EEOC v. Muhlenberg College (3d Cir.) Brief as appellant Sept. 7, 2004 No. 04-2788 _________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Appellant, v. MUHLENBERG COLLEGE. ______________________________________________ On Appeal from the United States District Court for the Eastern District of Pennsylvania ______________________________________________ OPENING BRIEF OF APPELLANT EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ______________________________________________ ERIC S. DREIBAND 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 1801 L Street, N.W., 7th Floor Washington, D.C. 20507 (202) 663-4571 TABLE OF CONTENTS Table of Authorities . . . . . . . . . . . . . . . . . . . . .iii Statement of Jurisdiction. . . . . . . . . . . . . . . . . . . .1 Statement of Related Cases and Proceedings . . . . . . . . . . .1 Statement of the Issue . . . . . . . . . . . . . . . . . . . . .2 Statement of the Case. . . . . . . . . . . . . . . . . . . . . .2 Statement of Facts . . . . . . . . . . . . . . . . . . . . . . .4 A. Pan's Arrival at Muhlenberg. . . . . . . . . . . . . .4 B. The Muhlenberg Tenure Review Process . . . . . . . . .5 C. Pan's "Excellent" Teaching Record. . . . . . . . . . .8 D. The FEC and FPPC Reports . . . . . . . . . . . . . . 15 E. The Proceedings Below. . . . . . . . . . . . . . . . 22 Summary of Argument. . . . . . . . . . . . . . . . . . . . . . 26 Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 A. Standard of Review . . . . . . . . . . . . . . . . . 29 B. Governing Legal Framework. . . . . . . . . . . . . . 30 1. National Origin Discrimination Is Prohibited. . 30 2. Tenure Decisions Are Subject to Title VII . . . 31 3. Proving National Origin Discrimination. . . . . 33 C. The District Court Correctly Concluded that the EEOC Established a Prima Facie Case of National Origin Discrimination 1. The Commission Satisfied the Traditional Prima Facie Factors . . . . . . . . . . . . . . 34 2. The Commission Also Presented Affirmative Evidence Raising an Inference of National Origin Discrimination38 D. The District Court Wrongly Ruled that the EEOC Did Not Provide Sufficient Evidence of Pretext to Survive Summary Judgment 1. The Standard for Showing Pretext for Discrimination40 2. The EEOC's Evidence on Pretext. . . . . . . . . 42 a. The Stewart Case . . . . . . . . . . . . . 42 b. Stewart Is Controlling . . . . . . . . . . 44 c. The District Court's Stewart Analysis Is Flawed51 3. The EEOC's Affirmative Evidence of National Origin Discrimination. . . . . . . . . 56 a. Proof that Questions of "Culture" May Have Affected the Decisionmaking . . . 56 b. The District Court Improperly Discounted This Evidence . . . . . . . . . 57 4. Summary . . . . . . . . . . . . . . . . . . . . 59 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . 60 Certificate of Compliance with Rule 32(a). . . . . . . . . . . 62 Certificate of Service . . . . . . . . . . . . . . . . . . . . 63 Volume I of Joint Appendix TABLE OF AUTHORITIES Cases Aman v. Cort Furniture Rental Corp., 85 F.3d 1074 (3d Cir. 1996) . . . . . . 29 Banerjee v. Bd. of Trs. of Smith Coll., 648 F.2d 61 (1st Cir. 1981). . . . . 36 Bennun v. Rutgers State Univ., 941 F.2d 154 (3d Cir. 1991) .32, 34, 36, 37 Coneen v. MBNA Am. Bank, NA, 334 F.3d 318 (3d Cir. 2003) . . . . . . . .29 EEOC v. Franklin & Marshall Coll., 775 F.2d 110 (3d Cir. 1985) . . . 32-33 Elwell v. PP&L, Inc, No. 01-4512, 2002 WL 31160109 (3d Cir. Sept. 30, 2002). . . . . . . . . . . . . . .41 Fields v. Thompson Printing Co., Inc., 363 F.3d 259 (3d Cir. 2004) . . . . . 29 Fowle v. C&C Cola, 868 F.2d 59 (3d Cir. 1989). . . . . . . . . . . . . .36 Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994) . . . . . . . 40-41, 43, 51 Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). . . . . . . . . . .33 Geraci v. Moody-Tottrup, Int'l, Inc., 82 F.3d 578 (3d Cir. 1996) . . . . . . 38 Goosby v. Johnson & Johnson Med., Inc., 228 F.3d 313 (3d Cir. 2000). . . . . 30 Jones v. Sch. Dist., 198 F.3d 403 (3d Cir. 1999) . . . . . . . . . . . .38 Kunda v. Muhlenberg Coll., 621 F.2d 532 (3d Cir. 1980) . . . . . . . . .31 Marino v. Indus. Crating Co., 358 F.3d 241 (3d Cir. 2004). . . . . . . .29 Marzano v. Comp. Sci. Corp., Inc., 91 F.3d 497 (3d Cir. 1996). . . .37, 38 Matczak v. Frankford Candy & Chocolate Co., 136 F.3d 933 (3d Cir. 1997). . . . . .38 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). . . . . . . . . .33 O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308 (1996) . . . .34, 38 Pivirotto v. Innovative Sys., Inc., 191 F.3d 344 (3d Cir. 1999). . . 38-39 Raytheon Co. v. Hernandez, 540 U.S. 44 (2003). . . . . . . . . . . . . .34 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000) . . .34, 41 Roberts v. Fleet Bank (R.I.), 342 F.3d 260 (3d Cir. 2003). . . . . . . .29 Robinson v. PPG Indus., Inc., 23 F.3d 1159 (7th Cir. 1994) . . . . . 29-30 Roebuck v. Drexel Univ., 852 F.2d 715 (3d Cir. 1988) .33, 34, 35-36, 59-60 Sarullo v. U.S. Postal Serv., 352 F.3d 789 (3d Cir. 2003). . . . . .29, 34 Sempier v. Johnson & Higgins, 45 F.3d 724 (3d Cir. 1995) . . . . . .29, 36 Sheridan v. E.I. duPont de Nemours & Co., 100 F.3d 1061 (3d Cir. 1996) . . . . . .41 St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). . . . . . . . . . .34 Stewart v. Rutgers State Univ., 120 F.3d 426 (3d Cir. 1997). . . . . . 22-23, 24-25, 27-28, 42-45, 51-55 Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981). . . 33-34, 38 U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711 (1983). . . . . . 34 Univ. of Pa. v. EEOC, 493 U.S. 182 (1990). . . . . . . . . . . . . . . .32 Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977). . . . . . . . . . . . . . . . . . . . . . . . . .44 Waldron v. SL Indus., Inc., 56 F.3d 491 (3d Cir. 1995) . . . . . . . . .38 Weldon v. Kraft, Inc., 896 F.2d 793 (3d Cir. 1990) . . . . . . . . . . .36 Statutes 28 U.S.C. 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. 1337 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. 1343 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. 1345 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. 2000e. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. 2000e-1. . . . . . . . . . . . . . . . . . . . . . . . . . .31 42 U.S.C. 2000e-2(a)(1). . . . . . . . . . . . . . . . . . . . . . . .30 Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, 86 Stat. 103 (1972). . . . . . . . . . . . . . . .31 Regulations 29 C.F.R. 1606.1 . . . . . . . . . . . . . . . . . . . . . . . . .30, 35 29 C.F.R. 1606.2 . . . . . . . . . . . . . . . . . . . . . . . . . . .30 Rules Fed. R. App. P. 4(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . 1 Fed. R. App. P. 32(a)(5) . . . . . . . . . . . . . . . . . . . . . . . .62 Fed. R. App. P. 32(a)(6) . . . . . . . . . . . . . . . . . . . . . . . .62 Fed. R. App. P. 32(a)(7)(B). . . . . . . . . . . . . . . . . . . . . . .62 Fed. R. App. P. 32(a)(7)(B)(iii) . . . . . . . . . . . . . . . . . . . .62 3rd Cir. LAR 32.2(c) (1997). . . . . . . . . . . . . . . . . . . . . . . 2 Legislative History H.R. Rep. No. 92-238 (1971), reprinted in 1972 U.S.C.C.A.N. 2137 . . . . . . 32 118 Cong. Rec. 311 (1972). . . . . . . . . . . . . . . . . . . . . . . .31 118 Cong. Rec. 946 (1972). . . . . . . . . . . . . . . . . . . . . . . .31 118 Cong. Rec. 4919 (1972) . . . . . . . . . . . . . . . . . . . . . . .31 Miscellaneous EEOC Compl. Man., Section 13: National Origin Discrimination (Dec. 2, 2002), available at http://www.eeoc.gov/policy/docs/national-origin.html . . . 30, 35 STATEMENT OF JURISDICTION The U.S. Equal Employment Opportunity Commission (the "EEOC" or "Commission") brought this case under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq. ("Title VII"). The district court had original jurisdiction under 28 U.S.C. 1331 (federal questions), 1337 (federal laws regulating commerce), 1343 (civil-rights cases), and 1345 (federal agency as plaintiff). Final judgment disposing of all parties' claims was entered in the district court on April 30, 2004 for Defendant. (DE19.) The EEOC filed a timely notice of appeal on June 23, 2004. (DE20.) See Fed. R. App. P. 4(a)(1)(B). This Court has appellate jurisdiction of this matter under 28 U.S.C. 1291 (conferring jurisdiction to federal courts of appeals over all final decisions of U.S. district courts). STATEMENT OF RELATED CASES AND PROCEEDINGS This case has not previously been before this Court. The Commission is unaware of any other related case or proceeding completed, pending, or about to be presented before this Court or any other court or agency, state or federal. STATEMENT OF THE ISSUE Did the EEOC present enough evidence to create a genuine issue of material fact as to whether Defendant's explanation for its adverse employment action was a pretext for national origin discrimination? STATEMENT OF THE CASE The Commission's complaint asserted that Defendant Muhlenberg College ("Muhlenberg" or "Defendant") denied tenure and promotion to Dr. Da'an Pan ("Pan") because he is Chinese. (DE1 7; JA201.) Pan was an Assistant Professor of Philosophy and Chinese Civilization at Muhlenberg, and sought tenure (and simultaneous promotion to Associate Professor) during academic year 1998-1999. (JA38, JA71.) Pan's tenure file contained numerous accolades from Muhlenberg's Dean of the faculty, colleagues, peers, and students praising his teaching ability. (JA90-JA133.) Nevertheless, Muhlenberg refused to grant Pan tenure and promotion, allegedly because Pan was not an "excellent" teacher. (JA134.) Pan filed a charge of discrimination with the EEOC, contending that Muhlenberg denied him tenure and promotion because of his national origin. (JA195.) After investigating Pan's charge, the EEOC found reasonable cause to believe that Muhlenberg refused to grant Pan tenure and promotion because of his national origin, and had thus violated Title VII. (JA200.) Conciliation failed. (DE1 6; JA202.) On September 24, 2002, the Commission filed this action on Pan's behalf in the U.S. District Court for the Eastern District of Pennsylvania. (DE1.) In its complaint, the EEOC asked for appropriate relief (including injunctive relief, back pay, and compensatory damages) and a jury trial. (DE1; JA205-JA206.) Muhlenberg moved for summary judgment on March 16, 2004. (DE13.) In its response to Defendant's motion, the EEOC argued that there was sufficient evidence from which a reasonable jury could find that Muhlenberg's reason for denying Pan tenure and promotion that his teaching was not "excellent" was a pretext for discrimination based on Pan's national origin. (DE16.) In a memorandum and order dated April 29, 2004, the district court granted Muhlenberg's motion. (DE18.) The district court then entered judgment in favor of Muhlenberg on all