IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 04-2500 KIMBERLY MILES, Plaintiff-Appellant, v. DELL, INC., Defendant-Appellee. On Appeal from the United States District Court for the Eastern District of Virginia BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLANT AND IN FAVOR OF REVERSAL ERIC S. DREIBAND U.S. EQUAL EMPLOYMENT General Counsel OPPORTUNITY COMMISSION 1801 L Street, N.W., Room 7012 CAROLYN L. WHEELER Washington, DC 20507 Acting Associate General Counsel (202) 663-4720 VINCENT J. BLACKWOOD Assistant General Counsel ELIZABETH E. THERAN Attorney TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . .iii STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . .2 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . .3 1. Nature of the Case and Course of Proceedings . . . . .3 2. Statement of Facts . . . . . . . . . . . . . . . . . .3 3. District Court Decision. . . . . . . . . . . . . . . 10 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 I. THE DISTRICT COURT ERRED IN DISMISSING MILES' CLAIMS OF SEX AND PREGNANCY DISCRIMINATION BECAUSE THE EVIDENCE WOULD SUPPORT A FINDING THAT MILES WAS FIRED UNDER CIRCUMSTANCES THAT GIVE RISE TO AN INFERENCE OF DISCRIMINATION. . . . . . . . . . 12 II. THE PLAINTIFF CAN PURSUE HER RETALIATION CLAIM IN COURT BECAUSE THAT CLAIM IS REASONABLY RELATED TO THE ALLEGATIONS IN HER EEOC CHARGE, IN THAT IT INVOLVES THE SAME EMPLOYMENT DECISION, THE SAME FACTS AND THE SAME ACTORS, AND WOULD HAVE BEEN PART OF A REASONABLE INVESTIGATION OF HER CHARGE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 27 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . 28 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . 29 TABLE OF AUTHORITIES CASES Brown v. McLean, 159 F.3d 898 (4th Cir. 1998). . . . . . . passim Chisholm v. United States Postal Service, 665 F.2d 482 (4th Cir. 1981)22 DeJarnette v. Corning, Inc., 133 F.3d 293 (4th Cir. 1998). . . 19 Deravin v. Kerik, 335 F.3d 195 (2d Cir. 2003). . . . . .22-23, 24 EEOC v. Sears Roebuck & Co., 243 F.3d 846 (4th Cir. 2001). . . 14 Ennis v. National Association of Business & Educational Radio, Inc., 53 F.3d 55 (4th Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . 14 Fejes v. Gilpin Ventures, Inc., 960 F. Supp. 1487 (D. Colo. 1997)20 Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978) . . . 13 Gleklen v. Democratic Congressional Campaign Committee, Inc., 199 F.3d 1365 (D.C. Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . 19 Gregory v. Georgia Department of Human Resources, 355 F.3d 1277 (11th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . 24 Holmes v. Bevilacqua, 794 F.2d 142 (4th Cir. 1986) (en banc) . 15 Howard v. Roadway Express, Inc., 726 F.2d 1529 (11th Cir. 1984)16 Jones v. Western Geophysical Co., 669 F.2d 280 (5th Cir. 1982) 16 Kristufek v. Hussmann Foodservice Co., 985 F.2d 364 (7th Cir. 1993)24-25 Lyons v. England, 307 F.3d 1092 (9th Cir. 2002). . . . . . . . 23 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). . . passim Nealon v. Stone, 958 F.2d 584 (4th Cir. 1992). . . . . . . . . 22 O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996)14, 16 Piraino v. International Orientation Resources, Inc., 84 F.3d 270 (7th Cir. 1996)20 Russell v. Bronson Heating & Cooling, 345 F. Supp. 2d 761 (E.D. Mich. 2004)20 Sloop v. Memorial Hospital, Inc., 198 F.3d 147 (4th Cir. 1999)12, 21, 25-26 Smith v. First Union National Bank, 202 F.3d 234 (4th Cir. 2000)22 Teamsters v. United States, 431 U.S. 324 (1977). . . . . . . . 14 Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981)13, 14 Weigel v. Baptist Hospital of East Tennessee, 302 F.3d 367 (6th Cir. 2002)24 STATUTES Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. 621-3425 Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq.passim OTHER AUTHORITIES Fed. R. App. P. 29(a). . . . . . . . . . . . . . . . . . . . . .2 Fed. R. App. P. 32(a)(5) . . . . . . . . . . . . . . . . . . . 28 Fed. R. App. P. 32(a)(6) . . . . . . . . . . . . . . . . . . . 28 Fed. R. App. P. 32(a)(7)(B)(i) . . . . . . . . . . . . . . . . 28 Fed. R. App. P. 32(a)(7)(B)(iii) . . . . . . . . . . . . . . . 28 IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 04-2500 KIMBERLY MILES, Plaintiff-Appellant, v. DELL, INC., Defendant-Appellee. On Appeal from the United States District Court for the Eastern District of Virginia BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLANT AND IN FAVOR OF REVERSAL STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency established by Congress to administer, interpret, and enforce Title VII of the Civil Rights Act of 1964, 42 U.S.C.  2000e et seq. The district court dismissed the plaintiff's claims of sex and pregnancy discrimination under Title VII simply because the plaintiff was replaced by another woman, without any consideration of the particular circumstances of the case. Similarly, the court dismissed the plaintiff's claim of retaliation because the plaintiff did not expressly allege retaliation in the charge she filed with the EEOC, without considering the fact that the plaintiff's retaliation claim involves the same events and the same actors as the discrimination claims she alleged in her charge, and, therefore, it was within the scope of a reasonable investigation of her charge. In both instances the district court took an overly rigid approach to analysis of Title VII claims. Because this appeal presents an opportunity for this Court to remind the district courts that both the substantive and procedural requirements of Title VII should be applied in a flexible manner that takes account of the particular circumstances of each case, the Commission offers its views to the Court pursuant to Fed. R. App. P. 29(a). STATEMENT OF THE ISSUES 1. Whether the district court erred in holding that the plaintiff failed to establish a prima facie case of sex discrimination solely because she was ultimately replaced by a woman, without any consideration of the circumstances under which her termination and replacement occurred. 