EEOC v. Target Corp. (7th Cir.) Brief as appellant Feb. 11, 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 J. Randa, Judge ________________________________________________________ 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 CAROLYN L. WHEELER 1801 L Street, N.W., Room 7024 Acting Associate General Counsel Washington, D.C. 20507 (202) 663-4870 LORRAINE C. DAVIS James.Tucker@EEOC.gov Assistant General Counsel JAMES M. TUCKER Attorney Statement regarding oral argument Plaintiff-Appellant the U.S. Equal Employment Opportunity Commission ("Commission") requests oral argument in this appeal. This race discrimination and recordkeeping violation action, brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C.  2000e et seq., presents a variety of factually intensive and legally complex issues on appeal, in the context of the question of whether the district court properly concluded that Defendant-Appellee Target Corporation ("Target") was entitled to summary judgment. Due to the complexity and significance of the issues raised in this appeal, the Commission believes oral argument would assist the Court in its resolution of the matters presented on appeal, and serve to highlight the existence of genuine issues of material fact precluding summary judgment. TABLE OF CONTENTS Statement Regarding Oral Argument. . . . . . . . . . . . . . . .i Table of Authorities . . . . . . . . . . . . . . . . . . . . . iv Statement of Jurisdiction. . . . . . . . . . . . . . . . . . . .1 Statement of the Issues on Appeal. . . . . . . . . . . . . . . .2 Statement of the Case. . . . . . . . . . . . . . . . . . . . . .3 I. Nature of the case and course of proceedings . . . . .3 II. Statement of facts . . . . . . . . . . . . . . . . . .4 III. District court decision. . . . . . . . . . . . . . . 13 Summary of Argument. . . . . . . . . . . . . . . . . . . . . . 17 Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 I. Standard of review . . . . . . . . . . . . . . . . . 19 II. A reasonable trier of fact could conclude on the record before the district court that Target has failed to sufficiently remedy its recordkeeping practices to avoid future violations, and that it violated federal recordkeeping requirements in bad faith. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 III. A reasonable trier of fact could conclude on the record before the district court that White, Edgeston, Brown-Easley, and Daniels were not interviewed and/or hired by Target because of their race. . . . . . . . . . . . . 26 A. The record evidence establishes a prima facie case of disparate treatment as to White, Edgeston, and Brown-Easley . . . . . . . . . . . . . 27 B. A genuine issue exists as to whether Armiger's proffered reason for not interviewing White, Edgeston, and Brown-Easley is mere pretext for unlawful discrimination. . . . . . . . . . . . . . . . . . . . 30 C. The district court erred in failing to acknowledge that the evidence of bad faith destruction of records could give rise to an adverse inference upon which a reasonable factfinder could conclude that Target destroyed documents relating to White, Edgeston, and Brown-Easley for the purpose of hiding an unlawful discriminatory motive. . . . . . . . . . 39 D. The district court erred in concluding that the "common-actor presumption" was at issue in this case . . . . . . . . . . . . 40 E. Summary judgment was inappropriate as to the claim brought on behalf of James Daniels, Jr. . . . . . . . . . . . . . . . . . . . . . . 42 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Certificate of Compliance Attached Short Appendix 1. EEOC v. Target Corp., No. 02-C-0146, slip op. (E.D. Wis. Aug. 2, 2004) 2. EEOC v. Koch Meat Co., No. 91 C 4715, 1993 WL 27310 (N.D. Ill. Dec. 7, 1992) (unreported decision) 3. 42 U.S.C.  2000e-2 4. 42 U.S.C.  2000e-8 5. 29 C.F.R.  1602.14 Certificate of Service Table of Authorities Cases Page(s) Bruso v. United Airlines, Inc., 239 F.3d 848 (7th Cir. 2001). . . . . . . . . . . . . 21, 22 Carson v. Bethlehem Steel Corp., 82 F.3d 157 (7th Cir. 1996) . . . . . . . . . . . . . 28, 29 Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993) . . . . . . . . . . . . . . . . . . . 37 EEOC v. Alton Packaging Corp., 901 F.2d 920 (11th Cir. 1990) . . . . . . . . . . . . . . 24 EEOC v. Hendrix Coll., 53 F.3d 209 (8th Cir. 1995) . . . . . . . . . . . . . . . 22 EEOC v. Ilona of Hung., Inc., 108 F.3d 1569 (7th Cir. 1997) . . . . . . . . . . . . . . 21 EEOC v. Koch Meat Co., No. 91 C 4715, 1993 WL 27310 (N.D. Ill. Dec. 7, 1992) (unreported decision) (attached). . . . . . . . . . . 21, 22 EEOC v. Target Corp., No. 02-C-0146, slip op. (E.D. Wis. Aug. 2, 2004) (attached)passim Herrnreiter v. Chicago Hous. Auth., 315 F.3d 742 (7th Cir. 2002). . . . . . . . . . . . . 40, 41 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) . . . . . . . . . . . . . . . . . . . 29 Mathis v. John Morden Buick, Inc., 136 F.3d 1153 (7th Cir. 1998) . . . . . . . . . . . . 24, 39 Metro. St. Louis Equal Hous. Opportunity Council v. Gordon Gundaker Real Estate Co., 130 F. Supp. 2d 1074 (E.D. Mo. Feb. 16, 2001) . . . . 16, 37 Miles v. Indiana, 387 F.3d 591 (7th Cir. 2004). . . . . . . . . . . . . . . 21 Millbrook v. IBP, Inc., 280 F.3d 1169 (7th Cir. 2002) . . . . . . . . . . . . . . 27 Olson v. Northern FS, Inc., 387 F.3d 632 (7th Cir. 2004). . . . . . . . . . . . . . . 29 Palucki v. Sears Roebuck & Co., 879 F.2d 1568 (7th Cir. 1989) . . . . . . . . . . . . 42, 43 Park v. City of Chicago, 297 F.3d 606 (7th Cir. 2002). . . . . . . . . . . . . . . 39 Patrick v. Ridge, 394 F.3d 311 (5th Cir. 2004). . . . . . . . . . . . . 42, 43 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000) . . . . . . . 19, 25, 26, 30, 31, 39, 42 Republic Tobacco Co. v. N. Atl. Trading Co., 381 F.3d 717 (7th Cir. 2004). . . . . . . . . . . . . . . 44 Rummery v. Ill. Bell Tel. Co., 250 F.3d 553 (7th Cir. 2001). . . . . . . . . . . . . . . 39 Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002) . . . . . . . . . . . . . . . . . . . 29 Teamsters v. United States, 431 U.S. 324 (1977) . . . . . . . . . . . . . . . . . . . 29 Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981) . . . . . . . . . . . . . . . . . . . 42 Tyus v. Urban Search Mgm't, 102 F.3d 256 (1997) . . . . . . . . . . . . . . . . . 37, 38 United States v. Balistrieri, 981 F.2d 916 (7th Cir. 1992). . . . . . . . . . . . . . . 21 United States v. County of Fairfax, Va., 629 F.2d 932 (4th Cir. 1980). . . . . . . . . . . . . 20, 21 United States v. Di Mucci, 879 F.2d 1488 (7th Cir. 1989) . . . . . . . . . . . . 21, 26 United States v. Hall, 93 F.3d 1337 (7th Cir. 1996). . . . . . . . . . . . . . . 38 Venturelli v. ARC Cmty. Servs., Inc., 350 F.3d 592 (7th Cir. 2003). . . . . . . . . 19, 28, 30, 31 Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394 (7th Cir. 1997) . . . . . . . . . . . . . . 20 Statutes Title VII of the Civil Rights Act of 1964, codified at 42 U.S.C.  2000e et seq. (attached). . . . . .3 42 U.S.C.  2000e-2(a)(1) (attached) . . . . . . . . . . . . . 27 42 U.S.C.  2000e-8(c) (attached). . . . . . . . . . . . . 20, 23 Rules and Regulations 29 C.F.R.  1602.14 (attached) . . . . . . . . . . . . . . 20, 23 Other Authority The American Economic Review, Table of Contents, with abstracts, for Vol. 94, No. 4, September 2004, available at http://www.aeaweb.org/aer/contents/ 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 J. Randa, Judge ________________________________________________________ BRIEF OF APPELLANT THE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ________________________________________________________ Statement of jurisdiction The United States Court of Appeals for the Seventh Circuit has jurisdiction over this appeal pursuant to 28 U.S.C.  1291, which provides the Circuit Courts of Appeals with jurisdiction over appeals from the final decisions of United States District Courts. The United States Court of Appeals for the Seventh Circuit has jurisdiction over appeals from the United States District Court for the Eastern District of Wisconsin. The United States District Court for the Eastern District of Wisconsin had jurisdiction over this case pursuant to the following statutory authority: (i) 28 U.S.C.  1331, which confers upon the district courts original jurisdiction over all civil actions arising under the Constitution, laws, or treaties of the United States; (ii) 28 U.S.C.  1337, which confers upon the district courts original jurisdiction over any civil action or proceeding arising under any Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies; (iii) 28 U.S.C.  1343, which confers upon the district courts original jurisdiction over any civil action authorized by law to be commenced by any person to recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights; (iv) 28 U.S.C.  1345, which confers upon the district courts original jurisdiction over all civil actions, suits or proceedings commenced by the United States, or by any agency or officer thereof expressly authorized to sue by Act of Congress; and (v) 42 U.S.C.  2000e-5(f)(3), which confers upon the district courts jurisdiction over actions brought under Title VII of the Civil Rights Act of 1964 (as amended). The United States District Court for the Eastern District of Wisconsin entered final judgment in this case on August 2, 2004. No motions have been filed post-judgment in the district court. Pursuant to Rule 4(a)(1)(B) of the Federal Rules of Appellate Procedure, the U.S. Equal Employment Opportunity Commission ("Commission") timely filed its Notice of Appeal in the district court on September 29, 2004. Statement of the issues on appeal 1. Whether the district court erred in concluding, on summary judgment, that Target has sufficiently reformed its recordkeeping practices and there is no evidence that Target committed recordkeeping violations in bad faith, and therefore injunctive relief was unnecessary. 