Equal Employment Opportunity Commission v. Sears Roebuck & Co. 00-1507 IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT _________________________________________________ No. 00-1507 __________________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Plaintiff/Appellant, and FRANCISCO SANTANA Intervenor, v. SEARS ROEBUCK & CO., Defendant/Appellee. __________________________________________________ On Appeal from the United States District Court for the Eastern District of North Carolina ___________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT ____________________________________________________ STATEMENT OF JURISDICTION The Equal Employment Opportunity Commission ("EEOC" or "Commission") is appealing from an order of the district court granting summary judgment in favor of defendant, Sears Roebuck & Co. ("Sears"). The Commission's claim was brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331 & 1345. A final judgment was entered by the district court on February 3, 2000. Joint Appendix ("J.A.") at 301. The Commission filed a timely notice of appeal on March 31, 2000. J.A. at 302. This Court has jurisdiction over the Commission's appeal pursuant to 28 U.S.C. § 1291. STATEMENT OF THE ISSUE Whether the district court erred in granting summary judgment to Sears when the Commission established a prima facie case of national origin discrimination and put forth evidence that Sears? proffered non-discriminatory reasons for not hiring Mr. Santana were pretextual. STATEMENT OF THE CASE A. Course of Proceedings On September 16, 1998, the Commission filed a complaint in the United States District Court for the Eastern District of North Carolina, alleging that Sears discriminated against Francisco Santana based on national origin when it failed to hire him as a loss prevention associate in its Morehead City, North Carolina store. J.A. at 9. On December 16, 1998, Mr. Santana intervened in the case. Sears filed a motion for summary judgment on August 31, 1999, and the district court granted that motion on February 3, 2000. Id. at 286. On March 31, 2000, the Commission filed a timely notice of appeal. Id. at 302. B. Statement of Facts Mr. Santana was born in Mexico City and moved to the United States in 1971 at the age of ten. In 1985, Sears hired Mr. Santana as a part-time loss prevention associate in its Costa Mesa, California store. J.A. at 28. The loss prevention position generally involves undercover store security duties. At that time, Mr. Santana was also enlisted in the United States Marine Corps and was stationed in Tustin, California. Id. at 29. He worked at the Costa Mesa, California store for approximately ten years until the Marines transferred him to a base in North Carolina in late 1995. Id. at 43. In October 1995, Mr. Santana discussed a possible transfer with Sears officials in the Costa Mesa store and during a week- long visit to North Carolina, visited the Sears store in Morehead City to inquire about job opportunities. Id. at 42, 45-46. In the Morehead City store, Mr. Santana twice spoke with William Mansfield,<1> the manager in the loss prevention department. Id. at 49. Mr. Mansfield assured Mr. Santana that the Morehead City store could use someone with his level of experience and that once Mr. Santana arrived in North Carolina, he would be hired. Id. at 46-47, 248. When Mr. Santana returned to California to finalize his affairs, Mr. Mansfield told the store personnel manager, Teri Katsekes, that he had spoken to a man from California with loss prevention experience who was interested in transferring to the Morehead City store. Id. at 184. At the same time, Mr. Santana asked the personnel department at the Costa Mesa Sears to forward a transfer form to the personnel manager in Morehead City. Id. at 38-40, 248. Mr. Santana later spoke with Ms. Katsekes on the telephone and she indicated that a job would be waiting for him when he arrived in North Carolina. Id. at 59, 64, 249. In late December 1995, Mr. Santana reported for duty at the military base in North Carolina and went to the Morehead City Sears to request employment. J.A. at 72-73. Mr. Mansfield told him that a job would not be available until after the holiday season. Id. at 73, 249. When Mr. Santana returned in January 1996, Mr. Mansfield again indicated that there were no openings. Id. at 77-78. Mr. Santana placed an application for employment on file and gave Mr. Mansfield his telephone number. Id. at 82, 84-85, 88, 249. He returned to the store twice in February but was unable to meet with either Mr. Mansfield or Ms. Katsekes. Id. at 89-90. Mr. Santana submitted applications for employment again in March and July of 1996. Id. at 120. In October 1996, the Human Resources Specialist at the Morehead City store, Patty