No. 11-3462 ____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________________________________________ LLOYD MCDONNAUGH, Plaintiff-Appellant, v. TEVA SPECIALTY PHARMACEUTICALS, LLC, Defendant-Appellee. ____________________________________________ On Appeal From the United States District Court for the Eastern District of Pennsylvania, No. 09-5566 ____________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF APPELLANT AND REVERSAL ____________________________________________ P.DAVID LOPEZ EQUAL EMPLOYMENT General Counsel OPPORTUNITY COMMISSION Office of General Counsel CAROLYN L. WHEELER 131 M St. NE, 5th Fl. Acting Associate General Counsel Washington, D.C. 20507 (202) 663-4724 LORRAINE C. DAVIS Annenoel.Occhialino@EEOC.gov Assistant General Counsel ANNE NOEL OCCHIALINO Attorney TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . ii STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUE. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. Statement of the Facts. . . . . . . . . . . . . . . . . . . . .2 B. District Court Decision . . . . . . . . . . . . . . . . . . . .5 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 EVIDENCE THAT A PLAINTIFF WAS FIRED AND REPLACED WITH SOMEONE OUTSIDE THE PROTECTED CLASS ESTABLISHES THE FOURTH PRONG OF THE PRIMA FACIE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 COMBINED CERTIFICATIONS TABLE OF AUTHORITIES Cases page(s) Dellapenna v. Tredyffrin/Easttown Sch. Dist., 2011 WL 5110226 (3d Cir. Oct. 28, 2011). . . . . . . . . . . . . . . 10 Hill v. Borough of Kutztown, 455 F.3d 225 (3d Cir. 2006). . . . . . . . . 9 Johnson v. Keebler-Sunshine Biscuits, Inc., 214 Fed. Appx. 239 (3d Cir. 2007). . . . . . . . . . . . . . . 10, 12 Josey v. John R. Hollingsworth Corp., 996 F.2d 632 (3d Cir. 1993). . . 10 Matczak v. Frankford Candy & Chocolate Co., 136 F.3d 933 (3d Cir. 1997). . . . . . . . . . . . . . . . . . . . . 9 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). . . . . . . . 6, 7, 12 O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996). . . 7, 8 Olson v. Gen. Elec. Astrospace, 101 F.3d 947 (3d Cir. 1996). . . . . . . . .9 Pivirotto v. Innovative Sys., Inc., 191 F.3d 344 (3d Cir. 1997) . . 6, 11, 13 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000). . . . . . 8 Sarullo v. United States Postal Serv., 352 F.3d 789 (3d Cir. 2003). . . . .14 Scheidemantle v. Slippery Rock Univ. State Sys. of Higher Educ., 470 F.3d 535 (3d Cir. 2006). . . . . . . . . . . . . . . . . 9, 14, 18 Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061 (3d Cir. 1996). . . . . . . . . . . . . . . . . . 10 Smith v. City of Allentown, 589 F.3d 684 (3d Cir. 2009). . . . . . . . . . 9 St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). . . . . . . . . . . .8 Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981). . . . . . . . . . . . . . . . . . . . 7, 8, 12 Torre v. Casio, Inc., 42 F.3d 825 (3d Cir. 1994). . . . . . . . . 6, 11, 14 Vernon v. A&L Motors, 381 Fed. Appx. 164 (3rd Cir. 2010) . . . . . . . . . 11 Zimmerman v. Assoc. First Capital Corp., 251 F.3d 376 (2d Cir. 2001) . . . 12 Rules Fed. R. App. P. 29. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF INTEREST The Equal Employment Opportunity Commission was established by Congress to administer, interpret, and enforce Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. This case raises questions concerning the proper legal standard for establishing the fourth prong of a prima facie case of discrimination. Specifically, this appeal raises the question of whether "replacement" evidence-i.e., evidence that a plaintiff was fired and replaced with someone outside the protected class-suffices to establish the fourth prong. Because of the importance of this issue to the effective enforcement of Title VII, as well as the other anti-discrimination statues the EEOC enforces, the Commission respectfully offers its views to the Court. See Fed. R. App. P. 29. STATEMENT OF THE ISSUE<1> Whether the district court erred in concluding that evidence that the plaintiff, who is African-American, was fired and replaced by a Caucasian employee failed to establish the fourth prong of the plaintiff's prima facie case of racial discrimination. STATEMENT OF THE CASE A. Statement of the Facts,2> In August 2006, Plaintiff Lloyd McDonnaugh, who is African-American, applied to be a pharmaceutical sales representative at Defendant Teva Specialty