Case No. 02-10844 __________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT __________________________________________________________ JIMMY PALASOTA Plaintiff/Appellant, v. HAGGAR CLOTHING CO., Defendant/Appellee. ________________________________________________________ On Appeal from the United States District Court For the Northern District of Texas, No. 3:00CV1925G, The Honorable A. Joe Fish, C.J., Presiding _________________________________________________________ Brief of the U.S. Equal Employment Opportunity Commission as Amicus Curiae Supporting Plaintiff-Appellant _________________________________________________________ NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel JOSEPH A. SEINER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7020 Washington, D.C. 20507 (202) 663-4772 TABLE OF CONTENTS Page TABLE OF CONTENTS....................i TABLE OF AUTHORITIES................ ii STATEMENT OF INTEREST............. 1 STATEMENT OF THE ISSUES................ 2 STATEMENT OF FACTS AND PROCEEDINGS BELOW ....... 2 STANDARD OF REVIEW ..................6 SUMMARY OF ARGUMENT...............7 ARGUMENT.......................9 PALASOTA PRESENTED SUFFICIENT EVIDENCE OF AGE DISCRIMINATION TO SUPPORT THE JURY VERDICT FINDING WILLFUL AGE DISCRIMINATION ............... 9 The District Court Erred in Requiring Plaintiff to Show that Preferential Treatment was Given to a Younger Employee.............. 10 B. The District Court Erred in Discounting Significant Evidence of Discrimination............ 15 C. The District Court Erred in Holding that the Age-Based Comments by Haggar Employees had no Probative Value .... 20 CONCLUSION...................24 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES FEDERAL CASES Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456 (2d Cir.), cert. denied, 122 S. Ct. 460 (2001) 13 Amburgey v. Corhart Refractories Corp., 936 F.2d 805 (5th Cir. 1991) 12, 13 Auguster v. Vermilion Parish Sch. Bd., 249 F.3d 400 (5th Cir. 2001) 21 Bodenheimer v. PPG Industrial, Inc., 5 F.3d 955 (5th Cir. 1993) 12 Brown v. Bunge Corp., 207 F.3d 776 (5th Cir. 2000) 12 Brown v. CSC Logic, Inc., 82 F.3d 651 (5th Cir. 1996) 13 EEOC v. Ethan Allen, Inc., 44 F.3d 116 (2d Cir. 1994) 19 EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184 (10th Cir. 2000) 13 Evans v. City of Bishop, 238 F.3d 586 (5th Cir. 2000) 14, 19, 21 Flowers v. S. Reg'l Physician Servs., Inc., 247 F.3d 229 (5th Cir. 2001) 7 Hipp v. Liberty Nat'l Life Ins. Co., 252 F.3d 1208 (11th Cir. 2001), cert. denied, 534 U.S. 1127 (2002) 17 Industrias Magromer Cueros y Pieles v. La. Bayou Furs, 293 F.3d 912 (5th Cir. 2002) 6, 7 McCorstin v. U.S. Steel Corp., 621 F.2d 749 (5th Cir. 1980) 14 McDonnell Douglas v. Green, 411 U.S. 792 (1973) 14, 16, 17 Nichols v. Lewis Grocer, 138 F.3d 563 (5th Cir. 1998) 18 Nichols v. Loral Vought Syst. Corp., 81 F.3d 38 (5th Cir. 1996) 12 Normand v. Research Inst. of Am., 927 F.2d 857 (5th Cir. 1991) 14, 16, 23 Patterson v. McLean Credit Union, 491 U.S. 164 (1989) 16 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000) 5, 7, 14, 19 Rose v. Wells Fargo & Co., 902 F.2d 1417 (9th Cir. 1990) 12 Rubinstein v. Adm'rs of Tulane, 218 F.3d 392 (5th Cir. 2000), cert. denied, 532 U.S. 937 (2001) 21 Russell v. McKinney Hosp. Venture, 235 F.3d 219 (5th Cir. 2000) 20, 21 U.S. Postal Serv. Bd. v. Aikens, 460 U.S. 711 (1983) 11 Woodhouse v. Magnolia Hosp., 92 F.3d 248 (5th Cir. 1996) 11 Wyvill v. United Co. Life Ins. Co., 212 F.3d 296 (5th Cir. 2000), cert. denied, 531 U.S. 1145 (2001) 5, 14 FEDERAL STATUTES AND RULES Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., 1 Fed. R. App. P. 29(a) 1 Fed. R. Civ. P. 50 7, 9 STATEMENT OF INTEREST The U.S. Equal Employment Opportunity Commission (EEOC or Commission) is the federal agency charged with interpreting and enforcing the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., and other federal laws barring employment discrimination. In this private ADEA action, the district court erroneously held, contrary to this Court's precedent, that the jury's verdict should be set aside because the employee had not shown that his employer had given preferential treatment to a similarly situated younger employee. The court also improperly set aside the jury verdict by applying an unduly high standard for relevance and probity which led to its error in analyzing the sufficiency of the evidence presented. Because of the importance of these issues to enforcement of the ADEA, we offer our views to the Court in accordance with Fed. R. App. P. 29(a) which authorizes a government agency to file an amicus curiae brief “without the consent of the parties or leave of court.” STATEMENT OF THE ISSUES<1> Did the district court err in holding that the jury's verdict should be set aside because the plaintiff had not shown that his employer had given preferential treatment to a similarly situated younger employee? Was there sufficient evidence to support the jury's verdict of willful age discrimination when there was evidence of