Asher Rubinstein v. Adminstrators of the Tulane Educational Fund 98-30777 _______________ No. 98-30777 _______________ IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ASHER RUBINSTEIN, Plaintiff-Appellee-Cross-Appellant, v. ADMINISTRATORS OF THE TULANE EDUCATIONAL FUND, et al., Defendants-Appellants-Cross-Appellees. _________________________________________ On Appeal from the United States District Court for the Eastern District of Louisiana _________________________________________ Brief of the Equal Employment Opportunity Commission as Amicus Curiae in Support of Petition for Rehearing or Rehearing En Banc _________________________________________ C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel DORI K. BERNSTEIN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., Room 7046 Washington, D.C. 20507 (202)663-4734 FED. R. APP. P. 35(b)(1) STATEMENT Pursuant to Fed.R.App.P. 35(b)(1)(A), I express a belief, based on a reasoned and studied professional judgment, that the panel decision is contrary to the following decision of the Supreme Court of the United States, and that consideration by the full Court is therefore necessary to secure and maintain uniformity of decisions in this Court: Reeves v. Sanderson Plumbing Products, 120 S.Ct. 2097 (2000). _____________________________ Dori K. Bernstein Attorney Equal Employment Opportunity Commission TABLE OF CONTENTS Page FED. R. APP. P. 35(b)(1) STATEMENT i TABLE OF CONTENTS ii TABLE OF AUTHORITIES iii STATEMENT OF INTEREST 1 STATEMENT OF THE ISSUE 2 STATEMENT OF FACTS 2 District Court Proceedings 8 Panel Opinion 8 ARGUMENT 11 RUBINSTEIN'S PRIMA FACIE CASE, TOGETHER WITH EVIDENCE DISCREDITING TULANE'S EXPLANATION, AND EXPRESSIONS OF DISCRIMINATORY BIAS AND RETALIATORY INTENT BY DECISION PARTICIPANTS, WOULD PERMIT A JURY TO FIND THAT TULANE DENIED HIM A PROMOTION OR HIGHER PAY BECAUSE OF HIS RELIGION, NATIONAL ORIGIN, OR PURSUIT OF TITLE VII CLAIMS. 11 CONCLUSION 19 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Page Cases Anderson v. Liberty Lobby, 477 U.S. 242 (1986) 15 Brown v. East Mississippi Electric Power Assoc., 989 F.2d 858 (5th Cir. 1993) 19 EEOC v. Manville Sales, 27 F.3d 1089 (5th Cir. 1994), cert. denied, 513 U.S. 1190 (1995) 17, 18 Lindsey v. Prive, 987 F.2d 324 (5th Cir. 1993) 18 McInnis v. Alamo Community College Dist., 207 F.3d 276 (5th Cir. 2000) 14 Normand v. Research Institute of America, 927 F.2d 857 (5th Cir. 1991) 18 Reeves v. Sanderson Plumbing Products, 120 S.Ct. 2097 (2000) passim Rubinstein v. Administrators of the Tulane Educational Fund, 2000 WL 898050 (5th Cir., July 6, 2000) passim Shattuck v. Kinetic Concepts, 49 F.3d 1106 (5th Cir. 1995) 18 St. Mary's Honor Center v. Hicks, 113 S.Ct. 2742 (1993) 14, 15 U.S. Postal Service Bd. of Govs. v. Aikens, 460 U.S. 711 (1983) 17 Statutes Title VII of the 1964 Civil Rights Act 42 U.S.C. §§ 2000e et seq. 1 Rules Fed.R.App.P. 29(a) 1 Fed.R.App.P. 35(b)(1)(A) i Fed.R.Civ.P. 56 15 STATEMENT OF INTEREST The Equal Employment Opportunity Commission ("EEOC") is the federal agency charged with interpreting and enforcing Title VII of the 1964 Civil Rights Act, 42 U.S.C. §§ 2000e et seq., and other federal laws barring employment discrimination. As a United States government agency, the EEOC is authorized to file an amicus curiae brief "without the consent of the parties or leave of court." Fed.R.App.P. 29(a). In this private Title VII action, a panel of this Court affirmed summary judgment against Professor Asher Rubinstein's claims of discrimination and retaliation by the Administrators of the Tulane Educational Fund ("Tulane"). See Rubinstein v. Administrators of the Tulane Educational Fund, 2000 WL 898050 (5th Cir., July 6, 2000). The Supreme Court recently clarified the nature of proof required to sustain a finding of unlawful discrimination, and the proper standard of review for judgment as a matter of law.