Haynes, called Mr. Santana and arranged for an interview. Id. at 250. On October 26, 1996, Ms. Haynes interviewed Mr. Santana. J.A. at 103-04. Mr. Santana claims that during this interview, Ms. Haynes commented on his accent and inquired where he was from originally. Id. at 105. Mr. Santana answered that he was born in Mexico City. Id. At the conclusion of the interview, Ms. Haynes offered Mr. Santana a job as a stock clerk. Id. When Mr. Santana reminded her of his loss prevention experience, Ms. Haynes replied, "you're the guy from California." Id. at 102. Ms. Haynes then took Mr. Santana to meet with Ms. Katsekes. Mr. Santana contends that during his interview with Ms. Katsekes, she became increasingly disinterested due to his accented speech, although she made no direct comments to that effect. Id. at 97, 99-100. Ms. Katsekes offered Mr. Santana a part-time loss prevention position, subject to him passing a drug test, a background check, and the approval of a pending budget increase request. Id. at 257. During the next few days, Mr. Santana spoke with David Mrazick, the loss prevention manager who had replaced Mr. Mansfield. J.A. at 115-16. Mr. Mrazick remarked that Mr. Santana?s experience was impressive and indicated that there was an immediate need for someone in the loss prevention department. Id. at 251. Soon thereafter, however, the Morehead City store manager, Patricia Kiely, decided that Mr. Santana would not be hired. Id. at 168. Although she gave no reason for the decision at the time, Ms. Kiely later stated that she based her decision on a telephone conversation with a Sears regional manager who informed her that a California loss prevention agent, currently looking for work in the southeast region, had been the subject of a sexual harassment investigation at a Sears store in California. Id. at 223-34. Ms. Kiely neither investigated nor confirmed the accuracy of this report. Id. at 222, 225. In attempting to determine why he was not hired, Mr. Santana could not get a straightforward answer from the managers at Sears. For example, when Mr. Santana contacted Ms. Katsekes regarding the position, she told him that they had decided to hire someone else. J.A. at 115, 252. Ms. Katsekes did not inform Mr. Santana that she had been instructed by Ms. Kiely, without explanation, that he should not be hired. Ms. Katsekes stated that she told Mr. Santana, incorrectly, that there were insufficient hours available in the loss prevention department. Id. 162, 164, 258. She later admitted, however, that a loss prevention position was available, id. at 165-66, and that they had hired someone else with far less experience for the position soon after Mr. Santana's interview. Id. at 258. In addition, when Mr. Santana contacted Ms. Kiely regarding the position, she told him falsely that she had "no knowledge" of why he was not hired and also told him that she would look into the matter and "see what she could do." J.A. at 254. Mr. Santana later learned that the part-time position in the loss prevention department had been given to Virginia Born, a caucasian woman who had no experience in loss prevention or security. Id. at 115, 189, 252. In addition, Richmond Harwood, a caucasian male, was later hired as a loss prevention associate. Like Ms. Born, Mr. Harwood did not have any loss prevention experience. On March 5, 1997, Mr. Santana filed a charge with the EEOC, alleging discrimination based on national origin and race. J.A. at 139. On September 16, 1998, the EEOC filed suit in U.S. District Court for the Eastern District of North Carolina. Id. at 9. On February 3, 2000, the district court entered summary judgment in favor of Sears. Id. at 286. C. District Court Decision The district court ruled that the Commission had presented a prima facie case of national origin discrimination because Sears' "questionable rationale for refusing to hire Santana" was sufficient to raise an inference of discrimination. J.A. at 295. After recognizing that Sears? concern about employing someone who might sexually harass employees was a legitimate non- discriminatory reason for not hiring Mr. Santana, the court assessed whether the EEOC could demonstrate "pretext plus," i.e., present something more than the prima facie case and evidence that casts doubt on the employer's proffered reasons. Id. at 297. The court explained that "even if the plaintiffs' evidence establishes [t]hat the employer's proffered reason is unpersuasive, or even obviously contrived, it is not in itself sufficient, under this Circuits [sic] precedents, to survive . . . summary judgment." Id. at 296 (internal quotation omitted). Under the pretext-plus standard, "the plaintiff must do more than attack the veracity of the employer's proffered justification. The