a concerted company policy to replace its “graying” sales force with younger workers, age-based comments by the company's decisionmakers demonstrating animus, conflicting explanations for plaintiff's discharge, and other significant evidence of discrimination? STATEMENT OF FACTS AND PROCEEDINGS BELOW Jimmy Palasota, a 51 year old employee of the Haggar Clothing Company (Haggar) at the time of his termination, was a sales associate at Haggar for 28 years from 1968 until May 10, 1996. District Court Trial Transcript (Tr.) at 37, 43, 80, 165, 275; Jury Instructions at p. 9 §§ 1-3. During his employment, Palasota was an “outstanding” employee who “had great relationships with his customers” and “was second to none in his sales professionalism.” Tr. at 37, 43. In the 1990s, Haggar's management felt that the company was not reaching the younger market and attempted to portray a younger image for the company. Tr. at 69-70, 147.<2> As part of that image, Haggar created the Retail Marketing Associate (“RMA”) program, and transferred the sales function that was previously performed by the Sales Associates to the RMA employees. Tr. at 70, 91-93, 95, 212-14, 225, 293. Supplemental District Court Transcript (Supp. Tr.) at 13-15. According to the former head of the J.C. Penney account for Haggar, “there was no difference” between the sales associates and the RMAs as individuals in both positions “were being asked to sell clothing for the Haggar Clothing Company,” (Tr. at 35, 92), and the transfer of the sales function “was a continuing plan” to move the sales associates' responsibilities to the RMAs, who “were all much younger, primarily female gender.” Id. at 95-96. Between December 1, 1996 and March 31, 1998, Haggar terminated at least twelve Sales Associates, including Palasota, who were 40 or older. Plaintiff's Trial Exhibit 67; Tr. at 85-96; Supp. Tr. at 21. During that same time period, Haggar hired individuals to fill the new RMA position, the majority of whom were females under 40. Tr. at 57, 91-93; Plaintiff's Trial Exhibit 68. While Palasota was employed at Haggar, the Company's management repeatedly voiced concerns about the age of its sales staff including Palasota. In addition to the transferring of job duties from the older associates to the younger RMAs, the evidence at trial demonstrated: • Haggar's President, Frank Bracken, stated in late 1995 that he wanted “race horses” and not “plow horses” in the company's sales force, and Bracken also stated in 1995 that Palasota was out of the “old school” of selling. Tr. at 234, 475-78, 512, 519. • Bracken announced at a sales meeting that there was a significant “graying of the sales force.” Tr. at 290, 405. • Alan Burks (who reported directly to Bracken) stated at a sales executive meeting in late 1995 or early 1996 that “[h]ey, fellows, let's face it, we've got an ageing, graying sales force out there. Sales are bad, and we've got to figure out a way to get through it.” Tr. at 40, 66. • A Memorandum dated February 23, 1996 (less than three months before Palasota's termination), from the Vice President of Sales/Casual to Bracken and the company's CEO discussed Palasota's future with Haggar and the possibility of his taking a severance package from the company, the fact that there were 14 other Sales Associates who were in their “early fifties or older” who Bracken “strongly recommend[ed] that Human Resources look at developing a severance package for,” and that Haggar was attempting to “thin the ranks” to create a “healthy” account environment and to make room for “new players.” Trial Exhibit 8; Tr. at 81-84. After his termination, Palasota filed a charge of age and sex discrimination with the Commission, which issued a determination finding cause on the age claim. Tr. at 249-50. Palasota then filed this action on September 1, 2000, alleging age and sex discrimination. On January 24, 2002, a jury determined that Haggar had willfully discriminated against Palasota on the basis of his age, and awarded him $842,218.96 in back pay, but found that Palasota had not been discriminated against on the basis of his sex. After the verdict, Haggar renewed its motion for Judgment as a Matter of Law. The district court granted Haggar's JMOL motion and dismissed the case, thereby setting aside the jury's verdict. In its decision, the court held that all of the age-related comments made by Haggar's management were “stray remarks” and therefore not “probative” of the company's discriminatory intent. 