called Toth “old”]. Bother them. Leave me alone.” (E.R.146.) Maricopa similarly alleges that the EEOC’s investigator “was withdrawn as a witness to avoid facing questions about the EEOC’s lack of fairness during the investigation.” Maricopa Br. 14 n.2. In addition to being wholly irrelevant, Maricopa’s allegation has no basis in the record, is pure speculation, and should not be entertained by this Court. <3> Maricopa cites numerous cases, to no avail, in an attempt to convince this Court that Mabery’s ageist statement cannot be direct evidence. See Maricopa Br. 24-25. As we pointed out in our opening brief, all of these cases, unlike this case, involved remarks which either could not be linked to the decision at issue or did not give rise to an inference of ageist treatment, or both. See EEOC Br. 30 n.5. <4> In fact, in its position statement, Maricopa admitted Toth was “not . . . unqualified for the position.” (E.R.51.) Maricopa also conceded that “[d]uring her prior employment, [Toth] received generally favorable performance evaluations and was promoted” to VWA II. (E.R.52.) <5> Admittedly, Toth was not bilingual. However, of the three applicants hired after the February 2000 announcement, only two were bilingual. (E.R.48, 63, 168.) Of the ten hired after the June 2000 announcement, four, at most, were bilingual. (E.R.48-50, 168.) In addition, the relevant vacancy announcements provided that preference would be given to “those who possess bilingual (English/Spanish) skills” and “to applicants who have background/experience in a criminal justice environment providing crime victim advocacy and assistance.” (E.R.40, 41.) While Toth may not have been bilingual, she was the only applicant with experience as a VWA. None of the successful candidates had ever worked for MCAO before (much less for six years) as a VWA. (E.R.219-20.) Thus, compared with Toth, the younger candidates considered and selected over Toth had, at best, comparable or “equal or inferior” qualifications. <6> Maricopa cites two district court cases, an Eighth Circuit case, two Sixth Circuit cases, and two Tenth Circuit cases in advancing its postulation of a “similarly situated” prong of the prima facie case. See Maricopa Br. 26-27. Maricopa cites only one Ninth Circuit case, Vasquez v. County of Los Angeles, 349 F.3d 634, 641 (9th Cir. 2004), in support of its argument. In Vasquez (which is not a failure-to-hire age case like this one), this Court merely noted that a “showing that [the defendant] treated similarly situated employees outside [the plaintiff’s] protected class more favorably would be probative of pretext.” Thus, Vasquez (1) was not even analyzing the prima facie case issue, but was addressing the pretext part of the McDonnell Douglas analysis; and (2) does not require “similarly situated” comparators even for the pretext prong (i.e., Vasquez merely notes that such a showing would be probative of pretext; it does not hold that a “similarly situated” showing must be made to establish pretext – much less to create a prima facie case). <7> Maricopa contends there is no evidence here of “shifting” reasons for Toth’s termination. Maricopa Br. 35. Maricopa also claims that the EEOC proffers an “astounding assertion” and an “especially ridiculous” argument – that Maricopa “cannot argue the significance of . . . other reasons now.” Id. at 36. Maricopa is propping up a straw man. The EEOC never argued that Maricopa was precluded from explaining the “significance” of the various reasons it has proffered for its decision. To the contrary, it is the varying significance of its purported reasons that suggests pretext. Maricopa has changed its position on what is relatively “significant” and what is not (first claiming that the “horrible” interview was the “primary” reason Mabery refused to rehire Toth and later alleging other reasons were equally important). This suggests that Maricopa is not being straightforward about what actually motivated Mabery. In our opening brief, we simply observed that a fact finder could rightly question why a litigant would emphasize one explanation so strongly (labeling it the “primary” reason) only to backpedal by de-emphasizing the same reason later on. See EEOC Br. 48-49. And contrary to Maricopa’s contentions, Maricopa’s various versions of events are “incompatible.” Cf. Nidds, 113 F.3d at 918. A reason simply cannot be the “primary” motivation if it later becomes merely part of a much larger explanation. <8> To the contrary, at Mabery’s deposition, Maricopa’s counsel asked Mabery whether there was “any other reason” – besides “your opinion that [Toth] was unprofessional, her appearance, and her attitude” – explaining why “you didn’t choose her for a [VWA] position?” Mabery answered “No.” (E.R.172.) <9> Maricopa reproduces much of this “expert” testimony in its Supplemental Excerpts of Record, but fails to inform this Court that the EEOC filed an Objection and Motion to Strike and a Motion in Limine objecting to the consideration of this testimony below. (R.83; R.76; R.77.) The district court never ruled on the EEOC’s Objection and Motion to Strike, and refused to rule on the EEOC’s Motion in Limine because it contended that the EEOC could raise its objections at trial. (R.85.) <10> Maricopa intimates that the Supreme Court has authorized this Court simply to “disregard” any part of the district court’s opinion “which inadvertently suggests” that “pretext plus” is required since “the lines are easily blurred when discussing the burdens in a discrimination case” and imposing a “pretext plus” burden is thus an easy mistake to make. Maricopa Br. 42. Maricopa cites St. Mary’s Honor Center for this proposition. However, Maricopa has misread that case. While St. Mary’s Honor Center (a pre-Reeves case) does acknowledge confusion in Supreme Court case law over whether pretext or “pretext plus” is sufficient to prove discrimination, nothing there suggests that a reviewing court can simply “disregard” language in a lower court opinion imposing a “pretext plus” burden. To the contrary, the Supreme Court in Reeves (which Maricopa never cites) made it absolutely clear that “pretext plus” is an erroneous standard.