plaintiff must [develop] some evidence on which a juror could reasonably base a finding that discrimination motivated the challenged employment action." Id. at 297 (internal quotation omitted). The district court first noted that the EEOC "offered no credible evidence to dispute the veracity of Sears? legitimate nondiscriminatory reason." Id. The court found that the Commission simply offered its "own conjecture" as to Sears? motivation for refusing to hire Mr. Santana. Id. Furthermore, applying the "pretext plus" standard, the court determined that the EEOC did not present "any evidence of national origin discrimination sufficient to support a jury finding in their favor." Id. The court also found that the EEOC failed to demonstrate that Ms. Kiely?s decision not to hire Mr. Santana was motivated by a discriminatory animus. Id. at 298. Ms. Kiely testified that she had no knowledge of Francisco Santana?s national origin at the time she made the decision and, according to the court, the EEOC offered no credible evidence to the contrary. Id. Finally, the court noted that her decision not to investigate the allegation of sexual harassment in California was perhaps bad business judgment, but was not discriminatory. Id. The court then granted summary judgment to Sears. SUMMARY OF ARGUMENT The district court erred in granting summary judgment in this case. First, the district court erroneously applied a "pretext plus" standard of review. The Supreme Court recently reiterated that evidence of the prima facie case, along with evidence that casts doubt on the employer's proffered reasons for its action, may be sufficient for a jury to find discrimination. Accordingly, where there is evidence of the prima facie case and pretext, no additional evidence is necessary to sustain a claim of discrimination. Under the proper standard of proof, the Commission presented more than sufficient evidence to put the case before a jury. In addition to its prima facie case, the Commission offered ample evidence of pretext by demonstrating that Sears' articulated reasons for its actions were unworthy of credence. Specifically, the Commission pointed to Sears' shifting, inconsistent, and implausible reasons for failing to hire Mr. Santana. Based on that evidence, a jury could reasonably determine that discrimination was the true reason for Sears' failure to hire Mr. Santana. Summary judgment was therefore improper. ARGUMENT THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT TO SEARS A. Standard of Review This Court reviews a district court's grant of summary judgment de novo, viewing all facts and inferences in the light most favorable to the non-moving party. See Marshall v. Cuomo, 192 F.3d 473, 478 (4th Cir. 1999). Summary judgment is proper only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Semple v. City of Moundsville, 195 F.3d 708, 712 (4th Cir. 1999). B. The District Court Incorrectly Applied the Pretext Plus Standard in Assessing the Commission's Claim of National Origin Discrimination In assessing the evidence presented in this case, the district court applied the "pretext plus" standard generally subscribed to by this Court. See Gillins v. Berkeley Elec. Coop., Inc., 148 F.3d 413, 416 (4th Cir. 1998) ("This court has adopted what is best described as the ?pretext-plus? standard for summary judgment in employment cases."). Under that standard, it is insufficient for a plaintiff to establish a prima facie case and demonstrate that the employer?s proffered explanation is false in order to survive summary judgment -- a plaintiff must also provide some additional evidence of discrimination. Id. at 416-17 (citing Vaughan v. Metrahealth Cos., Inc., 145 F.3d 197, 201-02 (4th Cir. 1998)). In Reeves v. Sanderson Plumbing Prods., Inc., 120 S. Ct. 2097 (2000), the Supreme Court flatly rejected the "pretext plus" standard, noting that "the Court of Appeals erred in proceeding from the premise that a plaintiff must always introduce additional, independent evidence of discrimination." Id. at 2109. The Court held that evidence of the prima facie case, along with evidence that casts doubt on the employer's proffered reasons for its action, is generally sufficient to put a case before a jury. Id. The Court reiterated its holding in St. Mary?s Honor Center v. Hicks that "a plaintiff?s prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Id.