2. Whether the district court erred in concluding, on summary judgment, that the Commission was not entitled to the benefit of an adverse inference against Target that the documents it destroyed or otherwise failed to preserve in violation of recordkeeping regulations would have contained evidence favorable to the Commission's case. 3. Whether the district court erred in concluding that the Commission failed to present sufficient evidence to create a genuine issue of material fact as to its individual disparate treatment claims on behalf of Kalisha White, Ralpheal Edgeston, Cherise Brown-Easley, and James Daniels, Jr. Statement of the case I. Nature of the case and course of proceedings On February 8, 2002, the Commission filed its Complaint against Target Corporation ("Target") in U.S. District Court for the Eastern District of Wisconsin. District Court Docket Number ("R.") 1. The Commission alleged that Target had violated Title VII of the Civil Rights Act of 1964, codified at 42 U.S.C.  2000e et seq., when it engaged in race discrimination against African-American applicants for management positions and when it failed to make and preserve records relevant to the determination of whether unlawful employment practices had been or were being committed. Id. On June 30, 2003, at the end of discovery, the Commission filed a motion for partial summary judgment on its recordkeeping claim, as well as other issues ancillary to its discrimination claims. R.31. On July 1, 2003, Target filed its own summary judgment motion. R.35. In its Decision and Order dated August 2, 2004, the district court denied the Commission's motion and granted the motion by Target. Attached Short Appendix ("Att.") at 9 (EEOC v. Target Corp., No. 02-C-0146, slip op. (E.D. Wis. Aug. 2, 2004)). II. Statement of facts Target's business structure consists of individual stores geographically organized into numbered Districts, which are geographically organized into larger, numbered Groups. The discriminatory and other unlawful actions the Commission alleges to have taken place in this case occurred in, or in connection with, Target's District 110 ("D110"), which is composed of Target stores in the Madison, Milwaukee, and Waukesha, Wisconsin geographic areas. R.1, R.25 (amended complaint). D110 is part of Group 192, which is made up of Target Districts in several southern Wisconsin and northern Illinois counties. Within each Target store, the management structure is composed of Executive Team Leaders ("ETLs") who operate as first-level management over the full range of store functions and activities, and a Store Team Leader ("STL") who serves as the top manager in the store and to whom the ETLs report. In early 2000, James Daniels, Jr., an African-American, applied to Target for an ETL position in D110. See Appendix ("Apx.") 27. On or around March 13, 2000, he underwent an "ELITE" interview for the position. Id. At the "ELITE" interview level, which ETL applicants reach after passing a preliminary interview, three interviewers (typically Target management officials) ask specific questions taken from standardized "ELITE" interview forms. Apx. 211. See also Apx. 83 (example of "ELITE" interview forms). After the "ELITE" interview, and without the candidate present, the interviewers hold a "consensus" meeting to discuss the interview and make a collective decision about whether to make an offer of employment. Apx. 213, 419. All ETL candidates who reach the "ELITE" level in Target's ETL hiring process are required to undergo a "PDI" test, which is designed to measure leadership potential. Apx. 274- 75. Daniels scored very highly on his PDI test, receiving a score higher than 97 percent of the "candidate norm group" and receiving high scores in five of the six measured areas Conscientiousness (95th percentile), Drive (99th percentile), Interpersonal Effectiveness (86th percentile), Leadership (95th percentile), and Resilience (91st percentile). Apx.166. Nevertheless, Daniels was not hired. Apx. 27. Target claims he did not meet the requirements for an ETL position based upon his "ELITE" interview, but offered no evidence or explanation as to why or how he failed to meet the "requirements" for an ETL position, or even which "requirements" he allegedly failed to meet. See id. (asserting, without citation to supporting evidence, that "Target decided [Daniels] did not meet the requirements for an ETL position, and therefore elected not to hire him as an ETL"); Apx. 176-77 (noting that Target failed to produce in discovery the majority of the documents pertaining to Daniels' candidacy). Beginning in February 2001, and for some months thereafter, Target realigned its recruiting processes for management-level employees, centralizing recruitment efforts and eliminating region-based recruiter positions. Apx. 266. During this restructuring period, ETL recruiting duties in D110 were shifted to two D110 STLs, Matthew Armiger and Richard Walters. Apx. 267, 288. Generally, Armiger was responsible for setting up and attending on- campus interviews, and Walters was responsible for arranging the "ELITE" interview process. Apx. 289. D110 recruiting representatives attended approximately six on-campus job fairs per year. Apx. 290. Armiger handled resumes received in D110 from college job fairs (amounting to 30% of all resumes received), and Walters handled the rest (70%). Apx. 291. Walters stated that D110 would receive up to 200 resumes during the spring recruiting season (January-March), slightly fewer during the fall recruiting season (September-November), and between 10-25 resumes per month during the intervening time. Apx. 292. In February 2001, Ralpheal Edgeston and Cherise Brown-Easley, both students at Marquette University, applied for ETL jobs at a University of Wisconsin-Milwaukee "Multicultural Career Fair." Apx. 197-99, 219, 308-09. Edgeston's concise, one-page resume listed her membership in the Alpha Kappa Alpha sorority, which Armiger was aware is an African American sorority. Apx. 260, 411. Armiger testified that sorority involvement was something that he typically found of interest on a resume, and that the presence of such information on a resume would "probably" lead him to talk to the candidate about leadership skills learned in that organization. Apx. 260. He also testified that he would "typically" review the resume of a candidate for educational experience and extracurricular activities, and that a candidate's major in college would be a "starting point to begin a conversation." Apx. 259-60. Despite this testimony, Armiger stated that he did not recall Edgeston's sorority involvement "standing out" to him on her resume. Apx. 260. Armiger further offered that he did not recall as "standing out" to him on Edgeston's resume her listing African-American Studies as one of her college majors, or that she was a member of the National Association for the Advancement of Colored People. Apx. 259. Armiger did testify, however, that he knew the latter to be "the NAACP." Id. Armiger also noted 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 is African-American. Id. Brown-Easley's resume listed, under the heading "Professional Memberships," the "Metropolitan Milwaukee Alliance of Black School Educators." Apx. 412. Armiger admitted that he understood the use of the term "Black" in this context to refer to African-Americans. Apx. 261. Armiger first stated that he had received Brown-Easley's resume, but did not recall reviewing her resume. Id. Armiger acknowledged, however, that since her name appeared on his interview schedule, he had in fact reviewed her qualifications prior to scheduling her for an interview. Id. By email, Edgeston and Brown-Easley were instructed to call Armiger and schedule an initial interview, and they did so, scheduling interviews with him for the late afternoon and evening, respectively, of March 4, 2001. Apx. 200-02, 219-21. Armiger scheduled a total of nine telephone interviews for March 4 and 6, 2001, with Edgeston and Brown-Easley being the only African-Americans. Apx.10, 216-17, 300, 318-23, 409. Armiger was to initiate the interview by calling each candidate. Apx. 204, 221. Armiger did not call Edgeston or Brown- Easley on March 4, and when they tried to contact him that evening and over the next several days, neither he nor any other Target official returned their calls or scheduled another interview for them. Apx. 207, 223-24. As for the other interviewees, all but two state that they were called and interviewed by Armiger as scheduled. Apx. 318-19, 321-23. One of these two stated that he could not remember if he had been called and interviewed, Apx. 306, and the other stated that while he remembered not being called and interviewed by Armiger as scheduled on March 6, he called Target the next day to inquire about the missed interview, and was subsequently interviewed by Target, Apx. 301-04. In February 2001, Kalisha White, then an MBA candidate at Marquette University, applied for an ETL job by submitting a resume to Target. Apx. 180. As with Edgeston's resume, White's resume listed her membership in the Alpha Kappa Alpha sorority. Apx. 260, 410. Armiger first stated via affidavit that he believed that he remembered reviewing White's resume. Apx. 253. However, Armiger retreated from this statement during his deposition, saying that he did not recall "specifically" reviewing her resume and instead offered that he might have reviewed "a document that he received from Espich [the prior ETL recruiter in D110]." Apx. 253, 256. Despite this statement, Armiger almost simultaneously offered in his deposition that "I remember the thing about her resume standing out was pursuing the MBA." Apx. 256. Nevertheless, Armiger sent her an email asking her to call to schedule an interview. Apx. 181. White tried on two occasions to contact Armiger by telephone and schedule an interview, but each time she spoke to him, he said he was "too busy" to do so. Apx. 181, 183. White was aware of the problems Edgeston and Brown-Easley had in their dealings with Armiger, and was concerned that Armiger's treatment of her might be due to her race. Apx. 183-84. Out of this concern, on May 9, 2001, White emailed Armiger a slightly dumbed-down (in comparison to her own) resume under the name "Sarah Brucker" a name she constructed from names of Caucasians with whom she was familiar. Apx. 184. She included a Milwaukee address intended to reflect a mostly-Caucasian neighborhood, as well as an email address White created for "Brucker," and White's cell phone number. Apx. 184-85, 191. Armiger admitted that White had a stronger resume than "Brucker," noting that White's resume indicated that she was currently completing an MBA, a qualification he did not often see in people seeking ETL positions. Apx. 256. The day after White emailed Armiger the "Brucker" resume, Armiger left voice and email messages for "Brucker," asking her to call. Apx. 185. After receiving these messages, White called Armiger, again trying to schedule an interview, but Armiger again rebuffed her, claiming to be "too busy." Apx. 186. White then immediately arranged for Carolyn Buckley, a Caucasian woman, to call Armiger and pose as "Brucker." Id. Within fifteen minutes of White's call to Armiger, Buckley, as "Brucker," called Armiger. Apx. 11, 190. Armiger accepted the call from "Brucker," asked her if she knew what the job entailed, discussed the ETL position with her, asked her if she had any questions, and scheduled her to come in for an interview. Apx. 257, 325. After Buckley, as "Brucker," spoke with Armiger, White never heard back from Armiger. Apx. 187. In addition to the aforementioned evidence, the Commission presented the district court with expert witness reports and an expert study in further support of its assertion that Armiger was in fact able to discern that White, Edgeston, and Brown-Easley are African-American without meeting them face-to-face. This evidence consisted of an expert witness report prepared by Dr. Thomas Purnell, Assistant Professor of Linguistics at the University of Wisconsin-Madison who has researched and published on the subject of the perception of racially-affiliated dialects and telephone filtered speech. Apx. 326, 338-39. In his expert witness report, Dr. Purnell offered his opinion that, after his examination of White, Edgeston, and Brown-Easley, they each "can be perceived over the telephone as being African American," and his report described his techniques and the bases upon which his conclusions were made. Apx. 326-38. The Commission also presented a paper co-authored by Dr. Purnell in 1999, titled Perceptual and Phonetic Experiments on American English Dialect Identification, published in the Journal of Language and Social Psychology, Vol. 18, No. 1, March 1999, which offered from the co-authors' research that "the ability to discern the use of a nonstandard dialect is often enough information to also determine the speaker's ethnicity, . . . [that] discrimination based solely on telephone conversations occurs, [that] dialect identification is possible using the word hello, and phonetic correlates of dialect can be discovered." Apx. 334. The Commission further offered the expert witness report of Dr. Marianne Bertrand, Associate Professor of Economics in the Graduate School of Business at the University of Chicago. Apx. 365. Dr. Bertrand offered the conclusion, based upon a research study she co- authored titled Are Emily and Brendan More Employable than Lakisha and Jamal? A Field Experiment of Labor Market Discrimination, that "[a]t least some corporate recruiters are able to identify the race of job applicants just based on their name," and that "[o]n 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." Id. Dr. Bertrand stated that "Sarah" was one of the white names used in her previous study, that "Lakisha" was one of the African-American names used and has a "strong similarity" to the name "Kalisha," 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. 