claims. (DE19.) The EEOC appealed. (DE20.) STATEMENT OF FACTS A. Pan's Arrival at Muhlenberg Pan was born and raised in China. (JA261, JA263 (Pan Deposition at 10, 21).) Chinese is his native language. (JA263 (Pan Deposition at 21).) He received much of his education in China, as well. (JA38; JA261 (Pan Deposition at 10-12).) From 1981 to 1987, he taught English, World Literature, and Chinese Culture at Hangzhou University in Hangzhou, China. (JA38.) He then came to the United States and enrolled in a Ph.D. program at the University of Rochester in Rochester, N.Y. (JA38; JA261 (Pan Deposition at 11).) In 1991, he earned his Ph.D. in Comparative Literature. (JA38; JA261 (Pan Deposition at 11).) Later that year, he started teaching as a full-time Assistant Professor at the University of Illinois at Urbana-Champaign. (JA38; JA262 (Pan Deposition at 12-13).) He taught there for five years. (JA38; JA262 (Pan Deposition at 13).) In the fall of 1996, Muhlenberg a small, private liberal arts college in Allentown, Pennsylvania (DE1 4; JA202) hired Pan to teach Traditional Chinese Civilization. (JA68.) This course apparently did not fit under any of the college's traditional academic disciplines, and Pan was not initially assigned specifically to any one academic department. (JA66; JA242 (Schlecht Deposition at 7); JA257 (Adams Deposition at 43); JA349 (Schwartz Deposition at 15-16).) During Pan's second year at Muhlenberg, the head of Muhlenberg's Philosophy Department, Dr. Ludwig Schlecht ("Schlecht"), proposed to affiliate Pan with the Philosophy Department. (JA101; JA242 (Schlecht Deposition at 6-8).) Pan thus began teaching courses in Philosophy (in addition to Chinese Civilization). (JA66, JA101; JA242 (Schlecht Deposition at 8).) Schlecht evaluated Pan's Philosophy-related work. (JA67; JA243 (Schlecht Deposition at 9).) An ad hoc faculty "Steering Committee" was supposed to evaluate Pan's efforts in other departments, and to work with the Philosophy Department to formulate a composite recommendation for tenure and promotion purposes. (JA67.) No such steering committee was ever formed. (JA103; JA243 (Schlecht Deposition at 9-11).) B. The Muhlenberg Tenure Review Process The typical Muhlenberg tenure track for Assistant Professors is six years. (JA53.) However, because Pan had taught for many years before coming to Muhlenberg, he was eligible to apply for tenure (and simultaneous promotion to Associate Professor) during his third year at Muhlenberg. (JA53, JA67, JA74, JA96; JA230 (Dretsch Deposition at 29).) In a letter dated July 15, 1998, the Dean of Muhlenberg's Faculty, Curtis Dretsch ("Dean Dretsch"), informed Pan that Pan's formal tenure review would take place during the upcoming 1998-1999 academic year. (JA71-JA72.) That year, Pan and six other faculty members were up for tenure and promotion. (JA134-JA155.) Of these seven candidates, only Pan was Asian. (JA155; JA304 (Taylor Deposition at 73).) At Muhlenberg, there are four critical criteria for tenure and promotion to Associate Professor teaching performance, professional activity, college and public service, and commitment to the goals of the college. (JA45-JA47, JA57.) However, the Muhlenberg Faculty Handbook states that "excellence in teaching is foremost among the criteria used to evaluate members of the Faculty" and "is the most important criterion for employment and advancement." (JA45.) The Muhlenberg tenure review process proceeds in several stages. It begins when a seven member "Faculty Evaluation Committee on Tenure and Promotions" (the "FEC") formulates an initial written report and recommendation on whether a particular candidate deserves tenure. (JA226 (Dretsch Deposition at 9).) The FEC is supposed to reach its tenure conclusion by considering the candidate's complete tenure file (including previous written evaluations of the candidate, examples of course syllabi and exams, evaluations from the relevant Department Head and all senior Departmental colleagues recommending whether tenure should be granted, letters submitted by alumni, etc.). (JA54-JA56; JA225-JA226 (Dretsch Deposition at 8-9).) The FEC must also factor in the candidate's performance in an FEC-conducted tenure interview, and his or her Student Informational Response ("SIR") scores (numerical ratings students give professors at the end of a course). (JA56, JA54.) Finally, one member of the FEC is assigned to observe the candidate in the classroom. (JA56.) This member then prepares an evaluation of the candidate's teaching abilities, and shares it with the entire FEC. (JA56.) The FEC forwards its findings to Dean Dretsch. (JA56; JA226 (Dretsch Deposition at 9).) Dean Dretsch and the President of Muhlenberg at the relevant time, Arthur Taylor ("President Taylor") then meet to discuss the FEC evaluation (at which time Dean Dretsch can informally recommend whether the FEC's findings should be followed or rejected). (JA56; JA226 (Dretsch Deposition at 10-11).) If the FEC recommends against granting the candidate tenure, the candidate can appeal this decision to Muhlenberg's "Faculty Personnel and Policies Committee" (the "FPPC"). (JA44, JA59-JA65; JA226 (Dretsch Deposition at 10).) However, the FPPC cannot compel the FEC to reverse itself, or order that a particular professor be promoted. (JA63.) The FPPC merely votes on whether President Taylor should reconsider the FEC's findings. (JA62-JA63; JA235 (Dretsch Deposition at 60); JA309 (Taylor Deposition at 96).) President Taylor alone ultimately decides whether to accept or reject the FEC's recommendation. (JA63; JA319 (Taylor Deposition at 148).) If President Taylor's decision is positive, his evaluation is forwarded to the Educational Policies and Faculty Affairs Committee of the Muhlenberg Board of Trustees for approval (since tenure technically can only be granted by an official action of this Board of Trustees). (JA56, JA72; JA226 (Dretsch Deposition at 9).) C. Pan's "Excellent" Teaching Record When Pan came up for tenure and promotion at the start of academic year 1998- 1999, he had every reason to be optimistic about his chances. He had met with Dean Dretsch and Schlecht in the spring of 1998 and been told by Dean Dretsch that his tenure bid was "in good shape." (JA244 (Schlecht Deposition at 15-16); JA279 (Pan Deposition at 175).) Mere weeks before the FEC began its deliberations on Pan's candidacy, Dean Dretsch issued a comprehensive second-year review detailing Pan's contributions to Muhlenberg. (JA94-JA96.) This review did not contain a single critique. To the contrary, it was replete with praise. According to Dean Dretsch: Interest in [Pan's] courses was immediately evident [from the time Pan first arrived at Muhlenberg] and students have expressed a high level of satisfaction with [Pan] as a teacher. Students and colleagues consider him to be highly effective and obviously committed to his students. While his student course evaluations [SIR scores] show greater variability than is typical at Muhlenberg, his courses enroll to capacity and students express a high degree of satisfaction with their experiences with him. In commenting on their classroom observations, his colleagues describe him as experienced, successful, careful, precise, energetic, and enthusiastic . . . . [Pan's] summary evaluation for Teaching is considered to be "good to excellent." (JA94-JA95.) The tenure evaluation Schlecht was required to prepare for Pan was similarly stellar. Schlecht wrote: I confidently and enthusiastically support his candidacy for tenure and promotion to Associate Professor. With regard to every criterion for faculty evaluation, his work has been splendid . . . . An examination of [Pan's] syllabi reveals how carefully and thoughtfully [he] organizes his courses. Classroom observations make obvious how well prepared he is and how clearly he is able to explicate concepts that are initially quite foreign to his students . . . . I have visited several classes in three different courses during the past year or so and in every instance, his classroom performance was most impressive . . . . His ability to help students understand aspects of Chinese thought and culture . . . is quite remarkable . . . . All of his courses are fully enrolled and they are typically filled rather quickly in the registration process. Some of the student response is no doubt to be explained [because] some students are there just to "satisfy a requirement" (a fact that needs to be recognized in considering student course evaluations). But the popularity of his courses is primarily the result of his ability to engage students and stimulate their interest in the subjects he teaches. Many students come back for second and third courses with him . . . . (JA101-JA103.) Schlecht also emphasized that his "unqualified and enthusiastic support of [Pan] for tenure and promotion echoes the ringing endorsement of every other member of the [P]hilosophy [D]epartment . . . ." (JA103.) Indeed, in their individual tenure recommendation letters, each of Pan's Philosophy Department colleagues lavished Pan with praise and extolled his excellent teaching ability: Dr. Patrice DiQuinzio commented: Pan "is an excellent teacher who works very hard to enable his students to understand difficult material." His "classes are very well designed." Even "in his lecture he worked hard to solicit the material from students rather than simply convey it to them." During class discussion, "students were making a lot of connections between that day's material and material previously covered." DiQuinzio praised "the excellent effects of [Pan's] teaching on a typical Muhlenberg student," and concluded that he was "greatly deserving of tenure and promotion." (JA108, JA109.) Dr. Marjorie Hass wrote: Pan is "an excellent teacher and an irreplaceable addition to our department" and "has my enthusiastic and unqualified support" for tenure. His courses "were beautifully structured." She had had "frequent conversations with student 'fans,'" and Pan's "presence in class is warm and engaging." His classes contain "several stars, students who are clearly enamored with the subject," but Pan "appears equally able to further their interest while at the same time coaxing the less prepared students into participation." (JA110.) Dr. Lawrence Hass believed: Pan is a "truly excellent and experienced teacher of undergraduates," whose classes were "carefully prepared" and whose "way of engaging students [was] obviously effective." "I saw students really engage the material and become involved." It "is clear to me that students are having an excellent experience in his classes they are learning great, really important material that no one else at [Muhlenberg] could teach, and they are having their