Paz v. Wauconda HealthCare (7th Cir.) Brief as amicus Nov. 29, 2005 No. 05-2837 __________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT __________________________________________ ROSAURA PAZ, Plaintiff-Appellant, v. WAUCONDA HEALTHCARE and REHABILITATION CENTRE, LLC, Defendant-Appellee. __________________________________________________ On Appeal from the United States District Court for the Northern District of Illinois, Eastern Division Hon. Samuel Der-Yeghiayan, Judge __________________________________________________ BRIEF OF THE UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PAZ AND FOR REVERSAL __________________________________________________ JAMES L. LEE U.S. EQUAL EMPLOYMENT Deputy General Counsel OPPORTUNITY COMMISSION Office of General Counsel CAROLYN L. WHEELER 1801 L Street, N.W., Room 7034 Acting Associate General Counsel Washington, D.C. 20507 (202) 663-4055 GAIL S. COLEMAN gail.coleman@eeoc.gov Attorney TABLE OF CONTENTS Table of Authorities . . . . . . . . . . . . . . . . . . . . . ii Statement of Interest. . . . . . . . . . . . . . . . . . . . . .1 Statement of the Issues. . . . . . . . . . . . . . . . . . . . .2 Statement of the Facts . . . . . . . . . . . . . . . . . . . . .3 Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 A. Contrary to the district court's implication, a Title VII plaintiff may defeat summary judgment with her own deposition testimony where that testimony relies on her personal knowledge and consists of affirmative evidence rather than conclusory, self-serving statements . . . 12 B. A jury could find that Paz reasonably relied on her supervisor's apparent authority when the supervisor told her, "You're fired," and Paz went home . . . . . . . . . . . . . . . . . . . . . . 15 C. The circumstantial evidence in this case would permit a jury to conclude that Paz was fired and that the reason for her termination was illegal discrimination and/or retaliation. . . . . . . . . . . 19 1. Direct Method of Proof . . . . . .20 2. Indirect Method of Proof . . . . . . . . . . . . 23 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Certificate of Compliance Certificate of Service TABLE OF AUTHORITIES Cases Abdullahi v. City of Madison, 423 F.3d 763 (7th Cir. 2005) . . 13 Bank of Illinois v. Allied Signal Safety Restraint Sys., 75 F.3d 1162 (7th Cir. 1996) . . . . . . . . . . . . . . . . . 19 Brill v. Lante Corp., 119 F.3d 1266 (7th Cir. 1997). . . . . . 26 Carson v. Bethlehem Steel Corp., 82 F.3d 157 (7th Cir. 1996) . 27 DBI Architects, P.C. v. American Express Travel Related Servs. Co., 388 F.3d 886 (D.C. Cir. 2004). . . . . . . . . . . . . . . 17, 25 Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003) . . . . . . . 20 EEOC v. Our Lady of Resurrection Medical Ctr., 77 F.3d 145 (7th Cir. 1996). . . . . . . . . . . . . . . . . . 25 Faragher v. City of Boca Raton, 524 U.S. 775 (1998). . . . . . 16 Flores v. Preferred Tech. Grp., 182 F.3d 512 (7th Cir. 1999) . 26 Ford v. Wilson, 90 F.3d 245 (7th Cir. 1996). . . . . . . . . . 13 Kansallis Finance Ltd. v. Fern, 40 F.3d 476 (1st Cir. 1994)17, 19, 25 Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). . . 27 Leffel v. Valley Fin. Servs., 113 F.3d 787 (7th Cir. 1997) . . 27 Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236 (11th Cir. 1998) . . . . . . . . . . . . . . . . 16 Loyd v. Phillips Bros., Inc., 25 F.3d 518 (7th Cir. 1994). . . 24 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 23, 24, 26 Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986). . . . . . . . 16 Mills v. First Fed. Savs. & Loan Ass'n, 83 F.3d 833 (7th Cir. 1996)13 Minskoff v. American Express Travel Related Servs. Co., 98 F.3d 703 (2d Cir. 1996) . . . . . . . . . . . . . . . . 17, 25 Myers v. Bennett Law Offices, 238 F.3d 1068 (9th Cir. 2001)17, 25 O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996)28 Olson v. Northern FS, Inc., 387 F.3d 632 (7th Cir. 2004) . . . 27 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000)14, 15 Robin v. Espo Eng'g Corp., 200 F.3d 1081 (7th Cir. 2000) . . . 26 Rudin v. Lincoln Land Cmty. Coll., 420 F.3d 712 (7th Cir. 2004) . . . . . . . . . . . . . . . 20, 21 Russell v. Acme-Evans Co., 51 F.3d 64 (7th Cir. 1995). . . 13, 23 St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). . . . 24, 29 Troupe v. May Dep't Store Co., 20 F.3d 734 (7th Cir. 1994) 21, 26 Venturelli v. ARC Cmty. Servs., Inc., 350 F.3d 592 (7th Cir. 2003) . . . . . . . . . . . . . . . 20, 24 Williams v. Seniff, 342 F.3d 774 (7th Cir. 2003) . . . . . . . 13 Statutes and Rules Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.. . . . . . . . . . . . . . . . . . . .1 Fed. R. App. P. 29(a). . . . . . . . . . . . . . . . . . . . . .2 Miscellaneous Restatement (Second) of Agency (1958). . . . . . . . . . . . . 16 Restatement (Third) of Agency (T.D. No. 2, 2001) . . . . . .17-19 No. 05-2837 __________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT __________________________________________ ROSAURA PAZ, Plaintiff-Appellant, v. WAUCONDA HEALTHCARE and REHABILITATION CENTRE, LLC, Defendant-Appellee. __________________________________________________ On Appeal from the United States District Court for the Northern District of Illinois, Eastern Division Hon. Samuel Der-Yeghiayan, Judge __________________________________________________ BRIEF OF THE UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PAZ AND FOR REVERSAL __________________________________________________ STATEMENT OF INTEREST The Equal Employment Opportunity Commission ("EEOC") is charged by Congress with interpreting, administering, and enforcing Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. This case raises important issues related to Title VII, including the type of evidence that a plaintiff must introduce in order to defeat summary judgment, the circumstances under which a supervisor acts with apparent authority in terminating a subordinate, and the role of circumstantial evidence in proving discrimination. Given the importance of these issues to effective enforcement of Title VII, the EEOC offers its views to the Court. The EEOC files this brief pursuant to Rule 29(a) of the Federal Rules of Appellate Procedure. STATEMENT OF THE ISSUES 1. May a Title VII plaintiff defeat summary judgment with her own deposition testimony where that testimony relies on her personal knowledge and consists of affirmative evidence rather than conclusory, self-serving statements? 