<2> The Court in Reeves also took great pains to re-emphasize the important role of the jury in employment discrimination cases, noting initially that such cases are "'both sensitive and difficult'" and that "'there will seldom be eyewitness testimony as to the employer?s mental processes.?" Id. at 2105 (quoting U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983)). The Court reiterated that "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of the judge." Id. at 2110. Thus, Reeves instructs us that once a plaintiff has introduced evidence establishing a prima facie case and evidence from which a rational factfinder could conclude that the employer?s proffered explanation for its actions is false, "the ultimate question of liability ordinarily should not be taken from the jury." Id. at 2112 (Ginsberg, J., concurring). C. The Evidence of a Prima Facie Case and of Pretext Presented by the Commission Was Sufficient to Put the Case Before a Jury to Determine Whether Sears Intentionally Discriminated Against Mr. Santana It is undisputed that the Commission in this case made out a prima facie case of discrimination by demonstrating that Mr. Santana is a member of a protected class, was qualified for the position, was rejected, and that Sears continued to attempt to fill the position. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Hibschman v. Regents of the Univ. of Md. Sys., 2000 WL 232015, *2 (4th Cir. 2000) (unpublished decision). Although the district court correctly ruled that the Commission had made out a prima facie case, it improperly collapsed important evidence of pretext into its analysis of this point. The court ruled: "Ultimately, when viewed in the light most favorable to the plaintiffs, Sears? questionable rationale for refusing to hire Santana is sufficient to give rise to an inference of discrimination. Accordingly, the court finds that plaintiffs have presented a prima facie case of national origin discrimination." J.A. at 295. Although the court?s conclusion on this point was proper, its analysis is flawed and ultimately contributed to its erroneous ruling on pretext. Specifically, in relying on evidence of Sears? "questionable rationale for refusing to hire Santana" to conclude that the Commission was able to establish an inference of discrimination, the court essentially fused the pretext and prima facie case analysis. In so doing, the court failed to consider evidence that should have been examined at the pretext stage of the case. This flawed analysis contributed to the district court?s subsequent determination that the Commission was unable to demonstrate that Sears' articulated reason was unworthy of credence. The court ruled that "plaintiffs offered no credible evidence to dispute the veracity of Sears? legitimate non- discriminatory reason. Plaintiffs simply offer their own conjecture as to [Sears?] motivation for refusing to hire Santana." J.A. at 297. This analysis, however, fails to recognize critical facts surrounding Sears? refusal to hire Mr. Santana. Specifically, Sears offered several different and arguably incredible explanations for its decision. This fact, along with the evidence of the prima facie case, was sufficient to create a factual dispute regarding pretext and to present the case to a jury for its ultimate determination of whether discrimination was the true reason for Sears? failure to hire Mr. Santana. In Reeves, the Supreme Court made abundantly clear that evidence that casts doubt on the employer?s proffered explanation, along with the elements of the prima facie case, may permit the trier of fact to conclude that the employer unlawfully discriminated. Importantly, such doubt may be cast by revealing the shifting or inconsistent nature of a defendant?s articulated reasons for the employment action. See, e.g., Dominguez-Cruz v. Suttle Carible, Inc., 202 F.3d 424, 432 (1st Cir. 2000) ("[W]hen a company, at different times, gives different and arguably inconsistent explanations, a jury may infer that the articulated reasons are pretextual."); Thurman v. Yellow Freight Sys., Inc., 90 F.3d 1160, 1167 (6th Cir. 1996) ("An employer's changing rationale for making an adverse employment decision can be evidence of pretext."); EEOC v. Ethan Allen, Inc., 44 F.3d 116, 119 (2d Cir. 1994) (holding that a jury could infer that defendant?s reasons were pretextual based on shifting or inconsistent explanations, developed by defendant over time); Kobrin v. University of Minn., 34 F.3d 698, 703 (8th Cir. 1994) ("Substantial changes over time in the employer?s proffered reason for its employment decision support a finding of pretext."); Washington v. Garrett, 10 F.3d 1421, 1434 (9th Cir. 1993) ("[S]uch fundamentally different justifications for an employer?s action . . . give rise to a genuine issue of fact with respect to pretext since they suggest the possibility that . . . the official reasons [were not] the true reasons[s]."); Castleman v. Acme Boot Co., 959 F.2d 1417, 1422 (7th Cir. 1992). Thus, it is well settled that pretext can be established by such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer?s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reason. See, e.g., Wright