2002 WL 1398556 at *4. The district court, quoting an opinion of this Court issued prior to the Supreme Court's decision in Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000), stated that “‘[i]n order for an age-based comment to be probative of an employer's discriminatory intent, it must be direct and unambiguous, allowing a reasonable jury to conclude without any inferences or presumptions that age was a determinative factor in the decision to terminate the employee.'” Id. (quoting Wyvill v. United Co. Life Ins. Co., 212 F.3d 296, 304 (5th Cir. 2000), cert. denied, 531 U.S. 1145 (2001)). Finding that all of the comments made by Haggar management were ambiguous as to the speaker's intent, the court ruled that a reasonable jury could not conclude “without any inferences or presumptions” that age was a determinative factor in the company's termination decision. Id. The district court further concluded that Palasota's case failed because he failed to show that Haggar had given preferential treatment to a younger employee. Id. at *5. Relying on the definition of “disparate” found in the dictionary, the court noted that a showing of disparate treatment “necessarily requires a comparison” to another employee who was treated differently. Id. at *5 n.2. Because Palasota's “attempted comparison with the RMAs, general and conclusory as it was, does not satisfy this standard,” the court held that Palasota had not established a disparate- treatment claim of age discrimination. Id. at *5. Finally, the district court concluded that none of Palasota's other anecdotal evidence supported his discrimination claim, because he could not show his responsibilities were taken over by an RMA, and because his evidence of the treatment of other sales associates after Palasota left Haggar was not probative of whether age was a determinative factor in Palasota's discharge. Id. at *6. The district court thus granted Haggar's JMOL motion and set aside the jury's finding of willful age discrimination. Id. at *7. STANDARD OF REVIEW This Court reviews a district court's grant of judgment as a matter of law de novo. See Industrias Magromer Cueros y Pieles v. La. Bayou Furs, 293 F.3d 912, 918 (5th Cir. 2002). Although review is de novo, this Court has recognized that “our standard of review with respect to a jury verdict is especially deferential . . . . As such, judgment as a matter of law should not be granted unless the facts and inferences point so strongly and overwhelmingly in the movant's favor that reasonable jurors could not reach a contrary conclusion.” Flowers v. S. Reg'l Physician Servs., Inc., 247 F.3d 229, 235 (5th Cir. 2001) (quotations and citations omitted). Thus, in considering a district court's grant of judgment as a matter of law, this Court must consider all evidence in the light most favorable to the non-movant and “‘disregard all evidence favorable to the moving party that the jury is not required to believe.'” Industrias, 293 F.3d at 918 (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000)). See also Fed. R. Civ. P. 50(a)(1) (motion for judgment as matter of law appropriate where “there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue”). SUMMARY OF ARGUMENT The district court's decision is erroneous in that it adopts a standard for proof and probity in age cases that all but prevents a plaintiff from proving discrimination circumstantially. More specifically, the district court erred in: (1) requiring Palasota to show that Haggar gave preferential treatment to a similarly situated younger employee; (2) disregarding significant evidence and concluding that Palasota had not provided sufficient evidence of age discrimination; and (3) disregarding age-related comments of Haggar employees as not probative of discrimination. The evidence at trial was more than sufficient to uphold the jury's verdict finding intentional age discrimination. Palasota showed that (1) the responsibilities of the older Sales Associates were taken away and given to the younger RMAs as part of a plan to create a younger sales force; (2) Haggar management contemplated “thinning the ranks” by offering older employees severance packages to make room for “new players”; (3) Haggar terminated at least 12 Sales Associates, including Palasota, who were over 40, and during the same time frame hired individuals to fill the new RMA position, the majority of whom were females under 40; (4) conflicting explanations were given for Palasota's discharge; and (5) senior-level company officials responsible for setting company personnel policy made age-related statements directed at Palasota and others. A reasonable jury could look at this evidence and find that Haggar had engaged in unlawful age discrimination – indeed, this jury did so. The district court erred in discounting the probative value of the evidence Palasota presented, in failing even to consider Palasota's most persuasive evidence of discrimination, and in substituting its view of the evidence for that of a reasonable jury. The district court's decision should therefore be overturned, and the jury's verdict reinstated. ARGUMENT PALASOTA PRESENTED SUFFICIENT EVIDENCE OF AGE DISCRIMINATION TO SUPPORT THE JURY VERDICT FINDING WILLFUL AGE DISCRIMINATION In reversing the jury verdict holding Haggar liable for willful age discrimination against Palasota, the district court committed the same legal errors identified by the Supreme Court in Reeves. In Reeves, the Supreme Court held that in reversing the jury's verdict, the court of appeals had “misapplied