<1> Reeves v. Sanderson Plumbing Products, 120 S.Ct. 2097 (2000). Because this Court's application of Reeves will have a significant impact on the EEOC's enforcement efforts, we offer our views as amicus curiae. STATEMENT OF THE ISSUE Whether Rubinstein's prima facie case, together with evidence discrediting Tulane's explanation, and expressions of discriminatory bias and retaliatory intent by decision participants, would permit a jury to find that Tulane denied him a promotion or higher pay because of his religion, national origin, or pursuit of Title VII claims? STATEMENT OF FACTS<2> Asher Rubinstein, a Jewish man born and raised in the former USSR, has been an associate professor in Tulane's Department of Mechanical Engineering since 1987. See SJ Op. at 21; Rubinstein, at *1. Professors at Tulane are considered for raises, tenure, and promotion based on "three major areas of performance: teaching, university citizenship, and research." Id. at *1. Based on a tenure recommendation that described him as "an outstanding researcher" and "satisfactory teacher," Rubinstein was granted tenure in 1990. Id. In 1990 and 1991, Rubinstein received annual salary increases above eight percent, "reflecting his outstanding research skills and contributions to the University." Id. Rubinstein began to experience discrimination around the time William Van Buskirk was promoted to Dean of the School of Engineering in 1991, and Professor Lynch became Department Chair in 1992. Id. Rubinstein received no salary increase in 1992 or 1993. See SJ Op. at 14. In 1994, Rubinstein received a 2.02 % raise - the lowest percentage increase of any department member, except the retiring former dean. Rubinstein, at *2. In fall 1994, Rubinstein sought promotion to full professor, and subsequently "complained to Van Buskirk that he was being unfairly considered with respect to raises and promotion." Id. Rubinstein recalls that Van Buskirk responded, "What are you going to do, sue me? Do you know what happens to people who sue their employer?"<3> Id. Following this exchange, in December 1994, Rubinstein filed an EEOC charge against Tulane. Id. Rubinstein was denied promotion in early 1995, and filed a second charge in April 1995. Id. In June 1995, Rubinstein again received the lowest raise in the department, about 2.53%. Id. Rubinstein sued Tulane in October 1995, claiming he received inferior salary increases and was denied promotion because of his national origin and religion, and in retaliation for his claims of discrimination. Id. While this suit was pending, in early 1996 and again the following fall, Tulane twice denied Rubinstein's renewed requests for promotion. Id. Rubinstein received no salary increase in 1997.<4> Id. In response to Rubinstein's claims, Tulane acknowledged his "excellent research record," but purportedly based its decisions on his "poor university citizenship, low teaching evaluation scores, and an insufficient record in mentoring students." Id. To support its explanation, Tulane presented the memoranda and testimony of Dean Van Buskirk, Chairman Lynch, and other faculty participants in the challenged decisions. See SJ Op. at 23-27. The annual salary determinations for department faculty were documented in "several memoranda" by Lynch, which "indicate that there is no single set of criteria" governing pay increases, and "the percent raise recommended varies based upon a number of criteria that [Lynch] finds significant." Id. at 22 n.10. To rebut Tulane's purported reliance on his "poor student relations and poor university citizenship," Rubinstein presented evidence that "Lynch failed to assign [him] committee responsibilities" and then, after assigning him to chair the seminar committee, "thwarted [his] attempts to participate in committee work by failing to secure funding for seminars." Id. at 29. Similarly, Van Buskirk and Lynch impeded Rubinstein's "ability to improve relations among students and mentor students" by neglecting to fund teaching assistants in his specialty. Id. Rubinstein also produced evidence that the Dean's office had tampered with his student evaluations on several occasions. Id. at 31-32. In spring 1995, his student surveys included a negative evaluation prepared in the handwriting of the Dean's secretary. Id. In 1992 and early 1996, the Dean's office miscalculated his average evaluation score to his slight disadvantage. Id. Finally, Rubinstein's "unofficial" survey of his students - on the same day and using the same evaluation form as the Dean's survey - revealed that in fall 1996, the official evaluations produced a "significantly higher (worse) numerical average" than his survey, and "many of the students' comments on the unofficial set did not appear in the Dean's set of evaluations."