2. Did Paz reasonably rely on her supervisor's apparent authority when the supervisor told her, "You're fired," and Paz went home? 3. Would the circumstantial evidence in this case permit a jury to conclude that Paz was fired and that the reason for her termination was illegal discrimination and/or retaliation? STATEMENT OF THE FACTS<1> In December 1999, Rosaura Paz interviewed for a position as a cook with Wauconda, a nursing home in Illinois. (R.32-1, Paz Dep. at 136-37.) Charlene Li, the dietary manager, hired her on the spot and had her work for a couple of hours that very day. (Id. at 136, 138.) Paz remained with Wauconda for almost three years. (See R.31, ex. C, D's Admissions at No. 5.) Apart from the incident giving rise to this lawsuit, Paz never received any disciplinary write-ups. (Id. at No. 1.) Her performance evaluations were excellent. (R.32-1, Li Dep. at 45-46; id. at ex. 2, Paz. Eval. of 12/18/01.) Paz testified that she initially had a good relationship with Li, her supervisor, but that over time Li started changing. (R.32-1, Paz Dep. at 203.) She testified that Li treated her and other Hispanic employees differently from white employees. (Id. at 204-07, 235, 245-46, 250-54, 299.) Li allowed white employees but not Hispanic employees to take long, frequent breaks. (Id. at 250- 52.) On one occasion, when Hispanic and white employees were taking a smoke break together, Li instructed the Hispanics (including Paz) but not the whites to get back to work. (Id. at 251-52.) Whenever something needed to be cleaned, Li would call on one of the Hispanic employees. (Id. at 252-53.) She turned off the radio whenever it was tuned to a Spanish-speaking station, and one day she threw Paz's radio away. (Id. at 246.) She scheduled the Hispanic employees but not the white employees to work at night. (Id. at 253-54.) She also sometimes scheduled the Hispanic employees to work six days straight, but she gave the white employees a day off after every two days on. (Id. at 299.) Wauconda admits that two of Paz's coworkers recall hearing Li say, "I am not going to hire any Mexicans as they cause too many problems." (R.31, ex. B, D's Answers to Interrog. at No. 4.) Paz testified that in August 2002, Li said directly to her, "God, you people just come to United States to cause so many problems and steal American people's job." (R.32-1, Paz Dep. at 205, 207, 235.) Paz repeated Li's comment to a coworker, and the coworker reported it to Wauconda's administrator. (Id. at 234- 35.) Paz confirmed the coworker's account and the administrator then questioned Li. (Id. at 235.) Li denied having made the statement even though Paz insisted that it was true. (Id.) The assistant administrator subsequently told Paz, "I don't want you to tell anybody else. I want you to keep this confidential." (Id. at 238.) Paz also testified that Li's behavior toward her changed as soon as she learned in August 2002 that Paz was pregnant. (Id. at 215.) When Paz first told her of the pregnancy, Li just shook her head. (Id. at 279-80.) The next day, she said to Paz, "Why you want more kids? Two is enough." (Id. at 280.) Li told her that three children would be too hard for her. She also said, "You're not going to be allowed to work, to just start getting . . . . Do you know what, I think you should move to dietary aide instead of be a cook." (Id.) She explained that Paz would be better as a dietary aide because she would not be able to lift heavy loads. (Id.) Paz explained, "No, I can do my job. I'm just one or two weeks pregnant." (Id. at 280-81.) Li just looked at her and did not respond. (Id. at 281.) The following day, Li said to Paz, "Why don't you have an abortion?" (Id.) She added, "I have one already. I do have one abortion. Don't feel bad. You know, in China you're allowed to have two kids only, and the first one has to be a boy and second one can be a boy or a girl, but you cannot have two girls. Otherwise, they make you throw it away." (Id.) Each day thereafter, Li kept saying to Paz, "You should have an abortion." (Id.) Li commented on the large amount of weight that Paz had recently lost, and told her, "After all this weight you lost, you going to have the baby? Don't you afraid to gain all the weight back?" (Id. at 285-87.) Eventually, Li's comments wore Paz down. Paz cried to her husband that she was afraid Li would fire her if she did not end her pregnancy. (Id. at 281-82.) She went to work and told Li that she had decided to have an abortion. (Id. at 282.) Paz testified that Li responded, "Oh, good for you," and that she gave Paz a big hug. (Id. at 283.) "For that day and the next day," Paz testified, "she treat me nice. I see the difference, laughing and joking and everything." (Id.) That weekend, Paz went to an abortion clinic intending to carry through with the abortion. (Id. at 283-84.) "The bottom of my heart, I didn't want to," she said, "but I feel like I have to." The clinic personnel informed her that she would have to wait at least two more days because her pregnancy was not yet far enough along. (Id.) As she left the clinic, she decided to keep the baby after all. "I don't care if Charlene want to fire me," she told her husband, "whatever she want to do with me, but I want to have my baby." (Id.) When Paz returned to work the following Monday and told Li that she had changed