the standard of review” for judgment as a matter of law under Fed. R. Civ. P. 50; “disregarded critical evidence favorable to [Reeves] – namely, the evidence supporting [his] prima facie case and undermining [his employer's] nondiscriminatory explanation”; improperly “failed to draw all reasonable inferences in favor of [Reeves]”; and “impermissibly substituted its judgment concerning the weight of the evidence for the jury's.” 530 U.S. at 152-53. The Supreme Court in Reeves thus unanimously reaffirmed the probative value of circumstantial evidence in proving intentional discrimination, the critical role of the jury in deciding whether such evidence demonstrates unlawful discrimination, and the limited nature of appropriate judicial review in assessing evidentiary sufficiency. Id. Under the Supreme Court's analysis and holding in Reeves, as well as subsequent decisions in this Circuit, this Court must reinstate the jury's verdict. In holding that Palasota had not presented sufficient evidence of age discrimination, the district court erred in misconstruing the type of evidence sufficient to create an inference of discrimination at the prima facie stage of analysis, in improperly discounting the probative value of significant evidence of age discrimination, and in disregarding age-related comments of Haggar employees as not probative of discrimination. A. The District Court Erred in Requiring Plaintiff to Show that Preferential Treatment was Given to a Younger Employee. The district court erred in holding that Palasota's case failed because he was unable to show that Haggar had given preferential treatment to a younger employee under “nearly identical” circumstances – one of the ways that the fourth element of the prima facie case of age discrimination can be satisfied. Id. at *5. In fact, Palasota did show that younger, similarly situated employees were treated more favorably. At trial, Palasota presented sufficient evidence for a jury to conclude that the sales function of the Sales Associates was transferred from the older workers to the younger RMAs. See Tr. at 92 (“there was no difference” between the Sales Associates and the younger RMAs as individuals in both positions “were being asked to sell clothing for the Haggar Clothing Company”). See also Tr. at 70, 91-93, 95, 212-214, 225, 293; Supp. Tr. at 13-15. Nonetheless, the district court's holding that Palasota must show that a younger employee was treated more favorably is in itself erroneous. The elements of a prima facie case<3> of age discrimination clearly demonstrate that treating younger workers more favorably is not the only way to prove age discrimination: In age discrimination cases, the plaintiff is required to make a prima facie case, wherein he must demonstrate that: (1) he was discharged; (2) he was qualified for the position; (3) he was within the protected class at the time of discharge; and (4) he was either i) replaced by someone outside the protected class, ii) replaced by someone younger, or iii) otherwise discharged because of his age. Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir. 1993) (emphasis added); see also Brown v. Bunge Corp., 207 F.3d 776, 781 (5th Cir. 2000) (fourth prong may be established with evidence other than a younger replacement). And in reduction-in-force cases, the fourth prong can be proven by showing “‘evidence, circumstantial or direct, from which a factfinder might reasonably conclude that the employer intended to discriminate in reaching the decision at issue.'” Nichols v. Loral Vought Syst. Corp., 81 F.3d 38, 41 (5th Cir. 1996) (quoting Amburgey v. Corhart Refractories Corp., 936 F.2d 805, 812 (5th Cir. 1991)).<4> See generally Rose v. Wells Fargo & Co., 902 F.2d 1417 (9th Cir. 1990) (where discharge occurs in the context of a reduction-in-force, replacement need not be shown, and “[m]ost circuits are in accord and require instead that the plaintiff show through circumstantial, statistical, or direct evidence that the discharge occurred under circumstances giving rise to an inference of age discrimination”) (citing cases). Establishing that a younger employee was given preferential treatment is thus only one of the ways in which a plaintiff may demonstrate age discrimination, and is not a requirement of proving age discrimination. See Brown v. CSC Logic, Inc., 82 F.3d 651, 656-57 (5th Cir. 1996) (Wisdom, J.) (plaintiff, whose position was terminated and who was unable to show that younger employees were treated more favorably, established prima facie case through age-related comments); Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 467 (2d Cir.) (concluding in ADEA case that a “showing of disparate treatment, while a common and especially effective method of establishing the inference of discriminatory intent necessary to complete the prima facie case, is only one way to discharge that burden”), cert. denied, 122 S. Ct. 460 (2001); EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1195 n.6 (10th Cir. 2000) (“Nothing in the