2. Whether the district court erred in holding that the plaintiff failed to establish a prima facie case of pregnancy discrimination because she was replaced by a woman who was not pregnant. 3. Whether the district court erred in holding that the plaintiff could not pursue her retaliation claim solely because her EEOC charge did not expressly allege retaliation, when plaintiff's retaliation claim concerns the same employment action and involves the same facts and actors as the claims alleged in the charge. STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings This is an appeal from a final judgment of the district court granting summary judgment and dismissing all of the plaintiff's claims. The plaintiff initiated this action by filing a complaint on November 21, 2003, alleging that the defendant violated Title VII of the Civil Rights Act of 1964, 42 U.S.C.  2000e et seq., by firing her because of her sex and pregnancy and because she complained about her supervisor's discrimination against her. (Joint Appendix ("J.A.") 7.) The district court granted summary judgment dismissing all three claims sex discrimination, pregnancy discrimination, and retaliation on November 8, 2004. (J.A. 5.) Plaintiff's timely appeal followed on November 30, 2004. (J.A. 6.) 2. Statement of Facts Kimberly Miles was hired by Dell, Inc. as a major account manager in January 1999. (J.A. 45, 56.) Dell assigned Miles responsibility for initiating sales and maintaining relationships with clients in the northeast quadrant of the United States, a territory that included major accounts with the Navy and the Marine Corps and their facilities in Northern Virginia. (J.A. 78-79.) In early 2001, James Glaze assumed the position of regional sales manager directly supervising Miles' sales team. (J.A. 418, 439.) At the time, Miles was the only female account executive on this four- to five-member team. (J.A. 288, 423.) On March 2, 2001, Glaze set Miles' sales quota for the first quarter of fiscal year 2002 at $47,461,000. (J.A. 442.) On March 21, 2001, Miles attended a convention with Glaze and informed him that she was six months' pregnant and would need to take leave when the baby was born in June. (J.A. 430.) Less than three weeks later, on April 11, 2001, Miles learned that Glaze planned to transfer her Northern Virginia clients to Andy Martin, an account executive with limited sales experience who recently had been added to Glaze's team. (J.A. 238, 421-22.) The next day Miles complained of the pending reassignment both to Glaze and to Tom Buchsbaum, Dell's vice president of sales and Glaze's supervisor, and expressed her concern that the reassignment was due to her pregnancy. (J.A. 238, 425.) Glaze's reassignment of Miles' Northern Virginia accounts to Martin became effective on May 7, 2001. (J.A. 439.) A week later, and without assigning Miles any additional accounts, Glaze raised Miles' second-quarter quota to $80,212,000. (J.A. 443.) Also in May 2001, Glaze attempted to have Miles summarily terminated for allegedly lying to him regarding the status of a contract proposal with the Naval Academy. (J.A. 133.) Miles explained that the Naval Academy had sent a fax to her home fax machine notifying Dell that it had not been selected for the contract at issue, but because her fax machine had run out of paper she did not realize that the fax had been sent until the next day. (J.A. 440.) Miles informed Glaze on the next work day that Dell had lost the contract, but Glaze concluded that Miles had committed an "ethics breach" by deliberately lying to him about the status of the Naval Academy bid. (J.A. 440, 131.) He immediately sought to have Miles either placed on a performance improvement plan ("PIP") or terminated outright, but he was advised by the human resources department not to implement the PIP and his request for termination was denied. (J.A. 130-31, 133-34.) Because Glaze had increased her quota and indicated that she was responsible for meeting her quarterly quota despite her pending maternity leave, Miles decided to take only two weeks off to give birth to her child before resuming her job duties. (J.A. 85-86, 239.) Despite the birth of her child, Miles generated more revenue for Dell in 2001 than any other member of Glaze's team, failing to meet her quota only in the last quarter of the year. (J.A. 444.) Miles earned almost $420,000 during 2001, including $220,000 in commissions generated from her sales and a $50,000 bonus for her "extraordinary" contribution to Dell. (J.A. 177.) In February 2002, a subcontractor of Dell's informed Glaze that one of Miles' clients was not happy with Dell. (J.A. 199.) Glaze expressed his desire to have Miles schedule more interaction with this client. (Id.) In the spring of 2002, Miles again represented Dell in an attempt to win the Naval Academy contract. (J.A. 