her mind about the abortion, Li shook her head and walked into her office. (Id. at 284-85.) "Things went worse since that day," Paz testified, "just finding excuses to blame me for anything." (Id. at 285.) Li also cut short all discussion of babies. When Paz and her coworkers discussed baby names as they were working, Li would come in and say "That's enough. No more talking about babies." (Id. at 275-76, 285.) Wauconda admits that Li made similar comments when a white employee later became pregnant and talked to her colleagues about babies. (R.31, ex. B, D's Answers to Interrog. at No. 5.) The incident culminating in Paz's separation from employment began on Thursday, October 24, 2002, when Paz burned one of several sheets of bacon intended for breakfast. (R.32-1, Paz Dep. at 259-60.) Paz testified that she put the burned bacon on top of the grill and did not serve it to the residents. (Id.) Li noticed it as soon as she entered the kitchen. (Id. at 260.) Paz testified that Li began yelling, "You always wasting food like that." (Id.) She continued to yell at Paz and told her, over and over, "Somebody's going to get fired the end of this month." (Id. at 260, 276.) Paz walked away from Li and began to wash dishes at the sink, but Li followed her and continued to yell at her. (Id. at 260-61.) "I want to know why you treat me like that," Paz said. "You know the reason," Li responded, and then she walked out. Paz burst into tears. "Why you let her scream at you?," one of Paz's coworkers asked her. (Id. at 261.) Paz then left the kitchen to look for Cheryl Morris, the acting administrator. (Id. at 261-62.) Paz told Morris that Li had been screaming at her and saying that someone was going to get fired at the end of the month. (Id. at 263.) Paz also told Morris that Li had been discriminating against the Hispanic employees. (Id.; R.32-1, Morris Dep. at 69-70, 87-88.) Morris testified that Paz "was going on and on about how Mexicans were treated differently." (R.32-1, Morris Dep. at 70.) Morris explained to Paz that she was not just the acting administrator, but that she also represented the corporate office. (Id. at 88.) She told Paz, "Do not worry about this. I'm going to take care of it." (Id. at 89.) Her deposition does not state that she told Paz to return to her if she had any further problems with Li, (see id. at 87-89), although she says this in a subsequent affidavit. (R.13, ex. B, Morris Aff. ¶ 20.) Paz told Morris that she was not feeling well and asked for permission to take the rest of the day off. Morris granted permission. (R.32-1, Paz Dep. at 263; R.32-1, Morris Dep. at 89, 93.) Paz returned to the kitchen to get her coat and to tell Li that she was leaving. (R.32-1, Paz Dep. at 263.) "Where are you going?," Li asked. "Home," Paz replied. Li responded, "If you walk out that door, don't come back." (Id. at 263-64.) Paz returned to Morris and told her what Li had said. "Don't worry about it," Morris said, "just go home." (Id. at 264.) Taking her advice, Paz left. (Id.) Later that day, Morris spoke with Li and told her that Paz had accused her of discriminating against Mexican employees. (R.32-1, Morris Dep. at 96.) Li denied the allegation and countered with a list of complaints against Paz. (Id. at 96, 98.) Morris responded, "How can you sit here and tell me now that this employee's always late, you made a lot of concessions for her, she yells all the time, and not have anything written down. . . . I don't buy it." (Id. at 98.) Based on Li's description of the burned bacon incident, Morris instructed Li to write Paz up for serving burned bacon. (Id. at 100.) The next morning, Paz showed up at 6:00 a.m. for her regular work day. (R.31, ex. C, D's Admissions at No. 5.) She was surprised to find Carla Janecek, a dietary aide, performing the cooking duties that belonged to Paz. (R.32-1, Paz Dep. at 264.) Scott Rzepka, an employee who should have been off that day, was performing Janecek's normal duties. (Id.) Paz asked Janecek why she was cooking and Janecek responded, "I don't know. Charlene [Li] just told me that she want me to cook." (Id.) Alarmed, Paz checked the work schedules that were posted on Li's door. (Id.) She found that her own name had been crossed off for the previous day and also the current day. She also found that she had not been assigned any days on the new work schedule beginning the following Monday. (Id. at 264-65.) Paz took the schedules off the door and copied them. (Id. at 265; R.31, ex. I-K, Work Schedules.) She then returned to work. (R.32-1, Paz Dep. at 265.) When Li arrived at work later that morning, she said nothing to Paz. (Id.) Li attended a meeting and returned to the kitchen at about 10:00. She continued to ignore Paz. Finally, Paz approached her and asked, "Why you scratch me off the schedule and why I don't have assigned days for the next schedule?" (Id. at 265- 66.) Li replied, "Remember yesterday?" Without even looking at Paz, Li continued, "You're fired." (Id. at 266.) Paz stood at Li's door for three or four minutes waiting, fruitlessly, for an explanation. (Id. at 267.) Li ignored her. Finally, Paz grabbed her coat and her purse and left. (Id.) She did not know the chain of command and did not know for a fact whether Li had authority to fire her. (Id. at 214, 266.) She did not go back to the acting administrator, however, because she was "all confused." (Id. at 269.) Paz believed that she had been fired because of the combination of being pregnant and Hispanic. (Id. at 257, 276.) She also believed that she had been fired in retaliation for complaining the previous day about Li's discrimination. (Id. at 276-77.) Paz did not know, because Li did not tell her, (R.32-1, Paz Dep. at 181-82; R.32-1, Li Dep. at 123), that after she had left work the previous day, Li wrote and filed an employee warning notice criticizing Paz for burning the bacon, yelling at Li, and