thoughts provoked and enriched by a superb teacher." Pan "exceeds the requisite standards of the four [tenure] criteria" and "I recommend him for tenure without reservation." (JA92, JA93.) Dr. Ted Schick, Jr. stated: Pan's courses were "enlightening and informative," Pan's "grasp of the material is excellent," and his "presentation is engaged." "As a former teacher of philosophy east and west . . . I appreciate the difficulty of relating eastern ideas to those raised in the west. Having spent time in both cultures, [Pan] does this almost effortlessly." Pan's presentation in the classroom "was fascinating" and "captured the students' attention." "I rate [Pan's] teaching as excellent," and "I am happy to recommend him for tenure without reservation." (JA98.) Dr. Christine Sistare concluded: "I have only good things to say" about Pan's teaching. "His classes are interesting and engaging," and he "is clearly at ease with students, pleasant and professional with them at all times." He "continues to be well-spoken of by our students and . . . his classes are well-received by them." Pan "is, to be sure, a person of a different culture and, thus, somewhat differing manners; nonetheless he works among us with real grace and effectiveness." "I think we should be very happy to have him on our faculty." "I do recommend him for tenure and promotion." (JA97.) Colleagues from other academic departments were similarly impressed with Pan and also recommended him for tenure and promotion. Dr. Darrell Jodock, who was the chair of the original search committee that offered Pan his job at Muhlenberg, wrote that he "was pleased by what I witnessed" in Pan's classes; that the classes were "organized and clear"; and that Pan "repeatedly invited and encouraged the class to think along with him by asking questions." (JA100.) Dr. Susan Schwartz from Muhlenberg's Department of Religion stated that when she attended one of Pan's classes, she was engaged by his teaching style and, "[l]ike his students[,] . . . [h]ad many questions and observations." Schwartz found Pan's "presentation to be authoritative and engaging." She said that "most of the students in the room responded to his conversational style" and "[m]ost stayed in the room through the break, and indeed stayed after the class was scheduled to end to continue the conversation." (JA90.) Dr. George Heitmann of Muhlenberg's Department of Accounting, Business & Economics (and another member of the original search committee) was also extremely impressed. Pan, Heitmann wrote, is "an excellent teacher" who possesses "that mastery of his field that is a prerequisite for being an outstanding teacher." Heitmann noted that in one visit to Pan's class, the "discussion was lively." Heitmann also commented that Pan "has a well refined ability to bring his students into the conversation" and that "his students were engaged and engaging." (JA106.) Dr. George Benjamin the FEC member appointed to observe Pan objectively (JA327 (Benjamin Deposition at 13)) also complimented Pan. In his letter evaluating Pan's performance, Benjamin noted that the syllabi for the courses Benjamin attended were "quite complete and clear about student requirements." Benjamin observed that in one class, Pan had "modest success" in eliciting discussion from students, and that a "small core of students actively participated." Benjamin indicated that Pan "was especially effective in explaining concepts of Confucianism using analogies from the student's Western culture." Indeed, Benjamin wrote, "[d]uring my short exposure to his classes, [Pan] used examples from Emerson, Jung, Liebniz, Apple Computer, and Time magazine, to explain Chinese philosophy." Pan's "facility in using his broad knowledge to enhance the class," Benjamin said, "was striking." In conclusion, Benjamin wrote, "Pan is a knowledgeable, well organized, and effective teacher" who "is clearly comfortable in the classroom and in full command of the material." In addition, Benjamin added, "I was struck by how he is able to adjust the level [of] his courses for our students and use their background as a base for extending their thought." (JA104-JA105.) Many alumni evaluations of Pan were equally impressive. One former student called Pan "an excellent teacher who brings a great deal of enthusiasm to his class." (JA116.) Another commented that Pan's class was "very informative and enjoyable," that Pan had "an excellent grasp of the subject material and presented it in a clear and easy to understand manner," and that "[c]lass discussion and questions were greatly encouraged." This student concluded that "Pan is an excellent candidate for tenure." (JA117.) Another noted that Pan was "consistently accessible for questions" and "always eager to have a discussion with his students." (JA113.) Still another was "honored to have the opportunity to add my input on [Pan's] teaching style," and wrote that Pan was an "excellent professor" who made "class very interesting." This student commented that Pan "encouraged class discussions almost every class" and "was always eager to help his students if they were having trouble." (JA114.) Yet another student observed that Pan "definitely had command of the material," had "enormous enthusiasm for his subject and teaching," "always encouraged class discussion," and "sparked students' interest and curiosity in his subjects." (JA115.) D. The FEC and FPPC Reports Despite these endorsements, the FEC voted unanimously to recommend against granting Pan tenure. (JA137.) In its April 5, 1999 report explaining this recommendation, the FEC found that there was "mixed evidence on the quality of [his] teaching," and that "[i]n spite of [Philosophy Department] support, both faculty colleagues and alumni raise questions about his effectiveness as a teacher." (JA134.) The FEC pointed out that in Schlecht's second-year review of Pan, Schlecht had written that there "'were not many student questions or comments during the classes I attended, despite efforts from . . . Pan to encourage more vocal participation.'" (JA134.) The FEC noted that another Philosophy Department colleague, Schick, wrote in Pan's third-year evaluation that "'I was disappointed that [Pan] was unable to generate more of a discussion.'" (JA134, JA112.) The FEC's own observer, Benjamin, indicated that Pan had only had "'modest success'" while "'trying to elicit some discussion from students . . . .'" (JA135.) In general, the FEC asserted, there was "little consensus from faculty on [Pan's] effectiveness in the classroom." (JA135.) The FEC was also purportedly troubled by "indications that [Pan] presents his course material in a way and at a level that is inaccessible to the average student." (JA135.) "Student comments echo the ambivalence of the faculty," the FEC wrote. (JA135.) For example, one alumnus noted that "'certain aspects of [Pan's] course could have been better organized,'" that Pan "'may need to add more structure to his lectures so that students can grasp the basics of his material better,'" and that his "'class lacked a structured syllabus and grading policy.'" (JA135.) Another commented that those "'who wanted to sit like a lump in the back of the class were able to,'" and that Pan's classes "'came to be known as "blow off" courses.'" (JA135.) Because student letters in general tend to be positive, the FEC argued, "the number of students expressing concerns cannot be overlooked." (JA135.) Further, the FEC alleged, Pan has "not been successful in adjusting his teaching style to Muhlenberg." (JA135.) The FEC observed that Pan's SIR scores had shown a continuous decline from an average of 4.485 in Spring 1997 to 3.28 in Fall 1999. (JA135.) In addition, 34 percent of his students failed to fill out a course evaluation a "poor turnout" which, "coupled with falling SIR scores and poor class participation, shows a lack of engagement by students in [Pan's] classes." (JA135.) For all these reasons, the FEC rated Pan's teaching "good" not "excellent." (JA135.) Dean Dretsch concurred with the FEC's recommendation not to grant Pan tenure and promotion, and forwarded the recommendation to President Taylor. (JA233 (Dretsch Deposition at 50).) Pan appealed the FEC's initial tenure recommendation to the FPPC. Pan submitted a 27-page appeal statement, in which he outlined his objections to the FEC's report and explained why he deserved tenure and promotion. (JA159-JA186.) Around this time, Religion Department professor Schwartz (who had worked extensively with Pan at Muhlenberg (JA349 (Schwartz Deposition at 14-16)) and submitted a letter of recommendation on his behalf (JA90) approached President Taylor and privately informed him that she was worried that there was "a racial overtone in the Pan matter." (JA304 (Taylor Deposition at 76).) Schwartz would later indicate that she had "had doubts about the decision regarding his tenure from the very beginning and felt that it was possible that he was misjudged on the basis of personal factors." (JA351 (Schwartz Deposition at 42).) President Taylor never followed up to ask Schwartz why she believed the "racial overtone" existed. (JA304 (Taylor Deposition at 77).) President Taylor did later meet with Dean Dretsch, Schlecht, and Pan to discuss Pan's tenure candidacy and the FEC's report. (JA304 (Taylor Deposition at 75).) President Taylor testified that at this meeting, Pan's "different culture" was discussed. (JA310 (Taylor Deposition at 107).) At a later private meeting with Pan, President Taylor told Pan that the members of the FEC "don't understand you" because "[t]hey're playing . . . American chess and you're playing go" an Asian chess-like game. (JA288 (Pan Deposition at 280); JA313 (Taylor Deposition at 124).) President Taylor testified that he used this metaphor to demonstrate to Pan that "the way [Pan's] mind was working intellectually was different from the way other people's minds in the place were acting." (JA314 (Taylor Deposition at 125-26).) President Taylor indicated that he believed the disconnect between Pan and the FEC was caused by "a certain amount of Chinese subtlety versus American directness." (JA314 (Taylor Deposition at 128).) Pan testified that this "American Chess"/"Go" comment conveyed President Taylor's "clear sense of cultural differences between me and the FEC." (JA288 (Pan Deposition at 280).) Pan said it reflected a definite "cultural bias" based on his Chinese national origin. (JA289 (Pan Deposition at 281).) In July 1999, the FPPC held a two-day hearing on Pan's appeal. (JA187.) Pan, Schlecht, Dean Dretsch, and members of the FEC all testified. (JA187.) According to Pan, during this hearing Dean Dretsch told the FPPC that Pan's alleged teaching problems were "cultural." (JA264, JA267 (Pan Deposition at 28, 57).) Dean Dretsch himself later admitted that he raised the issue of Pan's "cultural differences" before the FPPC. (JA235 (Dretsch Deposition at 58-59.) Dean Dretsch also later testified that he and Schlecht had had several conversations in the past about Pan's purported teaching "problems" (e.g., his lower SIR scores), and that "concern about communication [issues] based on culture [and cultural differences] was part of the speculation" as to the cause of the "problems." (JA232 (Dretsch Deposition at 46, 48).) On July 19, 1999, in a letter to President Taylor, the FPPC recommended that President Taylor reconsider Pan's tenure and promotion application. (JA188, JA189.) The FPPC gave two reasons for this decision. The FPPC found that "inadequate consideration was given by the FEC in its evaluation of [Pan's] teaching." (JA187.) More specifically, the FPPC concluded, quotations in the FEC's findings from letters written by Schlecht and Schick (both of whom wrote enthusiastic letters in support of Pan's candidacy (JA98, JA101)) were "taken out of context and misrepresented their intentions." (JA187.) The FPPC also noted that the FEC's claim that Pan "has not been successful in adjusting his teaching style to Muhlenberg" was "without basis." (JA188.) In sum, according to the FPPC, the "preponderance of evidence in [Pan's] written file, including the letter of the FEC's own observer [Benjamin], points to a conclusion about [Pan's] teaching different from that of the FEC's." (JA187.) The Chair of the FPPC who conducted the hearing, Dr. Anna Adams ("Adams"), would later indicate that she personally thought that the FEC's decision was simply "not warranted by [Pan's] written [tenure] file." (JA256 (Adams Deposition at 33.) Second, the FPPC concluded, Pan's process had been tainted by violations of standard Muhlenberg tenure review procedure. (JA188.) Contrary to what Pan had been promised, no Steering Committee was ever formed or ever met with the Philosophy Department to formulate a composite evaluation of Pan's work. (JA188.) This procedural violation was a "serious concern," the FPPC warned. (JA188.) Had it not occurred, the FPPC concluded, there was "at least the potential of a different outcome." (JA188.) After receiving the FPPC's report, in August 1999, President Taylor met with the FEC and the FPPC separately to discuss Pan's case and the various committee conclusions. (JA301, JA311 (Taylor Deposition at 62, 110).) During his meeting with the FPPC, President Taylor described Pan as "different," but apparently told the FPPC that "we need difference." (JA311 (Taylor Deposition at 111).) President Taylor later testified that by saying Pan was "different," he meant Pan "was a different person than the college had had before" because he was "Chinese" and was educated in "China," and because he brought a different intellectual viewpoint to Muhlenberg. (JA311 (Taylor Deposition at 111).) President Taylor also questioned the FPPC on whether the FPPC members thought the FEC had considered Pan's "cultural differences" in formulating the FEC's negative recommendation. (JA258 (Adams Deposition at 46).) Dr. Anna Adams, the Chair of the FPPC, confirmed that the FPPC discussed this issue in response to Taylor's inquiry, but stated that "nobody believed that the FEC consciously denied [Pan] tenure because he was Chinese." (JA258 (Adams Deposition at 46) (emphasis added).) However, President Taylor himself later admitted to having considered one particular aspect of Pan's culture while deliberating over Pan's academic fate. Dr. Christine Sistare, one of Pan's Philosophy Department colleagues, had indicated in her recommendation in support of Pan's tenure candidacy both that she had "only good things to say" about Pan's teaching, and that Pan was "a person of a different culture, and thus, somewhat differing manners . . . ." (JA97.) President Taylor said in his deposition that Sistare's latter statement was a "red flag" to him that it made him think that perhaps Pan's personality was "abrasive" somehow. (JA309 (Taylor Deposition at 93-94).) In the end, President Taylor decided to reject the FPPC's recommendation to reconsider the FEC's negative report. (JA198.) He sided with the FEC and refused to endorse Pan for tenure and promotion. (JA198.) President Taylor then sent Pan a letter on September 7, 1999, officially informing Pan that he would not be given tenure or a promotion. (JA195, JA198.) Pan left Muhlenberg less than a year later. (DE3 7(a), 7(j); JA209, JA211.) E. The Proceedings Below As noted above, Pan filed a charge of discrimination alleging national origin discrimination. (JA195.) After finding reasonable cause (and attempting conciliation), the EEOC filed suit against Muhlenberg on Pan's behalf. (DE1; JA201.) On March 16, 2004, Muhlenberg filed a motion for summary judgment. (DE13.) The EEOC argued in its summary judgment response that it had proffered sufficient evidence to survive summary judgment on the issue of whether Muhlenberg's reason for denying Pan tenure was discriminatory. The EEOC emphasized that the FEC's report which was the linchpin of Muhlenberg's legitimate non-discriminatory explanation was "riddled with violations, procedural inconsistencies and misquotes." (DE16 at 29.) The FPPC found (among other things) that quotes from faculty members' favorable recommendations were taken out of context and their intentions were misrepresented; that the FEC's claim that Pan had failed to adjust his teaching style to Muhlenberg was "without basis"; and that the failure to form a composite steering committee may have caused a different tenure outcome. The Commission cited Stewart v. Rutgers State University, 120 F.3d 426 (3d Cir. 1997) (holding that "arbitrary and capricious" actions by a tenure review committee can preclude summary judgment), and argued that such factual and procedural inconsistencies are sufficient evidence upon which a jury could conclude that a tenure denial stemmed from unlawful discrimination. (DE16 at 29-31.) In addition, the Commission contended, the discussion by President Taylor, Dean Dretsch, the FEC and the FPPC of Pan's "cultural differences" was evidence from which one could find that his national origin was a motivating factor in the decision to deny him tenure. (Id. at 28-29, 31-33.) In an opinion issued on April 29, 2004, the district court disagreed and granted Muhlenberg's motion for summary judgment. (DE18.) The district court first found that EEOC had established a prima facie case. It ruled that Pan was "qualified" for tenure for purposes of the prima facie case, since Dean Dretsch had sent Pan a letter on July 15, 1998 indicating that Pan would be up for tenure during the 1998-1999 academic year (showing that he was sufficiently "qualified" to be among those from whom a selection, to some extent discretionary, would be made all that is needed in the Third Circuit). (Id. at 9.). The district court also found that Pan was similarly situated to others not in his protected class (non-Asians) who were treated more favorably (given tenure). (Id. at 9-10.) Thus, the district court ruled, the EEOC had established its prima facie case. (Id. at 10.) The district court then found that Muhlenberg had met its burden of proffering a legitimate, non-discriminatory reason for refusing to grant Pan tenure and promotion namely, that "his teaching standards fell below the college's standard for excellence." (DE18 at 11, 13.) The district court then concluded that the EEOC had not provided enough evidence that this reason was pretextual to prevail. For instance, the district court acknowledged that President Taylor, Dean Dretsch, the FEC, and the FPPC had discussed Pan's "culture" at various points during his tenure review, but the district court decided these incidents did not discredit Muhlenberg's explanation for its actions. The district court ruled that "[t]he fact that the [FPPC] discussed whether cultural issues had been a motivating factor in the FEC's decision cannot be deemed evidence of discrimination, especially since [Adams, the head of the FPPC] testified that no one thought that cultural issues were the reason for the denial of tenure." (Id. at 15.) The district court also stated President Taylor's American Chess/"Go" comment did not demonstrate an illegal bias, since it could "more reasonably be inferred as describing a communication problem" between Pan and the FEC. (Id. at 24.) The district court reasoned that references such as these to "cultural differences" evident throughout the proceedings were "simply too vague to substantiate a charge of discrimination." (Id. at 17.) The district court also rejected the EEOC's argument, based on this Court's decision in Stewart v. Rutgers State University, that the factual and procedural errors evident here were sufficient to raise a genuine issue of material fact on pretext. The district court distinguished Stewart on its facts (reasoning, for example, that the errors made by the tenure review committee in Stewart were "more substantial" than the FEC's errors here). (DE18 at 18-20). Even though the FPPC found that the FEC had misrepresented faculty comments and made statements about Pan's teaching that were without basis, the district court decided that "Plaintiff has offered no evidence which would cause us to doubt the sincerity of the FEC . . . ." (Id. at 18-20.) Similarly, even though the FPPC found that the procedural irregularities in Pan's tenure review may have prevented Pan from getting tenure, the district court ruled that "Plaintiff has not offered any evidence to suggest that Defendant's failure to form the [s]teering [c]ommittee was motivated by discrimination." (Id. at 21.) Accordingly, based on its decision that the EEOC had failed to present persuasive evidence of pretext, the district court granted Muhlenberg's summary judgment motion. (DE18 at 24.) SUMMARY OF ARGUMENT Title VII forbids an employer from discriminating against an individual in employment decisions because of the individual's national origin. This includes discrimination based on where the individual comes from and/or the individual's cultural traits. This Title VII proscription applies with equal force to tenure and promotion decisions made at institutions of higher learning notwithstanding the subjective and discretionary nature of such decisions. As the district court found below, the Commission proffered sufficient evidence to create a prima facie case of national origin discrimination here. The EEOC showed that Pan was in a protected class (he was Asian (Chinese)). He applied and was rejected for tenure. He was qualified for tenure (since he was at least in the "middle group" of candidates