289.) Though Glaze placed a lot of pressure on Miles to win the contract, he told another account executive not to assist Miles on the bid so that she "would take the fall" for Dell's failure. ( Id.) On March 28, 2002, in Miles' first performance review conducted after she informed him of her pregnancy, Glaze informed her that she failed to "meet some key plan objectives and performance expectations" and noted that her performance needed immediate improvement. (J.A. 200.) Fourteen days later, Glaze placed Miles on a 60- day PIP. (J.A. 207-09.) Miles complained to Glaze and to Glaze's immediate supervisor, Paul Rector, that the criticisms of her performance were unjustified and related to her pregnancy the year earlier. (J.A. 239, 425-26.) Rector responded that Miles should "do a better job of defending" herself against Glaze. ( J.A. 239.) On April 30, 2002, Glaze received an e-mail complaint from Michelle Mays, the project manager for one of Dell's clients, the Naval Medical Information Management Center ("NMIMC"). (J.A. 211.) In the e-mail, Mays expressed frustration at the level of support she was receiving from the team assigned to the account by Dell. Miles herself had informed Glaze via an e-mail sent a week earlier about the problems with this client's account and her attempts to resolve the client's issues. (J.A. 449-50.) On May 1, 2002, Glaze forwarded the e-mail from Mays to his supervisors and a representative from Dell's Human Resources department and requested authorization to terminate Miles. (J.A. 214-15.) Rector agreed that same day to take "permanent action" against Miles. (Id.) However, according to Miles, Glaze assured her as late as May 10, 2002, that she was doing everything she could on the NMIMC account. (J.A. 284-85.) Over the course of the next month, Glaze never mentioned to Miles that Dell had decided to terminate her; instead, he continued to assure her that she was doing well and that the PIP would soon be behind her. (J.A. 285.) On June 25, 2002, Glaze phoned Miles as she was en route to the airport to attend a training conference. (J.A. 240.) He directed her to meet him at a hotel prior to her conference in order to close out her PIP. (Id.) When Miles reported to Glaze in the lobby of the hotel, he terminated her employment by handing her a termination letter dated the previous day, repossessed her Dell-issued laptop computer and cell phone, and inquired, "So, what do you think of me now?" (J.A. 216-17, 240.) In the letter of termination, Glaze stated that Miles had failed to improve her performance and listed the purported reasons for her termination. (J.A. 216-17.) Specifically, Miles was faulted for not maintaining "a forecast that demonstrated a strategy to meet quarterly requirements[,]" for not improving "[i]nternal communication and team effectiveness[,]" for failing to demonstrate "[i]mproved technical knowledge," and for not preparing calls sufficiently or ensuring call timeliness. (Id.) Glaze immediately sought to have Miles replaced by an internal male candidate, Mike McGill. (J.A. 141-42, 365-66.) However, McGill's hire fell through, and, two months after Miles' termination, Dell hired Susan Patrick to replace her. (Id.) Patrick was not pregnant when she was hired, and her only child was 11 years old at the time. (R. 30 (Pl.'s Mem. of Points & Auth. in Opp. to Def.'s Mot. for Summ. J.) (hereinafter "Opp. Summ. J."), Ex. 5 (Patrick deposition transcript), at 77.) Melissa Phillips, a Dell account manager, testified that Glaze told her in August 2002 that McGill had not been approved for the position and that "Tom Buchsbaum had insisted that [Glaze] hire Susan Patrick because they needed another female account manager." (J.A. 289-90.) Glaze told Phillips he had no choice in the matter. (Id.) Miles filed a charge with the EEOC on November 13, 2002. (J.A. 228-29.) On her charge form, she checked the box corresponding to discrimination based on sex and indicated that the alleged discriminatory acts had occurred between March 30, 2001, and June 24, 2002. (Id. at 228.) In her narrative explanation of her charge, Miles claimed that Glaze began a series of discriminatory acts against her, including reassigning her most important key customers to a male employee and placing her on a PIP, shortly after she told him of her pregnancy. (Id.) Miles related in her charge that she complained about Glaze's discrimination to his immediate supervisor, Paul Rector, and that Rector simply told her that she should "do a better job of defending [herself]." (Id.) She also related that, when Glaze terminated her employment two months later, instead of answering any of her questions he turned to her and said, "[s]o, what do you think of me now?" (Id. at 229.) In an affidavit attached to Miles' EEOC charge questionnaire, which she had filed with the agency on September 26, 2002, Miles gave the same account, plus some additional details of her treatment by Glaze and her internal complaints at Dell. (J.A. 237-43.) In addition to her complaint to Rector, Miles related that she had also complained to Buchsbaum about Glaze's reassignment of the Northern Virginia territory, and that Buchsbaum simply referred her back to Glaze. (Id. at 238.) On April 16, 2003, Miles' counsel sent a letter to the EEOC in response to Dell's Statement of Position given to the agency. (J.A. 483-86.) In the letter, counsel provided further details of its theory of the case, and explained that "Ms. Miles contends that the termination of her employment was both discriminatory and retaliatory, and that Dell's stated non-discriminatory reasons for that action are both false and pretextual." (Id. at 486.) Counsel related that Glaze's comment when he terminated Miles, "[s]o, what do you think of me now?," "suggests that Mr. Glaze was both aware of, and infuriated by, Ms Miles' complaints about him to his managers." (Id. at 485.) 