EEOC v. Target Corp., 7th Cir. Reply brief July 21, 2005 No. 04-3559 __________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT __________________________________________ U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. TARGET CORPORATION, Defendant-Appellee. ___________________________________________________________ On Appeal from the United States District Court for the Eastern District of Wisconsin, Hon. Rudolph T. Randa, Judge ___________________________________________________________ REPLY BRIEF OF APPELLANT THE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ___________________________________________________________ ERIC S. DREIBAND U.S. EQUAL EMPLOYMENT General Counsel OPPORTUNITY COMMISSION Office of General Counsel LORRAINE C. DAVIS 1801 L Street, N.W., Room 7024 Acting Associate General Counsel Washington, D.C. 20507 (202) 663-4870 JAMES M. TUCKER James.Tucker@EEOC.gov Attorney TABLE OF CONTENTS Table of Authorities . . . . . . . . . . . . . . . . . . . . . iv Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 I. Target misstates the standard of review. . . . . . . .2 II. The district court erred in granting summary judgment on the Commission's claim for injunctive relief, as a reasonable trier of fact could conclude that Target's recordkeeping violations were in bad faith and that it failed to implement adequate corrective measures.. . . . . . . . . . . . . . . . . . . . . . .7 III. A reasonable trier of fact could conclude on the record evidence that White, Edgeston, and Brown-Easley were not interviewed and/or hired by Target because of their race. . . . . . . . . . . . . . . . . . . . 10 IV. The district court erred in applying the "common-actor presumption" to this case. . . . . . . 17 V. The evidence of bad faith destruction of records entitles the Commission to an adverse inference that Target destroyed documents relating to White, Edgeston, and Brown-Easley in order to hide an unlawful discriminatory motive . . . . . . . . . . . 18 VI. Summary judgment was inappropriate as to the claim regarding James Daniels, Jr. . . . . . . . . . . . . 20 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Certificate of Compliance Attached Short Supplemental Appendix 1. Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment, District Court Docket No. 48 (excerpt) 2. Plaintiff's Response to Defendant's Proposed Findings of Fact and Plaintiff's Statement of Material Facts in Opposition to Defendant's Motion for Summary Judgment, District Court Docket No. 49 (excerpt) 3. Deposition of Matthew E. Armiger, District Court Docket No. 50, Exhibit H (excerpt) 4. Matthew Armiger's ETL Interview Schedule for Sunday March 4, 2001 and Tuesday March 6, 2001, District Court Docket No. 50, Exhibit 19 Certificate of Service Table of Authorities Cases Page(s) Brown v. United States Steel Corp., 698 F. Supp. 1375 (N.D. Ill. 1988). . . . . . . . . . . . 16 Buie v. Quad/Graphics, Inc., 366 F.3d 496 (7th Cir. 2004). . . . . . . . . . . . . . . .4 Coates v. Johnson & Johnson, 756 F.2d 524 (7th Cir. 1985). . . . . . . . . . . . . . . 19 Dombeck v. Milwaukee Valve Co., 40 F.3d 230 (7th Cir. 1994) . . . . . . . . . . . . . . . .5 EEOC v. G-K-G, Inc., 39 F.3d 740 (7th Cir. 1994) . . . . . . . . . . . . . . . .4 EEOC v. Harvey L. Walner & Assoc., 91 F.3d 963 (7th Cir. 1996) . . . . . . . . . . . . . . . 23 EEOC v. Ilona of Hung., Inc., 108 F.3d 1569 (7th Cir. 1997) . . . . . . . . . . . . . . .5 EEOC v. Laborers Int'l Union of N. Am., AFL-CIO, Local 100, 49 F.3d 304 (7th Cir. 1995) . . . . . . . . . . . . . . . .5 EEOC v. Our Lady of the Resurrection Med. Ctr., 77 F.3d 145 (7th Cir. 1996) . . . . . . . . . . . . . . . 18 EEOC v. Target Corp., No. 02-C-0146, slip op. (E.D. Wis. Aug. 2, 2004) (attached to principal brief) . . . . . . . . . . . . . . .5 Evangeline Ref. Co. v. Charles N. Wooten, Ltd., 890 F.2d 1312 (5th Cir. 1989) . . . . . . . . . . . . . . .7 Harvey v. Office of Banks & Real Estate, 377 F.3d 698 (7th Cir. 2004). . . . . . . . . . . . . . . .4 Herrnreiter v. Chicago Hous. Auth., 315 F.3d 742 (7th Cir. 2002). . . . . . . . . . . . . . . 18 Hoffman v. Caterpillar, Inc., 368 F.3d 709 (7th Cir. 2004). . . . . . . . . . . . . . . .7 Mathis v. John Morden Buick, Inc., 130 F.3d 1153 (7th Cir. 1998) . . . . . . . . . . . . .6, 20 Musser v. Gentiva Health Servs., 356 F.3d 751 (7th Cir. 2004). . . . . . . . . . . . . . . .6 Park v. City of Chicago, 297 F.3d 606 (7th Cir. 2002). . . . . . . . . . . . . .7, 20 Payne v. Pauley, 337 F.3d 767 (7th Cir. 2003). . . . . . . . . . . . . . . .4 Pettit v. Gingerich, 427 F. Supp. 282 (D. Md. 1977). . . . . . . . . . . . . . 16 Rand v. CF Indus., Inc., 42 F.3d 1139 (7th Cir. 1994). . . . . . . . . . . . . . . 18 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000) . . . . . . . . . . . . . . . . . . 3, 8 Rummery v. Ill. Bell Tel. Co., 250 F.3d 553 (7th Cir. 2001). . . . . . . . . . . . . .6, 20 Slowiak v. Land O' Lakes, Inc., 987 F.2d 1293 (7th Cir. 1993) . . . . . . . . . . . . . . .4 Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981) . . . . . . . . . . . . . . . . . . . 21 United States v. County of Fairfax, Va., 629 F.2d 932 (4th Cir. 1980). . . . . . . . . . . . . . . .6 United States v. Di Mucci, 879 F.2d 1488 (7th Cir. 1989) . . . . . . . . . . . . .6, 10 United States v. W.T. Grant Co., 345 U.S. 629 (1953) . . . . . . . . . . . . . . . . . . . .6 Venturelli v. ARC Cmty. Servs., Inc., 350 F.3d 592 (7th Cir. 2003). . . . . . . . . . . . . . . .3 Statute 42 U.S.C. § 2000e-8(c) (attached to principal brief) . . . . . 10 No. 04-3559 __________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT __________________________________________ U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. TARGET CORPORATION, Defendant-Appellee. ___________________________________________________________ On Appeal from the United States District Court for the Eastern District of Wisconsin, Hon. Rudolph T. Randa, Judge ___________________________________________________________ REPLY BRIEF OF APPELLANT THE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ___________________________________________________________ Argument In its opening brief, the Commission argued that the district court erred when it granted Target's motion for summary judgment. As for the Commission's claim for injunctive relief, the record on summary judgment contained ample evidence from which a reasonable trier of fact could conclude that Target's recordkeeping practices and policy continue to be inadequate to meet its legal obligations and are as prone to abuse and