Pharmaceuticals, LLC ("TSP"). A-7. McDonnaugh had six years of experience in the pharmaceutical industry when he applied. Id. Regional Sales Manager Randy Simmons, who is also African-American, interviewed McDonnaugh. Id. at 8. McDonnaugh was hired, and Simmons became his supervisor. Id. McDonnaugh's position required him to visit physicians and pharmacists within his territory to encourage them to prescribe ProAir HFA and QVAR, which are asthma medications. Id. McDonnaugh was evaluated on a monthly basis via a Field Contact Review (FCR), which was an evaluation completed by a manager after a ride-along with a sales representative. Id. The evaluation contained multiple performance categories and sales representatives received ratings from one ("below expectations") to four ("above expectations"). A-9. McDonnaugh was also evaluated on a bi-annual and annual basis in cumulative evaluations that used the same scoring system and similar, but not identical, performance categories. A-9, A-18, A-19. McDonnaugh's first partial year review for 2006 noted that the physicians McDonnaugh visited showed an increased market share for the drugs he sold. A-9. Simmons criticized McDonnaugh's one-sided sales style (talking excessively without asking probing questions) and territory management, but Simmons gave McDonnaugh "meets expectations" for his overall rating. Id. In November 2007, Simmons was promoted. Id. He was subsequently replaced by a Caucasian manager named Jaylene Penrod. Id. Penrod assumed supervisory duties for Simmons' entire ten-person team; McDonnaugh was the only African-American on the team. Id. According to McDonnaugh, Penrod criticized him, looked down on him, made demeaning remarks, and held him to a different standard than his co-workers. A-16. One of McDonnaugh's co-workers said he thought Penrod was treating McDonnaugh differently because of his skin color. A-16, A-17. Like Simmons, Penrod criticized McDonnaugh's sales skills and territory management, but she criticized him much more harshly than Simmons had. While McDonnaugh received a "meets" or "mostly meets" expectations in all categories for his 2007 evaluation,<3> including sales skills and territory management, Penrod downgraded McDonnaugh in his mid-2008 review to "below expectations" for sales skills and territory management, and she gave him "below expectations" for his overall rating. A-9, A-10. On her monthly ride-alongs in June and August 2008, however, Penrod rated McDonnaugh "meets" or "mostly meets" expectations for territory analysis and planning. Id. After the mid-2008 review, Penrod arranged for McDonnaugh to do ride-alongs with her supervisor and the Area Director, who also criticized McDonnaugh's selling skills, although the Area Director said McDonnaugh was open to coaching and improved after 30 minutes of practice. A-10. By October 2008, McDonnaugh improved his skills so much that Penrod gave him ratings of "mostly meets" expectations. Id. Despite these improvements, in November 2008 Penrod put McDonnaugh on a "performance management plan," which purported to give him 90 days to improve in the areas of selling skills, territory management, "administrative responsibilities," and "adherence to sampling policies and procedures." Id. But Penrod did not give McDonnaugh 90 days to improve his performance. Instead, Penrod recommended McDonnaugh's termination in January 2009 after a Friday ride-along during which they were unable to meet with any of the physicians they visited. A-11. It also appears undisputed that McDonnaugh was terminated despite his improvement in the areas of compliance and administration. A-23. TSP accepted Penrod's recommendation of termination and fired McDonnaugh on January 23, 2009. A-11. TSP then hired Brian Velcamp, who is Caucasian, to replace McDonnaugh. A-16, n.11. McDonnaugh filed suit under Title VII, 42 U.S.C. § 1981, and state law alleging that TSP fired him because of his race. A-7. TSP moved for summary judgment, arguing, inter alia, that McDonnaugh had failed to establish the fourth prong of the prima facie case. In response, McDonnaugh argued that Teva's failure to fire two other Caucasian employees with similar performance issues, Kevin Fay and Kristen Kindzierski, gave rise to an inference of discrimination sufficient to establish the fourth prong. A-14. B. District Court Decision The district court granted TSP's motion for summary judgment. In the court's view, McDonnaugh had failed to establish the fourth prong of his prima facie case, i.e., that he "suffered the adverse action under circumstances that give rise to an inference of discrimination." A-13, A-14.