3. District Court Decision In granting the defendant's motion for summary judgment, the district court held that "Ms. Miles' employment discrimination claims on the basis of sex and pregnancy fail because she does not state a prima facie case of discrimination since she was replaced by a member of her protected class." (J.A. 533.) According to the district court, this Court has "interpreted the fourth prong of the Title VII prima facie case as requiring that a person alleging discrimination be replaced by a person outside his or her protected class, unless the facts fall into one of three exceptions." (J.A. 534 (citing Brown v. McLean, 159 F.3d 898, 905 (4th Cir. 1998)).) The court stated that the exceptions recognized in Brown "include: (1) age discrimination cases where a plaintiff is replaced by a much younger person within the same class, (2) when a significant lapse of time occurs between the adverse employment action and the decision to hire another person, and (3) where the employer's hiring of another person within the protected class is calculated to disguise its act of discrimination." (J.A. 534-35 (citing Brown, 159 F.3d at 905) (internal quotation marks omitted).) The district court summarily concluded that the first and second exceptions were "simply inapplicable" to Miles' situation. (J.A. 535.) The court held that the third Brown exception does not apply because, notwithstanding Glaze's attempt to replace Miles with a male, "Miles fails to show that Dell's decision to replace her with a woman was a nefarious attempt to prevent a lawsuit by Miles." (Id.) The court theorized that it was equally likely that Dell "wanted another woman on the team because having a heterogenous group of account executives was deemed important." (Id.) Accordingly, the court concluded, because Miles was not replaced by a man and because the facts of her case did not fall into one of the three exceptions delineated in Brown, summary judgment was warranted. With regard to Miles' retaliation claim, the court concluded that she "failed to exhaust her administrative remedies since she did not raise retaliation in her EEOC charge of discrimination." (J.A. 536.) The court stated that Miles did not mark the "retaliation" box on her EEOC charge or otherwise indicate in the text of her charge that she had engaged in protected activity that resulted in retaliatory action. (J.A. 537.) The court also concluded that the letter sent by Miles' attorney to the EEOC five months after her discrimination charge was filed, a letter that was never served on Dell, was "not sufficient to meet the administrative exhaustion requirement." (Id. (citing Sloop v. Mem'l Hosp., Inc., 198 F.3d 147 (4th Cir. 1999)).) ARGUMENT I. THE DISTRICT COURT ERRED IN DISMISSING MILES' CLAIMS OF SEX AND PREGNANCY DISCRIMINATION BECAUSE THE EVIDENCE WOULD SUPPORT A FINDING THAT MILES WAS FIRED UNDER CIRCUMSTANCES THAT GIVE RISE TO AN INFERENCE OF DISCRIMINATION. The district court held that Miles cannot establish her claims of pregnancy or sex discrimination simply because her replacement was a woman. According to the court, if a Title VII plaintiff is replaced by someone within her "protected class," she can establish a prima facie case only if she meets one of three narrow exceptions that have been recognized by this Court. This ruling reflects an overly rigid application of the standards for establishing an inference of discrimination under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). When the Supreme Court first enunciated the now familiar method for establishing an inference that an employment action was taken for a discriminatory reason, the Court emphasized that the four-part test for establishing a prima facie case of discrimination set forth in that case should not be applied to other cases in a rigid or mechanical fashion. McDonnell Douglas, 411 U.S. at 802 n.13. The Court, after setting forth the test, noted that "[t]he facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof required from [the plaintiff] is not necessarily applicable in every respect to differing factual situations." Id. The district court failed to heed this warning and applied the prima facie test in a mechanical fashion when it held that Miles could not establish the fourth element of the test because the evidence does not fit into one of the three exceptions previously recognized by this Court. In subsequent decisions, the Supreme Court has repeatedly emphasized that the test articulated in McDonnell Douglas was intended to be a flexible tool for determining an employer's motivation, and not an inflexible framework into which every case must be forced. See, e.g., Furnco Construction Corp. v. Waters, 438 U.S. 567, 577 (1978) ("The central focus of the inquiry in a [Title VII] case is always whether the employer is treating 'some people less favorably than others because of their race, color, religion, sex, or national origin.' . . . The