disregard as its prior policy and practice. Furthermore, a reasonable trier of fact could conclude that Armiger destroyed, in bad faith, employment records Target was required to preserve. As for the claims regarding Kalisha White, Ralpheal Edgeston, and Cherise Brown-Easley, a reasonable trier of fact could conclude that the Commission established a prima facie case of individual disparate treatment, and Target's proffered reasons for its failure to interview them were pretext for discrimination. The record would support a finding that Armiger's explanation that he was "too busy" to interview Edgeston and Brown-Easley, and "too busy" to schedule White for an interview while almost simultaneously not too busy to have a conversation with a less-qualified Caucasian candidate and schedule her for an interview, is unworthy of credence and an attempt to cover up an unlawful motive. Furthermore, because Target failed to satisfy its burden of articulating a legitimate, nondiscriminatory reason for its decision not to hire James Daniels, Jr., the district court's grant of summary judgment on this claim was incorrect as a matter of law. In its brief, Target misinterprets the Commission's arguments and incorrectly analyzes controlling legal precedent, yet never directly addresses the central issue in this appeal—whether a reasonable factfinder, viewing the evidence in the light most favorable to the Commission as nonmovant, could find in favor of the Commission. Rather, Target merely argues, in effect, that a factfinder should believe its version of events at issue. Because Target fails to demonstrate that no reasonable jury could find in the Commission's favor on these facts, its arguments fail to rehabilitate the district court's error in granting summary judgment. For this reason, the Commission respectfully requests that this Court reverse the district court's grant of summary judgment to Target on the appealed claims. I. Target misstates the standard of review. While Target acknowledges, as it must, that this Court reviews a district court's grant of summary judgment de novo, Ae. Brief at 25, its argument confuses the precise parameters of such a review. As we pointed out in our brief, see At. Brief at 19-20, the Court examines the record evidence to determine whether, construing the evidence in the light most favorable to the nonmoving party, drawing all reasonable inferences in favor of the nonmoving party, and not making credibility determinations or weighing the evidence, there is no genuine issue as to any material fact such that the moving party is entitled to judgment as a matter of law. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (summary judgment standard); Venturelli v. ARC Cmty. Servs., Inc., 350 F.3d 592, 598 (7th Cir. 2003) (same). The Supreme Court has made clear that in assessing whether summary judgment is appropriate, "although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe . . . the court should give credence to the evidence favoring the nonmovant as well as that ‘evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that the evidence comes from disinterested witnesses.'" Reeves, 530 U.S. at 151. Target contends that the Commission misrepresented this standard since, according to Target, "this section of Reeves addressed a Rule 50 motion for judgment as a matter of law, not a summary judgment motion." Ae. Brief at 26. However, it is Target which misrepresents Reeves and this Court's subsequent jurisprudence. While Reeves did in fact involve review of a Rule 50 motion for judgment as a matter of law, the Court clearly and unambiguously stated—on the very same page Target cites in support of its criticism of the Commission's presentation—that "the standard for summary judgment ‘mirrors' the standard for judgment as a matter of law, such that ‘the inquiry under each is the same.'" Reeves, 530 U.S. at 150. This Court has expressly agreed with this statement in Reeves, noting, in the context of appellate review of a Rule 50 motion for judgment as a matter of law, that "[j]ust as we do with summary judgment decisions, we examine all the evidence in the record to determine whether a reasonable jury could have found in favor of [the defendants] . . . [t]his process differs from the one used for summary judgments only insofar as we now know exactly what evidence the jury considered in reaching its verdict." Harvey v. Office of Banks & Real Estate, 377 F.3d 698, 707 (7th Cir. 2004). Target also criticizes the Commission for suggesting that the district court improperly considered testimony by Armiger—a concededly interested witness. In making this argument, Target relies on this Court's decisions in Buie v. Quad/Graphics, Inc., 366 F.3d 496 (7th Cir. 2004), Payne v. Pauley, 337 F.3d 767 (7th Cir. 2003), and Slowiak v. Land O' Lakes, Inc., 987 F.2d 1293 (7th Cir. 1993). Target claims that these cases stand for the proposition that testimony by an interested witness must always be considered so long as it is "based upon personal knowledge or facts in the record." Ae. Brief at 26. Target's analysis is flawed. These authorities address a different issue—whether and when a self-serving affidavit by the nonmovant can serve to place a fact issue in dispute. Buie, 366 F.3d at 504; Payne, 337 F.3d at 772; Slowiak, 987 F.2d at 1295. In contrast, the question presented here is whether testimony by an interested witness and which favors the movant is required to be considered by the court on summary judgment. None of the cases cited by Target address this question. It is elementary that a jury may disregard testimony from an interested witness, even when such testimony is uncontradicted and unimpeached, as "[i]t is the prerogative of a jury or other trier of fact to disbelieve uncontradicted testimony unless other evidence shows that the testimony must be believed." EEOC v. G-K-G, Inc., 39 F.3d 740, 746 (7th Cir. 1994). Accordingly, in the absence of such "other evidence" the district court should have disregarded the testimony by Armiger which was favorable to Target when it assessed whether Target's summary judgment motion should be granted. In any event, the Commission's argument on appeal does not depend on excluding Armiger's testimony on this basis. The Commission presented more than enough evidence to dispute Target's evidentiary proffer and to support a finding in the Commission's favor. Target also asserts that the Commission offered the incorrect standard of review of the district court's decision to deny injunctive relief for Target's violation of recordkeeping regulations. Ae. Brief