case law in this circuit requires a plaintiff to compare herself to similarly-situated co-workers to satisfy the fourth element of her prima facie case. A plaintiff alleging discrimination in violation of Title VII can satisfy the fourth element of her prima facie case in a number of ways.”) (emphasis in original). Thus circumstantial evidence may properly be used to establish age discrimination. See Brown, 82 F.3d at 656-57. Moreover, this Court has made it clear that the prima facie case in employment discrimination matters is a flexible concept not susceptible to rigid requirements. See Amburgey, 936 F.2d at 812 (the “necessary elements of a prima facie employment discrimination case are not Platonic forms, pure and unchanging; rather, they vary depending on the facts of a particular case”) (quotation omitted); McCorstin v. U.S. Steel Corp., 621 F.2d 749, 753 (5th Cir. 1980) (“This circuit has also recognized that the McDonnell test is not the alpha and omega of possible tests in the age discrimination context.”). The district court clearly erred, then, in requiring Palasota to show that similarly situated employees were treated more favorably.<5> This Court's precedent makes it clear that such an offer of proof is one of the ways in which a plaintiff can demonstrate an inference of age discrimination; however, the law is equally clear that it is not the only way to show discrimination. As discussed in more detail below, the age-based comments that were made by senior-level company officials and directed toward Palasota and others, the evidence of a concerted company policy to replace its “graying” sales force with younger workers, and the transfer of sales functions to younger employees unequivocally give rise to an inference of discrimination in this case. Thus, the jury in this case properly found that Haggar had engaged in intentional age discrimination, and the district court erred in overturning that verdict on flawed legal grounds. B. The District Court Erred in Discounting Significant Evidence of Discrimination. In addition to misstating the legal standards for establishing a prima facie case, the court failed to consider properly much of Palasota's evidence. Palasota presented enough evidence at trial to establish a prima facie case of age discrimination: he was in the statutorily protected age group (51) when he was fired (Jury Instructions, at p. 9 §3); he established that he was a successful sales associate at Haggar for 28 years;<6> and he presented evidence that he was discharged because of his age through internal memoranda and comments made by his superiors. Moreover, Palasota's evidence of age discrimination was sufficient to establish that the employer's stated reason for the termination (reduction-in-force) was pretextual. The evidence rejected by the district court as irrelevant or not “probative” of age discrimination falls squarely within the categories of circumstantial evidence approved by the Supreme Court and is clearly sufficient to establish age discrimination in this case. The anecdotal evidence of discrimination offered by other terminated employees is probative of Haggar's “general policy and practice” with respect to older workers.<7> See McDonnell Douglas v. Green, 411 U.S. 792, 804-05 & n.19 (1973) (proof of the employer's “general policy and practice” relating to minority employment “may be relevant” in demonstrating pretext); see also Patterson v. McLean Credit Union, 491 U.S. 164, 188 (1989).<8> Further, although the district court dismissed the evidence as “too general and conclusory,” the transfer of job duties from the older sales associates to the younger RMAs also shows Haggar's discriminatory policy or practice. Indeed, there was nothing general or conclusory about the evidence, which showed that specific job responsibilities were transferred from the Sales Associates to the RMAs. See Tr. at 92, 95-96 (testimony of former head of J.C. Penney account that “there was no difference” between the Sales Associates and the RMAs and that the transfer of the sales function “was a continuing plan” to move the sales associates' responsibilities to the RMAs, who “were all much younger, primarily female gender.”); Tr. at 312, 370, 430 (testimony of Palasota that the “RMA's were the younger image that the company wanted,” and that the RMAs were taking all of the sales associates jobs and excluding the sales associates from employment). Moreover, the internal memorandum written less than three months before Palasota's termination discussing his future with Haggar and the possibility of his taking a severance package from the company, the fact that there were 14 other Sales Associates in their “early fifties or older” whom Bracken “strongly recommend[ed] that Human Resources look at developing a severance package for,”<9> and that Haggar was attempting to “thin the ranks” to create a “healthy” account environment and to make room for “new players,” (Plaintiff's Trial Exhibit 8), demonstrates that Haggar considered age