method suggested in McDonnell Douglas for pursuing this inquiry, however, was never intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination.") (internal citation omitted); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-54 (1981) ("The plaintiff must prove by a preponderance of the evidence that she applied for an available position for which she was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination. The prima facie case serves an important function in the litigation: it eliminates the most common nondiscriminatory reasons for the plaintiff's rejection.") (citing Teamsters v. United States, 431 U.S. 324, 358 & n.44 (1977)). This Court has also acknowledged that the specification of the elements of a prima facie case set forth in McDonnell Douglas does not fit every case. In EEOC v. Sears Roebuck & Co., 243 F.3d 846 (4th Cir. 2001), this Court observed: The Supreme Court has made it clear that because the facts of given cases "necessarily will vary" this formula "is not necessarily applicable . . . to differing factual situations." McDonnell Douglas, 411 U.S. at 802, n.13. See O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312 (1996). What is critical with respect to the fourth element is that the plaintiff demonstrate he was not hired (or fired or not promoted, etc.) "under circumstances which give rise to an inference of unlawful discrimination." Texas Dept. of Comty. Affairs v. Burdine, 450 U.S. [at 253]. Id. at 851 n.2. See also Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 58 (4th Cir. 1995) (stating in an ADA case that, "[i]n general terms, a plaintiff establishes a prima facie case by proving a set of facts which would enable the fact- finder to conclude, in the absence of any further explanation, that it is more likely than not that the adverse employment action was the product of discrimination"); Brown, 159 F.3d at 902 (stating, in assessing the plaintiff's claim that he was not hired because of his race, that the fourth prong of the prima face case requires the plaintiff to demonstrate that he "was rejected for the position under circumstances giving rise to an inference of unlawful discrimination"); Holmes v. Bevilacqua, 794 F.2d 142 (4th Cir. 1986) (en banc) (under Title VII, where failure-to-promote plaintiff could not prove that vacancy remained open after his rejection, holding that plaintiff was required to "present some other evidence that his race was a factor considered by his employer in not granting him the promotion"). The district court, however, read this Court's decision in Brown to hold that a plaintiff who was not replaced by someone outside the protected class may establish a prima facie case of discrimination only if she meets one of the three specific exceptions mentioned in that decision. This narrow reading of Brown is not compelled by the language of the decision and, indeed, would be inconsistent with this Court's recognition in other cases that the standard for establishing a prima facie case is a flexible one. The "exceptions" listed in Brown, 159 F.3d at 905, were offered by this Court as examples of situations where a plaintiff could establish an inference of discrimination even if she was replaced by someone from the same protected class. The decision itself introduces these examples by noting that other courts have recognized exceptions to the rule that a plaintiff must "ordinarily" show replacement by someone outside the protected class "in limited situations, such as" the following. Id. Furthermore, none of the three cases cited by the Brown Court in support of the exceptions it recognizes O'Connor, supra, Howard v. Roadway Express, Inc., 726 F.2d 1529, 1535 (11th Cir. 1984), and Jones v. Western Geophysical Co., 669 F.2d 280, 284-85 (5th Cir. 1982) suggests that replacement by someone outside the protected class is otherwise a requirement. Rather, these cases stand for the proposition that the McDonnell Douglas test should be applied flexibly in light of the circumstances of each particular case. See O'Connor, 517 U.S. at 312 ("the proper solution to the problem lies not in making an utterly irrelevant factor an element of the prima facie case, but rather in recognizing that the prima facie case requires 'evidence adequate to create an inference that an employment decision was based on a[n] [illegal] discriminatory criterion'") (emphasis in O'Connor) (internal citation omitted); Howard, 726 F.2d at 1536 (observing that "our adopting the lower court's reasoning [that a plaintiff replaced by someone inside the protected class cannot establish a prima facie case of discrimination] would contravene Title VII's purpose of guaranteeing individuals, as opposed to groups, equal employment opportunity"); Jones, 669 F.2d at 284 ("The underlying purpose of the fourth element in the McDonnell Douglas formulation is precisely to establish this unlawful inference of discrimination. But proof that the employer replaced the fired minority employee with a nonminority employee is not the only way to create such an inference."). In light of this Court's recognition, including in the Brown decision itself, that the fourth prong of the prima facie case is satisfied by evidence of "circumstances giving rise to an inference of unlawful discrimination," Brown, 159 F.3d at 902, the district court erred in reading that decision to preclude Miles from establishing a prima facie case of