v. W.R. Winslow Homer Memorial Home, Inc., 2000 WL 346497, *2 (4th Cir. 2000) (unpublished decision);<3> Hardy v. S.F. Phosphates, Ltd. 185 F.3d 1076, 1080 (10th Cir. 1999); Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1333 (11th Cir. 1998); Hodgens v. General Dynamics Corp., 144 F.3d 151, 168 (1st Cir. 1998); Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir.1994); Starks v. George Court Co., Inc., 937 F.2d 311, 315 (7th Cir. 1991); Norris v. City & County of San Francisco, 900 F.2d 1326, 1331 (9th Cir. 1990). In this case, the shifting, inconsistent, and implausible reasons given by Sears for its failure to hire Mr. Santana were sufficient to create a question of fact on pretext and put the case before a jury. In its position statement in response to the charge of discrimination, Sears claimed that it did not hire Mr. Santana between late 1995 and early 1996 because they could not reach him by telephone and they were told either by Mr. Santana himself or by a military official at the base that he had been deployed. J.A. at 155, 194. This explanation, however, is wholly discredited by Mr. Santana?s testimony that he made numerous attempts to contact management at the Morehead City store, in person, after his first visit and filed several applications, id. at 50, 59, 63, 73-90, 250; by the undisputed fact that the military had placed Mr. Santana in a non-deployable position during this time, id. at 149, 250; and by the fact that Sears is unable to identify the true source of this information. Id. at 155, 158, 194. Sears also claimed that Mr. Santana was not hired in October 1996 because there were insufficient hours available in the loss prevention department. J.A. at 195. Ms. Katsekes later testified, however, that this was not actually true and that Sears could have obtained additional hours in the loss prevention department to hire Mr. Santana, but chose not to. Id. at 162-66. Ms. Katsekes then stated she was informed by the loss prevention manager, David Mrazick, that the store manager, Patricia Kiely, did not want to hire Mr. Santana. Id. at 168. According to Ms. Katsekes, she was not given a reason for the decision and did not ask for one. Id. Ms. Katsekes testified that she was angry by the sudden and seemingly arbitrary nature of the decision to override her decision to hire Mr. Santana. Id. at 174. Patricia Kiely, the store manager, provided yet another reason for Sears? failure to hire Mr. Santana. Ms. Kiely testified that she had a conversation with a Sears field loss prevention manager, Ann Manhertz, in which she was told that a loss prevention agent who was looking for work in the southeast region had been involved in a sexual harassment matter at a Sears store in California. J.A. at 220. This particular reason given by Kiely is seriously undermined by Ms. Manhertz, however, who testified that she had never heard of Mr. Santana and did not recall speaking to Ms. Kiely about any allegations of sexual harassment concerning Mr. Santana. Id. at 202-04. Neither Ms. Kiely nor Ms. Manhertz could recollect the conversation specifically, when it occurred, or what was said. Id. at 221-25, 274. Even assuming this conversation took place, Ms. Kiely testified that she made no effort to confirm what Ms. Manhertz told her, or to obtain further information about the identity of the alleged harasser, the incident, or any discipline imposed. J.A. at 225. Similarly, she did not take the simple step of questioning Mr. Santana regarding the incident or looking at his employment file. Id. Ms. Kiely also did not inform anyone, including Mr. Santana, Mr. Mrazick, Ms. Katsekes, Ms. Haynes, other Sears management officials, or the EEOC about this alleged reason for her decision. Id. at 224, 228-29. In fact, Mr. Santana testified that when he came to see her after he learned he would not be hired, Ms. Kiely appeared puzzled and claimed to have "no knowledge" of why he was not hired. Id. at 134, 254. Furthermore, this final contention, which the district court relied upon to the exclusion of all other evidence, did not surface until Ms. Kiely?s deposition. Such a questionable, post-hoc rationale for failing to hire Mr. Santana could reasonably lead a jury to believe that it did not actually motivate Ms. Kiely?s actions. See Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 958 (5th Cir. 1993) (noting that to avoid summary judgment, a factfinder must be able to infer that employer?s reason was either a post-hoc fabrication or did not actually motivate the employment action). At the very least, this post-hoc rationale, when viewed alongside the other discredited reasons, sufficiently undermines Sears? credibility to avoid summary judgment. See Fuentes, 32 F.3d at 764 