<5> Id. at 32. In addition, Rubinstein presented testimony that faculty on whose recommendations Tulane relied to support its decisions made derogatory references and jokes about his religion and national origin. Most of this evidence concerned Professor Watts, a member of the Promotion and Tenure Committee in 1995-97, and chairman of that committee in 1996 and 1997.<6> Id. at 36-37. In spring 1994, Watts began "to make comments about Jews" and "Jewish rituals." Id. at 38. According to Rubinstein, Watts "was particularly upset about his daughter getting married to a Jew and that he would have to attend [the] wedding with some Jewish rituals in it." Id. Watts made "a large number of comments like this, and at the same time, he was making jokes about his first wife [who] happened to be Jewish, and so his children [were] a quarter Jewish, and he made jokes about that, too." Id. In particular, Rubinstein recalled, Watts joked "that his children are a quarter Jewish but all three-quarters went to one girl ... because she's tight with money." Id. at 39. Other examples of "anti-Semitic remarks" included "a comment concerning placing a propeller on a yarmulke and a remark about Jewish frugality." Rubinstein, at *1. Rubinstein said nothing in response to these comments because he "didn't want to raise [a] confrontation." SJ Op. at 39. Instead, he "just eventually stopped going to these lunches" with department colleagues. Id. Around that time or "a little later," Watts "consistently" began calling Rubinstein "Russian Yankee ... because I'm Russian, and I came from New York."<7> Id. Watts mentioned anything "negative" or "ridiculous" he heard about Russia, and Rubinstein perceived these remarks were not made "in a joking manner." Id. Rubinstein recalled that Watts "used to joke about my accent," and would "consistently pretend that he could not understand me because of my accent and made these remarks." Id. Rubinstein "used to dismiss it as a joke," but "at some point ... I could see that [Watts] really [was] irritated by all this." Id. Professor Bruce, who also served on the promotion committee, told a professor of Arab descent "that he didn't have to worry about getting tenure because if the Russian Jew ... in Mechanical Engineering could obtain tenure, anyone at Tulane could." Id. at 42. Rubinstein also recalled "a conversation he had with Van Buskirk concerning his 1993 raise, during which Van Buskirk apparently speculated that Lynch might be discriminating against him because he was Russian and Jewish." Rubinstein, at *1. Finally, there was undisputed evidence that Dean Van Buskirk expressed retaliatory motivation against Rubinstein for pursuing his claims of discrimination. In fall 1994, when Rubinstein complained internally that he was not fairly considered for raises or promotion, "Van Buskirk admits he inquired into whether Rubinstein planned to file suit, expressing the opinion that it would be a bad idea." Id. at *2. During his deposition, moreover, Van Buskirk directly linked his 1997 raise denial to Rubinstein's suit against Tulane. See SJ Op. at 50-51. Asked to identify the "negative aspects of [Rubinstein's] performance" that led to his decision, Van Buskirk called him "a very poor university citizen" who "fails to exhibit" the characteristics of a "good citizen" or "colleague." Id. Van Buskirk further explained: A colleague, when disturbed by another colleague's remarks is to go to that person in private and talk it through .... He doesn't have a lawsuit about it. A good colleague who's part of a community uses the resources of the community to resolve differences. He doesn't use external resources. He doesn't haul colleagues into court to try to resolve differences. A good colleague doesn't lead his attorney down a path of systematically destroying his relationships with his colleagues in the department with these invidious distinctions and comparisons. ... All of that suggests to me that he is a very poor university citizen. Id. District Court Proceedings The district court granted summary judgment for Tulane on all Rubinstein's claims of religious and national origin discrimination. SJ Op. at 52. The court denied summary judgment only on Rubinstein's claim that Tulane denied him a raise in 1997 in retaliation for his Title VII suit.