going to Morris "complaining about some other issue she created to support her anger." (R.31, ex. O, 10/24/02 Warning.) In fact, the only other issue Paz had raised was discrimination. (R.32-1, Morris Dep. at 86-89.) The warning notice said that when Paz returned to the kitchen to say that she was leaving for the day, Li asked her whether that meant she was quitting. Li wrote on the notice that Paz replied, "I don't care, up to you." (R.31, ex. O, 10/24/02 Warning.) Paz testified in her deposition, however, that she never said this. (R.32-1, Paz Dep. at 189.) Li's warning notice also criticized Paz for using the facility's kitchen to cook for her family. (R.31, ex. O, 10/24/02 Warning.) Paz testified that she did this only once, and with Li's permission. (R.32-1, Paz Dep. at 170-71, 190.) Finally, the notice criticized Paz for frequent tardiness. (R.31, ex. O, 10/24/02 Warning.) Paz testified, though, that Li permitted her to make up her hours by working late on the days when she arrived late, that she had never been criticized for tardiness, and that she believed her hours were approved. (R.32-1, Paz Dep. at 191-93.) The notice warned that the consequence for a repeated violation would be suspension. (R.31, ex. O, 10/24/02 Warning.) Paz also did not know, because Li did not tell her, (R.32-1, Paz Dep. at 194), that after Li told her that she was fired and she left work on October 25th, Li wrote and filed a second "warning" notice stating, "Employee left the job without telling anybody. Action to be taken – suspension. Consequence should incident occur again – dismissal. Not able to get signature." (R.31, ex. P, 10/25/02 Warning.) Wauconda's admissions director, who had seen Paz the previous day, testified, "I thought it was kind of strange she came in just to leave because I knew she had been upset the previous day." (R.32-2, Palazzo Dep. at 68.) On Monday, October 28th, Li filed her third and final notice, again without telling Paz. (R.31, ex. Q, 10/28/02 Warning.) This time, she wrote Paz up for an attendance violation: "No call, no show, job abandonment." (Id.) In her deposition, Li denied discriminating against Hispanics and denied having pressured Paz to have an abortion. (R.32-1, Li Dep. at 20, 50-56, 66, 72, 91, 94, 97.) She claimed that Morris had never told her about Paz's allegation of discrimination, (id. at 58, 127-29), although Wauconda admits otherwise. (R.31, ex. C, D's Admissions at No. 4.) Li denied having told Paz, "You're fired." (R.32-1, Li Dep. at 58, 172.) Morris testified that only the administrator, and not a department head, had the authority to fire anyone. (R.32-1, Morris Dep. at 37.) Paz sued Wauconda under Title VII for national origin discrimination, pregnancy discrimination, and retaliation. (R.1, Complaint.) Wauconda moved for summary judgment on all counts. (R. 12, Motion.) The district court granted Wauconda's motion and denied Paz's motion for reconsideration. In the course of granting Wauconda's motion, the district court did not acknowledge that Wauconda based its defense entirely on its position that Paz had abandoned her job. (R.13, Memo in Support of S.J. at 3-7; R.35, Reply Memo at 10.) Contrary to fact, the court said, "Wauconda denies that Paz was ever fired, but that even if it was found that Wauconda had fired Paz, to the extent that any action was taken against Paz, it was because Paz performed her job poorly or because she left work without permission." (R.40, Slip Op. at 10.) ARGUMENT A. Contrary to the district court's implication, a Title VII plaintiff may defeat summary judgment with her own deposition testimony where that testimony relies on her personal knowledge and consists of affirmative evidence rather than conclusory, self-serving statements. The district court erred by giving insufficient weight to Paz's deposition testimony. The law is clear that "a nonmoving party's own deposition may constitute affirmative evidence to defeat summary judgment." Williams v. Seniff, 342 F.3d 774, 785 (7th Cir. 2003). Although conclusory statements in a deposition do not create a genuine issue of material fact, id., factual allegations that are based on the nonmovant's personal knowledge must be taken as true. Ford v. Wilson, 90 F.3d 245, 246 (7th Cir. 1996); see also Mills v. First Fed. Savs. & Loan Ass'n, 83 F.3d 833, 843 (7th Cir. 1996) (describing conclusory statements as, for example, nonmovant's self-interested assertions about her own ability). Paz's deposition relies on affirmative factual evidence, not on conclusory statements, to show Wauconda's dishonesty about why it no longer employs Paz. Li denies ever having told Paz, "You're fired." (R.32-1, Li Dep. at 58, 172.) Because this Court must believe Paz's deposition testimony for purposes of summary judgment, Abdullahi v. City of Madison, 423 F.3d 763, 769 (7th Cir. 2005), it must conclude at this stage of the proceedings that Li is lying. As this Court has observed, "It is unusual for an employee to be able to testify from his personal knowledge to whether the employer was being honest about why it took some adverse action against him." Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir. 1995) (emphasis in original). This is one of those unusual cases. As the Court described in Russell, a plaintiff may defeat summary judgment by testifying that the defendant's version of a conversation never occurred. See id.1R.) She also testified that whenever something needed to be cleaned, Li called on one of the Hispanic employees. (Id. at 252-53.) Paz testified that Li scheduled the white employees for more favorable shifts. (Id. at 253-54, 299.) Paz also testified to a negative comment that Li made to her about Mexican employees only two months before the events at issue. (Id. at 205, 207, 235.) Additionally, she testified that Li's behavior towards her worsened after she announced her pregnancy, (id. at 215), that Li pressured her to have an abortion, (id. at 285-87), that Li hugged her and treated her warmly when she initially said that she would, (id. at 282-83), and that Li started blaming her for everything once she changed her mind. (Id. at 284-85.) Looked at in the light most favorable to Paz, as the court must on a motion for summary judgment, Paz's deposition testimony shows that Li harbored discriminatory animus towards Paz both for her Mexican origin and her pregnancy. This evidence of discriminatory animus, coupled with Li's false denial of having removed Paz from the work schedules and then telling her, "You're fired," raises a jury question about what really happened on October 25th. If the district court had treated Paz's deposition testimony as the substantive evidence it really was, it could not have granted summary judgment to Wauconda. B. A jury could find that Paz reasonably relied on her supervisor's apparent authority when the supervisor told her, "You're fired," and Paz went home. The district court erred by failing to consider that Li may have acted with apparent authority when she told Paz, "You're fired," and sent her home. The district court held that Paz could not demonstrate an adverse employment action because she admitted that she did not know if Li had actual authority to fire her, and because she did not complain to Morris after Li told her she was dismissed. (R.40, Slip Op. at 7.) The court's conclusion ignores the law of apparent authority. See Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1247 n.20 (11th Cir. 1998) ("Although the employer may argue that the employee had no actual authority to take the employment action against the plaintiff, apparent authority serves just as well to impute liability to the employer for the employee's action."). The Supreme Court has instructed that courts must look to common law agency principles when interpreting Title VII. Faragher v. City of Boca Raton, 524 U.S. 775, 791-92 (1998); Meritor Sav. Bank v. Vinson, 477 U.S. 57, 72 (1986). Those principles hold that "apparent authority to do an act is created as to a third person by written or spoken words or any other conduct of the principal, which, reasonably interpreted, causes the third person to believe that the principal consents to have the act done on his behalf by the person purporting to act for him." Restatement (Second) of Agency § 27 (1958). The most current revision of the Restatement of Agency explains that "apparent authority is the power held by an agent or other actor to affect a principal's legal relations with third persons when a third party reasonably believes the actor has authority to act on behalf of the principal and that belief is traceable to the principal's manifestations." Restatement (Third) of Agency § 2.03 (T.D. No. 2, 2001). Based on the Restatement, whether Li had apparent authority to fire Paz depends on two questions of fact: (1) did Paz reasonably believe that Li had the authority to fire her, and (2) was her belief traceable to something that Wauconda said or did? Neither of these questions should have been resolved on summary judgment. See DBI Architects, P.C. v. American Express Travel Related Servs. Co., 388 F.3d 886, 890 (D.C. Cir. 2004) (existence of apparent authority is question of fact that should normally be left for jury); Myers v. Bennett Law Offices, 238 F.3d 1068, 1073 n.2 (9th Cir. 2001) (same); Minskoff v. American Express Travel Related Servs. Co., 98 F.3d 703, 708 (2d Cir. 1996) (same); Kansallis Finance Ltd. v. Fern, 40 F.3d 476, 480 (1st Cir. 1994) (same). The district court made much of Paz's admission that she did not know whether Li had actual authority to fire her. (R.40, Slip Op. at 7.) In fact, Paz testified that she did not know Wauconda's chain of command. (R.32-1, Paz Dep. at 214, 266.) As far as Paz was concerned, it was entirely possible that Li did have actual authority to fire her. She knew that Li had single-handedly hired her. (Id. at 136, 138.) Li put Paz to work in the kitchen the same day that she interviewed for the job, before Paz met with anyone else. (Id.) Paz also knew that Li was her supervisor and that Li was the individual responsible for discipline of the kitchen staff. (Id. at 176, 246-47; see also R.32-1, Li Dep. at 37.) While it is true that Paz complained to Morris about Li's yelling at her when she burned the bacon, (R.32-1, Paz Dep. at 263), a jury could reasonably find that Paz believed her complaint had been ineffective. When Paz spoke to Morris on October 24th, Morris told her, "Do not worry about this. I'm going to take care of it." (R.32-1, Morris Dep. at 89.) Paz returned to the kitchen to get her coat, and Li told her, "If you walk out that door, don't come back." (R.32-1, Paz Dep. at 263-64.) Paz reported this comment to Morris, who told her not to worry and to just go home. (Id. at 264.) A jury could understand Paz's shock the following day when she returned to work, found that she had been removed from the work schedules, and then Li told her, "You're fired." (Id. at 264-66.) A jury could further conclude that it was not unreasonable for Paz to assume that Morris had not taken care of the situation, despite her promise to the contrary, and that Li did, in fact, speak for Wauconda. See Restatement (Third) of Agency § 3.03 comment b (T.D. No. 2, 2001) ("A principal's inaction creates apparent authority when it provides a basis for the third party to believe the principal intentionally acquiesces in the agent's representations or actions."). The district court's criticism of Paz for not confirming Li's authority to act is without legal support. As the Restatement explains, "Absent circumstances that should raise questions in the mind of a reasonable third party, as a general matter there is no requirement that the third party inquire into the scope of an agent's authority." Id. comment