sex discrimination merely because she was replaced by a woman, without considering the circumstances under which her termination and replacement occurred. When all the circumstances are considered, a jury could infer sex discrimination in this case notwithstanding the fact that Miles' replacement was a woman. There is evidence that Glaze, after obtaining authorization to fire Miles, sought to replace her with a man. He accepted a female replacement only because his superiors insisted. Under these circumstances, a jury could infer from the evidence regarding Glaze's attempt to replace Miles with a man that Glaze acted for a discriminatory reason when he recommended Miles' termination. The fact that Glaze's plan was thwarted because his superiors insisted that he replace Miles with a woman says nothing about Glaze's motivation. And Glaze's motivation is what matters because he is the person who orchestrated Miles' discharge after Miles informed him she was pregnant. This case presents a scenario that is analogous to and, if anything, stronger than the second "exception" recognized in Brown for cases where there is a significant lapse in time before the plaintiff is replaced by someone within the protected class. The Brown Court explained that an exception is warranted in such cases because, when an employer takes a long time to fill a position after rejecting the plaintiff, the choice of ultimate replacement is less reliable as an indicator of the employer's intent at the time of the plaintiff's rejection. 159 F.3d at 905. In this case, there is direct evidence, beyond an inference created by the lapse of time, that the choice of a female replacement for Miles does not reflect Glaze's intent at the time he fired her. (J.A. 289-90 (Phillips testimony).) The district court granted summary judgment to Dell on Miles' pregnancy discrimination claim without any specific analysis beyond that associated with her sex discrimination claim. (E.g., J.A. 535 ("Because Ms. Miles was not replaced by a person outside her protected class, and she cannot show that she falls into one of the exceptions delineated in Brown, her sex and pregnancy discrimination claims fail.")). The court appears to have assumed that Miles' replacement by a woman any woman rendered her incapable of establishing a prima facie case of pregnancy discrimination. This assumption, however, is incorrect even under the district court's restrictive standard for establishing the fourth prong of the McDonnell Douglas test. It is true, as the district court noted, that the "same analytical framework applies to both Title VII discrimination claims on the basis of sex and on the basis of pregnancy." (J.A. 533 (citing DeJarnette v. Corning, Inc., 133 F.3d 293, 297 (4th Cir. 1998)).) However, as the DeJarnette Court itself recognized, the "protected class" at issue is different; if one is claiming discrimination on the basis of pregnancy, the protected class is pregnant women, not all women. DeJarnette, 133 F.3d at 298 (observing that plaintiff identified "nonpregnant probationary employees" as comparators, but concluding that these employees were not comparable to the plaintiff in other ways); see also, e.g., Gleklen v. Democratic Congressional Campaign Comm., Inc., 199 F.3d 1365, 1368 (D.C. Cir. 2000) (observing that plaintiff had made a prima facie case of pregnancy discrimination because, "she was pregnant, she was qualified, she was fired, she was replaced by a woman who was not pregnant, and her replacement performed [plaintiff's] former job while devoting at least some of her time to other responsibilities") (emphasis added). While we maintain, as argued above, that replacement by an individual outside the protected class is not required to establish a prima facie case, it is by now well- settled that replacement by someone outside the protected class is one valid method of demonstrating termination under circumstances giving rise to an inference of unlawful discrimination. In this case, the evidence in the record reflects and the parties do not appear to dispute that Miles' replacement, Susan Patrick, was not pregnant and had not recently been pregnant when she was hired to replace Miles. (Opp. Summ. J., Ex. 5 (Patrick deposition transcript), at 77.) Moreover, we note that, while Miles was not pregnant at the time she was fired, a jury could find that her firing was the culmination of a sequence of events set in motion by her supervisor when he learned that she was pregnant. Consequently, a jury could find that Miles was terminated because of her pregnancy even though the termination did not occur until after she had given birth to her child. See, e.g., Piraino v. Int'l Orientation Res., Inc., 84 F.3d 270, 274 (7th Cir. 1996) (finding valid claim of pregnancy discrimination where plaintiff was terminated after the birth of her baby because "[her] theory . . . asserts, in essence, that, upon learning of her pregnancy, . . . [the defendant] set out to find a way to dismiss her"); Fejes v. Gilpin Ventures, Inc., 960 F. Supp. 1487, 1493 (D. Colo. 1997) (holding that reading Title VII to require that the discrimination occur during pregnancy "would lead to absurd results such as 'prohibit[ing] an employer from firing a woman during her pregnancy but permit[ting] the employer to terminate her the day after delivery if the reason for termination was that the woman became pregnant in the first