<8> The jury returned a verdict for Rubinstein on the single retaliation claim that survived summary judgment, and awarded him $2500 in lost wages and benefits, plus $75,000 in punitive damages. Rubinstein, at *2. Both parties appealed. Panel Opinion The panel affirmed the summary judgment rulings and upheld the jury's verdict that Tulane denied Rubinstein a raise in 1997 in retaliation for pursuing his discrimination claims, but reduced the punitive damages to $25,000. Rubinstein, at *16. With respect to summary judgment, the panel "track[ed] the district court's analysis and reache[d] the same conclusion." Id. at 4. The panel agreed Rubinstein had presented a prima facie case of discrimination as to raises and promotion,<9> and Tulane had offered legitimate, nondiscriminatory reasons for the challenged decisions. Id. at *5. The panel also found "some evidence of pretext, specifically with regard to [Rubinstein's] purported lack of university citizenship." Id. at *5. Evidence "that he was thwarted in his efforts to participate in departmental committees by Professor Lynch," the panel stated, "would tend to establish pretext." Id. Like the district court, however, the panel ruled that the evidence of tampering with Rubinstein's student surveys did not "rebut the overwhelming evidence that, even controlling for these evaluations, Rubinstein received substantially lower evaluations than other, similarly situated professors" and thus "had not established pretext as to this issue." Id. "Even on the issue for which Rubinstein demonstrated some pretext," the panel found "an overall lack of any evidence of discriminatory intent." Id. Notwithstanding "the Supreme Court's recent admonition that Title VII plaintiffs need not always present evidence above and beyond their prima facie case and pretext," the panel insisted that "discrimination suits still require evidence of discrimination." Id. (citing Reeves, 120 S.Ct. at 2105-06). In the panel's view, Rubinstein had not produced "any evidence of discrimination sufficient to survive summary judgment, and his evidence to rebut the nondiscriminatory reasons offered by Tulane is not so persuasive so as to support an inference that the real reason was discrimination." Id. The panel also approved the district court's analysis of the offensive jokes and remarks by participants in the challenged pay and promotion decisions. According to the panel, "the only evidence offered by Rubinstein in support of his claims of discriminatory intent" were Professor Watts's comments "that Rubinstein was a 'Russian Yankee' and that Jews are thrifty, as well as an isolated remark by a Professor Bruce ... that if 'the Russian Jew' could obtain tenure, then anyone could."<10> Id. The panel ruled that "these comments, standing alone, will not defeat summary judgment on Rubinstein's claims of discrimination in the promotion and pay-raise decisions." Id. Using a four-prong test to determine if "comments in the workplace ... provide sufficient evidence of discrimination" to withstand summary judgment, the panel reasoned that because Rubinstein did not show that the offensive remarks were "either proximate in time to his failure to receive raises or promotions, or ... related to the employment decisions at issue ... these comments are best viewed under our Circuit precedent as stray remarks, thus not warranting survival of summary judgment." Id. Finally, the panel affirmed, without legal analysis, the district court's ruling that the evidence of retaliation was adequate only to support Rubinstein's claim with respect to the 1997 raise, and "similarly conclude[d]" that "Rubinstein presented no evidence of discrimination or retaliation with respect to the earlier pay raise and promotion decisions." Id. ARGUMENT RUBINSTEIN'S PRIMA FACIE CASE, TOGETHER WITH EVIDENCE DISCREDITING TULANE'S EXPLANATION, AND EXPRESSIONS OF DISCRIMINATORY BIAS AND RETALIATORY INTENT BY DECISION PARTICIPANTS, WOULD PERMIT A JURY TO FIND THAT TULANE DENIED HIM A PROMOTION OR HIGHER PAY BECAUSE OF HIS RELIGION, NATIONAL ORIGIN, OR PURSUIT OF TITLE VII CLAIMS. The Supreme Court, in a unanimous decision, recently clarified the nature of proof required to support a finding of intentional discrimination, and the standard of review for granting judgment as a matter of law or summary judgment in discrimination cases. Reeves v. Sanderson Plumbing Products, 120 S.Ct. 2097 (2000). The Court held