d. Wauconda seeks to create "circumstances that would raise questions" through a self-serving affidavit, submitted after Morris' deposition, in which Morris claims to have told Paz to return to her if she had any further problems with Li. (R.13, ex. B, Morris Aff. ¶ 20.) Morris testified to nothing of the sort in her deposition. (See R.32-1, Morris Dep. at 87-89.) A party may not rely for evidence on an affidavit that is inconsistent with a previous deposition. Bank of Illinois v. Allied Signal Safety Restraint Sys., 75 F.3d 1162, 1168 (7th Cir. 1996). The question of Li's actual authority to fire Paz is a red herring. Paz believed that Li had fired her. A jury could find both that her belief was reasonable and that it was attributable to Wauconda's manifestations of authority. The district court should not have been so quick to decide that Paz was not subject to an adverse employment action. C. The circumstantial evidence in this case would permit a jury to conclude that Paz was fired and that the reason for her termination was illegal discrimination and/or retaliation. The district court erred by setting too high an evidentiary bar for Paz to overcome. In the EEOC's view, the district court did not fully appreciate the role that circumstantial evidence can play in proving discrimination and/or retaliation. Such evidence can be critical under both the "direct" and "indirect" methods of proof. Here, Paz's evidence is sufficient to raise a jury question under either approach. 1. Direct Method of Proof Under the "direct" method of proof, a plaintiff may rely on direct and/or circumstantial evidence to show discriminatory intent. Direct evidence is that which, if believed, "prove[s] the particular fact in question without reliance upon inference or presumption." Rudin v. Lincoln Land Cmty. Coll., 420 F.3d 712, 720 (7th Cir. 2004). An example of direct evidence would be an admission by the decisionmaker that he fired the plaintiff because he did not want to work with any Hispanics. Direct evidence is, not surprisingly, quite rare. Venturelli v. ARC Cmty. Servs., Inc., 350 F.3d 592, 599 (7th Cir. 2003). In contrast to direct evidence, circumstantial evidence does require the factfinder to rely on inferences. Rudin, 420 F.3d at 720. As long as those inferences are reasonable, circumstantial evidence can be just as powerful as direct evidence in directly proving discrimination. See Desert Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003) ("Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.") (quotation omitted). The circumstantial evidence must allow the factfinder to infer that the decisionmaker acted because of discrimination. Venturelli, 350 F.3d at 601. Among the types of circumstantial evidence that can meet this test are suspicious timing, ambiguous statements, words and actions toward other employees in the protected group, and "other bits and pieces from which an inference of discriminatory intent might be drawn." Rudin, 420 F.3d at 720-21; see also Troupe v. May Dep't Store Co., 20 F.3d 734, 736 (7th Cir. 1994) (same). A reasonable factfinder could infer from the circumstantial evidence in this case that Paz suffered a discriminatory and/or retaliatory discharge. A jury could credit Paz's testimony that she reasonably believed Li when Li told her, "You're fired." (R.32-1, Paz Dep. at 266, 276.) A jury that believes Paz's testimony would necessarily reject Wauconda's contention that Paz abandoned her job. With respect to national origin discrimination, Paz introduced evidence that Li treated Hispanic employees more poorly than white employees, that she gave Hispanic employees more work and fewer breaks, and that she complained directly to Paz only two months before the discharge that "you people just come to United States to cause so many problems and steal American people's job." (Id. at 204- 07, 235, 245-46, 250-54, 299.) Wauconda admits that Li also said, "I am not going to hire any Mexicans as they cause too many problems." (R.31, ex. B, D's Answers to Interrog. at No. 4.) While this evidence does not require a factfinder to conclude that Li terminated Paz because of anti-Hispanic animus, it is enough to permit a jury to do so. Paz also introduced evidence that Li assumed that Paz's pregnancy would interfere with Paz's work performance, that Li actively pressured Paz to have an abortion, and that Li began to blame Paz for everything after Paz told her that she had decided to keep her baby. (R.32-1, Paz Dep. at 215, 280-87.) A jury could (although it need not) infer from this evidence that Li terminated Paz because of anti-pregnancy animus. With regard to retaliation, Paz introduced evidence that Morris told Li about Paz's discrimination complaint on the afternoon of October 24th . (R.32-1, Morris Dep. at 96.) Immediately after learning about Paz's complaint, Li wrote the first disciplinary notice ever to be entered in Paz's file. (R.31, ex. O, 10/24/02 Warning.) A jury could reasonably find that Li filled the notice with untrue statements, suggesting malice. See supra at 10-11. A jury could also infer retaliation from the fact that the notice indirectly mentioned Paz's discrimination complaint. (See R.31, ex. O, 10/24/02 Warning (commenting that Paz had gone to Morris "complaining about some other issue she created to support her anger").) Finally, a reasonable jury could conclude from the fact that Li never told Paz about the "employee warning notices" that the notices were designed to cover up discrimination rather than to warn Paz about discipline. (R.32-1, Paz Dep. at 181-82, 194.) Significantly, Paz testified that Li had removed her from the Thursday, Friday, and Monday work schedules sometime on Thursday. (Id. at 264-65.) When Paz showed up for work on Friday, found someone else doing her job, and confronted Li about it, Li told her, "You're fired," and sent her home. (Id. at 