at 27-28. The Commission does not dispute that when summary judgment is not at issue and the district court declines to order injunctive relief after a jury verdict or bench trial, this Court reviews the denial under an abuse of discretion standard. See EEOC v. Ilona of Hung., Inc., 108 F.3d 1569, 1572, 1579 (7th Cir. 1997) (reviewing post-bench trial injunctive order); EEOC v. Laborers Int'l Union of N. Am., AFL-CIO, Local 100, 49 F.3d 304, 306 (7th Cir. 1995) (reviewing post-bench trial injunctive order); Dombeck v. Milwaukee Valve Co., 40 F.3d 230, 233, 238 (7th Cir. 1994) (reviewing grant of injunction after jury trial, and noting that remand would provide the district court the opportunity to support its injunction with proper factual findings). However, in the instant case the district court resolved the injunctive relief issue on summary judgment, but without assessing whether there was a genuine issue as to the facts material to its decision on the propriety of injunctive relief and without an examination of the evidence viewed in the light most favorable to the Commission. See EEOC v. Target Corp., No. 02-C-0146, slip op. at 8-14 (E.D. Wis. Aug. 2, 2004) (attached to principal brief). This Court must review the district court's summary judgment decision de novo, applying proper summary judgment standards in assessing whether, viewing the evidence in the light most favorable to the Commission, no reasonable factfinder could conclude that injunctive relief was warranted.<1> The Commission should prevail on its appeal of the denial of injunctive relief, even under an abuse of discretion standard of review. "A court . . . abuse[s] its discretion [if] . . . (2) the decision is based on an erroneous conclusion of law." Musser v. Gentiva Health Servs., 356 F.3d 751, 755 (7th Cir. 2004) (alteration in original) (quoting Sherrod v. Lingle, 223 F.3d 605, 610 (7th Cir.2000)). As discussed in the Commission's opening brief, the district court incorrectly deviated from the elementary summary judgment principle of viewing the evidence in the light most favorable to the nonmovant, and granting the motion only if no reasonable factfinder could find in favor of the nonmovant as a matter of law. At. Brief at 20-26. As a consequence it committed legal error which renders its decision on injunctive relief an abuse of discretion. Target further contends that this Court should examine the district court's decision not to permit an adverse inference from Armiger's document destruction under an abuse of discretion standard. Ae. Brief at 28, 46. Again, Target's analysis is flawed. It is settled law that the question of bad faith destruction "is a question of fact like any other," Mathis v. John Morden Buick, Inc., 130 F.3d 1153, 1155 (7th Cir. 1998), and that this Court reviews the grant of summary judgment on the question of bad faith by applying standard summary judgment principles, Rummery v. Ill. Bell Tel. Co., 250 F.3d 553, 556, 558-59 (7th Cir. 2001). The district court granted summary judgment to Target with material facts as to the question of bad faith still at issue. However, the cases upon which Target relies address the standard of review on appeal after trial or evidentiary hearing by a court. See Hoffman v. Caterpillar, Inc., 368 F.3d 709, 713 (7th Cir. 2004) (jury trial); Park v. City of Chicago, 297 F.3d 606, 609, 614-15 (7th Cir. 2002) (jury trial); Evangeline Ref. Co. v. Charles N. Wooten, Ltd., 890 F.2d 1312, 1320-21 (5th Cir. 1989) (evidentiary hearing). Accordingly, these decisions provide no authority for departing from summary judgment principles governing the standard of review. II. The district court erred in granting summary judgment on the Commission's claim for injunctive relief, as a reasonable trier of fact could conclude that Target's recordkeeping violations were in bad faith and that it failed to implement adequate corrective measures. Target's violation of Title VII's recordkeeping requirements is undisputed, and Target failed to establish that no genuine issue existed as to whether it has effectively remedied its recordkeeping violations or whether some of its violations were in bad faith. See At. Brief at 20- 26. Target's arguments on appeal do not alter these facts. After acknowledging that Armiger violated recordkeeping regulations, Target asserts quite disingenuously that the Commission "suggest[ed]" that any time a violation of Title VII is proven the district court should issue an injunction. See Ae. Brief at 29. However, Target's assertion is incorrect and contradicted by Target's own argument. The Commission argued that injunctive relief is an available remedy upon a showing of a violation of Title VII. At. Brief at 20. The Commission did not—and does not—argue that a party is automatically entitled to injunctive relief based solely upon such a showing. Id. Target even acknowledges, quite inconsistently, that the Commission "conceded" that in determining whether it would be appropriate to order injunctive relief, a court should consider several factors, including the bona fide intention of the employer presently to comply with the law, the effective discontinuance of the unlawful practice, and, where appropriate, the character of past violations. Ae. Brief. at 29. See also At. Brief at 21. Clearly the Commission does not contend injunctive relief, while warranted under the facts of this case, is automatic. And Target clearly recognizes as much. Based on the evidence presented, and elementary summary judgment principles, a factfinder could reasonably conclude that Armiger had been informed of Target's recordkeeping policy, either by his own experience as a Target management employee and/or by Walters' directly and repeatedly informing him of the policy, and he disregarded that policy when he decided to destroy the applicants' resumes. Walters testified that he was aware of Target's policy regarding retention of employment-related documents and that he had multiple conversations with Armiger advising him to retain resumes. Appendix of Appellant ("Apx.") at 294-95. In an attempt to minimize the import of Walters' testimony, Target argues that Walters could not remember precisely when he told Armiger to retain documents. Ae. Brief at 34. However, a reasonable factfinder could infer from Walter's testimony that he repeatedly informed Armiger of the record retention policy while they were co-recruiters, not after Armiger finished performing recruiter duties as Target suggests. See Apx. at 294-95. In addition, a factfinder could reasonably conclude that Armiger's claim of ignorance defies belief, that he was dishonest in his testimony, and that his dishonesty constitutes affirmative evidence that he destroyed documents in bad faith. See Reeves, 530 U.S. at 147 ("[T]he trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. . . . [T]he factfinder is entitled to consider a party's dishonesty about a material fact as ‘affirmative evidence of guilt.'") (citations omitted). These are the reasonable inferences which the district court should have adopted for purposes of Target's motion for summary judgment.