that "a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification" for a challenged employment action "is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Id. at 2109. In so holding, the Court recognized that "proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive." Id. at 2108. Consistent with general evidentiary principles, the Court explained, the trier of fact in "appropriate circumstances ... can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose." Id. "[O]nce the employer's justification has been eliminated," moreover, "discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision." Id. at 2108-09. The Reeves Court further held that in reversing a jury's verdict of willful discrimination, this Court had "misapplied the standard of review" for judgment as a matter of law; "disregarded critical evidence favorable to [Reeves] -- namely, the evidence supporting [his] prima facie case and undermining [Sanderson'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." Id. at 2111. Because Reeves "established a prima facie case of discrimination, introduced enough evidence for the jury to reject [Sanderson's] explanation, and produced additional evidence of age-based animus," the Court held, "there was sufficient evidence for the jury to find that [Sanderson] had intentionally discriminated."<11> Id. at 2112. 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. In affirming summary judgment against Rubinstein, the panel cited Reeves, see Rubinstein, at *7, but failed to follow the Supreme Court's teachings. Rather, the panel applied the same incorrect legal analysis and improper standard of review that led a unanimous Supreme Court to reverse in Reeves. By insisting that, in addition to a prima facie case and evidence of pretext, "discrimination suits still require evidence of discrimination," id. at *5, this panel, like the appellate panel in Reeves, "misconceived the evidentiary burden borne by plaintiffs who attempt to prove intentional discrimination through indirect evidence," and "erred in proceeding from the premise that a plaintiff must always introduce additional, independent evidence of discrimination." Reeves, 120 S.Ct. at 2108-09. Further, the panel's conclusion that Rubinstein's "evidence to rebut the nondiscriminatory reasons offered by Tulane is not so persuasive as to support an inference that the real reason was discrimination," Rubinstein, at *5, ignores the Supreme Court's recognition that "proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive." Reeves, 120 S.Ct. at 2108. Finally, in finding Rubinstein's evidence insufficiently "persuasive" to "support an inference" of discrimination, Rubinstein, at *5, the panel "impermissibly substituted its judgment concerning the weight of the evidence for the jury's." Reeves, 120 S.Ct. at 2111. Rubinstein presented a prima facie case of discrimination; discredited two of the grounds on which Tulane purported to base its raise and promotion decisions (insufficient committee participation and failure to mentor students); and produced evidence that on several occasions the Dean's office had tampered with the student evaluations on which the university relied to support its only remaining justification for the challenged actions. Repeated instances of tampering by the Dean's office - including proof the Dean's secretary had forged a negative evaluation of Rubinstein's teaching - is strong evidence of pretext, carrying with it the "suspicion of mendacity" that the Supreme Court has recognized may be "particularly" probative of unlawful discrimination. St. Mary's Honor Center v. Hicks, 113 S. Ct. 2742, 2749 (1993); see also McInnis v. Alamo Community College Dist., 207 F.3d 276, 283 & n.3 (5th Cir. 2000) (fact College President requested letter critical of plaintiff's performance in prior job to use as "trigger" to justify discharge was "most damning" evidence of pretext). In holding this evidence insufficient to cast doubt on the veracity of Tulane's reliance on student evaluation scores, the panel failed to draw a reasonable inference of mendacity, as required by Hicks, Reeves, and Fed.R.Civ.P. 56.