<4> The court acknowledged that disparate treatment of similarly-situated individuals can establish the fourth prong. A-14. But the court rejected McDonnaugh's argument that he was similarly situated to Fay and Kindzierski and that their more favorable treatment therefore satisfied the fourth prong. A-15, A-16. According to the court, Fay and Kindzierski were not similarly situated because their performance issues were not as severe or long-lasting as McDonnaughs's and/or did not concern sales skills and territory management, and also because Fay was new to the sales industry. Id. Although McDonnaugh had not argued that he established a prima facie case by showing that his replacement was Caucasian, the court sua sponte considered this possibility. A-16, n.11. According to the court, "in certain instances this type of evidence may by sufficient to make out a prima facie case, [but] this occurs mostly in the age discrimination context." Id. (citing Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 356-57 (3d Cir. 1997)). Relying on Torre v. Casio, Inc., 42 F.3d 825, 830-31 (3d Cir. 1994), the court also stated that it had to "judge Plaintiff's termination and TSP's subsequent hiring of a Caucasian not in isolation, but in regard to the rest of the facts." Id. The court then stated, without explanation, "we deem [Plaintiff's] replacement evidence insufficient to establish a prima facie case." Id. ARGUMENT EVIDENCE THAT A PLAINTIFF WAS FIRED AND REPLACED WITH SOMEONE OUTSIDE THE PROTECTED CLASS ESTABLISHES THE FOURTH PRONG OF THE PRIMA FACIE CASE. The district court applied an erroneous legal standard in concluding that McDonnaugh failed to establish the fourth prong of his prima facie case. In the seminal case McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the Supreme Court set out the now-familiar framework for analyzing a case of employment discrimination based on disparate treatment. First, the plaintiff "must carry the initial burden" "of establishing a prima facie case of racial discrimination." Id. at 802. The Court explained that this "may be done by showing" that the plaintiff: (1) is a member of a protected class; (2) was qualified for the position he sought; (3) was rejected; and (4) after his rejection, the position remained open and the employer continued to seek applicants from persons of the complainant's qualifications. Id. The Court added, however, that this articulation of the prima facie case will vary depending upon the facts of each case. Id. at n.13. Once a plaintiff meets the burden of establishing a prima facie case, the burden then "shift[s] to the employer to articulate some legitimate, nondiscriminatory reason for the employee's rejection." Id. at 802. Finally, once the employer meets this burden, the plaintiff then carries the burden of showing that the legitimate, nondiscriminatory reason was a pretext for racial discrimination. Id. at 804. The Supreme Court has revisited the McDonnell Douglas framework several times. Significantly, the Court has consistently emphasized that "[t]he burden of establishing a prima facie case . . . is not onerous." Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). In Burdine, the Court articulated the fourth prong as requiring merely that a plaintiff show that the adverse action occurred "under circumstances giv[ing] rise to an inference of unlawful discrimination." Burdine, 450 U.S. at 253; see also O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312 (1996) (rejecting notion that prima facie case requires age plaintiff to show replacement by someone younger than 40; stating that "the prima facie case requires 'evidence adequate to create an inference that an employment decision was based on a[n] [illegal] discriminatory criterion'" and holding that evidence the plaintiff was replaced by someone "substantially younger" created this inference) (quoting Teamsters v. United States, 431 U.S. 324, 358 (1977)) (emphasis added by the Court). The Court has repeatedly recognized that evidence that a position was filled with someone outside the plaintiff's protected class (or, in age cases, by someone substantially younger) gives rise to an inference of discrimination sufficient to establish the fourth prong. See, e.