in its termination decisions. This persuasive piece of evidence, perhaps the most probative of Haggar's discriminatory policy and motivation, was not even mentioned in the district court's decision. The circumstantial evidence of age discrimination discussed above also helps to show that Haggar's stated reason for terminating Palasota was pretextual. The conflicting explanations given for Palasota's discharge further suggest that Haggar's stated reason for the discharge was not the real reason. While Palasota's termination letter indicated that he was being discharged because his position had been eliminated (Plaintiff's Trial Exhibit 9), company officials at trial suggested that Palasota had actually “resigned” (Tr. at 163-65, 245-46, 269). These conflicting explanations suggest that Haggar was not being honest about the true reason for Palasota's discharge. See, e.g., Nichols v. Lewis Grocer, 138 F.3d 563, 568 (5th Cir. 1998) (noting that “a reasonable juror certainly may infer discrimination when an employer offers inconsistent explanations for the challenged employment action”); EEOC v. Ethan Allen, Inc., 44 F.3d 116, 120 (2d Cir. 1994) (“We believe that the EEOC did present a ‘legally sufficient evidentiary basis' from which a reasonable jury could have found that [defendant] dismissed Pierce because of his age. The EEOC introduced evidence suggesting that [defendant] provided inconsistent explanations for its decision to terminate Pierce.”). Again, the district court did not even address this inconsistency in its opinion. In evaluating the sufficiency of the evidence to support the verdict, the district court thus improperly “disregarded critical evidence favorable to [Palasota] – namely, the evidence supporting [Palasota's] prima facie case and undermining [Haggar's] nondiscriminatory explanation,” Reeves, 530 U.S. at 153, and applied an unduly high standard for relevance and probity, effectively denying Palasota any opportunity to prove discrimination circumstantially. See Evans v. City of Bishop, 238 F.3d 586, 591-92 (5th Cir. 2000) (noting that in age discrimination case “any evidence that could shed light on an employer's true motive must be considered”) (emphasis added). The district court's decision was thus contrary to the weight of the evidence, and the jury's verdict should be reinstated. C. The District Court Erred in Holding that the Age-Based Comments by Haggar Employees had no Probative Value. In addition to discounting the probative value of significant evidence, the district court's analysis of the age-related comments in this case was flawed. The court disregarded the comments made by Palasota's superiors as “stray remarks” not probative of discrimination and “far too ambiguous to allow a reasonable jury to conclude, without any inferences or presumptions, that age was a determinative factor” in Palasota's termination. 2002 WL 1398556 at *4. In fact, these statements demonstrate bias on the part of the individuals responsible for setting company personnel policy and with decisionmaking authority over Palasota's employment. Indeed, the statement of Haggar's COO that Palasota was out of the “old school” of selling goes even further than demonstrating a general policy or practice of discrimination – it demonstrates an individualized age-based animus against Palasota. Tr. at 475-78. After Reeves, it is clear that age-based comments made by company officials involved in the decisionmaking process should be considered by the jury. See Russell v. McKinney Hosp. Venture, 235 F.3d 219, 229 (5th Cir. 2000) (“Age-related remarks are appropriately taken into account when analyzing the evidence supporting the jury's verdict (even if not in the direct context of the decision and even if uttered by one other than the formal decisionmaker, provided that the individual is in a position to influence the decision).”); Evans, 238 F.3d at 591-92 (“Reeves emphatically states that requiring evidence of discriminatory animus to be ‘in the direct context' of the employment decision is incorrect.”). Although some post-Reeves cases have discounted the significance of age-based comments, see Auguster v. Vermilion Parish Sch. Bd., 249 F.3d 400, 403 n.7 (5th Cir. 2001) (not considering stray remarks as circumstantial evidence of age discrimination when no other evidence of pretext); Rubinstein v. Adm'rs of Tulane, 218 F.3d 392, 401 (5th Cir. 2000) (age-related comments alone not sufficient to demonstrate discrimination because not proximate in time or related to employment decision), cert. denied, 532 U.S. 937 (2001), those cases are not controlling here. As discussed above, the evidence of age discrimination in this case went well beyond mere stray remarks, and included an internal memorandum discussing Palasota's future with the company; the transfer of job responsibilities from the older sales associates to the younger employees; and an inconsistent explanation from company officials of why Palasota left Haggar. Thus the Auguster and Rubinstein rule – that