up for consideration for tenure). And others not in Pan's protected class (i.e., non-Asian professors) were given tenure and promoted. In addition, the EEOC presented independent evidence that Muhlenberg decisionmakers considered Pan's culture and cultural differences in deciding whether he deserved tenure and promotion. This is enough under this Court's precedent to create an inference of national origin discrimination, and thus to establish a prima facie case. Contrary to the district court's conclusion, the Commission also presented sufficient evidence from which a reasonable jury could either (1) disbelieve Muhlenberg's articulated legitimate reason for refusing to give Pan tenure and a promotion; or (2) believe that Pan's national origin was more likely than not a motivating or determinative cause of Muhlenberg's decision. Muhlenberg alleged that Pan did not get tenure because he was not an "excellent" teacher. Abundant evidence in the record casts serious doubt on this asserted explanation. The FEC's report, the basis of Muhlenberg's defense, was fraught with factual findings vastly contrary to the many positive assessments of Pan's teaching. All of Pan's Department of Philosophy colleagues, other Muhlenberg peers, professors outside the college, and numerous students all rated Pan's teaching "excellent" and/or enthusiastically recommended him for tenure. The FPPC specifically found that the information in Pan's tenure file suggested a conclusion about Pan's teaching contrary to that reached by the FEC. The FPPC also found that various procedural irregularities (most importantly, Muhlenberg's failure to form a steering committee to evaluate Pan's Chinese Civilization-related work) might have prevented Pan from being granted tenure. Under Stewart v. Rutgers State University, factual and procedural discrepancies like these are sufficient to create a genuine issue of material fact on pretext. The district court's attempts to distinguish Stewart are seriously flawed, and its failure to find that Stewart and other Third circuit precedents should prevent summary judgment on these facts is legal error. In addition, the Commission presented sufficient affirmative evidence of national origin bias to survive summary judgment on its claim. The EEOC demonstrated that President Taylor, Dean Dretsch, and the FEC all openly discussed Pan's culture and cultural differences while they were deliberating over whether Pan deserved tenure and promotion. Indeed, President Taylor even met privately with Pan and indicated that Pan's cultural difference explained the FEC's negative recommendation (describing the difference between American and Asian chess to explain metaphorically that the way Pan's "mind was working intellectually was different from the way other people's minds in the place were acting"). A fair reading of the record could allow a reasonable jury to conclude that this consideration of Pan's national origin improperly influenced Muhlenberg's decisionmakers and motivated Muhlenberg's ultimate conclusion that he was unsuited for tenure and promotion. In evaluating this evidence, however, the district court drew inferences and resolved credibility questions in the light least favorable to the EEOC. As a result, the district court improperly discounted this evidence and failed to find that it was at all probative of a national origin bias. This was reversible error. ARGUMENT A. Standard of Review The Third Circuit's review of a district court order granting summary judgment is plenary. Fields v. Thompson Printing Co., Inc., 363 F.3d 259, 265 (3d Cir. 2004). Summary judgment cannot be granted if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Sarullo v. U.S. Postal Serv., 352 F.3d 789, 794 n.4 (3d Cir. 2003). At summary judgment, the district court is not to determine the truth of the matter, only whether there is a genuine issue for trial. Roberts v. Fleet Bank (R.I.), 342 F.3d 260, 265 (3d Cir. 2003). The district court must give the nonmoving party the benefit of all reasonable inferences, Sempier v. Johnson & Higgins, 45 F.3d 724, 727 (3d Cir. 1995), and all facts asserted by the nonmoving party, if supported by affidavits or other evidentiary material, must be regarded as true, Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080 (3d Cir. 1996). The district court may not make credibility determinations or weigh the evidence. Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004). In the Third Circuit, in employment discrimination cases like this one, these summary judgment principles are "'applied with added rigor' because 'intent and credibility are crucial issues.'" Coneen v. MBNA Am. Bank, NA, 334 F.3d 318, 325 n.9 (3d Cir. 2003) (quoting Robinson v. PPG Indus., Inc., 23 F.3d 1159, 1162 (7th Cir. 1994)); see also Goosby v. Johnson & Johnson Med., Inc., 228 F.3d 313, 321 (3d Cir. 2000) (internal quotations omitted) (warning that "a trial court must be cautious about granting summary judgment to an employer when, as here, its intent is at issue"). B. Governing Legal Framework 1. National Origin Discrimination Is Prohibited Title VII prohibits an employer from discriminating against any individual with respect to compensation, terms, conditions, or privileges of employment because of the individual's national origin. 42 U.S.C. 2000e-2(a)(1); see also 29 C.F.R. 1606.2 (providing that Title VII "principles of disparate treatment . . . apply equally to national origin discrimination"). Such national origin discrimination includes treating someone less favorably because he or she comes from a particular place, belongs to a particular national origin or ethnic group, or has physical, linguistic, and/or cultural characteristics closely associated with a national origin or ethnic group. 29 C.F.R.  1606.1. If an employer fails for any of these reasons to promote an individual, the employer has violated Title VII. See, e.g., EEOC Compl. Man., Section 13: National Origin Discrimination 13-III.B. (Dec. 2, 2002), available at http://www.eeoc.gov/policy/docs/national-origin.html (explaining that Title VII prohibits promotion decisions based on national origin). 2. Tenure Decisions Are Subject to Title VII Colleges like Muhlenberg, and academic decisions regarding tenure and accompanying promotions, are clearly subject to these proscriptions. See, e.g., Kunda v. Muhlenberg Coll., 621 F.2d 532, 545 (3d Cir. 1980) (noting that "academic institutions are not ipso facto entitled to special treatment under federal law prohibiting discrimination"). In 1972, Congress amended Title VII specifically to ensure that colleges and universities, originally exempt from Title VII, would thereafter be covered. Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, 86 Stat. 103 sec. 3 (amending 42 U.S.C. 2000e-1) (1972). Congress did so over the objections of opponents who believed that such an extension of Title VII would threaten institutions of higher education by unduly interfering with discretionary academic decisions on hiring and promoting faculty. See, e.g., 118 Cong. Rec. 311, 4919 (1972) (remarks of Sen. Ervin); id. at 946 (remarks of Sen. Allen). Congress acted despite this concern because it recognized that discrimination against minorities and women in the field of education "is as pervasive as discrimination in any other area of employment," and that minorities and women at institutions of higher learning languish disproportionately in lower-level (e.g., non-tenured) positions. H.R. Rep. No. 92-238, at 19-20 (1971), reprinted in 1972 U.S.C.C.A.N. 2137, 2155. The intended effect of the elimination of the Title VII exemption for colleges and universities "was to expose tenure determinations to the same enforcement procedures applicable to other employment decisions." Univ. of Pa. v. EEOC, 493 U.S. 182, 190 (1990). Thus now, while academic "decisions about promotion are best left to the academics," Bennun v. Rutgers State Univ., 941 F.2d 154, 173 (3d Cir. 1991), this is not true if "the decisions are . . . made, in part large or small, upon statutorily impermissible reasons." EEOC v. Franklin & Marshall Coll., 775 F.2d 110, 117 (3d Cir. 1985). And while a court should not normally act as a "super tenure review board," Roebuck v. Drexel Univ., 852 F.2d 715, 731 (3d Cir. 1988), "tenure decisions are not entitled to special treatment in Title VII actions merely because they are founded in part on subjective criteria," since "[s]imilar criteria must be considered in a Title VII review of any employment decision." Franklin & Marshall Coll., 775 F.2d at 116 n.2. 3. Proving National Origin Discrimination In the college context (as in other employment settings), a plaintiff may prove unlawful discrimination using the evidentiary paradigm first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973) (and applied routinely by the Third Circuit). Under this familiar framework, the plaintiff carries an initial burden to put forth a prima facie case of unlawful discrimination. If the plaintiff successfully proves a prima facie case, the defendant must articulate legitimate, non-discriminatory reasons for its challenged conduct. If the defendant offers such a lawful explanation, the plaintiff must then show that the explanation offered is but a pretext for the defendant's true, prohibited discriminatory intent. Under this framework, the burden of persuasion of proving intentional discrimination rests at all times on the plaintiff. See id.; see also Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711 (1983); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308 (1996); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000); Raytheon Co. v. Hernandez, 540 U.S. 44 (2003); Sarullo, 352 F.3d at 797. C. The District Court Correctly Concluded that the EEOC Established a Prima Facie Case of National Origin Discrimination Here, the district court correctly concluded that the EEOC presented sufficient evidence to establish a prima facie case under this paradigm. 