366-68. At all times relevant to this case, Target has maintained a recordkeeping policy which specifically addresses employment-related documents which Target is required to preserve, requiring the retention of resumes and other documents relating to hiring and selection processes, including ELITE interview forms, PDI test results, and emails with information about an interviewer's thoughts on a candidate. Apx. 28-29, 36, 56-57, 61-62, 270, 278-79. However, while Target's recordkeeping policy specifically references some federal recordkeeping regulations, it makes no mention of the legal requirement that when a charge of discrimination is filed with the Commission, Target must retain all relevant personnel records until final disposition of the charge. Apx. 28-82. Dawne Carlson, Target's Regional Human Resources Manager for D110 for the relevant time, testified that there is an "understood expectation" that Target managers be aware of company policies, and that Target's record retention policy was in accordance with federal regulations. Apx. 270, 279. This recordkeeping policy was regularly disseminated to Target STLs and ETL recruiters. Apx. 294-95. Despite this assertedly well-disseminated record retention policy, Target destroyed or otherwise failed to preserve most of the documents it had pertaining to White and "Brucker" before responding to White's discrimination charge, and could not produce resumes for five of the nine ETL candidates Armiger had scheduled for interview on March 4 and 6. Apx. 171-73. Armiger, who had been a member of Target management for several years at the time he was assigned recruiting duties in D110, stated that he routinely destroyed resumes from individuals deemed "unqualified" for the ETL position. Apx. 237. The only explanation offered by Target for these recordkeeping violations was Armiger's testimony that he was unaware that he was required to retain resumes. Apx. 237-39. Target asserts this "explanation" despite the fact that Armiger's co-recruiter, Walters, testified in deposition that he (Walters) was informed by Target management on multiple occasions that they needed to retain resumes, and he passed this information along to Armiger. Apx. 294-95. Walters also testified that each Target store annually received an internal audit of its personnel files, and during those audits it was impressed upon the STLs (Armiger was an STL during the relevant time) that they needed to follow Target's record retention policies. Apx. 297. Armiger had an extensive management history with Target which included being an STL for a number of years, as well as being the "master trainer" for STLs and ETLs in D110 during the year 2000. Apx. 233-34, 235, 237-38. Carlson testified that Armiger was required to follow Target's record retention policy and should have known better than to destroy resumes. Apx. 283. There is no indication that Armiger was disciplined or even admonished for destroying and failing to preserve documents in violation of Target's policy and/or federal law. See Apx. 228-29, 247, 283-84. Rather, the record shows that Armiger was promoted subsequent to his tour as recruiter in D110. Apx. 229. Sometime in 2002, after the discriminatory acts complained of in this case, Target began utilizing "BrassRing," a third-party employment document collection and retention service, to aid in its document retention practices. Apx. 217, 415-16. However, just as recruiters were responsible under Target's prior document retention practice to submit resumes and other application-related documents to human resources personnel for retention, recruiters are still responsible under the new "BrassRing" practice to submit resumes and other application-related documents to Target human resources personnel, who then pass the resumes along to "BrassRing" for retention. Apx. 417. In June, 2003, Virginia Schomisch, the long time administrative assistant to the District Team Leader (a position comparable to a district manager) in D110, see Apx. 311-12, testified that she receives the paperwork including resumes, "ELITE" interview forms, and other related documents related to ETL candidates who are given initial telephone interviews or "ELITE" interviews in D110, and these materials do not go to "BrassRing." Apx. 313, 315-17. Schomisch testified that she routinely destroys all resumes and other hiring paperwork in her possession after one year, and was unaware of any requirement that employment documents need to be retained when a charge of discrimination is filed. Apx. 314. In addition, Target's own evidence indicated that record retention practices continued to be deficient under "BrassRing." The statistician employed by Target in this case, Dr. Bernard Siskin, noted that applicant data provided by "BrassRing" to Target was not appropriate for statistical examination of whether Target's workforce reflected a discriminatory pattern or practice, as the information retrieved from "BrassRing" did not indicate whether an individual had applied for an ETL position or in which District the person had applied. Apx. 423-24. 3. District court decision On August 2, 2004, the district court issued its decision granting summary judgment for Target and denying the Commission's motion for partial summary judgment. Att. at 1. In addressing the Commission's motion for summary judgment on Target's violation of the recordkeeping regulations, the court noted that it was uncontested that Armiger "destroyed or discarded resumes of individuals seeking ETL jobs at Target," that "other Target managers admitted [to] not having kept certain documents regarding the hiring or rejection of ETL candidates," and that Target's resultant inability to produce all documents relevant to applicants for ETL positions in D110 was in violation of the recordkeeping regulations. Id. at 9. The court further noted that the "sole remedy" for a violation of the recordkeeping regulations is injunctive relief, and that such relief was unnecessary in this case because "Target has, on its face, ensured that it will not commit further violations." Id. at 11-12. The court stated that Target had "put forth evidence that its record retention policy identifies the specific employment and personnel documents that are to be retained to ensure compliance with Title VII" and that it now uses "BrassRing" to maintain resumes, applications, ELITE interview forms, and PDI results. Id. at 11. The court also concluded that the Commission was not entitled to an adverse inference that the destroyed records were unfavorable to Target's position. The court stated that in order to draw such an adverse inference, the documents must have been destroyed in bad faith "that the document destruction was 'for the purpose of hiding adverse information.'" Id. at 13. The court noted that this presumption does not attach in cases of "inadvertent failure[]" to comply with a recordkeeping regulation, and concluded that the Commission had "not put forth any evidence that could lead a fact finder to conclude that Armiger or any other Target executive disposed of resumes or other employment records in bad faith." Id. at 12-13. The court stated that while the Commission's evidence that Armiger had been an STL for over four years, had served in various recruiting and training roles, and had been reminded on several prior occasions of Target's official record retention policies "undoubtedly demonstrated that Armiger should have known better," such evidence amounts to "nothing but speculation that he did, in fact, know better." Id. at 13 (emphasis in original). In addressing the individual claims brought on behalf of White, Edgeston, and Brown- Easley, the court opined that there was "reason to believe" that the Commission could not show that non-African-Americans had been treated more favorably than White, Edgeston, and Brown- Easley, and that it therefore could not establish a prima facie case. Id. n.9. The court nonetheless continued its analysis, identifying as Target's articulated reason for not interviewing these individuals that Armiger "was tremendously busy managing the newly-opened and short-staffed New Berlin store" and that his lack of follow-up with these individuals "was a product of his workload, and had an impact on a number of candidates of different races." Id. at 32. The court then turned to discuss the Commission's pretext argument, first stating that the Commission did not refute Armiger's contention that he was under a heavy workload and failed to perform many of his other recruitment duties. Id. at 33. The court credited Armiger's claim that he did not know White, Edgeston, or Brown-Easley were African-American when he failed to "call them," and Target's assertion that Armiger was an "equal opportunity bungler" when he failed to contact prospective ETL candidates, including Caucasians. Id. In a footnote, the court also noted that the Commission argued that information on Edgeston's resume indicated that she was African-American, but that Armiger had testified that he received her information from someone who did an initial screening interview with her at a job fair, and that he did not recall spending "a lot of time . . . reviewing resumes that came to me with somebody that had already passed the initial interview." Id. at 34 n.11. The court then essentially dismissed the Commission's expert evidence offered to establish the ability of corporate recruiters to identify the race of job applicants from their names and voices. The court discounted the Commission's proffer by stating that it was "hardly evidence, let alone evidence of pretext," and that the expert evidence creates "nothing beyond a 'metaphysical doubt' that Armiger's claim that he did not know that White, Edgeston, and Brown-Easley were African-American is 'a lie, specifically a phony reason.'" Id. at 34-35. The court added that while Armiger had intended to call nine ETL candidates on March 4 and 6, he failed to call Edgeston and Brown-Easley as well as two Caucasian candidates. Id. at 35. The court concluded that "these scant facts do not present any evidence" that could lead a reasonable fact finder to infer pretext. Id. Turning to the circumstances surrounding White's application and the "Sara Brucker" fictitious Caucasian applicant issue, the court again credited Target's assertion that this resulted from "mere[] coincidence and an unfortunate result of circumstances again explained by Armiger's workload." Id. at 36. The court stated that while "the Brucker episode perhaps