evidence of age-based remarks is insufficient when it is the only evidence of pretext – should not apply to this case. See Russell, 235 F.3d at 229 n.19 (“Rubinstein stands only for the proposition that an overwhelming case that the adverse employment actions at issue were attributable to a legitimate, nondiscriminatory reason will not be defeated by remarks that have no link whatsoever to any potentially relevant time frame. Were we to read more into Rubinstein in this regard, it would be in direct conflict with Reeves.”). The district court erred, then, in not considering the age-based comments of Palasota's superiors to be “probative” of discrimination. In sum, the evidence here was more than sufficient to uphold the jury's verdict finding intentional age discrimination. Palasota showed that (1) the responsibilities of the older Sales Associates were taken away and given to the younger RMAs as part of a continuing plan to create a younger sales force (Tr. at 70, 91-93, 95, 212-14, 225, 293; Supp. Tr. at 13-15); (2) Haggar management contemplated “thinning the ranks” by offering older employees severance packages to make room for “new players” (Plaintiff's Exhibit 8); (3) during a period of less than 18 months, Haggar terminated at least 12 Sales Associates, including Palasota, who were over 40, and hired individuals to fill the new RMA position, the majority of whom were females under 40 (Tr. at 57, 85-96; Plaintiff's Trial Exhibits 67, 68); (4) conflicting explanations were given for Palasota's discharge (Plaintiff's Trial Exhibit 9; Tr. at 163-65; 245-46; 269); and (5) individuals responsible for setting company personnel policy and with decisionmaking authority over Palasota's employment made age-related statements directed at Palasota and others (Tr. at 66; 290; 405, 475-78). The district court erred in discounting this evidence, and the jury's decision should be reinstated. See, e.g., Normand, 927 F.2d at 864-65 (“This was a close case, based upon the accumulation of circumstantial evidence and the credibility determinations that were required. We conclude that ‘reasonable men could differ' about the presence of age discrimination . . . and we must thus reverse the district court's judgment n.o.v. and reinstate the jury's verdict.”). At a minimum, reasonable minds could differ in this case, and the jury's view of the evidence should prevail. CONCLUSION The district court improperly substituted its view of the evidence for that of the jury's, and failed even to consider significant evidence of age discrimination presented by Palasota. The jury's verdict of willful age discrimination was not unreasonable in light of the substantial weight of the evidence presented. For the foregoing reasons, this Court should reverse the district court's ruling and reinstate the jury's verdict. Respectfully submitted, NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel _________________________ JOSEPH A. SEINER Attorney Equal Employment Opportunity Commission Office of General Counsel 1801 L Street, N.W., Room 7020 Washington, D.C. 20507 (202) 663-4772 CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation set forth in Fed. R. App. P. 32(a)(7)(B). This brief contains 5600 words. See Fed. R. App. P. 32(a)(7)(B)(i). The brief was prepared using the WordPerfect 9 processing system, in 14-point proportionally spaced type for text and 14-point type for footnotes. See Fed. R. App. P. 32(a)(5). _____________________ Joseph A. Seiner December 18, 2002 CERTIFICATE OF SERVICE I, Joseph A. Seiner, hereby certify that on the 18th day of December, 2002, I caused: (1) copies of the attached brief; (2) a diskette containing the brief in an Adobe Acrobat PDF format; and (3) a copy of my appearance form to be sent via first-class U.S. mail to: Clerk of Court U.S. Court of Appeals for the Fifth Circuit 600 Camp Street New Orleans, LA 70130 Scott Alan Scher Lisa Renee Speaker Brown McCarroll 2001 Ross Avenue Suite 2000 Trammell Crow Ctr Dallas, TX 75201-2997 Attorneys for Appellant Michael P. Maslanka David J. White Suite 1700 Godwin Gruber 1201 Elm Street Renaissance Tower Dallas, TX 75270 Attorneys for Appellee __________________________ JOSEPH A. SEINER Attorney Equal Employment Opportunity Commission Office of General Counsel 1801 L Street, N.W., Room 7020 Washington, D.C. 20507 (202) 663-4772 December 18, 2002 1We take no position on any other issue raised in this appeal. 2Indeed, even Haggar employees made jokes about the company's older customer base. See Tr. at 44 (“We used to joke around at Haggar that if you saw a funeral go by that was another Haggar customer.”); Tr. at 512 (“In one meeting I made a facetious comment, something to the effect of we could use the advertising slogan ‘These Haggar pants make me feel sixty again.'”). 