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000) (stating that it was "undisputed" that the fifty-seven year old plaintiff had established the fourth prong where after his termination the employer hired three employees in their 30s); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993) (stating that it was uncontested that the plaintiff, who was African-American, had established the fourth prong where the position "remained open and was ultimately filled by a white man"); Burdine, 450 U.S. at 253 n.6 (stating that "it is not seriously contested that respondent has proved a prima facie case" where she showed she was qualified for an available position that was left open for several months before being filled by a man she had supervised). Consistently with McDonnell Douglas and its progeny, this Court has stated that "there is a low bar for establishing a prima facie case of employment discrimination." Scheidemantle v. Slippery Rock Univ. State Sys. of Higher Educ., 470 F.3d 535, 539 (3d Cir. 2006). This Court has also recognized that "there is no rigid formulation of a prima facie case." Matczak v. Frankford Candy & Chocolate Co., 136 F.3d 933, 938 (3d Cir. 1997). Rather, various kinds of evidence will satisfy the fourth prong. See id. This Court's published opinions have long held that one such category of evidence consists of evidence that a plaintiff was fired and replaced by someone outside the protected class, or, in age cases, by someone sufficiently younger to create an inference of discrimination. See, e.g., Smith v. City of Allentown, 589 F.3d 684, 689 (3d Cir. 2009) (in age case, stating that the fourth prong requires evidence "that the plaintiff was ultimately replaced by another employee who was sufficiently younger to support an inference of discriminatory animus"); Hill v. Borough of Kutztown, 455 F.3d 225, 247 (3d Cir. 2006) (in age case, expressing fourth prong as requiring evidence that the plaintiff's replacement was sufficiently younger to permit a reasonable inference of age discrimination); Olson v. Gen. Elec. Astrospace, 101 F.3d 947, 951 (3d Cir. 1996) (in disability case, stating that as "an alternative to the fourth element of the McDonnell Douglas scenario [that the employer continued to seek out applicants]," a plaintiff can show that the position was filled by "a person not belonging to the protected category"); Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1066 n.5 (3d Cir. 1996) (in sex discrimination case, stating that evidence that "the position was ultimately filled by a person not of the protected class" establishes the fourth prong); Matczak,136 F.3d at 939 (in disability case, stating fourth prong can be satisfied with evidence that employer continued to seek applications after the plaintiff's termination or that the position was filled with someone outside the protected class); Josey v. John R. Hollingsworth Corp., 996 F.2d 632, 638 (3d Cir. 1993) (African-American plaintiff established fourth prong by showing that "his replacements . . . are Caucasians whom the company treated more favorably"). This Court's unpublished opinions have consistently, although not universally, adhered to this published precedent. Compare Johnson v. Keebler- Sunshine Biscuits, Inc., 214 Fed. Appx. 239, 242 (3d Cir. 2007) (unpublished) (in race and sex discrimination case, concluding that evidence that the plaintiff, an African-American male, was replaced with a Caucasian woman established the fourth prong of his prima facie case of discriminatory transfer), with Dellapenna v. Tredyffrin/Easttown Sch. Dist., 2011 WL 5110226, at *4 n.3 (3d Cir. Oct. 28, 2011) (unpublished) (in race/sex case, holding that evidence that the plaintiff was replaced by a white male failed to establish the fourth prong). This Court has also recognized, however, that a plaintiff is not required to offer replacement evidence in order to establish the fourth prong. See Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 357 (3d Cir. 1999) ("[A] gender-discrimination plaintiff need not prove that she was replaced by someone of the opposite gender in order to meet her prima facie burden . . ."). Instead, any evidence sufficient to create an inference of discrimination based on the plaintiff's protected trait satisfies the fourth prong. See id. at 355. For