appears to nudge White's claim in the direction of showing pretext, it does not move it far enough" to survive summary judgment. Id. at 36-37. The court concluded that "taking the Brucker episode in its complete context," the Commission failed to produce "significantly probative admissible evidence" from which a finder of fact could infer that the "proffered reason was a lie and the actual reason was discriminatory." Id. at 37. The court also noted that even assuming White's race was apparent from her name or resume, the Commission did not explain why Armiger would discriminate against a candidate whom he himself selected and notified of his interest in conducting an interview. Id. The court stated that the claims on behalf of White and other individuals who were invited to interview were analogous to "the so-called 'common actor' presumption," which, the court explained, is not so much a presumption as "something that the trier of fact would consider" based upon the "common-sense psychological assumption" that it does not make sense to hire workers from a group one dislikes, only to fire them once they are on the job. Id. at 37-38. The court stated that it "acknowledges the limits of the analogy, but the question adds context to the pretext analysis," and stated that the Commission has offered no answer to that question. Id. at 38. The court then dispensed with the Commission's remaining claims on behalf of other individuals, including Daniels, on the ground that the Commission was unable to establish pretext. Id. at 38-39. Summary of Argument The district court committed reversible error when it determined, on summary judgment, that Target had shown that it had not committed its recordkeeping violations in bad faith and it had reformed its recordkeeping policy and practice sufficiently to make injunctive relief unnecessary. The Commission presented ample evidence that the changes Target implemented to its recordkeeping practices and policy are still insufficient to meet its legal obligations and just as prone to abuse and disregard as its prior policy and practice. The Commission also presented ample evidence from which a reasonable trier of fact could conclude that Armiger's testimony that he was unaware of Target's recordkeeping policy when he destroyed resumes is unworthy of credence and from which the same finder of fact could conclude that he is lying to hide an unlawful motive. Accordingly, the Commission presented sufficient evidence to create a genuine issue on the questions of whether Target had in fact meaningfully reformed its document retention practices and whether its recordkeeping violations were committed in bad faith. As resolution of these questions is critical to a proper determination of whether injunctive relief is warranted and whether these circumstances could give rise to an adverse inference, the court's grant of summary judgment to Target was error. The district court also committed reversible error when it determined that the Commission had failed to establish the existence of a genuine issue of material fact sufficient to survive Target's motion for summary judgment. As for the claims brought on behalf of White, Edgeston, and Brown-Easley, the Commission presented evidence from which a reasonable trier of fact could conclude that a prima facie case of individual disparate treatment had been established and that Target's proffered reasons for its failure to interview them were pretextual. A reasonable trier of fact could conclude on the record in this case that Armiger knew the race of these claimants and decided against considering them for the job because of it. A reasonable trier of fact could also infer from the evidence of record that Armiger's explanation that he was "too busy" to interview Edgeston and Brown-Easley, and "too busy" to even schedule White for an interview, is untruthful, and justifiably find therefrom that he is lying to hide an unlawful motive. Accordingly, the district court's grant of summary judgment was improper. The district court further erred in dismissing the Commission's claim on behalf of Daniels. Inasmuch as the court erroneously concluded that Target had satisfied its burden of articulating a legitimate, nondiscriminatory reason for its decision not to hire him, the district court's grant of summary judgment to Target on this claim was incorrect as a matter of law. Argument I. Standard of review. This Court applies a de novo standard in reviewing a district court's grant of summary judgment, construing the evidence in the light most favorable to the nonmoving party. Venturelli v. ARC Cmty. Servs., Inc., 350 F.3d 592, 598 (7th Cir. 2003) (citing Rogers v. City of Chicago, 320 F.3d 748, 752 (7th Cir.2003)). "Summary judgment is proper when the 'pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Id. (citing Fed. R. Civ. P. 56(c)). Summary judgment is appropriate if, on the record as a whole, a rational trier of fact could not find for the nonmoving party, and in making such a determination "the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). "[A]lthough 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." Id. at 150-51. "Summary judgment is proper only if there is no genuine (in the sense of reasonably contestable) issue of material (that is, potentially outcome-determinative) fact. . . . [C]ourts should be careful in a discrimination case as in any case not to grant summary judgment if there is an issue of material fact that is genuinely contestable, which an issue of intent often though not always will be." Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir. 1997). II. A reasonable trier of fact could conclude on the record before the district court that Target has failed to sufficiently remedy its recordkeeping practices to avoid future violations, and that it violated federal recordkeeping requirements in bad faith. Under Title VII, employers are required to "make and keep such records relevant to the determinations of whether unlawful employment practices have been or are being committed." 42 U.S.C.  2000e-8(c). The Commission's recordkeeping regulations require that employers preserve "application forms submitted by applicants and other records having to do with hiring" for one year. 29 C.F.R.  1602.14. However, if a charge of discrimination has been filed, the employer is required to "preserve all personnel records relevant to the charge or action until final disposition of the charge or the action." Id. It is uncontested that Target failed to abide by these recordkeeping requirements, as Armiger admitted that he routinely destroyed applicants' resumes, and Target was unable to produce resumes or other relevant employment documents pertaining to White, Edgeston, Brown-Easley, or "Brucker." Apx. 171-73, 237. White's and "Brucker's" documents were missing despite the fact that White promptly filed her charge of discrimination with the Commission the day after the "Brucker" episode. Apx. 11. As a general matter, injunctive relief is an available remedy any time a violation of Title VII is proven, and the statute specifically provides that if a violation of a recordkeeping regulation is established, the district courts are conferred jurisdiction to order an injunction to compel compliance. 42 U.S.C.  2000e-8(c). See also United States v. County of Fairfax, Va., 629 F.2d 932, 942 n.11 (4th Cir. 1980) (recognizing authority of district courts to order injunctive relief for recordkeeping violations); EEOC v. Koch Meat Co., No. 91 C 4715, 1993 WL 27310, at *5 (N.D. Ill. Dec. 7, 1992) (unreported decision) (same). In determining whether injunctive relief is appropriate, 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, in some cases, "the character of past violations." United States v. Di Mucci, 879 F.2d 1488, 1498 (7th Cir. 1989) (citing United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953)). See also Miles v. Indiana, 387 F.3d 591, 601 (7th Cir. 2004) ("In determining whether to grant injunctive relief . . . for a successful discrimination plaintiff, the proper inquiry is whether the defendant's 'discriminatory conduct could possibly persist in the future.'") (quoting in part Bruso v. United Airlines, Inc., 239 F.3d 848, 864 (7th Cir. 2001)); EEOC v. Ilona of Hung., Inc., 108 F.3d 1569, 1578 (7th Cir. 1997) (quoting EEOC v. Goodyear Aerospace Corp., 813 F.2d 1539, 1544 (9th Cir. 1987), for the proposition that "[g]enerally, a person subjected to employment discrimination is entitled to an injunction against future discrimination unless the employer proves it is unlikely to repeat the practice"). While this Court has recognized that a presumption of entitlement to injunctive relief attaches where an employer has engaged in a pattern of discrimination, United States v. Balistrieri, 981 F.2d 916, 933-34 (7th Cir. 1992); Di Mucci, 879 F.2d at 1498, a successful plaintiff under Title VII need not demonstrate that the employer engaged in a pattern of unlawful conduct in order to receive injunctive relief. Bruso, 239 F.3d at 864. See also County of Fairfax,, 629 F.2d at 942 n.11 (4th Cir. 1980) (reversing district court's refusal to issue injunction to remedy Title VII recordkeeping violations); Koch Meat Co., 1993 WL 27310 at *5 (issuing injunction against employer because of proven Title VII recordkeeping violations). "[A] plaintiff need not produce any evidence beyond that going to his particular case before becoming eligible for injunctive relief." Bruso, 239 F.3d at 864. As Target's violation of Title VII's recordkeeping requirements is undisputed and Target failed to prove as a matter of law that its violation was not in bad faith and there was no possibility of recurrence, the district court legally erred in determining on summary judgment that injunctive relief was unnecessary. The district court's decision denying injunctive relief relied upon its factual conclusion that Target has reformed its recordkeeping practices sufficient to avoid the recurrence of violations in the future. Att. at 11-12. In so concluding, however, the court ignored the evidence offered by the Commission showing that Target had in fact failed to reform its recordkeeping practice in any meaningful way and that future violations are no less likely now than they were prior to this suit. Cf. EEOC v. Hendrix Coll., 53 F.3d 209, 210 (8th Cir. 1995) (noting district court's declining to issue injunction where during charge investigation employer replaced violative policy with one conforming to recordkeeping regulations). It is uncontested that prior to the initiation of this action, Target personnel destroyed or otherwise failed to preserve resumes, emails, "ELITE" interview forms, "PDI" test results, and other hiring-related documents, and that this destruction or failure to preserve occurred despite Target's having promulgated a record retention policy and otherwise providing training to managers and recruiters on that policy. Apx. 28-29, 36, 56-57, 61-62, 171-74, 237. The Commission also presented evidence that despite the existence of this recordkeeping policy, Target did not discipline its managers and recruiters for violations of the policy. See Apx. 283. In addition, Target's recordkeeping policy at no time referenced its legal obligation to retain all relevant personnel records until final disposition when a charge of discrimination is filed. Apx. 28-82. The D110 administrative assistant charged with retaining employment documents she received from D110 