place.'") (internal citation omitted); Russell v. Bronson Heating & Cooling, 345 F. Supp. 2d 761, 783-84 (E.D. Mich. 2004) (finding that plaintiff is required to prove that the adverse employment action occurred "because of the pregnancy," not during the pregnancy). The district court, therefore, erred by applying a rigid and mechanical formulation of the elements of a prima facie case, and then compounded its error by overlooking the fact that Miles met even that narrow standard with respect to her claim of pregnancy discrimination. Accordingly, we urge the Court to reverse the court's order dismissing Miles' claims of sex and pregnancy discrimination. II. THE PLAINTIFF CAN PURSUE HER RETALIATION CLAIM IN COURT BECAUSE THAT CLAIM IS REASONABLY RELATED TO THE ALLEGATIONS IN HER EEOC CHARGE, IN THAT IT INVOLVES THE SAME EMPLOYMENT DECISION, THE SAME FACTS AND THE SAME ACTORS, AND WOULD HAVE BEEN PART OF A REASONABLE INVESTIGATION OF HER CHARGE. Miles' retaliation claim arises out of the same events as her discrimination claim. She alleges that Glaze terminated her not only because of her sex and pregnancy, but also because she complained to his supervisors about his discriminatory treatment of her. The district court held that Miles could not pursue this claim because she did not check the "retaliation" box or refer to retaliation in her original EEOC charge. (J.A. 536-38 (citing Sloop, 198 F.3d at 149).) Once again the court applied an overly mechanical approach and ignored the circumstances of this case, which demonstrate that the retaliation claim asserted by Miles is reasonably related to the allegations of her charge. A Title VII plaintiff is not limited to claims expressly asserted in her EEOC charge. This Court has held that "[i]f a plaintiff's claims in her judicial complaint are reasonably related to her EEOC charge and can be expected to follow from a reasonable administrative investigation, the plaintiff may advance such claims in her subsequent civil suit." Smith v. First Union Nat'l Bank, 202 F.3d 234, 247-48 (4th Cir. 2000) (citing Chisholm v. United States Postal Serv., 665 F.2d 482, 491 (4th Cir. 1981)). See also Nealon v. Stone, 958 F.2d 584, 590 (4th Cir. 1992) (holding that plaintiff may bring claim of retaliation for filing EEOC charge for the first time in federal court because "that rule is the inevitable corollary of our generally accepted principle that the scope of a Title VII lawsuit may extend to "any kind of discrimination like or related to allegations contained in the charge and growing out of such allegations during the pendency of the case before the Commission.") (internal citation and quotation marks omitted). As the Second Circuit has explained, A claim is considered reasonably related if the conduct complained of would fall within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge that was made. . . . This exception to the exhaustion requirement is essentially an allowance of loose pleading and is based on the recognition that EEOC charges are filled out by employees without the benefit of counsel and that their primary purpose is to alert the EEOC to the discrimination that a plaintiff claims [he] is suffering. . . . In determining whether claims are reasonably related, the focus should be on the factual allegations made in the [EEOC] charge itself, describing the discriminatory conduct about which a plaintiff is grieving. Deravin v. Kerik, 335 F.3d 195, 200-01 (2d Cir. 2003) (emphasis added) (internal citations and quotation marks omitted). See also, e.g., Lyons v. England, 307 F.3d 1092, 1104 (9th Cir. 2002) ("We will consider a plaintiff's claims to be reasonably related to allegations in the charge 'to the extent that those claims are consistent with the plaintiff's original theory of the case,' as reflected in the plaintiff's factual allegations and his assessment as to why the employer's conduct is unlawful.") (internal citation omitted). In this case, Miles alleges that Glaze retaliated against her by terminating her for, inter alia, complaining to his superiors about his alleged acts of discrimination. Although Miles did not check the "retaliation" box on her EEOC charge form or use the word "retaliation," the narrative text of her charge and of her affidavit submitted to the EEOC alleged several times that she complained to Glaze's supervisor(s) about his discrimination against her and that further discrimination ensued. (E.g., J.A. 228 (on first page of charge, indicating that Miles had complained to Paul Rector, Glaze's immediate supervisor), 238 (complaining to Tom Buchsbaum, Dell's vice president of sales), 239 (complaining to Rector).) Moreover, her retaliation claim concerns the exact same set of facts and actors, during the same time period, as that involved in her discrimination claim; her theory is that her complaints to Glaze's superiors played a part in fueling his subsequent discriminatory acts. (J.A. 485 (Miles' counsel noting in her letter to the EEOC that Glaze's hostile remark, "[s]o, what do you think of me now?," made when he terminated Miles, "suggests that Mr. Glaze was both aware of, and infuriated by, Ms. Miles' complaints about him to his managers").) Under similar circumstances, courts have held that a judicial claim of discrimination or retaliation is reasonably related to a charge alleging discrimination on another basis. See, e.g., Gregory v. Ga. Dep't of Human Res., 355 F.3d 