instance, evidence of similarly-situated employees who engaged in misconduct similar to the plaintiff's but who were treated more favorably "may give rise to an inference of unlawful discrimination" sufficient establish the fourth prong, Vernon v. A&L Motors, 381 Fed. Appx. 164, 167 (3rd Cir. 2010) (unpublished), as may evidence that during a reduction-in- force the plaintiff was laid off but workers outside the plaintiff's protected class were retained, Torre v. Casio, Inc., 42 F.3d 825, 830-31 (3d Cir. 1994). Here, the district court erred in concluding that evidence that a plaintiff was replaced by someone outside his protected class is not necessarily sufficient to establish the fourth prong and is primarily relevant only in age cases.<5> A-16, n.11. This conclusion is irreconcilably at odds with the Supreme Court and Third Circuit precedent discussed above, which stand firmly for the proposition that replacement evidence suffices to establish the fourth prong in Title VII cases, as well as in ADEA cases. Indeed, in McDonnell Douglas, which was a Title VII case, the Court held that merely continuing to seek out applicants after the plaintiff's application was rejected established the fourth prong, 411 U.S. at 802, and in Burdine, which was also a Title VII case, the Court stated that it was "not seriously contested" that the plaintiff had established a prima facie case of sex discrimination where she applied for a promotion that was filled months later by a male subordinate. 450 U.S. at 253 n.6. Similarly, in Hicks, which was yet another Title VII case, the Court stated that it was uncontested that the plaintiff, who was African-American, had established the fourth prong where the position "remained open and was ultimately filled by a white man." Hicks, 509 U.S. at 506. The district court's decision is similarly irreconcilable with this Court's published precedent, which has faithfully adhered to Supreme Court precedent addressing the fourth prong. Indeed, this Court's decisions in Olson, Sheridan, and Matczak-which are Title VII cases, or disability cases applying Title VII standards-compel the conclusion that replacement evidence is, by itself, sufficient to establish the fourth prong in Title VII cases, as well as in age cases. See also Johnson, 214 Fed. Appx. at 242 (quoting with approval the court's statement in Zimmerman v. Assocs. First Capital Corp., 251 F.3d 376, 381 (2d Cir. 2001), that "'the mere fact that a plaintiff was replaced by someone outside the protected class will suffice'" to establish the prima facie case). In reaching a contrary conclusion, the district court profoundly misread Pivirotto and Torre. As discussed above, Pivirotto held that replacement evidence is not the only kind of evidence that can establish the prima facie case; Pivirotto did not hold that replacement evidence is insufficient to establish the prima facie case. Nor does Pivirotto stand for the proposition-as the district court suggested-that replacement evidence is only relevant, if at all, in age cases. The district court reached this conclusion by focusing on Pivirotto's statement that it was particularly inappropriate to require replacement evidence to establish the fourth prong in gender discrimination cases because "the classification of plaintiffs and their replacements is largely categorical (men/women) and not continuous (as with age)." Pivirotto, 191 F.3d at 357. Although the meaning of this statement is not entirely clear to the Commission, it is clear that it was intended only to support this Court's view that "nothing in Title VII requires a gender-discrimination plaintiff to prove that he or she was replaced by someone outside the protected class." Id. (internal quotation marks and citation omitted) (emphasis added). Nothing about this Court's statement-which merely explained why it is even less appropriate to require replacement evidence in gender discrimination cases than in age discrimination cases-suggests that this Court was announcing a radical change in the law (and a radical departure from Supreme Court precedent) by rendering replacement evidence insufficient to establish the fourth prong in Title VII cases. See generally Sarullo v. United States Postal Serv., 352 F.3d 789, 797 n.6 (3d Cir. 2003) (The "requirements for a prima facie case of Title VII race discrimination and age discrimination under the ADEA are substantially