<12> See Anderson v. Liberty Lobby, 477 U.S. 242, 254 (1986) (under Rule 56, "evidence of the non-movant is to be believed and all justifiable inferences are to be drawn in his favor"). Rubinstein thus presented sufficient evidence for a jury to find Tulane's proffered explanation "unworthy of credence," and to infer from Tulane's dishonesty that the university unlawfully discriminated. Reeves, 120 S.Ct. at 2108-09. While "there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude that the action was discriminatory," Reeves, 120 S.Ct. 2109, the Supreme Court's illustrative examples clearly indicate such cases will be rare: "For instance, an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred." Id. Neither the district court nor the panel identified any "other, nondiscriminatory reason" for the challenged raise and promotion decisions that was even suggested, let alone "conclusively revealed," by the trial record. Nor did the record contain "uncontroverted independent evidence that no discrimination had occurred." Id. To the contrary, the expressions of discriminatory bias and retaliatory intent by decision participants would permit a jury to find that discrimination or retaliation was the true motivation. Rubinstein produced evidence that faculty members, on whose recommendations Tulane relied to justify the challenged raise and promotion decisions, made derogatory comments and offensive jokes about his religion and Russian origin during the relevant period.<13> See SJ Op. at 36-40; Rubinstein, at *2, *6. In rejecting this evidence as insufficiently probative of discriminatory bias, the panel persisted in precisely the flawed analysis expressly faulted in Reeves. The Supreme Court in Reeves held that in discounting the probative value of age-related comments by the discharged plaintiff's supervisor "on the ground that they 'were not made in the direct context of [plaintiff's] termination,'" this Court improperly had "failed to draw all reasonable inferences in favor of [plaintiff]." Reeves, 120 S.Ct. at 2111. Contrary to the panel's ruling, both the Supreme Court and this Court have recognized that expressions of discriminatory bias by a participant in an employment decision are probative of unlawful motivation, without requiring evidence that the bias was expressed in connection with the challenged decision. See Reeves, 120 S.Ct. at 2110 (age-based remarks, made outside context of challenged discharge, were "additional evidence that [supervisor] was motivated by age-based animus" supporting verdict of willful age discrimination); U.S. Postal Service Bd. of Govs. v. Aikens, 460 U.S. 711, 713-14 n.2 (1983) (testimony that manager responsible for challenged promotions "had made numerous derogatory comments about blacks in general and [plaintiff] in particular" would support finding unlawful discrimination); see also EEOC v. Manville Sales, 27 F.3d 1089, 1093-95 (5th Cir. 1994) (age-related comments over four-year period by supervisor who "was a significant participant" in discharge decision were "directly relevant" to age discrimination claim; "evidence of vocalizations and verbalizations of the anti-age based feelings of a supervisor can be, and often are, used to prove unlawful discrimination"), cert. denied, 513 U.S. 1190 (1995); Normand v. Research Institute of America, 927 F.2d 857, 864 & n.4 (5th Cir. 1991) ("indirect references to an employee's age ... can support an inference of age discrimination"). Finally, the record contained evidence that Dean Van Buskirk speculated to Rubinstein in 1993 that his failure to receive a raise might be the result of discrimination by Chairman Lynch.<14> Rubinstein, at *1. Van Buskirk, moreover, responded adversely to Rubinstein's internal complaint of discrimination and discouraged him from filing suit, id. at *2, and admitted in sworn deposition testimony that he denied Rubinstein a raise in 1997 because his pending Title VII suit showed he was a "very poor university citizen." SJ Op. at 50-51. As the panel acknowledged, this evidence showed that Van Buskirk, "the decision-maker responsible for setting Rubinstein's raise, punished him for exercising his rights, in an act of certain ill-will toward Rubinstein." Rubinstein, at *14. The evidence supporting this finding would likewise permit a reasonable jury to infer that each of the raise and promotion decisions following Rubinstein's complaints of discrimination were likewise motivated by retaliatory intent. See Brown v. East Mississippi Electric Power Assoc., 989 F.2d 858, 861-62 & n.8 (5th Cir. 