<2> Target asserts that the Commission "carefully create[d] a false impression that Armiger trained STLs on all subjects" when the Commission noted that Armiger had been "the master trainer" in D110 during the year 2000. See Ae. Brief at 34; At. Brief at 25. The point here simply was that the evidence showed that Armiger had extensive management experience with Target, and as such, a factfinder could reasonably infer that he was aware of such a basic corporate policy as employment document retention. See At. Brief at 25. Accordingly, whether he provided other kinds of training besides diversity training is beside the point, and Target's argument is without merit. The evidence indicates that Armiger had broad management experience with Target, and a jury could find that he was well aware of Target's document retention policy. Target also argues that the Commission has ignored the company's curative efforts. Ae. Brief at 30. Far from ignoring these efforts, it is precisely because the evidence suggests that Target's efforts are not "curative" that we continue to believe injunctive relief is warranted. See At. Brief at 22-24. Therefore, it was error for the district court to grant Target's motion for summary judgment. Target further argues that the Commission "fails to recognize the qualitative difference between discrimination and the failure to maintain records," implying that a different standard applies depending on what type of violation is at issue. Ae. Brief at 32. This is error. Of course, Title VII makes no such distinction as to when a district court may order injunctive relief, see 42 U.S.C. § 2000e-8(c), and Target offers no argument or support for its suggestion that these types of cases somehow involve a different standard. That Target makes this argument is curious given that the principal case it relies upon (see Ae. Brief at 29) as enumerating the factors it urges apply in determining whether injunctive relief is appropriate—United States v. Di Mucci, 879 F.2d 1488 (7th Cir. 1989)—is not a recordkeeping case, or even a Title VII case, but a housing discrimination case. See Di Mucci, 879 F.2d at 1490. Target's contention that a different standard applies—one which it does not even bother to describe—is patently without merit. In sum, the collective evidence of record clearly shows that a genuine issue exists as to whether Target has shown a "bona fide intention" presently to comply with recordkeeping requirements, an "effective discontinuance" of its recordkeeping violations, and a lack of bad faith with respect to its past violations, Di Mucci, 879 F.2d at 1498, making summary judgment in Target's favor inappropriate on the question of whether injunctive relief is appropriate. III. A reasonable trier of fact could conclude on the record evidence that White, Edgeston, and Brown-Easley were not interviewed and/or hired by Target because of their race. As demonstrated in the Commission's opening brief, the record evidence would permit a reasonable factfinder to conclude that the Commission established a prima facie case of race- based disparate treatment by Target as to the claims brought regarding White, Edgeston, and Brown-Easley. See At. Brief at 27-30. A reasonable factfinder could conclude that White, Edgeston and Brown-Easley applied and were qualified for an ETL position, that Edgeston and Brown-Easley were not interviewed while Caucasian candidates did receive interviews, and that White was not scheduled for an interview but Armiger scheduled an interview for "Sarah Brucker," a fictitious individual not of White's race and with admittedly weaker qualifications.<3> Apx. 250, 257, 409. The Commission also presented ample evidence challenging as pretextual the vague "too busy" excuse offered by Armiger for his failure to interview and/or schedule interviews with these individuals, and from which a factfinder could reasonably conclude that Target's excuse is a pretext for discrimination. See At. Brief at 30-38. While Armiger testified that he did not call White back because he was "too busy" with his store duties, the record shows that only fifteen minutes after he told White that he was "too busy" to simply schedule an interview with her, he had the time to have a conversation with "Brucker"—who he acknowledged had a weaker resume than White—in which he took the time to explain the ETL position to her, ask her if she had any questions, and schedule her for an interview the next day, despite supposedly being "too busy" to call back White, the stronger candidate. Apx. 187, 190-91, 258, 325. Target concedes that such evidence would certainly call into question the credibility of its assertion that this difference in treatment is attributable solely to Armiger's work schedule. Ae. Brief at 45. What Target asserts, however, is that "White's deposition testimony does not support her contention that these telephone calls occurred at the same time," and that her statement in her May 11, 2001 charge of discrimination—that there was only a fifteen-minute time lag between the calls—and her September 24, 2002 deposition testimony—that she did not remember at that time how much time had passed—amount to contradictory statements. Ae. Brief at 45 & n.9. But there is no contradiction. White stated in her charge of discrimination that the calls were "about 15 minutes" apart. Apx. 11. White was asked in her deposition how much time had passed between the calls, and White responded that she could not remember exactly how much time had passed. Apx. 187. Later in the deposition, Target's counsel initiated the following exchange: "When I look at your charge . . . it seems like Carolyn Buckley called Armiger within 15 minutes of your third phone call to Armiger. . . . Is it your memory that [the arrangement to have Buckley call Armiger as "Brucker"] was done within a pretty short span of time?" Apx. 190-91. White responded "yes," and Target's counsel asked no further questions about the time frame. Apx. 191-93. White's later testimony that she did not