the same."). Moreover, this Court has continued to state in published Title VII decisions following Pivirotto that evidence that a position was filled with someone outside the plaintiff's protected class establishes the fourth prong. See, e.g., Scheidemantle, 470 F.3d at 540 n.6 (evidence that employer effectively filled locksmith position with a male employee established prima facie case of gender discrimination). The district court similarly misread Torre's statement that "'the nature of the required showing to establish a prima facie case of disparate treatment by indirect evidence depends on the circumstances of the case'" as meaning that a plaintiff's replacement evidence only suffices to establish the fourth prong after it is evaluated with regard to the rest of the facts. A-16, n.11. This reading turns the holding of Torre on its head. The quoted statement is from the passage in Torre where this Court again rejected the notion that an ADEA plaintiff is required to offer replacement evidence. Torre, 42 F.3d at 830-31. Rather, this Court explained, the fourth prong "must be relaxed in certain circumstances," including, for instance, when there is a reduction-in-force. Id. at 831. In other words, the quoted passage from Torre merely stands for the proposition that, depending upon the circumstances of the case, the fourth prong may be satisfied with something other than replacement evidence. The district court therefore erred in reading Torre as holding that replacement evidence is no longer enough to satisfy the fourth prong. The district court's view that replacement evidence must be considered at the prima facie stage with respect to the rest of the facts also improperly conflates the prima facie analysis with the pretext analysis. As discussed above, the prima facie analysis looks only to see if the plaintiff met the non-onerous burden of establishing a presumption of discrimination sufficient to shift the burden to the employer to articulate a legitimate, non-discriminatory reason for the adverse action. In short, did the plaintiff put forward enough evidence to require the employer merely to give a reason for the adverse action? The pretext analysis, by contrast, requires a court to determine whether the circumstances, considered in their totality, would allow a jury to find that the legitimate non-discriminatory reason given for the adverse action was a pretext for impermissible discrimination. The district court's view that a plaintiff's replacement evidence must be considered in light of the rest of the circumstances of case would impermissibly require a plaintiff to show a factual question of pretext at the prima facie case stage. Here, it is undisputed that McDonnaugh's replacement, Brian Velcamp, was Caucasian. Under Supreme Court and this Court's precedent, this evidence sufficed to establish the fourth prong of McDonnaugh's prima facie case. Because that was the only prong of the prima facie case in dispute, McDonnaugh established his prima facie case. Even if, however, the district court was correct in stating that replacement evidence must be evaluated "in regard to the rest of the facts"-which is not the standard-the court erred in concluding that McDonnaugh's evidence was insufficient. Id. The district court stated, without explanation, that it "deem[ed]" the circumstances as failing to justify a finding that McDonnaugh's replacement by a Caucasian employee gave rise to an inference of discrimination. To the contrary, the circumstances only strengthen McDonnaugh's claim that his replacement by a Velcamp established the fourth prong of his prima facie case. Significantly, McDonnaugh was the only African-American on Penrod's team. A-9. His termination and replacement by Velcamp therefore led to the "inexorable zero," leaving Penrod's ten-person team without a single African- American sales representative. McDonnaugh also offered evidence that a Caucasian co-worker shared McDonnaugh's view that Penrod treated him differently because of his race, A-16, and McDonnaugh offered objective evidence that his sales figures placed him in the middle-of-the-pack on his team, which calls into question Penrod's subjective evaluations of his selling skills and creates questions about why he was fired. A-21, A-22. McDonnaugh's undisputed evidence that Simmons rated him "meets" or "mostly meets" expectations on every evaluation he ever received, and that Simmons never felt the need to put McDonnaugh on a performance management plan, much less fire him, also casts doubt on whether Penrod really fired McDonnaugh because of his sales and territory management skills, or because of his race. A-9. McDonnaugh further cast doubt on the legitimacy of his bi-annual and annual evaluations by offering evidence that the scores he received were lower than the scores Penrod gave him on his monthly FCRs for essentially the same categories, suggesting that the evaluations were highly subjective and possibly a pretext for racial discrimination.