1. The Commission Satisfied the Traditional Prima Facie Factors To establish a prima facie case in a Title VII suit alleging denial of tenure, the plaintiff may show that (1) the charging party was a member of a Title VII protected class; (2) he or she applied for, was qualified for, and was rejected for the tenured position sought; and (3) non-members of the relevant protected class were treated more favorably. Bennun v. Rutgers State Univ., 941 F.2d 154, 170 (3d Cir. 1991); Roebuck v. Drexel Univ., 852 F.2d 715, 726 (3d Cir. 1988). The district court correctly concluded that the EEOC satisfied these factors here. Muhlenberg does not dispute that Pan, who was born and raised in China, is a member of a protected national origin (i.e., Asian (Chinese)). (DE3 7; JA209); see also 29 C.F.R. 1606.1 (defining "national origin" for Title VII purposes in part as relating to "an individual's . . . place of origin"); cf. EEOC Compl. Man., Section 13: National Origin Discrimination 13-II (Dec. 2, 2002), available at http://www.eeoc.gov/policy/docs/national-origin.html (explaining that national origin discrimination includes discrimination because a person comes from a particular place or because a person is a member of a particular ethnic group). Muhlenberg does not dispute that Pan applied and was rejected for tenure and promotion to Associate Professor. (DE3; JA207.) Finally, Muhlenberg does not dispute that those outside Pan's protected class other non-Asian candidates up for tenure and promotion in academic year 1998-1999 were treated more favorably (i.e., received tenure and promotion). (DE3 7(k); JA212; JA155.) Muhlenberg does dispute whether Pan was actually "qualified" for the tenured position he sought. Muhlenberg asserted below that the EEOC could not establish this element of its prima facie case because the FEC had not rated Pan "excellent" and his teaching thus did not meet Muhlenberg's stringent criteria. (DE13 at 12.) The district court rightly rejected this reasoning. To satisfy the "qualified" element of the prima facie case in the context of a failure to grant tenure, a charging party "need only show that he was sufficiently qualified to be among those persons from whom a selection, to some extent discretionary, would be made." Roebuck, 852 F.2d at 726 (quoting Banerjee v. Bd. of Trs. of Smith Coll., 648 F.2d 61, 63 (1st Cir. 1981)). That is, he only has to prove "that his qualifications were at least sufficient to place him in the middle group of tenure candidates as to whom both a decision granting tenure and a decision denying tenure could be justified as a reasonable exercise of discretion by the tenure- decision making body." Id.; see also Bennun, 941 F.3d at 176 (quoting Roebuck). The test is not (as Muhlenberg tried to convince the district court) whether the professor in question ultimately deserves tenure just whether he could legitimately be considered for it. Cf. Sempier v. Johnson & Higgins, 45 F.3d 724, 729 (3d Cir. 1995) (quoting Weldon v. Kraft, Inc., 896 F.2d 793, 798-99 (3d Cir. 1990)) (warning that "'to deny the plaintiff an opportunity to move beyond the initial stage of establishing a prima facie case because he has failed to introduce evidence showing he possesses certain subjective qualities would improperly prevent the court from examining the criteria to determine whether their use was mere pretext'"); Fowle v. C&C Cola, 868 F.2d 59, 64 (3d Cir. 1989) (same). Pan easily passed this test. As the district court noted, Dean Dretsch sent Pan a letter on July 15, 1998 informing Pan that he would be considered for tenure in the upcoming academic year. (DE18 at 9.) This alone was enough, according to the district court, to establish that Pan was "qualified" for tenure for purposes of establishing a prima facie case. (Id.) In addition, the unequivocal tenure endorsements Pan received from Schlecht and his other Philosophy Department Colleagues, and the letters of recommendation praising him contributed by students (and even scholars outside Muhlenberg, as well), reflect Pan's clear "qualifications" to be at least considered for tenure. See Bennun, 941 F.2d at 176 (finding that a professor who had received "positive votes from his own department" and favorable letters of recommendation from outside peers in his field "was at least in this middle group of candidates for full professor"). Pan was thus clearly qualified for tenure and promotion, and the district court properly determinated that the EEOC established a prima facie case of national origin discrimination under the multi-factor approach used by this Court. 2. The Commission Also Presented Affirmative Evidence Raising An Inference of National Origin Discrimination This multi-factor approach is not the only way to establish a presumption of discrimination. The elements of any particular Title VII prima facie case "must not be applied woodenly, but must rather be tailored flexibly to fit the circumstances," Geraci v. Moody-Tottrup, Int'l, Inc., 82 F.3d 578, 581 (3d Cir. 1996), and the requirements for creating a prima facie case cannot be imposed "on a one-size-fits-all basis," Jones v. Sch. Dist., 198 F.3d 403, 411 (3d Cir. 1999). Accordingly, a plaintiff does not necessarily have to show that similarly situated comparators were somehow treated more favorably. See Matczak v. Frankford Candy & Chocolate Co., 136 F.3d 933, 939-40 (3d Cir. 1997) (holding that a plaintiff need not necessarily show that those outside the relevant protected class were treated more favorably to establish a prima facie case); Marzano v. Comp. Sci. Corp., Inc., 91 F.3d 497, 511 (3d Cir. 1996) (ruling that a plaintiff need not point to "similarly situated" employees). A plaintiff can create a prima facie case simply by showing that a charging party was subjected to an adverse employment action "under circumstances that give rise to an inference of unlawful discrimination." Waldron v. SL Indus., Inc., 56 F.3d 491, 494 (3d Cir. 1995) (citing Burdine, 450 U.S. at 253)); see also Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 356 (3d Cir. 1999) (quoting O'Connor, 517 U.S. at 312)) (requiring only evidence adequate to create an inference that an employment decision was based on an illegal discriminatory criterion). Here, there is sufficient independent evidence unconnected to any comparison between Pan and the non-Asian professors who received tenure and promotion during academic year 1998-1999 to raise an inference of national origin discrimination. President Taylor, Dean Dretsch, the FEC, and the FPPC all discussed Pan's "culture" and "cultural differences" while examining Pan's tenure file and deciding whether to promote him. These Muhlenberg decisionmakers debated whether and to what extent Pan's Asian (Chinese) background might have affected his teaching, caused alleged communication gaps with students, and/or rendered him an "abrasive" colleague. A reasonable jury could conclude that the consideration of Pan's culture in this manner ultimately influenced Defendant's decision to deny Pan tenure and promotion. In our view, this evidence alone is legally sufficient to create a prima facie case of Asian (Chinese)-related bias here. For these reasons because the EEOC satisfied all of the prima facie factors typically invoked, and because the EEOC presented sufficient affirmative evidence of discrimination to raise an inference of national origin bias the district court's ruling that the EEOC established a prima facie case was correct. D. The District Court Wrongly Ruled that the EEOC Did Not Provide Sufficient Evidence of Pretext to Survive Summary Judgment The EEOC also presented sufficient evidence to create a genuine issue of material fact on the question of whether Muhlenberg's articulated reason for denying Pan tenure and promotion that he was not an "excellent" teacher was a pretext for national origin discrimination. The district court's contrary conclusion should therefore be reversed. 1. The Standard for Showing Pretext for Discrimination The leading Third Circuit case on the standards for proving pretext is Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994). According to Fuentes, "to defeat summary judgment when the defendant answers the plaintiff's prima facie case with legitimate, non-discriminatory reasons for its action, the plaintiff must point to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action." Id. at 764. More specifically, to survive summary judgment a plaintiff must: either present sufficient evidence to meaningfully throw into question, i.e., to cast substantial doubt upon, the [defendant's] proffered reasons for [its actions] (e.g., by painting them as weak, implausible, contradictory, or incoherent), or . . . come forward with sufficient evidence from which a factfinder could reasonably conclude that an illegitimate factor more likely than not was a motivating or determinative cause of the adverse employment decision (e.g., by showing that the employer in the past had subjected him to unlawful discriminatory treatment, that the employer treated other, similarly situated persons not of his protected class more favorably, or that the employer has discriminated against other members of his protected class or other protected categories of persons). Id. at 765. Here, the EEOC met this burden. It proffered evidence tending to show (or at least allowing a reasonable factfinder to conclude) that Defendant's explanation was unworthy of belief because it is implausible, contradictory, and incoherent, and that cultural considerations motivated Muhlenberg's actions. 2. The EEOC's Evidence on Pretext a. The Stewart Case The resolution of the pretext question in this case should be controlled by Stewart v. Rutgers State University, 120 F.3d 426 (3d Cir. 1997), a case involving a strikingly similar factual scenario. There the plaintiff was a black female professor ("Stewart") whose candidacy for tenure and promotion was evaluated by a tenure review committee, the "PRC." The PRC recommended against granting Stewart tenure on the ground that her scholarship was inadequate. Id. at 429. It noted that outside peer reviewers found "a lack of substantive contribution in scholarship," and that "the independence and quality [of her scholarship] had been questioned." Id. The PRC found her work was merely "promising." Id. at 433. Stewart filed an appeal with the relevant grievance committee, claiming that racial and gender discrimination motivated the PRC's decision. Id. at 430. The grievance committee found that the PRC's report contained material factual inconsistencies and that its decision to deny Stewart tenure "had been made arbitrarily and capriciously." Id. The grievance committee noted that the PRC's characterization of her work as merely "promising" ignored that six of the nine outside peer reviewers called her work considerably more than simply "promising." Id. at 434. The grievance committee also criticized the PRC's finding that "some" evaluators had questioned the independence and quality of her scholarship. According to the grievance committee, while some evaluators from Stewart's own college did make this judgment, none of the outside peer reviewers did. Id. at 433. The grievance committee concluded that the decision to reject Stewart's tenure bid "could not have been reached by reasonable evaluators" (though the committee found no pattern of racial or gender discrimination in the decision). Id. at 430. On appeal from the grant of summary judgment