remember precisely how much time had passed does not contradict her earlier written statement that only fifteen minutes had passed. As for the evidence of pretext regarding Target's treatment of Edgeston and Brown- Easley, there is record evidence that Target failed to interview them despite the fact that, in Armiger's opinion, they had strong resumes, and Armiger's supposed "equal opportunity bungling" yielded a very unequal result—his "recruiting failures" curiously only caused African- Americans, not Caucasians, to be denied ETL interview opportunities. See At. Brief at 32-33. Target asserts that it is "undisputed" that Armiger also failed to interview two Caucasian candidates—Scott Kwaterski and Paul Klement—at the same time he failed to interview Edgeston and Brown-Easley. This is incorrect. As for Kwaterski, though neither he nor Armiger recall whether he was interviewed, Armiger's interview schedule lists Kwaterski as a person to be interviewed. Apx. 320; Short Supplemental Appendix ("Supp.Apx.") at 10-12. Kwaterski's statement that he could not remember if he had been interviewed by Armiger does not establish that he was not interviewed. Given that the only affirmative evidence establishes that he was on the interview list, one could reasonably infer, for summary judgment purposes, that Kwaterski was interviewed. Furthermore, while Target asserts that Klement "restarted his [interview] process" with another Target official, it omits mention that Klement did exactly what Edgeston and Brown- Easley did in response to not being interviewed by Armiger—they all called Armiger's Target store to find out why they were not interviewed—but only Klement was given an interview. Apx. 207, 223-24, 301-04. It is true that Klement was not interviewed by Armiger as originally scheduled, but he was interviewed by some other, unidentified Target official after calling the same phone number he originally called to arrange his interview with Armiger. Apx. 303-04. This experience is quite unlike that of Edgeston and Brown-Easley, who also promptly and repeatedly called Armiger's store and left messages asking for him to return their calls, never receiving a callback or an interview. Apx. 207, 223-24. Accordingly, a jury could reasonably conclude that Target's treatment of Edgeston and Brown-Easley was markedly different than its treatment of Klement, and Target's assertion to the contrary is unsupported by the record. Target also argues that the Commission's assertion that Armiger knew the race of White, Edgeston, and Brown-Easley is based on pure speculation rather than evidence. Under Target's analysis, the only way the Commission could establish this fact were if Armiger admitted that he knew their race. This is incorrect. The question is whether a factfinder could reasonably conclude from the record evidence, viewed in a light most favorable to the Commission, that Armiger knew the race of these applicants. The Commission presented a constellation of probative, relevant evidence—not speculation—upon which a reasonable trier of fact could conclude that at the time Armiger failed to interview White, Edgeston, and Brown-Easley, he was aware that they are African-Americans. See At. Brief at 33-36. First, the resumes of White, Edgeston, and Brown-Easley provide abundant indicators of their race, and Armiger affirmed that he reviewed their resumes. White's and Edgeston's resumes listed their membership in the Alpha Kappa Alpha sorority, sorority involvement was something that Armiger typically found of interest on a resume, and he knew this was an African-American sorority when he reviewed their resumes. Apx. 260, 410-11. Armiger would "typically" review the resume of a candidate for educational experience and extracurricular activities, and use a candidate's major in college as a "starting point to begin a conversation." Apx. 259-60. Edgeston's resume also listed African-American Studies as one of her college majors, and her membership in the National Association for the Advancement of Colored People, which Armiger knew to be "the NAACP." Apx. 259, 411. Armiger acknowledged that Edgeston's mention on her resume that she had published a paper titled The African-American Response to School Choice in Milwaukee "obviously" could suggest that she was African-American, Apx. 259, 411, and that he understood the use of the term "Black," in Brown-Easley's mention in her resume of her membership in the Metropolitan Milwaukee Alliance of Black School Educators, to refer to African-Americans. Apx. 261. The record also reasonably supports the conclusion that Armiger knew that the resumes of Edgeston and Brown-Easley had been submitted at a Multicultural Career Fair. See At. brief at 34-35. A factfinder could reasonably conclude from this cumulative evidence that Armiger was aware of their race when he failed to interview them. Target asserts that irrespective of whatever indicia of race can be gleaned from these resumes, the Commission failed to establish that Armiger sufficiently reviewed the resumes to notice these indicators. Ae. Brief at 41. This is incorrect. Armiger testified that he "reviewed" the resumes prior to contacting White, Edgeston, or Brown-Easley, see At. Brief at 33-34, & 33 n.7, and his testimony that certain educational experiences and extracurricular activities would routinely catch his attention and serve as the "starting point to begin a conversation" undermines Target's contention that simply because he failed to interview White, Edgeston, or Brown- Easley, he never reviewed their resumes with any level of detail. Indeed, it is Target that is speculating here. The uncontradicted evidence is that Armiger reviewed all three resumes, which contained information that he admitted typically caught his attention, and which also provided strong indicators of the race of these candidates. See At. Brief at 6-8, 33-35. The Commission also presented expert testimony from which a reasonable factfinder could conclude that the names and/or voices of Kalisha White, Ralpheal Edgeston, and Cherise Brown-Easley provided Armiger with strong indications of their race. See At. Brief at 35-38. After speaking to White, Edgeston, and Brown-Easley over the telephone, having them read aloud statements that corresponded to statements they made to Armiger, and analyzing their speech, the Commission's expert witness on racially-affiliated dialects and race recognition by voice, Dr. Thomas Purnell, concluded that each can be perceived over the telephone as being African-American. Apx. 326-27. It is uncontested that Armiger spoke to White, Edgeston, and Brown-Easley on the telephone prior to deciding not to interview them. Target asserts that the Commission is inappropriately attempting to "transpose" Dr. Purnell's expertise onto Armiger.