recruiters stated more than one year after this suit was initiated and more than two years after the first charge was filed in this case that she was not even aware of this requirement, and that she routinely destroyed whatever employment documents she had in her possession one year after she received them. Apx. 9, 311-314. Accordingly, Target was not and likely still is not in compliance with its obligations under the law. See 42 U.S.C.  2000e-8(c) (requiring employers to "make and keep such records relevant to the determinations of whether unlawful employment practices have been or are being committed"; 29 C.F.R.  1602.14 (requiring, when a charge of discrimination is filed, the preservation of "all personnel records relevant to the charge or action until final disposition of the charge or the action"). While the district court's decision applauds Target's 2002 switch to "BrassRing," a third- party employment document collection and retention service, Target has failed to produce evidence that the document retention service provided by "BrassRing" is any more likely than its prior system to bring Target into compliance with recordkeeping regulations. As was the case with its prior practice, the proper use of "BrassRing" depends on Target's recruiters' and other managerial personnel's diligence in providing the documents to be retained. Apx. 417. In this sense, the addition of "BrassRing" is no more curative than the purchase of a new filing cabinet. In each scenario, the root cause of the violation the failure of Target recruiters and other managerial personnel properly to input the required information has not been addressed. This is even more apparent in light of the uncontested fact that Target was unable to discern from information retrieved from "BrassRing" whether a person applied for an ETL position or a non- managerial position, or in which District the person had applied. Apx. 423-24. Furthermore, Schomisch testified that she receives the paperwork including resumes, "ELITE" interview forms, and other related documents related to ETL candidates who are given initial telephone interviews or "ELITE" interviews in D110, but these materials do not go to "BrassRing." Apx. 313, 315-18. Accordingly, the record is replete with evidence upon which a reasonable trier of fact could conclude that Target's current recordkeeping practice is just as susceptible to abuse and noncompliance as was its prior practice, making denial of injunctive relief on summary judgment inappropriate. Moreover, the fact that there is substantial evidence from which a reasonable finder of fact could conclude that documents were destroyed or otherwise not preserved in bad faith makes the denial of injunctive relief all the more improper. "'Bad faith' is a question of fact like any other." Mathis v. John Morden Buick, Inc., 136 F.3d 1153, 1155 (7th Cir. 1998). This Court has reviewed the grant of summary judgment on the question of bad faith by applying standard summary judgment principles to this factual issue examining the record on appeal to determine if there exists any genuine issue of material fact and if the movant is entitled to judgment as a matter of law. Rummery, 250 F.3d at 556, 558-59. As suggested by the district court, the question of bad faith has a bearing on whether injunctive relief is necessary. See Att. at 12. See also EEOC v. Alton Packaging Corp., 901 F.2d 920, 926-27 (11th Cir. 1990) (whether document destruction was performed in good or bad faith was considered in determining if injunctive relief is necessary). Though not a necessary precondition for injunctive relief, the existence of evidence of a bad faith violation would most certainly preclude summary judgment in Target's favor on the question of whether its recordkeeping violation warrants the imposition of injunctive relief. Such evidence existed here. Dawne Carlson, Target's Regional Human Resources Manager for D110 for the relevant time, testified that there is an "understood expectation" that Target managers be aware of and implement company policies, including the record retention policy. Apx. 270, 279, 283. Carlson also testified that Armiger was required to follow Target's record retention policy and should have known better than to destroy resumes. Apx. 283. The evidence shows that Armiger did know better but destroyed the documents anyway. Armiger's co-recruiter, Walters, testified in deposition that he was informed by Target management on multiple occasions that they needed to retain resumes, and he passed this information along to Armiger. Apx. 294-95. Walters also testified that each Target store annually received an internal audit of its personnel files, and during those audits it was impressed upon the STLs (Armiger was an STL) that they needed to follow Target's record retention policies. Apx. 297. The only explanation offered by Target for the recordkeeping violation was Armiger's testimony that he was unaware that he was required to retain resumes. Apx. 237-39. Armiger offered this ignorance excuse despite evidence of his extensive management history with Target. He had been an STL for a number of years prior to his assuming recruiting duties in D110, and was the "master trainer" for STLs and ETLs in D110 during the year 2000. Apx. 233- 35, 237-38. The Commission's evidentiary proffer casts serious doubt on the veracity of Armiger's uncorroborated and self-serving assertion that he simply did not know about Target's document retention policy, especially for purposes of summary judgment. See Reeves, 530 U.S. at 150 (when assessing a motion for summary judgment, "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 that evidence comes from disinterested witnesses") (quoting in part 9A C. Wright & A. Miller, Federal Practice and Procedure  2529, p. 300) (emphasis added). Based on this evidence, the district court was required to conclude for summary judgment purposes that Armiger had been informed of Target's recordkeeping policy, but disregarded that policy when he decided to destroy resumes of applicants he deemed "unqualified." A reasonable finder of fact could conclude on this evidence that Armiger's assertion on this point defies belief. A reasonable finder of fact could further conclude, therefore, that Armiger was dishonest in his testimony, and that his dishonesty constitutes affirmative evidence that he destroyed documents in bad faith. See id. at 147 ("In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. Such an inference is consistent with the general principle of evidence law that the factfinder is entitled to consider a party's dishonesty about a material fact as 'affirmative evidence of guilt.'") (citations omitted). Accordingly, the record shows that a genuine issue exists as to whether Target has shown a "bona fide intention" presently to comply with recordkeeping requirements, the "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 its favor inappropriate on the question of whether injunctive relief is necessary. III. A reasonable trier of fact could conclude on the record before the district court that White, Edgeston, Brown-Easley, and Daniels were not interviewed and/or hired by Target because of their race. In pertinent part, Title VII provides that it is unlawful for an employer to fail or refuse to hire any individual because of that individual's race. 42 U.S.C.  2000e(2)(a)(1). In response to Target's motion for summary judgment, the Commission presented evidence sufficient to establish a prima facie case of race-based disparate treatment as to the individual disparate treatment claims brought on behalf of Kalisha White, Ralpheal Edgeston, and Cherise Brown-Easley, and to establish a genuine issue as to whether Target's proffered reason for not interviewing them was pretext. The Commission presented evidence sufficient to establish a prima facie case of race- based disparate treatment as to James Daniels, Jr., and Target failed to meet its burden of production to articulate a legitimate, nondiscriminatory reason for its decision not to hire him. For these reasons, the district court's grant of summary judgment on these claims was incorrect as a matter of law. A. The record evidence establishes a prima facie case of disparate treatment as to White, Edgeston, Brown-Easley, and Daniels. Despite the district court's suggestion (but not explicit conclusion) that the Commission could not establish a prima facie case as to White, Edgeston, and Brown-Easley, see Att. at 31 n.9, the Commission has easily done so. A Title VII plaintiff may establish a prima facie case of unlawful disparate treatment by showing that she belongs to a racial minority; that she applied and was qualified for a job for which the employer was seeking applicants; that, despite her qualifications, she was rejected; and that, after her rejection, the position remained open and the employer continued to seek applications from persons of the rejected applicant's qualifications. Millbrook v. IBP, Inc., 280 F.3d 1169, 1174 (7th Cir. 2002). The Commission established, and Target's recruiter Armiger acknowledged, that White applied and was qualified for an ETL position, that she was not scheduled for an interview, and that Armiger subsequently scheduled an interview for "Sarah Brucker," an admittedly lesser-qualified individual not of White's race. Apx. 250, 257. Similarly, Edgeston and Brown-Easley applied and were qualified for the ETL position, but were not interviewed while Caucasian candidates did receive interviews. Apx. 250, 409. As for Daniels, he was considered sufficiently qualified for the ETL position to make it to the final, "ELITE" interview round, received a high score on his PDI test, but was not hired while Target continued to seek ETL applicants. Apx. 26-27, 166. Accordingly, under this Court's jurisprudence, the record evidence establishes a prima facie case as to White, Edgeston, Brown- Easley, and Daniels. See Venturelli, 350 F.3d at 598 (discussing this Court's review of the grant of summary judgment as de novo, construing all evidence in favor of the nonmovant). The district court noted that in order to establish a prima facie case of individual disparate treatment, the burden was on the Commission to identify a "similarly situated applicant" or a "similarly-qualified non-African American who was hired by Target," Att. at 23, 28, and suggested without expressly holding that the Commission could not meet this requirement as to the claims of White, Edgeston, and Brown-Easley, Att. at 31 n.9. In so narrowly reading the requirement for plaintiff to establish a prima facie case, however, the district court erred as a matter of law. "The central question in any employment-discrimination case is whether the employer would have taken the same action had the employee been of a different race (age, sex, religion, national origin, etc.) and everything else remained the same." Carson v. Bethlehem Steel Corp., 82 F.3d 157, 158 (7th Cir. 1996) (internal citation omitted). A plaintiff may show this "without regard to the demographic characteristics of his replacement." Id. at 159. "After O'Connor (v. Consol. Coin Caterers Corp., 517 U.S. 308 (1996)), statements in decisions . . . to the effect that the plaintiff must show that his replacement is of a different race (sex, etc.), cannot be considered authoritative." Id. at 159. "The question instead is whether the plaintiff has established a logical reason to believe that the decision rests on a legally forbidden