to Stewart's employer, the Third Circuit reversed. Citing the pretext principles articulated in Fuentes, this Court criticized the district court for "declin[ing] to consider a significant piece of circumstantial evidence offered by Stewart: the grievance committee's conclusion that the denial of tenure to Stewart . . . was 'arbitrary and capricious.'" In ignoring this evidence, the Third Circuit found, "the district court failed to give Stewart the benefit of all reasonable inferences." Id. at 433. The grievance committee found factual and procedural inconsistencies and ordered that Stewart's tenure bid be reevaluated. The Third Circuit reasoned that these grievance committee's findings, and specifically its conclusion that her rejection "could not have been reached by reasonable evaluators," was enough to defeat the defendant's motion for summary judgment since it raised a genuine issue over whether the tenure denial was a product of discrimination. Id. at 434 (citing Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 267 (1977)) (noting that "[d]epartures from the normal procedural sequence . . . might afford evidence that improper purposes are playing a role," and that "[s]ubstantive departures, too, may be relevant, particularly if the factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached")). b. Stewart Is Controlling Stewart is practically on all fours with this case. This case contains the same type of erroneous factual findings and procedural irregularities by a tenure review panel that the appellate court in Stewart found to be problematic. For example, after two days of hearings and deliberations on the matter, the FPPC concluded that, contrary to what Pan had been promised, Muhlenberg failed to convene a Steering Committee to formulate a composite evaluation of Pan's work outside the Philosophy Department. The FPPC unanimously concluded that this particular procedural violation should be of "serious concern to the college," and a majority of the FPPC members believed that this violation may have cost Pan tenure and promotion. This procedural departure is as serious as any discussed in Stewart. There are also obvious factual inaccuracies and implausibilities in the FEC's evaluation of Pan's teaching similar to the erroneous findings of the PRC in Stewart. The FEC's report, the crux of Muhlenberg's defense, concluded that there was "mixed evidence on the quality of [Pan's] teaching" and "little consensus from faculty on [Pan's] effectiveness in the classroom. This is contrary to the documentation in Pan's tenure file. Every single one of Pan's Philosophy Department colleagues called him an "excellent" teacher and/or enthusiastically endorsed his tenure bid. Dean Dretsch and Pan's peers in other academic departments applauded Pan's teaching abilities, as well. Students also called him "excellent," and wrote eagerly about their stimulating experiences in Pan's classes. Even scholars outside Muhlenberg wrote in to praise his "excellent" teaching. The FEC also alleged, citing isolated comments by Schlecht, Schick, and Benjamin, that Pan was deficient in fomenting class discussion. Yet, despite their few objectionable observations, even Schlecht, Schick, and Benjamin all endorsed Pan's tenure bid enthusiastically. Schlecht specifically said that "the popularity of [Pan's] courses is primarily the result of his ability to engage students and stimulate their interest in the subjects he teaches." (JA102.) Schick stated that Pan's classroom presentation was "fascinating" and "captured the students' attention." (JA98.) Indeed, Schick indicated in the very evaluation the FEC used as evidence that Pan's teaching was not "excellent" that he would "rate [Pan's] teaching as excellent." (JA112.) Numerous peers similarly complimented Pan's ability to draw students into discussions and keep them stimulated. Students did so, too. According to the FEC, Pan "present[ed] his course material in a way and at a level that is inaccessible to the average student." Id. But Schlecht concluded that Pan "is able to explicate concepts that are initially quite foreign to his students," and noted that his ability "to help students understand aspects of Chinese thought and culture" was "quite remarkable." (JA101, JA102.) Benjamin even wrote that "I was struck by how he is able to adjust the level [of] his courses for our students and use their background as a base for extending their thought." (JA105.) Other colleagues and alumni also complimented Pan's unique ability to explain sophisticated material in a simple fashion. The FEC also emphasized student comments indicating Pan's classes "could have been better organized" and "lacked a structured syllabus and grading policy." Yet numerous Muhlenberg professors observed otherwise. The FEC also reported that Pan's SIR scores had declined over time. But Schlecht provided a plausible explanation for this trend, and Dean Dretsch himself had discounted it. Even President Taylor later conceded that while the SIR scores are important, "there's probably a statistical variance in these things." (JA303 (Taylor Deposition at 70).) On point after point, the FEC's criticisms of Pan's teaching are disputed by the evidence in Pan's tenure file. The FEC's assessment of Pan appears totally out of sync with that of his tenure evaluators. This is corroborated by contemporaneous reactions from those who perhaps knew Pan's teaching best his Philosophy Department colleagues. Upon learning of the FEC's negative recommendation, Schlecht wrote that he "and other members of the Philosophy Department were surprised and distressed to learn recently that [Pan] had not been recommended for tenure and promotion to Associate Professor" and "find it hard to understand how an adequate consideration of his work could result in anything but a ringing endorsement." (JA158.) Scholars outside Muhlenberg also expressed disbelief at the FEC outcome, and wrote to President Taylor to express their shock and dismay over the negative recommendation. One peer exclaimed "I find it extremely hard to believe that such an excellent and dedicated teacher and scholar as [Pan] should be denied tenure and promotion." (JA192 (Letter from John Rohsenow, Professor of Linguistics and Chinese at the University of Illinois at Chicago).) Another urged that Pan "should receive tenure" since he "brings very favorable notice to Muhlenberg, and you will find it exceptionally difficult to find his equal." (JA194 (Letter from Stanley Mickel, Chair of the Department of Foreign Languages and Literatures at the Colorado College).) Moreover, the FPPC concluded that the FEC's judgments about Pan's teaching had been simply wrong. Adams, the FPPC Chair, testified that the FEC's decision was "not warranted by [Pan's] written [tenure] file." (JA256 (Adams Deposition at 33).) The FPPC itself ruled that the FEC had taken quotations from letters written by Schlecht and Schick "out of context," and "misrepresented their intentions." The FPPC similarly decided that other FEC claims (e.g., that Pan "has not been successful in adjusting his teaching style to Muhlenberg") were "without basis." In sum, the FPPC found that a "preponderance of evidence in [Pan's] written file . . . points to a conclusion about [his] teaching different from that of the FEC's" that is, that his teaching was not merely "good," but was indeed "excellent." As the Stewart Court found, questionable factual findings by a tenure review panel such as these should preclude summary judgment. Cf. Fuentes, 32 F.3d at 765 (emphasis in original) (noting that summary judgment is inappropriate if the plaintiff demonstrates "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence[] . . . and hence infer that the employer did not act for [the asserted nondiscriminatory] reasons"). c. The District Court's Stewart Analysis Is Flawed Nevertheless, relying on a flawed analysis to distinguish Stewart from this case, the district court refused to recognize that obvious factual incoherencies and implausibilities in the FEC's report, the FEC's erroneous conclusions about Pan's teaching, and procedural irregularities in Pan's tenure review process were probative of pretext. For example, the district court dismissed as irrelevant Muhlenberg's failure to form the Steering Committee to evaluate Pan's non-Philosophy Department work. Even though the FPPC concluded that this failure may have cost Pan tenure and promotion, the district court ruled virtually found as fact that "by receiving evaluations from a diverse group of faculty members who would have likely formulated [the Steering Committee's evaluation], the FEC achieved the same result." (DE18 at 21.) Drawing this inference in the light most favorable to Muhlenberg especially given the FPPC's finding to the contrary and the Stewart court's clear concern over procedural irregularities in the tenure review context was inappropriate at the summary judgment stage. The district court's reasoning for distinguishing the factual errors in this case from those in Stewart is also questionable. The district court stated that the findings of the grievance committee in Stewart were "much more conclusory" than those made by the FPPC. (DE18 at 19.) The grievance committee in Stewart found that the decision to reject Stewart's tenure bid was "arbitrary and capricious" and "could not have been reached by reasonable evaluators." Here, the district court said, the FPPC only stated that a "preponderance of the evidence in [Pan's] file . . . points to a conclusion about [his] teaching different from that of the FEC's." According to the district court, "[t]hese conclusions are substantially weaker than the unequivocal conclusion that the grievance committee reached" in Stewart. (Id.) The FPPC's finding here that it is more likely than not that the FEC's rating of Pan's teaching was wrong is strikingly similar to Stewart grievance committee's finding that the Stewart tenure decision "could not have been reached by reasonable evaluators" especially in light of FPPC Chair Adams's subsequent testimony that the FEC's conclusions were simply "not warranted" by Pan's tenure file. (JA256 (Adams Deposition at 33).) In Stewart, the court did not base its holding on the fact that the grievance committee's statements were "unequivocal." It focused on the arbitrariness of the PRC's actions. See Stewart, 120 F.3d at 343 n.5 (indicating that the district court's grant of summary judgment was improper "in light of its failure to consider the grievance committee's finding of arbitrariness as probative of racial animus"). The evidence in this case could very well lead a reasonable fact finder to conclude that the FEC's actions here were just as arbitrary. The district