<6> A-18, A-19. Additionally, McDonnaugh offered evidence that Fay and Kindzierski also had performance issues but were not put on performance management plans, much less fired. A-14 to A-16. Significantly, Fay even had "similar ratings to [McDonnaugh] in each of the five FCRs Penrod issued" between August and December 2008, and, like McDonnaugh, Fay had "documented problems in the categories of territory analysis/planning and selling skills." A-14 to A-15. Thus, even under the district court's erroneous view of the standard for replacement evidence, McDonnaugh's evidence was more than enough to meet the "low bar for establishing a prima facie case of employment discrimination." Scheidemantle, 470 F.3d at 539. CONCLUSION For the reasons discussed above, this Court should reverse the district court's finding that McDonnaugh failed to establish a prima facie case of discrimination. Respectfully submitted, P. DAVID LOPEZ General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ________________________ /s/ ANNE NOEL OCCHIALINO Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. NE, 5th Fl. Washington, D.C. 20507 (202) 663-4724 Annenoel.Occhialino@EEOC.gov COMBINED CERTIFICATIONS I hereby certify that: (1) As an attorney of the federal government and representing a federal agency, I am not required to be a member of the bar of this Court. (2) This brief complies with the type-volume requirements set forth in Federal Rules of Appellate Procedure Rule 32(a)(7)(B). This brief contains 4,007 words, from the Statement of Interest through the Conclusion, as determined by the Microsoft Word 2003 word processing program, with 14- point proportionally spaced type for text and 14-point proportionally spaced type for footnotes. (3) Ten paper copies of the foregoing brief were sent this 21st day of December, 2011, by U.S. mail to the Clerk of this Court. I further certify that Plaintiff-Appellant's counsel, Andrew S. Abramson, and the Defendant- Appellee's counsel, Larry J. Rappoport, have consented to electronic service of the brief through the court's electronic docketing system copy, which will send notice. (4) The electronic copy of the brief and the hard copies are identical. (5) The electronic version of the brief was submitted to a virus check using Trend Micro OfficeScan version 10.0 and no virus was detected. _________________________ /s/ ANNE NOEL OCCHIALINO Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. NE, 5th Fl. Washington, D.C. 20507 (202) 663-4724 Annenoel.Occhialino@EEOC.gov ********************************************************************************** <> <1> The Commission expresses no opinion on any other issues presented in this appeal. <2> All facts are taken from the district court's opinion. <3> Although it is not entirely clear from the opinion, Simmons evidently completed McDonnaugh's 2007 evaluation. Pl.'s Opening Br. at 8-9. <4> The court also granted summary judgment on the ground that even if McDonnaugh established a prima facie case, he failed to establish a fact question as to pretext. The Commission takes no position on that issue. <5> It was therefore unnecessary for the court, at the prima facie stage, to determine whether McDonnaugh was similarly situated to Fay and Kindzierski. <6> The district court concluded that the categories on the FCRs and bi-annual and annual evaluations were too dissimilar to make anything out of the inconsistent scores, but a jury would certainly be entitled to find that the "Product/Commercial Knowledge" category on the FCRs was functionally the same as the "Functional and Product Knowledge" category on the mid-2008 review, and that the "Territory Analysis/Planning" category used on the FCRs was functionally the same as the "Territory Management" category on the mid-2008 review. A-19.