<4> Ae. Brief at 38. This is incorrect. The expert witness evidence from Dr. Purnell is that White, Edgeston, and Brown-Easley "are speakers of American English which is generally affiliated with African Americans." Apx. 334. Dr. Purnell's report does not even suggest that some level of "linguistic expertise" is required to discern that these individuals have a manner of speech that is identifiable as typically African-American. This is evidence from which, in combination with the other indices of race presented to Armiger, a reasonable factfinder could conclude that Armiger was able to discern that White, Edgeston, and Brown-Easley are African-American. Furthermore, the Commission presented probative evidence on the ability of corporate job recruiters to identify the race of a person by his or her name. See At. Brief at 36. Dr. Marianne Bertrand's expert witness report provided that "at least some corporate recruiters are able to identify the race of job applicants just based on their name[s]," and that "on average, job applicants with African-American sounding names have a lower chance of getting called back for an interview than job applicants with Caucasian-sounding names." Apx. 365. Dr. Bertrand also offered that "Sarah" (as in "Sarah Brucker") was one of the white names used in her study, that the name "Lakisha," which has a "strong similarity" to the name "Kalisha," was one of the African-American names used in her study, and that in her study fictitious applicants with the first name "Sarah" were about 75 percent more likely to get a callback than fictitious applicants with the first name "Lakisha." Apx. 367. While Dr. Bertrand's report is admittedly less probative on the question of whether Armiger formed a belief as to the race of Edgeston or Brown-Easley based solely upon their names, that was never the Commission's point. Contrary to Target's contention, see Ae. Brief at 39-40, the Commission is not arguing, and need not argue, that a name such as Kalisha is uniquely identifiable as African-American, or that a name constitutes an African-American trait. Rather, the Commission's point is that this expert evidence, taken in conjunction with the other indices of race presented to Armiger, provides a sufficient basis for a reasonable factfinder to conclude that Armiger was able to identify the race of White, Edgeston, and Brown-Easley, and that his testimony to the contrary is unworthy of credence and was offered to hide a discriminatory motive. At. Brief at 37. IV. The district court erred in applying the "common-actor presumption" to this case. The Commission's opening brief provided a thorough and sound analysis of the "common actor presumption" and its inapplicability in the instant case, noting that the facts of this case do not fit that analytical tool, and even if this question were at issue here, it is simply a factual question that, given the disputed evidence, does not entitle Target to summary judgment. At. Brief at 40-41. While Armiger was the official who decided not to interview White, Edgeston, and Brown-Easley, he was not the Target official who decided that White, Edgeston, or Brown-Easley were to be offered interviews in the first place—Armiger testified that he merely set up interviews for individuals whom other Target officials had previously deemed sufficiently qualified to be interviewed. For this reason, the "so-called ‘common actor' presumption," Herrnreiter v. Chicago Hous. Auth., 315 F.3d 742, 747 (7th Cir. 2002), plays no role in this case, especially on summary judgment. Target responds on appeal by asserting that Armiger notified White, Edgeston, and Brown-Easley of "his interest" in arranging a screening interview, and that he had the discretion to decline to contact them. Ae. Brief at 41-42. This assertion finds no evidentiary support in the record, and Target cites to none. Moreover, while Target asserts that two decisions by this Court, EEOC v. Our Lady of the Resurrection Medical Center, 77 F.3d 145 (7th Cir. 1996), and Rand v. CF Industries, Incorporated, 42 F.3d 1139 (7th Cir. 1994), support application of the common- actor question in this case, neither lends such support. Both cases are factually distinct from the instant case, involving claims by individuals who were selected, interviewed, hired, and then subsequently fired, by the same management official. Our Lady, 77 F.3d at 146, 150; Rand, 42 F.3d at 1141-43. Armiger did not make the decision that White, Edgeston, or Brown-Easley should be interviewed, but he did decide not to interview them. V. The evidence of bad faith destruction of records entitles the Commission to an adverse inference that Target destroyed documents relating to White, Edgeston, and Brown-Easley in order to hide an unlawful discriminatory motive. The record evidence in this case is such that a reasonable factfinder could conclude that Armiger destroyed employment records in bad faith—including employment records pertaining to White, Edgeston, Brown-Easley, and "Brucker." At. Brief at 39. For this reason, the district court erred when it failed to accord the Commission, for summary judgment purposes, the reasonable inference that this destruction was performed for the purpose of hiding an unlawful discriminatory motive. The availability of this inference was sufficient to create a genuine issue of fact as to discriminatory intent to preclude summary judgment. Id. Target asserts that there is "no evidence" of bad faith record destruction by Armiger or that Armiger knew Target's record retention policy. Ae. Brief at 46-47. However, as discussed infra at 8-10 and in the Commission's principal brief at 11-12, 20, and 24-25, the Commission presented evidence from which a factfinder could reasonably conclude that Armiger destroyed documents in bad faith. Target further argues that even if bad faith is shown, the Commission is not entitled to an adverse inference, because the destroyed evidence is "available" since the Commission was able to secure from White, Edgeston, and Brown-Easley copies of their resumes. Ae. Brief at 47. Target's reliance on Coates v. Johnson & Johnson, 756 F.2d 524 (7th Cir. 1985), for this argument is misplaced. First, this Court in Coates concluded that the factual circumstances in that case, determined after trial, did not support a finding of bad faith. 