265-66.) Li then submitted a second warning notice falsely blaming Paz for leaving work without telling anyone. (R.31, ex. P, 10/25/02 Warning.) On Monday, Li repeated this deception, filing a third notice that accused Paz of abandoning her job although Li herself had told Paz not to return. (R.31, ex. Q, 10/28/02 Warning.) As this Court has explained, the issue at summary judgment "is whether, if the record at trial were identical to the record compiled in the summary judgment proceedings, the movant would be entitled to a directed verdict because no reasonable jury would bring in a verdict for the opposing party." Russell v. Acme- Evans Co., 51 F.3d 64, 70 (7th Cir. 1995). Because a reasonable jury could believe Paz and disbelieve Li, a directed verdict would be inappropriate in this case. The circumstantial evidence is sufficient for a jury to infer discrimination and/or retaliation. The district court therefore erred by granting summary judgment to Wauconda. 2. Indirect Method of Proof The district court also erred in its treatment of the indirect method of proof. This method, first outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), uses a burden-shifting approach to eliminate the most common nondiscriminatory explanations for an adverse employment action. See Loyd v. Phillips Bros., Inc., 25 F.3d 518, 522 (7th Cir. 1994) (McDonnell Douglas rules out lack of qualifications or lack of vacancy). Under McDonnell Douglas, a plaintiff first presents a prima facie case of discrimination based upon her membership in one or more protected classes. Once the plaintiff makes this showing, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory explanation for its employment decision. If the defendant does so, the presumption of discrimination lifts and the burden returns to the plaintiff to show that the defendant's explanation is a pretext for discrimination. McDonnell Douglas, 411 U.S. at 802; see also St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993). The type of evidence that a plaintiff can use to show pretext may often overlap with the circumstantial evidence that can show discrimination under the direct method of proof. Venturelli, 350 F.3d at 601. Although the district court devoted most of its opinion to the indirect method of proof, (R.40, Slip Op. at 6-11), the EEOC believes that the court's emphasis was misplaced. The indirect method of proof is designed to compel an employer to articulate a nondiscriminatory reason for its employment action, thereby focusing analysis on whether the employer's stated reason is actually a pretext for discrimination. Hicks, 509 U.S. at 506-07. Here, Wauconda did not articulate any nondiscriminatory reason for its termination; to the contrary, it single-mindedly insisted that Paz had abandoned her job. Compare R.35, Reply Memo at 10 (declining to argue in the alternative that even if Wauconda had fired Paz, it had done so for good cause) with EEOC v. Our Lady of Resurrection Medical Ctr., 77 F.3d 145, 149 (7th Cir. 1996) (defendant denied having terminated plaintiff but argued that even if it had done so, it had fired her for a nondiscriminatory reason). In such a case, it was wholly inappropriate for the district court to discuss and credit reasons for Paz's termination that Wauconda never proffered. Even assuming that this case should have been analyzed under the indirect method, the district court erred in its application of McDonnell Douglas. First, the court wrongly resolved a genuine issue of material fact in deciding that Paz had not suffered an adverse employment action. Whether or not Paz was fired turns on whether Li said that she was and on whether Li was acting with apparent authority when she did so. These are factual questions that should be decided by a jury. See DBI Architects, 388 F.3d at 980; Myers, 238 F.3d at 1073 n.2; Minskoff, 98 F.3d at 708; Kansallis, 40 F.3d at 480. The district court also erred by insisting that Paz must show evidence of similarly situated comparators in order to establish a prima facie case. The Supreme Court explained in McDonnell Douglas that courts should not be too rigid in demanding prima facie proof. In McDonnell Douglas, the Court listed the elements of a prima facie case as follows: (1) the plaintiff belongs to a protected class, (2) he applied for and was qualified for a job for which the employer was seeking applicants, (3) despite his qualifications, he was rejected, and (4) the job remained open and the employer continued to seek applicants with the plaintiff's qualifications. McDonnell Douglas, 411 U.S. at 802. However, the Court added, "The facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof required from respondent is not necessarily applicable in every respect to differing factual situations." Id. at 802 n.13. This Court, too, has repeatedly noted that the elements of the McDonnell Douglas prima facie case must be applied flexibly. As the Court has explained, "the elements of proof in an employment discrimination case need not be ‘rigid, mechanized, or ritualistic.'" Robin v. Espo Eng'g Corp., 200 F.3d 1081, 1088 (7th Cir. 2000) (quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978)); see also Flores v. Preferred Tech. Grp., 182 F.3d 512, 515 (7th Cir. 1999) ("the prima facie case cannot be used by rote"); Brill v. Lante Corp., 119 F.3d 1266, 1270 & n.2 (7th Cir. 1997) (prima facie case "was meant to be flexible and to fit the facts of virtually any type of claim"). All that is required to survive summary judgment is "sufficient ‘evidence from which a rational trier of fact could reasonably infer that the defendant had fired the plaintiff because [he] was a member of a protected class.'" Robin, 200 F.3d at 1089-90 (quoting Troupe, 20 F.3d at 737). Based upon the evidence presented, the Court may modify the McDonnell Douglas framework as appropriate. Id. at 1090 (plaintiff