ground. That one's replacement is of another race, sex, or age may help to raise an inference of discrimination," but such is not a necessary condition. Id. See also Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 512 (2002) ("[T]he precise requirements of a prima facie case can vary depending on the context and were 'never intended to be rigid, mechanized, or ritualistic.'") (quoting in part Furnco Constr. Co. v. Waters, 438 U.S. 567, 577 (1978)); Teamsters v. United States, 431 U.S. 324, 358 (1977) (noting that the Supreme Court "did not purport to create an inflexible formulation" for a prima facie case); McDonnell Douglas Corp.v. Green, 411 U.S. 792, 802, n.13 (1973) ("[T]he specification . . . of the prima facie proof required . . . is not necessarily applicable in every respect to differing factual situations."). A "rigid adherence" to a McDonnell Douglas-type analysis, requiring a plaintiff to show that "similarly situated employees not in the protected class were treated more favorably," is inappropriate because it "skirts the ultimate question whether [the protected characteristic] was a motivating factor" in the challenged employment action. Olson v. Northern FS, Inc., 387 F.3d 632, 635 (7th Cir. Oct. 22, 2004). In Olson this Court noted that "in an attempt to better reach the ultimate question" of whether discrimination has occurred, plaintiffs need only show either that a similarly situated comparator received better treatment "or other such evidence that indicates that it is more likely than not that his [protected characteristic] was the reason for the [employer's action]." Id. at 635-36 (emphasis added) (citing Robin v. Espo Eng'g Corp., 200 F.3d 1081, 1089-90 (7th Cir. 2000)). Applying this proper analysis to the instant case, the record evidence amply establishes for summary judgment purposes that White, Edgeston, Brown-Easley and Daniels belong to a racial minority; applied and were qualified for open ETL positions; that despite their qualifications they were rejected; and that Target thereafter continued to seek ETL applicants, and therefore, the Commission established a prima facie case as to these individuals. B. A genuine issue exists as to whether Armiger's proffered reason for not interviewing White, Edgeston, and Brown-Easley is mere pretext for unlawful discrimination. Target's articulated reason for its failure to interview White, Edgeston, and Brown-Easley was presented in Armiger's testimony that he was "too busy" to do so because he was managing "the newly opened and short-staffed New Berlin store" and as a result he "let a lot of things slip . . . things got missed." Att. at 32. The question for summary judgment purposes, then, becomes whether a reasonable finder of fact could conclude, construing all facts in favor of the Commission as nonmovant, drawing all reasonable inferences in its favor, making no determinations as to credibility, and disregarding all evidence favorable to Target that a jury would not be required to believe, that Target's reason is a pretext for discrimination. See Reeves, 530 U.S. at 150 (stating that on summary judgment "the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence" and "must disregard all evidence favorable to the moving party that the jury is not required to believe"); Venturelli, 350 F.3d at 598 (assessment of motion for summary judgment requires construing all facts in favor of the nonmovant). The record in this case is replete with evidence from which a finder of fact could so conclude, making the district court's grant of summary judgment to Target incorrect as a matter of law. First, the Commission presented strong evidence challenging the veracity of Armiger's deposition testimony, making the question of pretext depend on a credibility determination and thereby rendering summary judgment inappropriate. See Reeves, 530 U.S. at 150 (summary judgment may not involve the making of credibility determinations). Armiger testified that he did not call White back because he was too busy with his store duties, yet the record shows that only fifteen minutes after he told White that he was too busy to schedule an interview with her, he had the time to have a conversation with "Brucker" in which he explained the ETL position to her, asked her if she had any questions, and scheduled her for an interview. Apx. 187, 190-91, 258, 325. Despite suddenly having time to carry on a conversation with the Caucasian "Brucker" and schedule her for an interview, Armiger did not have time (according to his own testimony) to call back the African-American White who in Armiger's own opinion was a stronger ETL candidate than "Brucker" and schedule her for an interview. This constitutes strong evidence rebutting Armiger's uncorroborated assertion that he had no time to set up an interview with White, and casts doubt on the veracity of Armiger's testimony. Despite the well-established impropriety of making credibility determinations on summary judgment, this is precisely what the district court did when it concluded that the different treatment accorded White and "Brucker" was explained away by Armiger's excuse "coincidence and an unfortunate result of circumstances explained again by Armiger's workload." Att. at 36. The Commission presented evidence challenging the veracity of that explanation but the court ignored that evidence and credited Armiger's explanation as the actual reason. As the question of pretext could not be resolved without making a finding as to the credibility of Armiger's testimony, as weighed against the evidence to the contrary presented by the Commission, the court's finding in favor of Target on summary judgment on this factual question was incorrect as a matter of law. See Reeves, 530 U.S. at 150-51; Venturelli, 350 F.3d at 598. Target contends, and the court concluded, that of the nine ETL candidates Armiger had scheduled to interview on March 4-6, 2001, he failed to interview Edgeston, Brown-Easley, and two Caucasian candidates. However, one of these Caucasian candidates cannot remember if Target ever called him and the record does not conclusively establish that he was not interviewed, and the other Caucasian candidate was in fact subsequently interviewed. Apx. 302-04, 306. Neither Edgeston nor Brown-Easley was offered an opportunity to reschedule an interview, and neither ever received a call back from Armiger or any other Target official in regard to the missed interviews. Target rejected Edgeston and Brown-Easley out of hand despite the fact that, in Armiger's opinion, they each had "strong" resumes. Apx. 258, 261. What is certain on this record is that African-American candidates were either not scheduled for interviews, or, if they were scheduled they were not actually interviewed by Armiger, while Armiger did schedule and interview Caucasian candidates. Therefore, viewing the evidence on summary judgment in the light most favorable to the Commission as nonmovant, a rational finder of fact could easily conclude that Armiger's assertion that the reason the African-American candidates were not scheduled for interviews, or interviewed when they were scheduled, was because he was simply "too busy," is not credible. The district court noted that the Commission did not dispute that Armiger "fail[ed] to perform many of his other recruiting duties." Att. at 33. The court did not, however, identify what these other missed recruiting duties were. In any event, that Armiger also failed in other duties does not detract from the evidence that he "performed" his recruiting duty of interviewing ETL candidates in a discriminatory fashion. Furthermore, the only specific "failure" identified in the record, other than his failure to interview Edgeston and Brown-Easley, involved Armiger's failure to interview one Caucasian candidate on March 6. This candidate was the one and only Caucasian candidate the record establishes was not telephoned by Armiger. But this person was later granted an interview with Target. Thus, this other "failure" by Armiger actually further bolsters the Commission's claim of disparate treatment, as Armiger's "recruiting failures" curiously only resulted in African-Americans, not Caucasians, being denied ETL interview opportunities. The district court further concluded that the Commission failed to establish a genuine issue as to pretext because it failed to provide evidence that Armiger knew the race of White, Edgeston, Brown-Easley, or "Brucker." Att. at 37. However, the record contains sufficient evidence for a reasonable finder of fact to conclude that Armiger was able to identify the race of White, Edgeston, and Brown-Easley based upon their names, his review of their resumes, and his telephone conversations with them providing further support for the Commission's pretext argument. First, this record shows that the resumes of White, Edgeston, and Brown-Easley provided abundant indicators of their race. In his deposition, Armiger testified that White's and Edgeston's resumes listed their membership in the Alpha Kappa Alpha sorority, which he was aware is an African American sorority. Apx. 260, 410-11. Edgeston's concise, one-page resume also listed one of her college majors as African-American Studies, as well as her membership in the National Association for the Advancement of Colored People, which Armiger knew to be "the NAACP." Apx. 259, 411. Armiger testified that sorority involvement was something that he typically found of interest on a resume, and that the presence of such information on a resume would "probably" lead him to talk to the candidate about leadership skills learned in that organization. Apx. 260. He also testified that he would "typically" review the resume of a candidate for educational experience and extracurricular activities, and that a candidate's major in college would be a "starting point to begin a conversation." Apx. 259-60. Despite this testimony, Armiger stated that he did not recall Edgeston's sorority involvement "standing out" to him on her resume. Apx. 260. Armiger further offered that he did not recall as "standing out" to him on Edgeston's resume her listing African-American Studies as one of her college majors, or her NAACP membership. Apx. 259. Most tellingly, 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. Brown- Easley's resume listed under "Professional Memberships" the "Metropolitan Milwaukee Alliance of Black School Educators." Apx. 412. Armiger admitted that he understood the use of the term "Black" in this context to refer to African-Americans. Apx. 261. There is also evidence in the record from which a reasonable fact finder could conclude that Armiger knew that the resumes of Edgeston and Brown-Easley had been submitted at a Multicultural Career Fair, providing additional contextual support for the reasonable conclusion that Armiger was aware when he decided not to interview them that they are African-American. Armiger testified that he was responsible for recruiting at the University of Wisconsin-Milwaukee ("UWM"), and therefore had knowledge of the job fairs conducted there. Apx. 232. He also testified that he received the resumes of Edgeston and Brown-Easley from the February 2001 job fair at UWM. Apx. 250-51, 261. A Target official who represented Target at that job fair described it as a "Multicultural Career Fair." Apx. 308-09. Edgeston and Brown-Easley testified that they submitted their resumes to Target at the "Multicultural Career Fair" at UWM in February 2001. Apx. 