756 F.2d at 530, 551. It was in the process of determining that documents were not destroyed in bad faith that this Court alluded to the fact that the company official believed that he was destroying duplicates of documents maintained in office files. Id. at 551. Thus, Coates stands for the unremarkable principle that an adverse inference would not apply in the absence of bad faith. Coates is markedly different from this case, where there is evidence of bad faith and the full scope of Armiger's document destruction remains to be determined. Although Armiger was given resumes by White, Edgeston, and Brown-Easley, the actual content of these documents is undetermined—whether notes or comments might have been written on them by Armiger or other Target officials. Unlike in Coates, here there are no remaining originals or copies of the documents Armiger destroyed. Target further asserts that even if the Commission is entitled to an adverse inference, that inference is limited to the qualifications of White, Edgeston, and Brown-Easley. Ae. Brief at 47. This is, again, simply incorrect and offered without any legal support. Upon a showing of bad faith destruction of employment records in violation of federal recordkeeping requirements, the Commission is entitled to an inference that the documents destroyed in bad faith were destroyed to hide an unlawful discriminatory motive. See Park, 297 F.3d at 615, Rummery, 250 F.3d at 558, Mathis, 136 F.3d at 1155. Since a rational factfinder could conclude from the Commission's evidentiary proffer that Armiger did destroy documents in bad faith, the Commission was entitled to the benefit of the reasonable adverse inference that Target destroyed documents in order to hide information detrimental to it, such as information which could establish a discriminatory purpose. VI. Summary judgment was inappropriate as to the claim regarding James Daniels, Jr. The Commission argued in its opening brief that it established a prima facie case of race- based disparate treatment as to Daniels, that Target failed to produce any evidence or further explanation in support of its proffered reason for not hiring him, and therefore Target failed to meet its burden of production, rendering the district court's grant of summary judgment erroneous. See At. Brief at 42-44. While Target offers a number arguments in response, none rehabilitate the error of the district court. Target first argues that the Commission did not separately address Daniels' claim in response to Target's motion for summary judgment. Ae. Brief at 23-24, 48. This is plainly incorrect and mischaracterizes the Commission's case. While the Commission did pursue a claim of pattern or practice discrimination which included a "class" of African-American ETL applicants, that claim was premised in part upon a showing of individual disparate treatment accorded several of these "class" members, including Daniels. See Supp.Apx. at 1-6. The Commission specifically and separately identified several individuals—including Daniels—as persons who were victims of Target's discriminatory practices, and argued that in each case a prima facie case of discrimination had been made, and that while Target had claimed to articulate legitimate nondiscriminatory reasons for its actions, the Commission's evidence of pretext was sufficient to rebut Target's efforts. Id. The Commission additionally, and separately from its presentation regarding "class" members, addressed its claim regarding Daniels in its statement of material facts in opposition to Target's summary judgment motion. Supp.Apx. at 7-9. Target next asserts that it is not required to present a "point-by-point explanation of the interviewers' conclusion at the burden of production stage," and that it is not required to produce "detailed information from Daniels' ELITE interview score sheets to meet the burden of production." Ae. Brief at 48-49. The Commission does not argue that Target must give a "point by point explanation" or "detailed information from Daniels' ELITE interview score sheets." We merely submit that Target has failed to meet its burden under Texas Department of Community Affairs v. Burdine—that it must produce evidence which is sufficient to "frame the factual issue with sufficient clarity so that the plaintiff will have a full and fair opportunity to demonstrate pretext." 450 U.S. 248, 255-56 (1981). The sufficiency of Target's proffer is to be evaluated by the extent to which it fulfills this function, and "[a]n articulation not admitted into evidence will not suffice. . . . [T]he defendant cannot meet its burden merely . . . by argument of counsel." See id. at 256, 256 n.9. Target's unsupported assertion that Daniels failed to meet some set of criteria evaluated at the ELITE interview stage, without even identifying what that criteria might possibly be, let alone why or how he failed to meet them, provides the Commission with absolutely no basis upon which it can demonstrate pretext. As such, Target's "articulation" is insufficient to meet its burden of production. Target further asserts that the Commission argues that "Target should be required to present Daniels' ELITE interview score sheets," and that this would "punish" Target for failing to preserve employment documents it was not required to preserve. This, again, is not the Commission's argument. The issue is simply whether Target has produced the type of evidence, such as interview notes or the testimony of the interviewers, which would tend to establish a legitimate, nondiscriminatory reason for its decision to not hire Daniels, not whether Target was required to maintain records relating to his candidacy—a point we do not argue. Simply put, the law requires that Target offer a "reason," and it is wholly inadequate to meet this requirement to simply assert, in effect, that it must have had a reason but it does not know what it was. Target also argues that the Commission waived its burden of proof argument for purposes of appeal, as it failed to raise this argument before the district court, and that Daniels' claim is untimely. Ae. Brief at 25, 49-52. Neither argument is supported by the record. The Commission argued in district court, in direct response to Target's proposed findings of fact regarding Daniels, that "Target does not cite any evidence" in support of its "reason" for not offering Daniels a job, and for that reason Daniels "cannot be eliminated from the EEOC's class merely because Target says that it rejected him for a legitimate, non-discriminatory reasons." Apx. 168- 69. Target's untimeliness assertion is