1993) (evidence supervisor used racial epithets in "other instances in which he disciplined [plaintiff] demonstrates" discriminatory motive in challenged disciplinary action). CONCLUSION Under the standards unanimously approved by the Supreme Court in Reeves, the evidence was sufficient for a jury to find that Tulane denied Rubinstein better pay and promotion because of his religion, national origin, or in retaliation for pursuing Title VII claims. Summary judgment was therefore improper, and we urge this Court to reverse and remand for trial on the merits. Respectfully submitted, C. GREGORY STEWART DORI K. BERNSTEIN General Counsel Attorney PHILIP B. SKLOVER EQUAL EMPLOYMENT Associate General Counsel OPPORTUNITY COMMISSION Office of General Counsel CAROLYN L. WHEELER 1801 L Street, N.W. Assistant General Counsel Washington, D.C. 20507 (202)663-4734 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 4923 words. See Fed.R.App.P. 29(d). The brief was prepared using the WordPerfect 8 word-processing system, in monospaced type, and contains fewer than 10½ characters per inch. See Fed.R.App.P. 32(a)(5); Fifth Cir. Rule 32.1. __________________________ DORI K. BERNSTEIN August 10, 2000 CERTIFICATE OF SERVICE I, Dori K. Bernstein, certify that two copies of this Brief and a copy of the brief on a computer diskette were mailed, first class, postage prepaid, on this 10th day of August, to the following counsel of record: William Martin McGoey Suite 200 Evans & Clesi 336 Lafayette Street New Orleans, Louisiana 70130 George Phillip Shuler, III Douglas L. Grundmayer Julie Durel Livaudais Richard B. Ramirez Chaffe, McCall, Phillips, Toler & Sarpy Energy Centre 1100 Poydras Street Suite 2300 New Orleans, Louisiana 70163 ___________________________ DORI K. BERNSTEIN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7046 Washington, D.C. 20507 1 "[T]he standard for granting summary judgment 'mirrors' the standard for judgment as a matter of law, such that 'the inquiry under each is the same.'" Reeves, 120 S.Ct. at 2110. 2 The EEOC has not had an opportunity to review the full evidentiary record. This factual summary is based on the panel opinion and the district court's summary judgment orders, issued March 6, 1998 ("SJ Op."), and March 20, 1990 ("Supp. SJ Op."). 3 Van Buskirk denied "ever uttering these exact words," but "admits he inquired into whether Rubinstein planned to file suit, expressing the opinion that it would be a bad idea." Id. at *2. 4 Rubinstein did not challenge the denial of a pay raise in 1996, when only Assistant Professors and newly hired Associate Professors were eligible for raises, pursuant to a campus-wide policy. Id. at *2. 5 Rubinstein also offered evidence that the majority of his students during his most recent five years at Tulane rated him a "good" or "excellent" teacher. Id. at 30-31. On 229 evaluations completed during this period, Rubinstein averaged a score of 2.1 on a scale of 1 to 5: 32% of his students gave him a "1" or "excellent" rating; 42% gave him a "2" or "good" rating; 14% gave him a "3" or "average" rating; 9% gave him a "4" or "fair" rating; and 2% gave him a "5" or "poor" rating. Id. 6 Watts was among the professors on whose testimony Tulane relied to support its proffered explanation. Id. at 26. 7 Watts admitted he "used to call" Rubinstein "a commie." SJ Op. at 37-38. While he could not specifically "recall calling him a Russian Yankee," he conceded "it's entirely possible." Id. 8 The court ruled that Van Buskirk's response to Rubinstein's internal complaint in 1994, and his testimony about the 1997 raise, was "evidence from which a reasonable jury could find that [Rubinstein's] protected activity was a motivating factor in [Tulane's] actions." Id. at 50-51. In a subsequent order, however, the court decided that evidence of Van Buskirk's retaliatory motive was relevant only to the 1997 raise decision, and granted summary judgment against Rubinstein's claims that the low raises in 1994 and 1995, and the continuing refusal to promote him, were similarly motivated. See Supp. SJ Op. at 4. 