1277, 1280 (11th Cir. 2004) (allowing retaliation claim to proceed based on EEOC charge of discrimination where the plaintiff "stated facts from which a reasonable EEOC investigator could have concluded that what she had complained about is retaliation" and "[a]n EEOC investigation of her race and sex discrimination complaints leading to her termination would have reasonably uncovered any evidence of retaliation"); Deravin, 335 F.3d at 201-02 (allowing race discrimination claim to proceed based on EEOC charge of national origin discrimination because factual allegations in plaintiff's charge were sufficient to support claim of race discrimination); Weigel v. Baptist Hosp. of E. Tenn., 302 F.3d 367, 380 (6th Cir. 2002) (allowing retaliation claim to proceed based on EEOC charge of discrimination on grounds that "where facts related with respect to the charged claim would prompt the EEOC to investigate a different, uncharged claim, the plaintiff is not precluded from bringing suit on that claim"); Kristufek v. Hussmann Foodservice Co., 985 F.2d 364, 368 (7th Cir. 1993) (plaintiff's claim of retaliation fell within scope of EEOC charge alleging age discrimination because "factual relationship of the age and discrimination charges of the parties is [] related and intertwined in time, people, and substance"). The circumstances in this case are markedly different from those in Sloop, the case relied on by the district court. Mary Sloop filed a charge with the EEOC in November 1996 alleging only that her termination constituted age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C.  621- 34. 198 F.3d at 148. She subsequently decided that her termination was also, at least in part, in retaliation for public comments she had made at a workplace sexual harassment seminar. Id. Sloop then wrote a letter to the EEOC in January 1997 asking "how she should go about adding this retaliation claim to her initial charge." Id. However, Sloop never amended her charge or took any further action with regard to raising her claim before the Commission. Id. After the EEOC issued a right-to-sue letter on Sloop's charge, Sloop then sought to sue in federal court for retaliation in violation of Title VII. Id. This Court held that Sloop could not pursue her Title VII retaliation claim because her EEOC charge made no reference whatsoever to Title VII or retaliation, because the purely private letter she sent the agency failed to put the charged party on notice of her Title VII claim, and because she could "provide no rationale whereby the EEOC would naturally have considered a Title VII retaliation claim in the course of investigating a claim of age discrimination." 198 F.3d at 149 & n.2. This case is different. The text of Miles' Title VII charge wholly apart from the letter her counsel subsequently sent to the agency was sufficient to put Dell on notice that retaliation might be at issue in this case. The factual narrative in Miles' EEOC charge recounts that she complained to Glaze's superiors that he was discriminating against her and that Glaze made a comment when he fired her suggesting that he was angry with her. Under these circumstances, a reasonable investigation of her charge challenging her termination would have explored the possibility that Glaze's decision to fire Miles was based, in whole or in part, on a retaliatory motive. Accordingly, Miles' retaliation claim is reasonably related to the allegations in her EEOC charge, and the district court erred in dismissing it for lack of administrative exhaustion. CONCLUSION For the foregoing reasons, the Commission urges this Court to reverse the district court's judgment on Miles' Title VII sex discrimination and retaliation claims and to remand the case for further proceedings. Respectfully submitted, ERIC S. DREIBAND General Counsel CAROLYN L. WHEELER Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel ________________________ ELIZABETH E. THERAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7012 Washington, D.C. 20507 (202) 663-4720 CERTIFICATE OF COMPLIANCE I, Elizabeth E. Theran, hereby certify that this brief complies with the type- volume limitation imposed under Fed. R. App. P. 32(a)(7)(B)(i) because it contains 6165 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). The 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 WordPerfect 9.0 in 14-point Times New Roman for both text and footnotes. _______________________ Elizabeth E. Theran CERTIFICATE OF SERVICE I, Elizabeth E. Theran, hereby certify that I served two copies of the foregoing brief and one copy of my completed appearance of counsel form this 2nd day of February, 2005, by first-class mail, postage pre-paid, to the following counsel of record: Counsel for Plaintiff Mona Lyons Law Office of Mona Lyons 1666 Connecticut Ave., N.W. Suite 500 Washington, D.C. 20009 (202) 387-7000 Counsel for Defendant Jonathan S. Franklin Hogan & Hartson L.L.P. 555 Thirteenth St., N.W. Washington, D.C. 20004 (202) 637-5766 _____________________ Elizabeth E. Theran Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7012 Washington, D.C. 20507 (202) 663-4720 ______________________________________________________________ 1. We take no position with respect to any other issue presented in this appeal. 2. Citations to the record proper are abbreviated “R.” and refer to the district court docket entry number. See 1 J.A. 1-6 (district court docket sheet).