similarly without merit. Target contends that Daniels' claim is untimely because the Commission's "allegations of systemic discrimination arose from the charge filed by White on May 11, 2001," and Target's failure to hire Daniels occurred in March 2000, more than 300 days prior to White's charge. Ae. Brief at 52. However, it is well established that when the Commission uncovers other unlawful conduct during the course of an investigation of a charge of discrimination, it may bring suit alleging such other unlawful conduct so long as there is a reasonable nexus between the initial charge and the other unlawful conduct, and that the uncovered unlawful conduct took place within the statutory time limit for the filing of a charge of discrimination (here, 300 days). See EEOC v. Harvey L. Walner & Assoc., 91 F.3d 963, 968-69 (7th Cir. 1996). Target fails to acknowledge that the Commission brought this suit predicated upon three charges of discrimination—including one filed on January 8, 2001. See Apx. 9 (charge filed by Keith Stanley); Apx. 13-25 (Complaint and Amended Complaint). Daniels' claim falls comfortably within 300 days of Stanley's charge of discrimination. Target interviewed Daniels on March 13, 2000, and asserts on appeal that it rejected him at some point "later" in March 2000. Ae. Brief at 49, 52. Inasmuch as Daniels' rejection came after his March 13 interview, clearly within the 300 day period, there can be no question that Daniels' claim is timely. Conclusion For the foregoing reasons, the Commission respectfully requests that this Court reverse the district court's grant of summary judgment to Target as to the Commission's recordkeeping claim, as well as the disparate treatment claims brought on behalf of Kalisha White, Ralpheal Edgeston, Cherise Brown-Easley, and James Daniels, Jr., and remand the case to the district court for a jury trial on these claims. Respectfully submitted, ERIC S. DREIBAND General Counsel LORRAINE C. DAVIS Acting Associate General Counsel __________________________ JAMES M. TUCKER Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7024 Washington, D.C. 20507 CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitations set forth in Federal Rules of Appellate Procedure Rule 32(a)(7)(B) and Seventh Circuit Rule 32(b). This brief contains 7,000 words, from the Argument through the Conclusion, as determined by the Word Perfect 9 word-counting program, and was prepared using the WordPerfect 9.0 word-processing system in 12-point proportionally spaced type for text and 12-point type for footnotes. I further certify that the contents of the attached short supplemental appendix to this brief are documents for which no digital versions suitable for filing electronically under Seventh Circuit Rule 31(e) are available to this counsel. Accordingly, a copy of those documents is not included in any digital copy of this brief. __________________________ JAMES M. TUCKER Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7024 Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov Short Supplemental Appendix 1. Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment, District Court Docket No. 48 (excerpts) .1 2. Plaintiff's Response to Defendant's Proposed Findings of Fact and Plaintiff's Statement of Material Facts in Opposition to Defendant's Motion for Summary Judgment, District Court Docket No. 49 (excerpts). . . . . . . .7 3. Deposition of Matthew E. Armiger (excerpt). . . . . . . . 10 4. Matthew Armiger's ETL Interview Schedule for Sunday March 4, 2001 and Tuesday March 6, 2001 . . . . . . . . . . . . . . . . . . 12 CERTIFICATE OF SERVICE I hereby certify that one original and fourteen copies of the foregoing Reply Brief of Appellant were sent to the Clerk's Office of the United States Court of Appeals for the Seventh Circuit this 21st day of July, 2005, by FedEx Next Day Air, postage prepaid. I further certify that two hard copies and one digital copy (in PDF format and on floppy disc) of the foregoing Reply Brief of Appellant was sent this 21st day of July, 2005, by FedEx Next Day Air, postage prepaid, to the following counsel of record: Donald M. Lewis, Esq. Joseph G. Schmitt, Esq. Halleland Lewis Nilan Sipkins & Johnson, P.A. 220 South Sixth Street, Suite 600 Minneapolis, MN 55042 __________________________ JAMES M. TUCKER Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7024 Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov ************************************************************************** <> <1> Target also cited United States v. Di Mucci, 879 F.2d 1488 (7th Cir. 1989), United States v. W.T. Grant Co., 345 U.S. 629 (1953), and United States v. County of Fairfax, Va., 629 F.2d 932 (4th Cir. 1980), but these cases provide it no support. In none of these decisions is there any indication that there was a dispute over the facts upon which the request for injunctive relief was premised. Di Mucci, 879 F.2d at 1491-92, 1497, 1499; W.T Grant Co.,345 U.S. at 630, 633-34; County of Fairfax, 629 F.2d at 936, 942 n.11. <2> Target suggests that because Armiger is no longer a recruiter, injunctive relief is unnecessary. Ae. Brief at 32. However, the injunctive relief sought is not directed solely at Armiger. When the evidence is examined on summary judgment under the factors enunciated in Di Mucci for determining when injunctive relief is appropriate, the record reasonably supports the conclusion that Target has failed to sufficiently remedy its recordkeeping practices to avoid the imposition of injunctive relief. <3> Target suggests that because Armiger failed to schedule and/or interview White, Edgeston, or Brown-Easley, he did not “act,” making it “very difficult” to infer that he intended to discriminate. Ae. Brief at 37 n.7 (citing Johnson v. City of Fort Wayne, 91 F.3d. 922, 931 (7th Cir. 1996); EEOC v. Chicago Miniature Lamp Works, 947 F.2d 292, 298-99 (7th Cir. 1991)). However, the record makes clear that Armiger did act—when refusing to schedule White for an interview, and failing to conduct the scheduled interviews of Edgeston and Brown-Easley—sufficient to support the Commission’s prima facie case. <4> Though it fails to explain how, Target cites Brown v. United States Steel Corp., 698 F. Supp. 1375 (N.D. Ill. 1988), and Pettit v. Gingerich, 427 F. Supp. 282 (D. Md. 1977), as support for its response to the Commission’s expert evidence. Again, neither case supports Target’s position, as neither addresses the ability to identify the race of an individual by his or her name or voice. See Brown, 698 F. Supp. at 1377; Pettit, 427 F. Supp. at 291.