may raise inference of discrimination under McDonnell Douglas by showing, inter alia, that defendant hired someone substantially younger "or other such evidence that indicates that it is more likely than not that his age or disability was the reason for the discharge"); see also Lawson v. CSX Transp., Inc., 245 F.3d 916, 922 (7th Cir. 2001) (plaintiff may raise inference of disability discrimination under McDonnell Douglas by showing, inter alia, that the circumstances surrounding the adverse employment action suggest that the employer was motivated by discrimination). Evidence sufficient to raise an inference of discrimination under the fourth prong of McDonnell Douglas may or may not include evidence of comparators. Such evidence is useful but not necessary. As this Court has emphasized, "the nature of the proof giving rise to the requisite inference of discrimination cannot be reduced to a formula that will serve any and all discrimination cases." Leffel v. Valley Fin. Servs., 113 F.3d 787, 793-94 (7th Cir. 1997). Thus, "that one's replacement is of another race, sex, or age may help to raise an inference of discrimination, but it is neither a sufficient nor a necessary condition. Any demonstration strong enough to support a judgment in the plaintiff's favor if the employer remains silent will do, even if the proof does not fit into a set of pigeonholes." Carson v. Bethlehem Steel Corp., 82 F.3d 157, 159 (7th Cir. 1996) (citation omitted); see also Olson v. Northern FS, Inc., 387 F.3d 632, 635-36 (7th Cir. 2004) (criticizing district court's "rigid" insistence on comparators as "skirt[ing] the ultimate question – whether age was a motivating factor in the decision to fire [the plaintiff]"). In this case, the district court's insistence on the use of comparators was illogical. Because Wauconda firmly denied that it had taken any adverse employment action against Paz, declining to argue in the alternative that it was justified even if it had done so, (R.13, Memo in Support of S.J. at 3-7; R.35, Reply Memo at 10), the district court should not have required Paz to produce non- Hispanic and/or non-pregnant employees who were not terminated. From Wauconda's perspective, Paz was not terminated either. Comparing her to other non-terminated employees would therefore serve no purpose. See O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 311-12 (1996) ("there must be at least a logical connection between each element of the prima facie case and the [alleged] illegal discrimination"). Had the district court modified the McDonnell Douglas paradigm to suit the facts of this case, it would have recognized that the evidence supporting an inference of discrimination under the direct method of proof also supports an inference of discrimination under the indirect method. Although the EEOC believes that this case should have been analyzed under the direct method in the first instance, even under the indirect method Paz should have survived summary judgment. Proceeding under the McDonnell Douglas framework, the district court should have recognized that Wauconda has done nothing to rebut the inference of discrimination stemming from Paz's prima facie case. See Hicks, 509 U.S. at 509 (if plaintiff establishes prima facie case and defendant fails to meet its burden of producing nondiscriminatory explanation, plaintiff must win). A reasonable jury that believes Paz's evidence and makes all reasonable inferences in her favor could infer discrimination and/or retaliation under either the direct or the indirect approach. The district court therefore erred in granting summary judgment to Wauconda. CONCLUSION The evidence in the record would permit a reasonable jury to find that Li used her apparent authority to terminate Paz, and that she did so because of illegal discrimination and/or retaliation. The district court erred by removing these questions from the jury. For the reasons stated above, the EEOC respectfully asks this Court to reverse the district court's award of summary judgment. Respectfully submitted, JAMES L. LEE U.S. EQUAL EMPLOYMENT Deputy General Counsel OPPORTUNITY COMMISSION Office of General Counsel CAROLYN L. WHEELER 1801 L Street, N.W., Room 7034 Acting Associate General Counsel Washington, D.C. 20507 (202) 663-4055 _________________________ gail.coleman@eeoc.gov GAIL S. COLEMAN, Attorney CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 29(d) and 32(a)(7)(B) because it contains 6,996 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Office Word 2003 with 14 point Times New Roman. _______________________________ GAIL S. COLEMAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7034 Washington, D.C. 20507 (202) 663-4055 gail.coleman@eeoc.gov November 29, 2005 CERTIFICATE OF SERVICE I, Gail S. Coleman, hereby certify that I filed this brief with the Court this 29th day of November, 2005, by sending, via Federal Express, the original plus 15 copies and by uploading a digital version of the brief. I also certify that I served two copies of the brief as well as a computer disk containing a digital version of the brief this 29th day of November, 2005, by first- class mail, postage pre-paid, to the following counsel of record: M. Megan O'Malley John P. Madden O'Malley & Madden 542 South Dearborn St., Suite 660 Chicago, IL 60605 David B. Pogrund Stone, Pogrund & Korey 221 N. LaSalle St., Suite 3200 Chicago, IL 60601 ________________________________ GAIL S. COLEMAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7034 Washington, D.C. 20507 (202) 663-4055 gail.coleman@eeoc.gov ************************************************************************ <> <1> This statement of facts does not rely on any of the evidence to which the district court might have been referring when it criticized Paz for “speculation and inadmissible hearsay.” (R.40, Slip Op. at 11; see also R.55, Reconsid. Op. at 7-8.)