3 The district court's analysis of whether the fourth element of the prima facie case had been satisfied is inappropriate because the case had already been fully tried. In such cases, the court should review the jury's verdict only to determine whether the circumstances give rise to an inference of discrimination, and the prima facie test “drops from the case.” See U.S. Postal Serv. Bd. v. Aikens, 460 U.S. 711, 713-714 (1983) (“Because this case was fully tried on the merits it is surprising to find the parties and the Court of Appeals still addressing the question whether Aikens made out a prima facie case. We think that by framing the issue in these terms, they have unnecessarily evaded the ultimate question of discrimination vel non.”); Woodhouse v. Magnolia Hosp., 92 F.3d 248, 252 (5th Cir. 1996) (“When a case has been fully tried on the merits, the adequacy of the showing at any stage of the McDonnell Douglas framework is unimportant; rather, the reviewing court must determine whether there was sufficient evidence from which a reasonable trier of fact could have concluded that age discrimination occurred.”). The district court acknowledged that the prima facie case need not be reconsidered after trial, but nonetheless overturned the jury's verdict because it found the fourth element of the prima facie test was not met. See 2002 WL 1398556 at *5 n.3. 4 This Court has further clarified this last factor of the prima facie case by noting that the plaintiff must “produce some evidence that an employer has not treated age neutrally . . . . Specifically the evidence must lead the factfinder reasonably to conclude either (1) that defendant consciously refused to consider retaining or relocating a plaintiff because of his age, or (2) that defendant regarded age as a negative factor in such consideration.” Amburgey, 936 F.2d at 812 (citation omitted). 5 The district court similarly erred in suggesting that the anecdotal evidence of other sales associates terminated by the company was not probative of age discrimination because the other employees were not similarly situated to Palasota. See 2002 WL 1398556 at *6. As this evidence demonstrates a general policy and practice of discrimination against older workers, however, it is clearly probative in this case. See McDonnell Douglas, 411 U.S. at 804-05 & n.19; Normand v. Research Inst. of Am., 927 F.2d 857, 864-65 (5th Cir. 1991). To the extent that the court of appeals' decision in Wyvill, relied upon by the district court, requires a higher standard of probity in this respect, it is inconsistent with the Supreme Court's decision in Reeves. Compare Wyvill, 212 F.3d at 302, with Reeves, 530 U.S. at 152-53. See also Evans v. City of Bishop, 238 F.3d 586, 591-92 (5th Cir. 2000) (noting that any evidence of age discrimination is properly considered). 6 Indeed, the former head of one of Haggar's largest accounts testified that “Mr. Palasota was regarded in very high esteem. He had had a very successful sales record with the company . . . . Mr. Palasota was an outstanding sales associate. He made one of the best presentations that the company had. He had a very good rapport to the customer, to the retailer. He had great relationships with his customers, but he was second to none in his sales professionalism.” (Tr. at 37, 43). 7 The district court's concern that the anecdotal incidents took place at least a year after Palasota's termination is misplaced. See 2002 WL 1398556 at *6. The evidence showed that during a 16 month time frame the company fired at least 12 sales associates over 40 (Tr. at 85-96; Plaintiff's Trial Exhibit 67), and hired 12 RMAs under 40 (Plaintiff's Trial Exhibit 68) to perform the same sales function as many of those terminated. When this evidence is combined with the memorandum – dated less than three months before Palasota's termination – targeting 14 sales associates over 50 for a severance package, it becomes clear that Haggar's policy and practice of age discrimination predated Palasota's termination and endured through the months that followed. See, e.g., Normand v. Research Inst. of Am., 927 F.2d 857, 864-65 (5th Cir. 1991) (considering anecdotal evidence in ADEA case of employees terminated over a year prior to plaintiff in overturning district court's grant of j.n.o.v. motion). 8 While it is somewhat unclear whether the district court's decision should be read as requiring statistical proof to demonstrate age discrimination (see 2002 WL 1398556 at *6), such a holding also would be erroneous. See McDonnell Douglas, 411 U.S. at 804-05 & n.19 (proof of general policy and practice with respect to minority employees, including statistical evidence, “may be helpful” in demonstrating pretext, but statistics “may not be in and of themselves controlling as to an individualized [employment] decision”). See also Hipp v. Liberty Nat'l Life Ins. Co., 252 F.3d 1208, 1228 (11th Cir. 2001) (statistics not necessarily required to establish pattern or practice of discrimination), cert. denied, 534 U.S. 1127 (2002). 9 The testimony at trial further revealed that all but two of the persons identified for a possible severance package were either terminated or otherwise ended their employment with the company. Supp. Tr. at 16.