197-99, 219, 308-09. From this, a reasonable fact finder could conclude that Armiger knew that the resumes of Edgeston and Brown-Easley had been submitted at the UWM Multicultural Career Fair. The Commission's expert evidence on the ability of corporate recruiters to identify the race of job applicants by their voices and names provides further support for the reasonable conclusion that Armiger identified White, Edgeston, and Brown-Easley as African-American. It is uncontested that Armiger spoke to White, Edgeston, and Brown-Easley on the telephone prior to deciding not to interview them. Dr. Purnell's 1999 publication, Perceptual and Phonetic Experiments on American English Dialect Identification, offers that "the ability to discern the use of a nonstandard dialect is often enough information to also determine the speaker's ethnicity, . . . [that] discrimination based solely on telephone conversations occurs, [that] dialect identification is possible using the word hello, and phonetic correlates of dialect can be discovered." Apx. 344. Dr. Purnell concluded in his expert witness report that based upon his having spoken to White, Edgeston, and Brown-Easley over the telephone, having them read aloud to him statements which corresponded to statements they made to Armiger when they contacted him by telephone to arrange interviews, and then analyzing their speech, that each of them "can be perceived over the telephone as being African American." Apx. 326-27. White testified that she speaks with an African-American accent, Apx. 189, and Target did not present any challenge to the evidence that White, Edgeston, and Brown-Easley all can be perceived over the telephone as being African American. In addition, Dr. Bertrand stated in her expert witness report 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 stated that "Sarah" was one of the white names used in her previous study, that "Lakisha" was one of the African-American names used and has a "strong similarity" to the name "Kalisha," 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. Given this expert testimony about the likelihood of race identification via voice and name recognition, a reasonable trier of fact could certainly infer that Armiger knew, or thought he knew, the race of White, Edgeston, and Brown-Easley. Such an inference is all the more reasonable in light of Armiger's own testimony that in his work as a Target store manager and recruiter he has met people of "all races and ethnic groups," he can identify the age of a person over the phone, can identify if the speaker has a southern or midwestern accent, and can recognize British and French accents. Apx. 241, 248. This testimony tends to discredit and undermine Armiger's other testimony that he could not discern a person's race or ethnic group from a person's name, and that he did not identify by speaking with White, Edgeston, or Brown-Easley that they are African-American. See Apx. 241-46, 249. As a reasonable trier of fact could conclude from Armiger's testimony and the Commission's evidence that Armiger's assertion that he was unable to identify the race of White, Edgeston, and Brown- Easley from their names and voices is unworthy of credence and is offered to hide a discriminatory motive, the court was incorrect to find otherwise on summary judgment. See Reeves, 530 U.S. at 150. We note that the district court stated that Dr. Purnell's study had previously been held inadmissible under the Federal Rules of Evidence. Att. at 34 n.12 (citing Metro. St. Louis Equal Hous. Opportunity Council v. Gordon Gundaker Real Estate Co., 130 F. Supp. 2d 1074, 1086 (E.D. Mo. 2001)). This is incorrect. Dr. Purnell's report was not at issue in Metro. St. Louis and was not ruled inadmissible rather, the court there rejected a lay witness' claim of expertise and her attempt to rely on Dr. Purnell's study for support of her own "expert" opinion. Metro. St. Louis, 130 F. Supp. 2d at 1086. This Court has repeatedly recognized that expert testimony on matters of social science is admissible so long as it adheres to the framework established in Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993). Tyus v. Urban Search Mgm't, 102 F.3d 256, 263 (1997). See also United States v. Hall, 93 F.3d 1337, 1342-43 (7th Cir. 1996) (recognizing that "social science testimony is an integral part of many cases, ranging from employment discrimination actions, to family law matters, to criminal proceedings," and discussing application of Daubert standard to social science evidence). The record evidence regarding the expertise of, and methodology employed by, Dr. Purnell and Dr. Bertrand supports the admissibility of their expert witness reports and publications, and this expert evidence constitutes probative evidence on the question of whether Armiger may have been able to recognize African-American candidates based on their names and/or voices. See Apx. 326-408. Moreover, Target failed to present evidence to the district court challenging the admissibility of the Commission's expert evidence its only argument on this point was the incorrect assertion that Dr. Purnell's report had been held inadmissible in Metro. St. Louis. See Apx. 420-22. Should this Court determine that a question as to admissibility does exist, the only proper resolution of the matter would be to remand the matter to the district court, since the district court did not address admissibility in this case. See Tyus, 102 F.3d at 262-64 (holding that district court's failure properly to examine and develop the record on the admissibility of expert social science testimony warranted remand); Hall, 93 F.3d at 1346 ("[T]he exclusion of the expert testimony is enough to require a remand."). In sum, the record supports a finding that Armiger's assertion that he was "too busy" to schedule White for an interview, and "too busy" to interview Edgeston and Brown-Easley, was a mere pretext for discrimination. C. The district court erred in failing to acknowledge that the evidence of bad faith destruction of records could give rise to an adverse inference upon which a reasonable factfinder could conclude that Target destroyed documents relating to White, Edgeston, and Brown-Easley for the purpose of hiding an unlawful discriminatory motive. This Court has clearly established that in order to receive the benefit of an adverse inference that documents destroyed by an employer in violation of recordkeeping requirements contained information adverse to the employer's case, the plaintiff must first show that the destruction was performed in bad faith for the purpose of hiding adverse information. Park v. City of Chicago, 297 F.3d 606, 615 (7th Cir. 2002); Rummery v. Ill. Bell Tel. Co., 250 F.3d 553, 558 (7th Cir. 2001); Mathis, 136 F.3d at 1155. Since a rational finder of fact could conclude from the Commission's evidentiary proffer that Armiger did destroy documents in bad faith, see supra p.24, the Commission was entitled, for purposes of deciding the summary judgment motion, to the benefit of an adverse inference against Target that Target destroyed documents in order to hide information detrimental to it, such as information which could establish a discriminatory motive in the claims on behalf of White, Edgeston, and Brown-Easley. See Reeves, 530 U.S. at 150 (noting that on summary judgment "the court must draw all reasonable inferences in favor of the nonmoving party"); Park, 297 F.3d at 615 (stating that in order to be eligible for an adverse inference jury instruction that documents destroyed by an employer in violation of recordkeeping regulations contained information adverse to the employer's case, the plaintiff must first show that the destruction was performed in "bad faith" for the purpose of hiding adverse information); Mathis, 136 F.3d at 1155 ("'Bad faith' is a question of fact like any other."). The availability of this inference alone is sufficient to create a genuine question of fact and thus precludes summary judgment. D. The district court erred in concluding that the "common-actor presumption" was at issue in this case. Target argued, and the district court concluded, that the claims of White, Edgeston, and Brown-Easley all are "analogous to the so-called 'common actor' presumption" requiring the plaintiff to explain why "someone who dislikes African-Americans and did not want to work with them reach[es] out to interview such persons in the first place." Att. at 37-38. However, the facts of this case are not so analogous, and even if this question is present, it is simply a factual issue. As such, given the disputed evidence in this case, this question does not entitle Target to judgment as a matter of law. This Court has addressed the application of the "so-called 'common actor' presumption," stating that while judges are skeptical when discrimination is alleged against the same person who first hires and then fires the same individual, "[i]t is misleading to suggest that this skepticism creates a 'presumption' of nondiscrimination, as that would imply that the employee must meet it or lose his case. It is just something for the trier of fact to consider." Herrnreiter v. Chicago Hous. Auth., 315 F.3d 742, 747 (7th Cir. 2002). In Herrnreiter, the Court concluded that the skepticism of the common actor issue was "out of place" where, as there, the "common actor" management official only "approved" a transfer to a better position after the transfer had already been approved by the management official's predecessor and had taken effect months before the management official's "approval" had been tendered. Id. This Court declared that "this approval was only the weakest kind of evidence that [the accused "common actor"] actually 'wanted' Herrnreiter in [the better position]." Id. While the record supports the conclusion that Armiger was the official who decided not to interview White, Edgeston, and Brown-Easley, the record does not support the court's conclusion that Armiger was in fact 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. When asked if he had determined by Edgeston's resume whether she met the minimum qualifications for an ETL position, Armiger stated that "[s]he was somebody that was prescreened at the UWM job fair, and I took the word of the people that talked to her at the job fair" regarding her qualifications. Apx. 250. Armiger further testified that when a resume "was passed on to [him] from somebody that did an initial screen interview [of the candidate] at the job fair . . . [he] took those people at their word that it was somebody that we should set up an initial phone screen interview with." Apx. 259. Armiger also offered that he believed that Brown- Easley's resume was forwarded to him from a job fair, and that he reviewed either a resume from White or a "document [regarding White] that [he] received from Kerry [Espich]," Target's former recruiter in D110. Apx. 253, 261. Therefore, what little evidence there is in the record regarding who made the initial decision to offer interviews to White, Edgeston, and Brown-Easley supports the conclusion that this initial decision to offer interviews was not made by Armiger but by other Target recruiting officials. The instant case thus has just the same kind of "weakest evidence" as was present in Herrnreiter that makes the "common actor" issue a nonissue in this case, especially in the context of summary judgment. Even if the analogy were stronger here, the "common actor" question would simply be