n.7 ("[T]he factfinder?s rejection of some of the defendant?s proffered reasons may impede the employer?s credibility seriously enough so that a factfinder may rationally disbelieve the remaining proffered reasons, even if no evidence undermining those remaining rationales in particular is available."). Indeed, a jury could easily determine that it was entirely implausible that Ms. Kiely would reject such a qualified and experienced candidate based on a wholly unsubstantiated rumor. Ms. Kiely testified that it is "very difficult" to find people experienced in loss prevention. J.A. at 221. A juror could certainly conclude that, given Mr. Santana?s qualifications and Sears? need for a loss prevention associate, it is unlikely that Ms. Kiely would have acted in such a manner. That Ms. Kiely failed to confirm her recollection, or to get further information about the incident, either from Mr. Santana or from Sears officials in California, only further supports a finding that this reason was pretextual. See Smith v. Chrysler Corp., 155 F.3d 799, 807-08 ("When the employee is able to produce sufficient evidence to establish that the employer failed to make a reasonably informed and considered decision before taking its adverse employment action . . . its decisional process [is] ?unworthy of credence . . . ."); Bechold v. IGW Sys., Inc., 817 F.2d 1282, 1285 (7th Cir. 1987) (holding that "the lack of inquiry is [not] irrelevant; it may show that the [the employer's] belief was incredible, and merely a pretext for discrimination"). In sum, Sears' shifting and inconsistent reasons for not hiring Mr. Santana were effectively undermined by the evidence in the record and were more than sufficient for a jury to find pretext. As in Reeves, the lower court here erred in failing to recognize that Sears' "questionable rationale for refusing to hire Santana" was evidence of pretext from which a jury could infer the ultimate question of discrimination. See Reeves, 120 S. Ct. at 2111 (noting that the lower court gave insufficient weight to the pretext evidence). Even if this court decided to focus only on the one reason given by Ms. Kiely, a jury could, based on the evidence, similarly find that reason unworthy of credence. In holding that Ms. Kiely?s reason for not hiring Mr. Santana was perhaps bad business judgment but not discriminatory as a matter of law, the district court clearly usurped the function of the jury. As in Reeves, the lower court here "impermissibly substituted its judgment concerning the weight of the evidence for the jury's." Id. Because the Commission established a prima facie case of discrimination and introduced ample evidence to undermine Sears? explanations, summary judgment was improper. CONCLUSION For the reasons noted above, we respectfully request that this Court reverse the district court's summary judgment and remand the case for further proceedings. Respectfully Submitted, C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ____________________________ LISA J. BANKS Attorney EEOC/Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4772 July 12, 2000 REQUEST FOR ORAL ARGUMENT The Commission requests oral argument in this case because it involves interpretation of a new Supreme Court ruling and the application of that ruling to a very detailed set of facts. We therefore believe oral argument would materially assist this Court in resolving the relevant issues in the case. 1 For a large part of the deposition transcript, Mr. Mansfield is mistakenly referred to as "Mr. Plainsfield." Eventually, this error was recognized and corrected by the attorneys. See J.A. at 137. 2 Although the Reeves case had been tried to a jury, and the Court was considering the issue in the context of a motion for judgment as a matter of law under Fed. R. Civ. P. 50., the Court reiterated that "the 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 (internal quotations omitted). The Reeves analysis is therefore fully applicable to the instant case. 3 Unpublished decisions are not binding precedent in the Fourth Circuit; however, the Court has looked to unpublished decisions in the past for guidance on the proper legal analysis or test. See, e.g., United States v. Cox, 69 F.3d 901, 1995 WL 428081, *1 (4th Cir. 1995) ("While unpublished decisions are not binding precedent in this circuit, we agree with the approach taken in that case, and apply it here as well."); United States v. M.E. Edwards & Sons, Inc., 935 F.2d 1288, 1991 WL 105509, *4 n.5 (4th Cir. 1991)("While mindful of the notion that unpublished opinions are not binding precedent on this panel of the Court, see Fourth Circuit Internal Operating Procedure 36.5, we need not abandon the rationale of that decision as we deem it applicable to the present case.")