court also distinguished Stewart by concluding that the specific criticisms of the grievance committee in Stewart were "more substantial than those argued in this case." (DE18 at 19.) There, the grievance committee faulted the PRC for failing to acknowledge that six of the nine letters written for the Stewart plaintiff were highly positive. The grievance committee in Stewart also criticized the PRC for questioniong the quality and independence of Stewart's work. Stewart, 120 F.3d at 433. In this case, the district court noted, the FPPC criticized the FEC for taking Schlecht's and Schick's comments (about the lack of student participation in Pan's classes) out of context, but it "did not make a similar finding regarding [Benjamin's comments, which] corroborated . . . Schlecht['s] and Schick's statements." (Id. at 20.) "Additionally," the district court said, "it did not find that similarly negative comments made by alumni and students were misrepresented in any way or that the SIR scores were inappropriately relied upon." (Id.) In short, the district court concluded the EEOC "offered no evidence which would cause us to doubt the sincerity of the FEC in taking these factors into account when they decided to recommend against granting [Pan] tenure." (Id.) This reason for distinguishing Stewart is also unconvincing. The Stewart grievance committee criticized the PRC for failing to credit positive tenure evaluations and for making false charges. That is exactly what the FPPC criticized the FEC for doing here. The FEC based its rating of Pan's teaching on isolated, negative comments made by a few faculty and students, and virtually ignored the plethora of overwhelmingly positive reviews submitted by Dean Dretsch himself, Pan's Philosophy Department and other colleagues at Muhlenberg, his peers at other institutions, and alumni. Even assuming, as the district court emphasizes, that the FEC did not take Benjamin's comments out of context, the FPPC still concluded that the FEC misconstrued two out of three professors' statements. The FEC also made other erroneous judgments about Pan's teaching (e.g., that he had failed to adjust his teaching style to Muhlenberg). The FPPC concluded that these accusations by the FEC were "without basis." Given the factual similarities, if the grievance committee's conclusions in Stewart were enough to preclude summary judgment, it is hard to see how the FPPC's findings should not do so here, as well. 3. The EEOC's Affirmative Evidence of National Origin Discrimination a. Proof that Questions of "Culture" May Have Affected the Decisionmaking This case arguably presents an even stronger case for reversal than did Stewart. In Stewart there was no affirmative evidence of a prohibited bias. Here by contrast, reviewing the record and resolving all inferences in the light most favorable to the EEOC, the evidence proffered by the Commission could lead a reasonable fact finder to conclude that Muhlenberg decisionmakers exhibited a cultural bias and impermissibly considered Pan's national origin in a manner which tainted the entire tenure review process. It is clear the issue of Pan's Chinese culture came up time and again. One of Pan's colleagues at Muhlenberg, Schwartz, approached President Taylor to express her concerns about possible "racial overtones" surrounding Pan's tenure review. Dean Dretsch testified that he and Schlecht discussed Pan's Chinese culture and whether this culture somehow was affecting his ability to connect with students. Dean Dretsch raised this "cultural" issue before the FPPC, as well. President Taylor likewise openly acknowledged that Pan's Chinese heritage made him "different," and asked committee members whether these differences could have been a factor in the decisionmaking. President Taylor told Pan directly that the FEC did not understand Pan's "differences," and used an unmistakable national origin-related metaphor to explain his understanding of the cause of the FEC-Pan divide. President Taylor also worried (given Sistare's comment) whether Pan's "differing culture" and resulting "differing manners" could somehow inhibit his effectiveness or desirability as a professional at Muhlenberg. b. The District Court Improperly Discounted This Evidence The district court concluded that the Commission failed to present sufficient proof to warrant a jury trial, despite this considerable evidence indicating that Pan's culture and cultural differences were considered by tenure reviewers and Muhlenberg decisionmakers. In doing so, the district court made multiple credibility assessments, weighed the evidence, and drew inferences in the light least favorable to the EEOC. It thus inappropriately usurped what should have been the jury's role. For example, the district court misconstrued the testimony of Adams, the FPPC Chair. Adams testified that, at President Taylor's request, the FPPC "talked about the possibility of [Pan's cultural differences] being an issue" in his denial of tenure. However, Adams opined, "nobody believed that the FEC consciously denied [Pan] tenure because he was Chinese." (JA258 (Adams Deposition at 46) (emphasis added).) The district court seized on this, and concluded "[t]he fact that the appeals committee discussed whether cultural issues had been a motivating factor in the FEC's decision cannot be deemed evidence of discrimination, especially since [Adams] testified that no one thought that cultural issues were the reason for the denial of tenure." (DE18 at 15.) But that is not what Adams actually said. She testified that nobody believed the FEC consciously denied Pan tenure because he was Chinese. This statement could be construed to indicate that Adams believed the FEC might have unconsciously or subconsciously taken Pan's culture into account in rejecting his tenure bid. The district court failed to acknowledge this obvious possibility, however. The district court erred in virtually finding as fact that no one on the FEC considered Pan's national origin during the FEC's deliberations. In addition, the district court disparaged the EEOC's reliance on President Taylor's American Chess/"Go" comment. (DE18 at 23.) "As with the other statements proffered by Plaintiff to show the implausibility of the legitimate, non- discriminatory reasons put forth by Defendant, we cannot reasonably infer from this statement, seemingly taken out of context, that President Taylor's evaluation of [Pan] was tainted by discrimination," the district court decided. For "while the statement did refer to games from two different countries, it can more reasonably be inferred as describing a communication problem between [Pan] and the FEC." (Id. at 24.) Here, once again, the district court inappropriately drew inferences and construed a culture- related comment in the manner most helpful to Muhlenberg. This comment at least shows that the decisions the FEC and President Taylor made about Pan may have been influenced by his cultural differences. After all, in describing the alleged "communication" problem between Pan and the FEC, President Taylor employed an explicit cultural metaphor. If President Taylor did not believe that Pan's "problems" were culturally-related, then why did he affirmatively choose such a clear national origin-related analogy to make his point? 4. Summary The district court inappropriately downplayed or discounted all of the EEOC's evidence on pretext, found Muhlenberg's witnesses and explanations to be more credible, clarified ambiguities and resolved inferences in the light least favorable to the EEOC, and appeared to find certain facts as if it were the trier of fact. In doing so, the district court erroneously concluded that there was insufficient evidence from which a reasonable jury could conclude Muhlenberg's explanation was unworthy of credence, or that discrimination was the real reason for denying Pan tenure and promotion. In short, it appears the district court simply believed Muhlenberg's explanation that Pan did not deserve tenure. That was neither the issue before the district court, nor its role at summary judgment. The only question the district court should have answered was whether a reasonable jury could conclude that Muhlenberg's articulated reasons for withholding tenure and promotion were a pretext for discrimination. Cf. Roebuck, 852 F.2d at 731 (noting that "[i]t is not for us to weigh the evidence and determine whether we agree with the University's assessment. . . . We sit only to determine whether there exists the minimum quantum of evidence necessary to support [a] jury's finding" that a prohibited motive was a determinative factor in the decision). The EEOC proffered sufficient evidence to clear this hurdle, and the district court committed reversible error in concluding otherwise. CONCLUSION For the reasons articulated above, the district court correctly concluded that the EEOC established a prima facie case of national origin discrimination. However, the district court wrongly ruled that the EEOC did not present enough evidence from which a reasonable jury could conclude that Muhlenberg's explanations for its actions was a pretext for national origin discrimination. The district court's decision on this ground, and its order granting Defendant's motion for summary judgment, should be reversed. The order entering judgment in favor of Muhlenberg should thus be vacated, and this case remanded for trial. Respectfully submitted, ERIC S. DREIBAND 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 1801 L Street, N.W., 7th Floor Washington, D.C. 20507 (202) 663-4571 CERTIFICATE OF COMPLIANCE WITH RULE 32(a) 1. I certify that this brief complies with the type-volume limitation set forth in Fed. R. App. P. 32(a)(7)(B) because this brief contains 13802 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. 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 this brief has been prepared in a proportionally spaced typeface using WordPerfect 9 in 14-Point Font in Times New Roman Style. ____________________________ DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., 7th Floor Washington, D.C. 20507 (202) 663-4571 September 7, 2004 CERTIFICATE OF SERVICE I certify that on September 7, 2004, I served copies of this brief by mailing them first-class, postage prepaid, to the following: Office of the Clerk United States Court of Appeals for the Third Circuit 21400 U.S. Courthouse 601 Market Street Philadelphia, PA 19106-1790 Nancy A. Conrad Fitzpatrick Lentz & Bubba, PC 4001 Schoolhouse Lane P.O. Box 219 Center Valley, PA 18034 Attorney for Muhlenberg College ____________________________ DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., 7th Floor Washington, D.C. 20507 (202) 663-4571 September 7, 2004