a fact question and would not be dispositive of the Commission's case. See Herrnreiter, 315 F.3d at 747. E. Summary judgment was inappropriate as to the claim brought on behalf of James Daniels, Jr. The district court erred in granting summary judgment to Target as to the individual claim on behalf of James Daniels, Jr. because the evidence was sufficient for summary judgment purposes to establish a prima facie case of race discrimination, and Target failed to meet its burden of production, rendering judgment for Target incorrect as a matter of law. Under the McDonnell Douglas burden-shifting analysis, once the plaintiff has presented sufficient evidence to establish a prima facie case, the burden shifts to the employer to produce evidence in support of a legitimate, nondiscriminatory reason for the contested action. Reeves, 530 U.S. at 142. See also Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 255-56 (1981) (noting that the employer's burden of production serves "to frame the factual issue with sufficient clarity so that the plaintiff will have a full and fair opportunity to demonstrate pretext. The sufficiency of the defendant's evidence should be evaluated by the extent to which it fulfills these functions."). When a plaintiff establishes a prima facie case and the employer fails to meet its burden, the plaintiff is entitled to judgment on the claim. Palucki v. Sears Roebuck & Co., 879 F.2d 1568, 1570 (7th Cir. 1989) (Posner, J.) ("the plaintiff wins" if the employer fails to meet its burden of production); Patrick v. Ridge, 394 F.3d 311, 316-17 (5th Cir. 2004) (reversing summary judgment for employer and holding that employer's mere statement that employee was not promoted because she was "not sufficiently suited for the job," without evidence or explanation showing why or how, failed to meet the employer's burden because such an unexplained and unsupported proffer failed to articulate a nondiscriminatory reason with sufficient clarity to afford the employee a realistic opportunity to challenge the reason as pretextual). The Commission argued to the district court that summary judgment was inappropriate as to this claim because Target had failed to present evidence sufficient to satisfy its minimal burden to produce evidence in support of a legitimate, nondiscriminatory reason for its action. Apx. 167- 69. The record, properly examined under summary judgment standards, reveals that Daniels was considered by Target to be sufficiently qualified for an ETL position that Target offered him an ELITE interview and had him take the PDI test. See Apx. 27, 166. Daniels was given an "ELITE" interview, and Target did not offer him a position. Apx. 27. Target asserted in its proposed findings of fact that Daniels was not hired because "[b]ased upon that interview, Target decided that he did not meet the requirements for an ETL position, and therefore elected not to hire him as an ETL." Id. Like the employer in Patrick, Target has offered absolutely no explanation which shows why Daniels failed to meet the requirements of the position. See Patrick, 394 F.3d at 317 ("In the face of the [employer's] bald and amorphous statement that Patrick simply was 'not sufficiently suited,' however, neither we nor Patrick can identify the kind of evidence needed to demonstrate that such a rank generalization is or is not pretextual."). While Target did produce "ELITE" interview guides for some other candidates, showing that the "ELITE" interviewers make detailed comments on those guides, Target produced no such documentary record of Daniels' "ELITE" interview, or any other evidence explaining its action. See, e.g. Apx. 83-165 (example of "ELITE" interview forms). Accordingly, as Target has failed to respond to the prima facie case with evidence or explanation in support of its proffered legitimate, nondiscriminatory reason for the contested action, it has failed to meet its burden of articulation. See Palucki, 879 F.2d 1570; Patrick, 394 F.3d at 317. Therefore, the district court's grant of summary judgment for Target as to this individual claim is incorrect as a matter of law. 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 CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant 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 Fed. R. App. P. 32(a)(7)(B) and Seventh Circuit Rule 32(b). This brief contains 13, 367 words, from the Statement of Jurisdiction 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 appendix to this brief, as well as the contents of the separately-bound Appendix, 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, and no digital copy of the separate Appendix will be furnished to the Court. __________________________ 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 Appendix 1. EEOC v. Target Corp., No. 02-C-0146, slip op. (E.D. Wis. Aug. 2, 2004) 2. EEOC v. Koch Meat Co., No. 91 C 4715, 1993 WL 27310 (N.D. Ill. Dec. 7, 1992) (unreported decision) 3. 42 U.S.C.  2000e-2 4. 42 U.S.C.  2000e-8 5. 29 C.F.R.  1602.14 CERTIFICATE OF SERVICE I hereby certify that one original and fourteen copies of the foregoing Brief of Appellant, as well as ten copies of the two-volume Appendix, were sent to the Clerk's Office of the United States Court of Appeals for the Seventh Circuit this 11th day of February, 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 Brief of Appellant, as well as one hard copy of the two-volume Appendix, was sent this 11th day of February, 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 February 11, 2005 VIA FEDEX OVERNIGHT DELIVERY Clerk's Office United States Court of Appeals for the Seventh Circuit Room 2722 219 S. Dearborn Street Chicago, IL 60604 RE: U.S. Equal Employment Opportunity Commission v. Target Corporation Appeal No. 04-3559 Greetings, Please find enclosed for filing in the above-captioned appeal one original and fourteen copies of the brief of Plaintiff-Appellant the U.S. Equal Employment Opportunity Commission, as well as ten copies of the Commission's two-volume Appendix. My certificate of service on opposing counsel is included in the brief. If you have any questions regarding this matter, or if this filing is in any way deficient, please contact me at (202) 663-4870. Thank you for your assistance. Sincerely, James M. Tucker Office of General Counsel U.S. Equal Employment Opportunity Commission 1801 L St., NW, Room 7024 Washington, DC 20507 (202) 663-4870 James.Tucker@eeoc.gov cc (w/encl.): Donald M. Lewis, Esq.; Joseph G. Schmitt, Esq. ____________________________________ 1 While it would appear that the grant of summary judgment in favor of the Commission is appropriate as to this claim, the Commission acknowledges that we did not so argue to the district court, and therefore do not do so here. See Republic Tobacco Co. v. N. Atl. Trading Co., 381 F.3d 717, 728 (7th Cir. 2004) (“We have long refused to consider arguments that were not presented to the district court in response to summary judgment motions.”). 2 For example, Armiger testified that he could not identify the names Schmidt, Kollbaum, or Schimmer as German names; Falkowski, or Skorupinski as Polish names; O’Malley or McBride as Irish names; Rodriguez, Martinez, “Pablo,” or “Jose Lopez” as Mexican names; Takahashi as a Japanese name; or Minh Ly as an Asian name. Apx. 241-45. Armiger also testified that the name “Nigeria Riggins,” presented to him on a minority recruitment name list, did not indicate to him that the person might be African-American. Apx. 245. 3 In response to a question by Target’s counsel regarding whether White asked Buckley to “sound white” when she was to speak as “Brucker” with Armiger, White responded that she did not need to give such an instruction “because she was white.” Apx. 193. 4 Armiger affirmed in his pre-deposition affidavit that he had in fact reviewed White’s resume when she was trying to get an interview with him, but subsequently, in his deposition, he backed away from this statement. Apx. 256. While Armiger gave vague and conflicting accounts in his deposition as to whether he received White’s resume, he did, however, admit that he recalled seeing in her resume a reference to her pursuing an MBA degree. Id. Armiger acknowledged in his deposition that he received Brown-Easley’s resume prior to scheduling her for an interview, but stated he did not recall reviewing her resume. Apx. 261. Armiger acknowledged, however, that since her name appeared on his interview schedule, he had in fact reviewed her “qualifications.” Id. Edgeston’s name was also on his interview schedule, indicating that Armiger also received and reviewed her resume prior to scheduling her interview. 5 A copy of this decision is included at page 43 of the attached short appendix to this brief. 6 In a footnote, the court noted that in a different case, Metro. St. Louis Equal Hous. Opportunity Council v. Gordon Gundaker Real Estate Co. 130 F. Supp. 2d 1074, 1086 (E.D. Mo. Feb. 16, 2001), Dr. Purnell’s work had been held inadmissible under the Federal Rules of Evidence. Id. at 34 n.12. 7 This study was attached by Dr. Bertrand to her expert witness report. At the time Dr. Bertrand’s report was submitted to the district court, this study was in the form of a working paper but the results had been presented to multiple research institutions, including Harvard University, M.I.T., the University of Chicago, Princeton University, the University of Michigan, Columbia University, the Federal Reserve Bank of Boston, and the Federal Reserve Bank of Chicago. The Commission notes that in September, 2004 the paper was published in the American Economic Review, Vol. 94 No. 4(4), pp. 991-1013. See http://www.aeaweb.org/aer/contents/ (American Economic Review website). 8 Daniels scored in the 50th percentile—scoring better than 50 percent of the candidates in the “candidate norm group”—in the category of Problem Solving, Apx. 166, but Target made no mention and produced no evidence that his score in the Problem Solving category had any bearing on its decision not to hire Daniels. 9 The PDI test sheet reveals the following regarding the categories, or “dimensions,” examined in the PDI test: Conscientiousness—“[h]igh scores indicate candidates are well organized, manage their time effectively, complete work in a timely manner, and follow through on commitments”; Drive—“[h]igh scoring candidates are likely to be very productive, stay active and busy, strive to reach high standards of performance, and stick with a task or project until it is completed despite obstacles that arise”; Interpersonal Effectiveness—“[h]igh scoring candidates are likely to be friendly, helpful, courteous even when dealing with rude customers, and comfortable and poised in interactions with others”; Leadership—“[h]igh scores indicate individuals will likely take on a leadership role in a group, take charge and provide direction to others, and influence and persuade others to take action”; Problem Solving—“[h]igh scores indicate capable, bright individuals who are likely to effectively identify and address operations problems, coach direct reports who have performance problems, develop team member skills, and handle customer service issues”; Resilience—“‘[h]igh scores indicate individuals who are willing to adapt to change, readily adjust to changing demands and priorities, and remain positive even in the face of disappointments or setbacks.” Apx. 166. 10 The Commission takes no appeal from the district court’s “pattern or practice” finding.