9 The district court found Rubinstein presented a prima facie case of discrimination with evidence that: he belongs to an identifiable religion (Judaism) and national origin (Russian), SJ Op. at 18; he met the minimum qualifications to be a full professor and to receive higher pay increases, id. at 18-22; his low annual raises and Tulane's promotion denials were adverse employment actions, id. at 18; and he suffered "differential treatment," since "other associate professors in his department were promoted to the position of full professor" and "other professors and associate professors received higher pay increases" during the relevant period. Id. at 23. 10 The panel's legal analysis ignores evidence that Watts made numerous antisemitic jokes and comments; admitted calling Rubinstein a "commie"; regularly brought up negative or ridiculous news concerning Russia; and ridiculed Rubinstein's accent, pretending not to understand him. See SJ Op. at 37-39. While the panel's factual history mentions Van Buskirk's remark in 1993 that perhaps "Lynch might be discriminating against [Rubinstein] because he was Russian and Jewish," see Rubinstein, at *1, this evidence is also omitted from the legal analysis. 11 To support his age discrimination claim, Reeves presented evidence that his employer's asserted reason for firing him - alleged inaccuracies in timekeeping records of employees under Reeves' supervision - was false, see Reeves, 120 S.Ct. 2107, and that a manager who recommended Reeves' termination (and who was married to the company president) had treated Reeves worse than a younger supervisor, subjected Reeves to increased scrutiny and harsher discipline, and directed a couple of age-related insults at Reeves two months before his discharge. Id. at 2110-11. 12 The panel adopted the district court's rationale that the evidence of tampering was insufficient to permit a finding of pretext because Rubinstein's evaluation scores, minus those tainted by tampering, would have justified denying him better raises or promotion to full professor. Rubinstein, at *6; SJ Op. at 32-33. Yet Rubinstein was considered a sufficiently "satisfactory teacher" during his first two years at Tulane to warrant a recommendation and award of tenure, see Rubinstein, at *1, and he presented evidence that his student evaluation scores had generally improved since that time, with three quarters of his students rating his teaching as "good" or "excellent." SJ Op. at 30-31. Taken together, this evidence of satisfactory teaching ability, the evidence discrediting Tulane's other proffered reasons, and the undisputed fact of Rubinstein's "outstanding research skills," would permit a jury to find that the Dean's office tampered with his evaluations to manufacture a legitimate "cover" for decisions that were motivated by discriminatory bias. 13The panel was mistaken in finding no evidence that the biased remarks were made around the time of the challenged decisions. See Rubinstein, at *5. Rubinstein testified that Watts began "to make comments about Jews" in spring 1994, and "for a few months" made "a large number of comments like this." SJ Op. at 38-39. Around the same "period [or] maybe a little later," Watts "consistently start[ed] calling [Rubinstein] Russian Yankee" and made other jokes or derogatory remarks about his accent or Russian origin. Id. at 39. Rubinstein's claims concerned raises in 1994, 1995, and 1997, and a refusal to promote him, beginning in fall 1994. The timing of Watts's comments, and Van Buskirk's speculation in 1993 that Lynch might be discriminating against him, thus coincides with the challenged employment decisions. 14 Although any claim of discrimination arising from the 1993 denial of a raise was time-barred, see Rubinstein, at n.2, Van Buskirk's comment that Lynch may have been motivated by Rubinstein's religion or national origin is relevant evidence that subsequent raise determinations by Lynch were made with similar discriminatory intent. See Shattuck v. Kinetic Concepts, 49 F.3d 1106, 1109 & n. 6 (5th Cir.1995) (supervisor's age-related explanation for time-barred failure to promote "was relevant to the issue of the motivation for [plaintiff's] subsequent discharge"). An inference that Lynch's discriminatory bias influenced Rubinstein's low salary increases is bolstered by evidence that annual raise recommendations were apparently left largely to Lynch's unguided discretion. See SJ Op. at 22 n.10. Cf. Lindsey v. Prive, 987 F.2d 324, 328 (5th Cir. 1993) ("We have recognized the potential of subjective criteria to provide cover for unlawful discrimination.").